I LOVE seeing good discovery objections lead to good discovery orders.

Most of the time, unfortunately, I am reporting on the opposite. But today I get to report on some GOOD WORK by a third party facing a deposition in a TCPA case. Anyone that litigates ANY kind of complex case should pay close attention to this one because I think the court got it EXACTLY right.

First, the subpoena made a cardinal sin in that it purported to require a 30(b)(6) deponent to be prepared to testify regarding calls made to the class. Precertification that is literally impossible since there is no class. But setting that aside, forcing a party (or here, a non-party) to identify members of a class and then prepare a witness to testify about all calls to hundreds, thousands, or millions of people is absurd. Human beings are not robots capable of memorizing and regurgitating gigabytes of information. And a demand that they do so is just plain sloppy dumbness.

The Court in Lang v. Colonial Penn, 2022 WL 4465719 (N.D.Ill. Sept. 26, 2022)agreed and held that “preparing a witness to testify regarding specific calls made by Bankers Life agents (other than those made to Lang herself) would be unduly burdensome at present.” To be sure, the Court did allow testimony regarding the general practices of the deponent in making outbound calls of the sort made to the Plaintiff–which is totally fair in a TCPA suit–but that is very different from a deponent needing to have knowledge of practices directed at specific individuals within a class.

Also awesome, the Court struck the following additional topics:

• “[t]he general nature and scope of Banker[s] Life Insurance Company business and/or services. This subject includes, but is not limited to, [Bankers Life’s] business activities, daily operations, portfolio of services offered, and business model.”

  • Here the Court reasoned this topic fails to satisfy the “reasonable particularity” standard of Rule 30(b)(6). It “encompasses a tremendous amount of information, most of which would be irrelevant to Lang’s claims.”

  • Furthermore, the use of the language, “includes, but is not limited to,” almost necessitates an overbreadth finding, as “stating that the inquiry may extend beyond the enumerated topics defeats the purpose of having any topics at all.” (This is an important one because Plaintiff’s lawyers love throwing that into the mix.)

• information regarding Bankers Life’s relationship with Colonial Penn, “including but not limited to” what services the companies provide one another, Colonial Penn’s access to Bankers Life’s computer systems, and payments Bankers Life makes to Colonial Penn.

  • Here the Court directs the Plaintiff to obtain the information from Colonial Penn before bothering Bankers Life with it: “Before seeking discovery from a non-party … a litigant must first attempt to obtain the discovery from another party in the lawsuit if it appears that the party would have the information that the litigant seeks.” It follows that when “[a] non-party subpoena seeking information that is readily available from a party through discovery may be quashed as duplicative or cumulative.”  regarding the third party’s relationship with one of the defendants)

•  information regarding “[a]ll correspondence and discussion with any third party other than your attorney regarding this litigation.”

  • The Court finds this category to be “problematic,” “completely untailored,” and likely to “pick up documents that do not bear on liability or damages issues” in TCPA case.

  • Furthermore, to the extent this topic covers relevant information that pertains to Lang’s claims or Colonial Penn’s defenses – i.e., correspondence and evidence of discussions between Bankers Life and Colonial Penn regarding this litigation – Lang must first attempt to retrieve this information from Colonial Penn, a party to this litigation to which these communications are “readily available.”

Keep this one in mind folks. These types of demands are reused over and over again by the Plaintiff’s bar. While some discovery is certainly permissible–including from third parties–don’t let these kinds of sloppy, overly broad and overly burdensome demands go by without challenge. Failing to challenge the topics BEFORE the deposition might set your witness up for disaster, damage their credibility, or result in a finding that your client failed to adequately prepare (even resulting in sanctions.) Always best to assure that the 30(b)(6) topics are streamlined and narrow enough–i.e. reasonably particularized–to permit a witness to be able to meaningfully prepare and give adequate testimony.

Nice work to the Banker’s Life team on this one!