Carter v. United States

164 F.R.D. 131, 1995 U.S. Dist. LEXIS 20532, 1995 WL 783046
CourtDistrict Court, D. Massachusetts
DecidedDecember 27, 1995
DocketCivil Action No. 94-40093 FHF
StatusPublished
Cited by2 cases

This text of 164 F.R.D. 131 (Carter v. United States) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carter v. United States, 164 F.R.D. 131, 1995 U.S. Dist. LEXIS 20532, 1995 WL 783046 (D. Mass. 1995).

Opinion

MEMORANDUM AND ORDER OF COURT ON PLAINTIFF’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS AT DEPOSITIONS (Docket No. 36)

NEIMAN, United States Magistrate Judge.

The matter before the Court concerns Plaintiff Andrew J. Carter’s Motion to Compel Production of Documents at Depositions. At issue is the interrelationship of Federal Rules of Civil Procedure 30(b)(5) and 34 and the Court’s scheduling order.

On September 20, 1995, Plaintiff served three deposition notices, one on the director of the Veterans Administration Medical Center in Northampton, Massachusetts, one on the director of the Veterans Administration Medical Center in Newington, Connecticut, and one on the United States Department of Veterans Affairs. Each notice indicated that Plaintiff would take the deposition of “an officer designated by the Director” and required the witness to bring authentic copies of specifically enumerated documents. [132]*132Defendant United States of America objected to the depositions on a variety of grounds including, as a common ground, that the request for the production of certain documents within each deposition notice was untimely. In addition, Defendant objected to the document requests on the grounds of relevancy, undue burden and the violation of Local Rule 26.1(C) limiting a party to two sets of requests for production. Defendant asserts that the Court’s original scheduling order, as extended, set a deadline for serving written discovery requests which deadline had long since passed by the time Plaintiff noted the depositions at issue.

For the reasons set forth below, the Court denies Plaintiffs motion to compel. The Court does not, however, foreclose Plaintiffs right to seek a Rule 30(b)(6) deposition, together with relevant, but limited, documents related to such deposition.

PROCEDURAL BACKGROUND

Plaintiff filed this medical malpractice action on or about June 29, 1994. The initial scheduling order established a February 28, 1995 deadline for serving written discovery requests. See Docket No. 11. That scheduling order also provided that non-expert depositions were to be completed by July 31, 1995. By subsequent assented-to motions, the discovery deadlines were extended by six weeks.

Plaintiff served his first request for production of documents on November 9, 1994.' Defendant initially responded to the request on January 9, 1995 and supplemented its response on January 23, 1995. On June 16, 1995, Plaintiff filed a motion to compel production of documents which addressed certain attorney-client and work-product privileges raised by the Defendant. In a Memorandum and Order of August 23, 1995, this Court denied Plaintiffs motion.

On June 29,1995, Plaintiff served interrogatories, a request for admissions and a second request for production of documents. Then, on September 20,1995, Plaintiff served notices of the depositions now at issue. Those notices appear to have been based on Rule 30(b)(6), although Plaintiff referenced no specific rule and, other than seeking certain documents, failed to specify the matters on which the examinations were requested.

DISCUSSION

Plaintiff asserts that, to the extent the Court’s scheduling order specifically permits the taking of non-expert depositions, the rules with respect to such depositions trump the time limit for written discovery established by that same scheduling order. Plaintiff argues that Fed.R.Civ.P. 30(b)(5), which provides for depositions upon oral examination, specifically allows a notice to a party deponent to “be accompanied by a request made in compliance with Rule 34 for the production of documents and tangible things at the taking of the deposition.” Rule 30(b)(5) goes on to provide that “[t]he procedure of Rule 34 shall apply to the request.” Plaintiff also relies on the 1970 advisory committee notes which indicate that Rule 30(b)(5) was inserted “to enable a party, through service of notice, to require another party to produce documents or things at the taking of his deposition.”

In counterpoint, Defendant asserts that the requests for production of documents, incorporated in the deposition notices, were untimely, coming as they did five months after the expiration of the extended deadline for serving written discovery requests. Thus, while the Court’s scheduling order allowed for the taking of depositions during the time scheduled by Plaintiff, the period for seeking documents from the Defendant had long since expired. Defendant argues, therefore, that Plaintiff is seeking to do indirectly what he cannot do directly, namely, obtain documents through depositions after the time for written discovery had expired. Relying on Contardo v. Merrill Lynch, Pierce, Fenner & Smith, 119 F.R.D. 622 (D.Mass.1988), Defendant argues that, while the rules allow for production of documents at depositions, that procedure should not provide a mechanism for circumventing court-imposed discovery deadlines.1

[133]*133In Contardo, Magistrate Judge Robert B. Collings recognized the relationship of Rule 30(b)(5) to Rule 34, which gives a party thirty days to serve a response to a request for the production of documents, including a document request incorporated into a deposition notice. Judge Collings held' that the plaintiff had failed to comply with the time limits of Rule 34 to the extent his deposition notice, directed at a non-party, was also directed at a party for purposes of document production. Id. at 624-25. Judge Collings, however, did not address the question before this Court, namely, whether that part of a deposition notice which seeks the production of documents from a party may be foreclosed, either directly or impliedly, by a court’s scheduling order in which the time for written discovery expired. As explained below, the answer to that question depends on the nature and volume of the documents or things sought by the deposition notice.

Although Plaintiff relies on the 1970 advisory committee notes to support his motion to compel, he fails to cite that part of the note to Rule 30(b)(5) which is specifically on point with regard to the question before the Court:

Whether production of documents or things should be obtained directly under Rule 34 or at the deposition under this rule will depend on the nature and volume of the documents or things. Both methods are made available. When the documents are few and simple, and closely related to the oral examination, ability to proceed via this rule will facilitate discovery. If the discovering party insists on examining many-and complex documents at the taking of the deposition, thereby causing undue burdens on others, the latter may, under Rules 26(c) or 30(d), apply for a court order that the examining party proceed via Rule 34 alone.

In essence, a document request under Rule 30(b)(5) is a complement to a Rule 30 deposition, not a substitute for a Rule 34 document request. This guideline is entirely in accord with the spirit, if not the letter, of this Court’s scheduling order.

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Related

Alper v. United States
190 F.R.D. 281 (D. Massachusetts, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
164 F.R.D. 131, 1995 U.S. Dist. LEXIS 20532, 1995 WL 783046, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-united-states-mad-1995.