State v. Living Essentials, LLC ( 2018 )

State v. Living Essentials, LLC, No. 443-7-14 Wncv (Teachout, J., Apr. 12, 2018).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
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STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Washington Unit Docket No. 443-7-14 Wncv
STATE OF VERMONT
Plaintiff
v.
LIVING ESSENTIALS, LLC, and
INNOVATION VENTURES, LLC
Defendants
DECISIONS ON PENDING MOTIONS
Defendants’ Motion to Compel re Rule 30(b)(6) Witness (MPR 70)
Defendants’ Motion for Expenses re Emord Deposition (MPR 71)
Defendants’ Motion to Produce Confidentiality Agreements with Experts (MPR 72)
The State’s Motion to File Under Seal (MPR 73)
The State’s Request for Oral Argument on MPR 70 (MPR 74)
Defendants’ Emergency Motion to Compel Production of Expert Materials (MPR 75)
Defendants’ Motion for Contempt re the Privilege Log (MPR 76)
The State’s Motion to File a Surreply (MPR 77)
Several motions are pending related to various discovery disputes. The court has
carefully reviewed the record and now rules as follows.
Defendants’ Motion to Compel re Rule 30(b)(6) Witness (MPR 70)
The State’s Motion to File Under Seal (MPR 73)
The State’s Request for Oral Argument on MPR 70 (MPR 74)
Earlier in this case, the court ruled, over the State’s objection, that Defendants were
entitled to depose a witness for the State under Rule 30(b)(6). The State’s principal objection
has been and is that deposing a Rule 30(b)(6) witness in this case would be tantamount to
deposing counsel for the State. In response to the court’s ruling, the parties narrowed the subject
matters somewhat and the State designated one of its investigators as its Rule 30(b)(6) deponent.
The parties suspended the deposition part way through. The transcript shows the attorneys at
odds over the lines between appropriate inquiries and inappropriate inquiries about work product
and attorney–client privileged information. Also problematic was the deponent’s inability to
provide detailed responses for lack of more specific knowledge or memory.
Defendants filed a motion to compel by which they seek the court to order the State to
produce a properly prepared Rule 30(b)(6) witness who will testify in detail and without the
State’s arguably improper claims of work product and attorney–client privilege.
In the State’s view, the types of inquiries that Defendants’ are attempting to undertake by
Rule 30(b)(6) deposition are far more appropriately directed to the State’s expert witnesses at
their depositions and otherwise should be probed with Rule 33(b) contention interrogatories.1
As Wright & Miller notes:
Questioning of a corporate representative pursuant to Rule 30(b)(6) about
the facts underlying allegations in pleadings may present a particular problem
verging on taking the deposition of counsel. Often the grounds for such
allegations are best (or only) known to counsel, and in that sense could be
regarded as work product. But permitting a party to invoke work product as a
blanket obstacle to a 30(b)(6) deposition seems to undermine the important utility
of that device. The deposition setting may raise peculiar risks of invading
protected areas, however. Thus, although a party seeking to use Rule 30(b)(6)
need not first exhaust other means of obtaining the desired information, courts
have sometimes directed that such inquiry proceed by contention interrogatories
or by deposition upon written questions.
8A Wright & Miller, et al., Federal Practice & Procedure: Civil 3d § 2103.
The court declines to rule on the motion to compel at this time. The depositions of the
State’s experts are under way. They should shed considerable light on the subject matters
Defendants attempted to explore in the Rule 30(b)(6) deposition. At a minimum, if a Rule
30(b)(6) deposition remains necessary after the depositions of the State’s experts, Defendants
presumably will be able to articulate the subject matters of the reconvened 30(b)(6) deposition
more narrowly and reasonable efforts at avoiding unnecessary duplication will further confine
the scope of such a deposition.
Review of the memos and attachments related to the motion to compel suggests that in
order to make the process more efficient, it may be helpful to the attorneys for the court to make
a few observations. On the one hand, Defendants’ attorneys are cautioned to be realistic and
specific about the questions directed to a Rule 30(b)(6) witness for the State, given the reality
that much of the State’s case depends on expert opinion testimony. On the other hand, the
State’s attorneys are cautioned against overreliance on work product and privileges.2 While
there may be overlap between expert opinions and trial strategy as attorneys learn things from
experts they plan to call as witnesses or consult, the fact that an attorney shapes a case based on
what is learned from an expert cannot be the basis for the State as a plaintiff to refuse to provide
answers to legitimate discovery questions about the basis for a claim. The whole purpose of
discovery is to enable a defendant to learn the basis of the claim that will be presented at trial,
and overly broad assertions of the work product doctrine will not be allowed to override that
function. The attorneys are reminded of the terms of V.R.C.P. 37(b)(2), including the possibility
that claims or evidence may not be able to be used at trial under certain circumstances.
1
Defendants do not expressly argue against contention interrogatories as unnecessary or unhelpful. They assert
instead that they tried them in the past and the State resisted. It appears to be more receptive now.
2
The court is unaware of any privilege based on “province of experts.”
2
Defendants may file an updated motion to compel once the depositions of the State’s
experts are complete, if warranted. If they do so, the State may file a new motion for oral
argument. In the meantime, the motion to compel and the motion for oral argument are denied.
The State’s motion to file deposition testimony designated confidential under seal is
unopposed and granted.
Defendants’ Motion for Expenses re Attorney Emord Deposition (MPR 71)
The State’s Motion to File a Surreply re MPR 71 (MPR 77)
Defendants ask the court to award their attorney fees and other expenses related to the
canceled deposition of Attorney Emord pursuant to Rule 30(g). The parties traveled to
Washington, D.C. for his deposition and Attorney Emord appeared. The deposition did not
happen, however, because no court reporter appeared. Attorney Hobson intended to record the
deposition himself but had promised Defendants that he would arrange for a court reporter for
their benefit because they did not want to rely on his recording. However, there was some sort of
administrative mistake and no one at the Attorney General’s office arranged for a court reporter.
A stenographer was not immediately available otherwise. The parties parted ways and agreed to
reconvene to depose Attorney Emord when they were next in Washington, D.C., which they
did.3
As Defendants acknowledge, Rule 30(g) does not strictly apply in these circumstances.
See V.R.C.P. 30(g) (providing relief whether the person conducting the deposition fails to appear
or failed to subpoena a witness who failed to appear). It is not fully clear what was said once the
problem of not having a stenographer became apparent.4 There is no evidence, however, that the
State intentionally failed to arrange for a stenographer, and there is no evidence that the parties,
including Defendants, reasonably attempted to find ways to solve the problem other than
deciding to put the deposition off for a future trip to Washington. Defendants did not assert any
claim for expenses and fees until it was determined that the parties would reconvene the
deposition on their next Washington trip. Under the circumstances, given that the parties were
equally responsible for not raising with each other and attempting to resolve all the consequences
of the unfortunate scheduling error, the parties should bear their own losses. This motion is
denied.
Defendants’ Motion to Produce Confidentiality Agreements with Experts (MPR 72)
Defendants filed a motion asking the court to compel the State to produce the
confidentiality agreements executed by the State’s consulting experts. Shortly after Defendants
filed this motion, the State produced acknowledgments showing compliance with the protective
order in relation to disclosed experts. Defendants have acknowledged that this moots their
3
Defendants insist that they did not agree to anything but unilaterally refused to go forward once it became apparent
that a court reporter was not immediately available.
4
The State’s motion to file a surreply is granted. It merely adds additional factual contentions responsive to those
made by Defendants in their reply. The content does not have a material impact on the court’s ruling.
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motion but for one issue. They request acknowledgments for undisclosed experts or consultants
whose identities may remain confidential. They proposed that the State may do this in a manner
that preserves the confidentiality of those consultants’ identities. The State has neither complied
with Defendants’ request nor substantively explained why it should not. Defendants’ request is
reasonable. This motion is granted as to undisclosed experts and consultants.
Defendants’ Emergency Motion to Compel Production of Expert Materials (MPR 75)
Once the State disclosed its experts, Defendants scheduled depositions with little lead
time. It then found that the State was not producing discoverable materials regarding those
experts quickly enough so that it could study those materials adequately prior to the depositions.
In this motion it asks the court to impose prospective deadlines on the State’s production prior to
any future expert depositions. The depositions that have already occurred could have been
rescheduled so any preliminary discovery issues could have been addressed properly before the
depositions were conducted. The court declines to impose rigid restraints on the State
prospectively when any future discovery issues or disputes are unknown to the court and may not
materialize in any event. The attorneys are expected to work cooperatively on scheduling and
other planning matters to ensure that relevant discovery is made available at a reasonable time
prior to depositions. This motion is denied.
Defendants’ Motion for Contempt re the Privilege Log (MPR 76)
On July 14, 2017, the court ordered the State to produce a detailed privilege log regarding
withheld communications with out of state attorneys general offices. In this motion, Defendants
claim that the State should be held in contempt for taking too long to comply and for producing
additional documents in useless formats that were wrongly withheld all along. The court is
satisfied that the State has made reasonable progress with the privilege log, which evidently is an
extraordinarily burdensome undertaking. It now has enlisted a third party contractor to more
quickly produce the second half of the log, which should be done soon. As for the documents
produced in the course of the log production, the record does not show that the State was
wrongly withholding documents that it knew were discoverable or was intentionally attempting
to produce them in a useless format. This motion is denied.
Other: Pretrial Schedule
The Pretrial Scheduling Order of July 7, 2017, amended by the Order of October 16,
2017 approving a four-month extension in the deadlines, needs to be updated and this appears to
be a good time for the attorneys to do so. In addition, the court needs to know the projected trial
readiness date in order to plan for a lengthy trial. Thus, by May 1, 2018, the attorneys shall
submit an updated proposed pretrial scheduling order for the remaining phases of the case, and
shall provide the clerk with information pertinent to the scheduling of the trial.
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Summary
Defendants’ Motion to Compel re Rule 30(b)(6) Witness (MPR 70) is denied.
Defendants’ Motion for Expenses re Emord Deposition (MPR 71) is denied.
Defendants’ Motion to Produce Confidentiality Agreements with Experts (MPR 72) is granted.
The State’s Motion to File Under Seal (MPR 73) is granted.
The State’s Request for Oral Argument on MPR 70 (MPR 74) is denied.
Defendants’ Emergency Motion to Compel Production of Expert Materials (MPR 75) is denied.
Defendants’ Motion for Contempt re the Privilege Log (MPR 76) is denied.
The State’s Motion to File a Surreply (MPR 77) is granted.
The attorneys shall submit an updated proposed pretrial scheduling order by May 1, 2018.
Dated at Montpelier, Vermont this ____ day of April 2018.
_____________________________
Mary Miles Teachout
Superior Judge
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