In U.S. v. Novo Nordisk, Inc., No. CV23-5459 BHS (W.D. Wash. Oct. 17, 2024), Washington District Judge Benjamin H. Settle rejected Washington state’s objections to defendant’s 30(b)(6) deposition topics, stating: “The State’s newly-minted objections to the deposition topics come far too late, and are not persuasive.” He also denied without prejudice Washington’s motion to compel Defendant to “de-designate” documents it claimed were improperly designated as “confidential”.

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Case Discussion and Judge’s Ruling

In this case alleging violations of the False Claims Act and various state laws, the Court was addressing several disputes between Defendant and Washington state, including defendant’s Rule 30(b)(6) deposition notice, and Washington’s motion to compel Defendant to “de-designate” documents marked confidential.

Defendant first served its Rule 30(b)(6) deposition notice on July 3. After several subsequent meet and confers, Defendant sent a letter on September 13 summarizing what it contends was the resulting agreement. Washington responded by email four days later, informing NNI that there may be a need for “additional discussion about narrowing the scope of the 30(b)(6) topics.

As Judge Settle stated: “Washington argues that NNI’s 51-topic Rule 30(b)(6) deposition notice is overbroad and unduly burdensome, and denies that it ever agreed to prepare and produce witnesses to testify on those topics…It suggests that it has not begun preparing witnesses, and that parties are continuing to refine the Rule 30(b)(6) topics…It moves for a protective order narrowing the topics and setting specific time limits…Washington does not propose the terms of such an order, describe specifically which topics are overbroad, or propose the ‘time limits’ it asks the Court to impose. Its cross-motion for a protective order is therefore DENIED.”

Continuing, he said: “[Washington’s] response, and its proposed revisions to NNI’s Rule 30(b)(6) notice, did not raise the issues it now claims remain outstanding. Instead, the issues addressed by Washington’s “proposed draft” revisions to NNI’s notice were minor… Washington now claims that the entire notice is overbroad and unduly burdensome, citing as examples Topics 2, 7, 8, 9, 11, 35, 37, and 38… Washington argues that since NNI will not have deposition time to ask its Rule 30(b)(6) deponents questions about all 51 topics, it would be a waste of time for Washington to prepare its witnesses to testify about them.”

Granting Defendant’s motion to compel, Judge Settle stated: “The Court need not resolve the factual skirmish over whether Washington agreed to the topics in NNI’s Rule 30(b)(6) notice to resolve the motion. The State’s newly-minted objections to the deposition topics come far too late, and are not persuasive. Topic 35, for example, goes to the heart of NNI’s defense to Washington’s $100 million plus claim against it. It is not unduly burdensome to force a plaintiff to permit discovery into issues that are a core part of her case.”

Regarding confidentiality designations, Washington asked the Court to compel Defendant to “de-designate” older documents it claims NNI improperly designated as “confidential” under the parties’ Amended Protective Order. As Judge Settle stated: “Washington argues, and its 1900-page filing seems to support, that NNI made ‘blanket’ confidentiality designations, adversely impacting Washington’s ability to file evidence in open court.” He also noted in a footnote: “The Court has not read the entire submittal.”

Defendant asserted that the Local Rules, the agreed-upon ESI protocol, and the parties’ protective order outlined procedures for challenging such designations, and Washington had not followed them, so the challenges should be waived.

Continuing, Judge Settle said: “NNI’s assertion that Washington itself seeks ‘blanket’ de-designation is accurate. The Court will not go through the designations one by one, just as Washington’s filing does not go through them one by one. It does broadly agree with Washington that blanket confidentiality designations are improper…Whether these documents should remain confidential when they are submitted in support of or in opposition to a motion, or at trial, will need to be addressed when they are so offered. Short of that, the Court cannot adjudicate the propriety of any particular document’s confidentiality designation under the Rules or under the protective order.”

Ruling on the dispute, Judge Settle stated: “It is not productive to litigate confidentiality designations in the closing days of discovery when substantive discovery remains to be completed. Washington’s motion to compel NNI to de-designate confidential documents is DENIED without prejudice to raise again in connection with a specific document related to a proposed filing, or at trial.”

So, what do you think? Was Washington doomed by its “newly-minted objections to the 30(b)(6) deposition topics? Please share any comments you might have or if you’d like to know more about a particular topic.

Hat tip to Michael Berman for the original coverage of this case!

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.