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Ball Corp. v. Air Tech of Michigan, Inc.

United States District Court, N.D. Indiana, LaFayette Division

January 24, 2019

BALL CORPORATION, an Indiana Corporation and FACTORY MUTUAL INSURANCE COMPANY, a Rhode Island Corporation, as subrogee, Plaintiffs,
v.
AIR TECH OF MICHIGAN, INC., a Michigan corporation, Defendant.

          OPINION AND ORDER

          Andrew P. Rodovich United States Magistrate Judge

         This matter is before the court on the Motion for Protective Order [DE 73] filed by the plaintiff, Factory Mutual Insurance Company, on August 22, 2018, and the Motion for Protective Order [DE 74] filed by the plaintiff, Ball Corporation, on August 22, 2018. For the following reasons, the Motion for Protective Order [DE 73] is GRANTED in part and DENIED in part, and the Motion for Protective Order [DE 74] is GRANTED in part and DENIED in part.

         Background

         This matter arose from a fire that occurred at a can manufacturing plant owned by the plaintiff, Ball Corporation, and that was insured by the plaintiff, Factory Mutual Insurance Company. The defendant, Air Tech of Michigan, Inc., was hired by Ball as an independent contractor to clean Internal Bake Oven No. 2. The plaintiffs have alleged that on May 22, 2014, approximately eight hours after Air Tech cleaned IBO No. 2, a fire ignited in IBO No. 2 and the attached ductwork. The plaintiffs have claimed that Air Tech breached its contract and that it was negligent by failing to properly clean IBO No. 2.

         Air Tech served deposition notices on FMIC and Ball pursuant to Federal Rule of Civil Procedure 30(b)(6). The deposition notice to FMIC contains 18 separate topics on which a corporate representative is expected to testify. FMIC has argued that the notice fails to comply with Rule 30(b)(6) because the topics do not describe the subject matter with “reasonable particularity.” Additionally, FMIC has argued that the notice violates Federal Rule of Civil Procedure 26(c)(1) because the designated topics apply to all of Ball's facilities world-wide and the time frame for which information is sought is unreasonable. FMIC has requested the entry of a Protective Order: (1) to limit the time period to a reasonable period before the fire; (2) to limit the geographic scope to only the Monticello plant; (3) and to require Air Tech to more precisely define the subject matter on which the witness is expected to testify.

         The notice to Ball contains 47 separate topics on which a corporate representative is expected to testify. Ball has argued that the Rule 30(b)(6) notice does not set forth the subject matter that the witness is expected to testify with “reasonable particularity, ” as well as violating Rule 26(c)(1). Ball contends that the notice is not limited in time and geographic scope, seeks information that other witnesses had testified to in prior depositions, and seeks information that can be provided by other less burdensome and costly discovery devices. Therefore, Ball has requested the entry of a Protective Order: (1) to limit the time period to a reasonable period before the fire; (2) to limit the geographic scope to only the Monticello plant; (3) to exclude subject matters that other witnesses have testified to in earlier depositions or have been provided in response to written discovery; and (4) to require Air Tech to more precisely define the subject matter on which the witness is expected to testify.

         Air Tech filed a separate response in opposition to the motions on August 22, 2018. FMIC and Ball filed their replies on September 18, 2018. The parties have tried to resolve these disputes pursuant to Local Rule 37-1. Despite being able to resolve some of the objections to the deposition notices, the parties were unable to agree on all the objections preventing any further modifications to the notices.

         Discussion

         Federal Rule of Civil Procedure 30(b)(6), which addresses depositions directed to an organization, provides that the deposition notice must “describe with reasonable particularity the matters for examination, ” after which the organization “must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.” The organization then is responsible for preparing the designated individual for the deposition as that person “must testify about information known or reasonably available to the organization.” Rule 30(b)(6). Rule 30(b)(6) depositions are limited by the scope of discovery in Federal Rule of Civil Procedure 26(b)(1), which allows discovery on any “nonprivileged matter that is relevant to any party's claim or defense proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”

         Under Rule 26(b)(1), all discovery, including Rule 30(b)(6) depositions, is subject to the limitations on discovery imposed by Federal Rule of Civil Procedure 26(b)(2)(C), which provides, in relevant part:

On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).

         Rule 30(b)(6) deposition notices also may be subject to a protective order at the request of the party from whom discovery is sought if the court determines that the standard set ...


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