In Adamson v Pierce County et al., the U.S. District Court for the Western District of Washington ruled on defendants’ motion for protective order (Motion), where defendants requested the court limit the scope of various 30(b)(6) deposition topics, addressed the appropriateness of “discovery on discovery” as a deposition topic, and reminded attorneys that the discovery process is expected to be a cooperative one, and meet-and-confer obligations are not to be taken lightly.

BACKGROUND

This case arises out of an investigation by the Pierce County Prosecutor’s Office in 2020 and shutdowns of the Pierce County Sheriff’s Department’s Special Investigation Unit (SIU) – a unit dedicated to investigating narcotics and enforcing anti-vice laws in Pierce County, Washington. Plaintiffs, nine Pierce County Sheriff’s Department deputies, were assigned to the SIU and subsequently included on the Pierce County Prosecuting Attorney’s Office Brady/Potential Impeachment Evidence list (List). Defendants are the former sheriff, undersheriff, and acting sheriff, and Pierce County. In the complaint, plaintiffs assert several claims based on defendants’ involvement with their placement on the List, including § 1983 violations, and state claims of defamation, negligent infliction of emotional distress, and breach of contract.[1] Defendants’ motion to dismiss successfully dismissed claims related directly to the List, and several defendants were dismissed on immunity grounds.

The parties engaged in discovery, which was contentious from the start and replete with motion practice. As is relevant here, plaintiffs served notice of a Fed. R. Civ. P. 30(b)(6) deposition on defendant Pierce County, to take place two weeks later. The notice contained a list of requested 30(b)(6) topics in “Exhibit B.” Defendants objected and indicated the municipal defendants would not produce a corporate deponent on the date demanded. The parties eventually conferred briefly and plaintiffs submitted a revised 30(b)(6) notice, to which defendants objected. No further meet and confer occurred. Rather, defendants filed the Motion, arguing the revised 30(b)(6) notice “remains overly broad and excessive” making “it difficult or impractical to identify a witness and prepare the witness for deposition.”

DISCUSSION

In evaluating the merits of the defendant’s Motion, which objected to all but one of plaintiff’s topics, the court noted it had significant discretion in determining relevancy and controlling discovery and that the court can protect parties “from annoyance, embarrassment, oppression, or undue burden or expense” by limiting discovery, but only when a movant meets “a heavy burden of showing why discovery should be denied.”

Meet & Confer Requirements

Relevant to the court were two separate rules requiring parties to meet and confer regarding discovery issues. First, defendants argued plaintiffs failed to comply with Rule 30(b)(6), which requires that “before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination.” Plaintiffs countered that any delay was caused by defendants’ failure to object to the original 30(b)(6) notice until nearly two weeks after plaintiffs issued it. In response, the court noted, “The facts … cut against both parties. Plaintiffs did not send defendants their proposed … topics before issuing the original notice …. For two weeks, and despite a history of contentious discovery disputes in this case, Plaintiffs assumed that Defendants did not object to the topics and would produce a witness on the noticed date ….” (“Plaintiffs’ counsel presumed there were no objections based on the absence of any objections.”). On the other hand, defendants did not provide any objections or attempt to schedule any conference until two days before the noticed deposition date and argue that plaintiffs “took no action to confer.” The court held that “[t]he parties share a burden to meet and confer …. Failure of one party to respond does not absolve the other of its duty…”

The court reminded counsel for both parties of the following: “That just as the court should construe and administer these rules to secure the just, speedy, and inexpensive determination of every action, so the parties share the responsibility to employ the rules in the same way [. . .] [e]ffective advocacy is consistent with — and indeed depends upon — cooperative and proportional use of procedure.”[2]

Discovery on Discovery

Defendants maintained objections to all but one of the 25 topics in the revised 30(b)(6) notice. In deciding the Motion, the court noted that under Fed. R. Civ. P. 30(b)(6), “A party may serve notice on an organization that describes ‘with reasonable particularity the matters on which examination is requested.’” The designated person must testify “‘to the matters known or reasonably available to the organization.’” Once the witness satisfies the minimum standard for serving as a designated witness, the scope of the deposition is determined solely by relevance under Rule 26. The court went on, however, to state that even if relevant, a Rule 30(b)(6) notice may only ask about topics that are proportional to the needs of the case and describe the topics with a reasonable degree of particularity, noting, for purposes of proportionality, that courts consider six factors, including the importance of the issues at stake in the action, the parties’ relative access to relevant information, the parties’ resources, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(1). The court then discussed each of the various topics to which defendants objected, finding many disproportional to the case and holding generally that “‘discovery on discovery’ is disfavored and, to be both relevant and proportional to the needs of the case, a party seeking it ‘must show a specific deficiency in the other party’s production.’”Using that as a guidepost, the court granted the Motion, in part.

Takeaways

Discovery is expected to be a cooperative process and can be limited in the court’s discretion. Indeed, finger pointing may not be tolerated, and one party’s failure to engage in good faith does not absolve the other party from that same obligation. Similarly, discovery on discovery is generally not permitted absent a specific demonstration of a deficiency with another party’s production, and discovery must be proportional to the needs of the case and relevant to the litigation.

[1] More specifically, plaintiffs allege:

In an official capacity, Pierce County’s officials fabricated allegations [against plaintiffs] then recorded them in documents to publish as so called ‘Brady’ material. [Defendants] instigated multiple unfounded investigations, targeted plaintiffs with heightened scrutiny, and published disparaging unwarranted criticisms during the sheriff’s election cycle to influence the election, and to deter plaintiffs and others similarly situated from exercising with protected rights.

[2] The second relevant rule was Rule 26(c)(1), which provides, in part, that a motion for protective order “must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action.” Here, the court found defendants’ counsel submitted a declaration in support of the Motion, which satisfied the requirement of Rule 26(c)(1).