In Wilbur-Ellis Co. LLC v. Gompert, No. 8:21CV340 (D. Neb. Dec. 20, 2023), Nebraska Magistrate Judge Cheryl R. Zwart denied the request for four full-day 30(b)(6) depositions from the four defendants, ordering them to coordinate on a deposition for which the “collective time shall not exceed 12 hours”.

Case Background

This case involved allegations that the four defendants who were employees of the plaintiff began work for a competing company while continuing to work for the plaintiff, and unlawfully used trade secrets and other confidential and proprietary information.

Defendants served four 30(b)(6) deposition notices, all identical except for the name of the Defendant. Defendants request a full-day deposition as to each Defendant. Plaintiff served objections to the topics presented and stated it would produce a corporate representative to speak to the designated topics at a single, one-day deposition. Defendants asserted that Plaintiff’s proposal is “not workable” and that they are entitled to four, separate depositions on all topics listed, subject to amendments made by Defendants’ counsel.

Plaintiff asserted Defendants should not be allowed to “repeatedly depose Wilbur-Ellis’s corporate representatives on the exact same topics for up to 28-hours of testimony.” Plaintiff also asserted it has attempted to resolve this dispute with Defendants, who had refused to explore consolidation of topics or any limitations on the scope and duration of the 30(b)(6) deposition. Plaintiff argued there was good cause for the court to exercise its discretion to grant its requested relief. Defendants submitted the request for four full-day 30(b)(6) depositions asserting they needed a separate 30(b)(6) deposition to address the facts and claims alleged against each. Claims one through four of the Amended Complaint alleged a breach of loyalty claim against each defendant, separately. Claims five through seven alleged claims against all four Defendants.

Plaintiff agreed to produce a representative to testify on five topics, and while objecting that nine other topics were duplicative, agreed to produce a representative to testify on them too. Plaintiff objected to testifying on five topics as not reasonably particular and eleven topics as duplicative.

Judge’s Ruling

Regarding the five topics with the objection of not reasonably particular, Judge Zwart stated: “Rule 30(b)(6) clearly states that the party requesting the deposition must describe with “reasonable particularity” the topics to be discussed. Topics must be stated with enough specificity to allow the corporation to designate and prepare a representative to testify… Topics 1, 17, 28, 29, and 30 seek testimony about ‘all factual allegations,’ documents, Plaintiff’s responses to all written discovery, and all of Plaintiff’s briefing in support of or in response to motions filed in this case. These topics are overbroad and not reasonably particular. Plaintiff’s motion for protective order as to these topics will be granted.”

Regarding the eleven topics with the objection that they were duplicative, Judge Zwart permitted Defendants to inquire as to whether there were employees other than those identified in Requests for Admission 25-29 who were authorized to speak to customers, vendors, or other employees regarding Defendants or the filing of this lawsuit per three of the proposed topics. As for the two of the other topics, Judge Zwart ruled on two of them: “To the extent that Plaintiff has produced responses to the requests for production or request for admission responsive to Defendants’ discovery requests, the corresponding deposition requests are duplicative and inappropriate for a 30(b)(6) deposition. If as Defendants assert, Plaintiff has not produced this information, Defendant is entitled to depose a corporate representative as to these topics.”

For the remaining six topics, Judge Zwart ruled: “To the extent that Defendants attempt to depose both Plaintiff’s experts and the 30(b)(6) representative on the same topics, these efforts are duplicative and not proportional to the needs of this case.”

Regarding the request for four full-day 30(b)(6) depositions, Judge Zwart stated: “Each set of deposition topics is identical with the exception of the Defendant’s name – i.e. each set covers the same content, but pertains to facts and allegations as to each defendant, individually… Defendants argue they should not be deprived of the discovery available to them had Plaintiff filed this lawsuit against each Defendant, separately…However, this argument is contrary to Rule 1. Where, as here, Defendants each seek the same/overlapping information and will be participating and represented by the same counsel, a separate 7-hour deposition is not necessary or justified for each defendant.”

Denying the request for four full-day 30(b)(6) depositions, Judge Zwart stated: “Further, as discussed in further detail, above, the 30(b)(6) topics will be limited to those that are relevant, reasonably particular, and not duplicative and cumulative. With these limitations, the court finds that a 12-hour deposition of Wilbur-Ellis’ corporate representative is enough time. If, as Defendants maintain, the deposition topics cannot be combined because there are separate factual allegations and claims as to each defendant, they may each have three hours of dedicated time. Or, the defendants may choose to combine certain background information or topics and separate others, identifying which questions are posed as to each defendant. The time may be divided however Defendants choose, but the collective time shall not exceed 12 hours.”

So, what do you think? Should separate defendants be able to each obtain a full-day 30(b)(6) deposition from the plaintiff? Please share any comments you might have or if you’d like to know more about a particular topic.

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