Thai Le v. Diligence, Inc.

312 F.R.D. 245, 93 Fed. R. Serv. 3d 676, 2016 A.M.C. 602, 2015 WL 8483253, 2015 U.S. Dist. LEXIS 165084
CourtDistrict Court, D. Massachusetts
DecidedDecember 9, 2015
DocketCivil Action No. 13-12247-FDS
StatusPublished
Cited by4 cases

This text of 312 F.R.D. 245 (Thai Le v. Diligence, Inc.) 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
Thai Le v. Diligence, Inc., 312 F.R.D. 245, 93 Fed. R. Serv. 3d 676, 2016 A.M.C. 602, 2015 WL 8483253, 2015 U.S. Dist. LEXIS 165084 (D. Mass. 2015).

Opinion

ORDER ON PLAINTIFF’S MOTION TO COMPEL A SECOND 30(B)(6) DEPOSITION AND TO COMPEL THE PRODUCTION OF PHOTOGRAPHS (#48)

KELLEY, United States Magistrate Judge

This case concerns injuries suffered by Plaintiff Thai Le on March 19, 2013 while he was employed by Defendant Nice Glide, Inc., as a crew member aboard the F/V DILIGENCE, a scallop vessel owned and operated by Defendant Diligence, Inc. Plaintiff has filed a Motion to Compel a second deposition of Captain Scott Larsen (“Captain Larsen”) and the production of fourteen photographs of the F/V DILIGENCE taken on March 21, 2013. (# 48.)

On July 8, 2014, Plaintiff propounded interrogatories and document requests on both Defendants requesting, among other things, maintenance records of the F/V DILIGENCE. (# 49, exh. A, B, D, E.) On August 29, 2014, Defendants responded jointly with 65 pages of documents. On March 25, 2015, Plaintiff took the deposition of Captain Larsen, as the 30(b)(6) designee of both Defendants. Plaintiff subsequently learned more information about the condition of the “wind station”1 aboard the vessel at the time of the incident. (# 49 at 5-6.) On September 1, 2015, after prompting by Plaintiff to supplement discovery, Defendants produced an additional 1,089 responsive documents relating to maintenance of the vessel during the relevant time period. (# 49 at 6, exh. H.) These records indicated that the wind station may have been removed from the F/V DILI[246]*246GENCE in 2012, and replaced in 2014 after Plaintiffs injury. Based on that newly-revealed discovery and facts gleaned from other depositions, Plaintiff now seeks to conduct a second 30(b)(6) deposition of Captain Larsen.

Plaintiff also seeks fourteen photographs of the F/V DILIGENCE taken by Defendants on March 21, 2013, two days after Plaintiffs injuries. (# 48 at 10-11, # 51 at 9.) These photographs show the condition of the vessel at the time of the incident, before later stractural changes were made. (# 48 at 11.) Defendants object to both requests, on grounds that a second deposition would be “unreasonably cumulative and duplicative,” and that the photographs fall into the work-product exception to the discovery rules. (# 51 at 3, 7-8.) After careful consideration of the applicable law and the parties’ filings, the Court makes the following findings.

I. Deposition

A party who wishes to depose a person more than once must seek and obtain prior leave of court, absent the parties’ written stipulation. Fed. R. Civ. P. 30(a)(2)(A). Although the decision is discretionary, courts have generally allowed re-opening a deposition where, as here, new information is unearthed only after the initial deposition. See, e.g., Quality Aero Tech., Inc. v. Telemetrie Elektronik GmbH, 212 F.R.D. 313, 319 (E.D.N.C.2002) (allowing second 30(b)(6) deposition, finding that “newly-discovered information [is]... sufficient for a finding of good cause under Rule 30”), Dixon v. Cer-tainteed Corp., 164 F.R.D. 685, 692 (D.Kan.1996) (second deposition warranted where plaintiff was unaware of, and thus could not inquire about, statements in the first deposition), and Keck v. Union Bank of Switzerland, No. 94-4912, 1997 WL 411931, at *1 (S.D.N.Y. July 22, 1997) (“a second deposition is often permitted, where new information comes to light triggering questions that the discovering party would not have thought to ask at the first deposition”). Here, Defendants failed to disclose the maintenance invoices concerning the wind station until one year after their initial discovery response, when pressed by Plaintiff to supplement. Defendants have provided no reason for the delayed disclosures, and it is only fair that Plaintiff should not be penalized for their lack of promptness.

Defendants have argued that a second deposition would be cumulative and duplicative because Plaintiffs counsel questioned Captain Larsen about the wind station during the first deposition. The transcripts provided show the following line of questioning:

Q: Do you have one of those wind gauges?
A: I do.
Q: Do you ever use it?
A: I do, yeah.
Q: Do you remember whether — was that typically how you figured out what the wind outside, or would you more do it by feel?
A: Well, yeah, I look at that, but it’s not in a position where I see it all the time, and I don’t even know how accurate it is, bub — well, I do have a wind gauge on the boat though. I’m sure I looked at it, you know, but that might have been where I came up with the 25 [knots estimate], you know.
Q: Typically would you come up — like typically would you look at the wind gauge or—
A: Yeah.
Q: Do you think you probably did look at the wind gauge?
A: I think I did.

(# 51, exh. 3 at 117.) This is the entire extent of the wind station discussion. At the time of this deposition, Plaintiffs counsel did not have access to the maintenance invoices provided in Defendants’ supplemental discovery response. He was unaware “a) that the weather sensor malfunctioned and was removed in 2012, b) that a new upgraded weather sensor was installed after the accident in 2014 or c) that within a month after the accident a technician may have performed work on the electronic connection between the weather sensor and the display in the wheelhouse,” and therefore could not question Captain Larsen about these topics. (# 49, exh. I.) Because none of these topics were covered previously, allowing a second deposition to probe Captain Larsen’s knowl[247]*247edge of the wind station would not be cumulative or duplicative.

Defendants have also asked the Court to limit the deposition in “time, location, and scope of inquiry.” (# 51 at 6.) Plaintiff has already offered to accommodate Captain Larsen by allowing him to choose the location of the deposition in New Bedford or Florida, and limiting the deposition topic to “the weather sensor device on the F/V DILIGENCE.” (#49, exh. 0.) Although Fed. R. Civ. P. 31(d) generally limits depositions to 7 hours, it also provides that “[t]he court must allow additional time... if needed to fairly examine the deponent...” Because the second deposition is necessitated by the newly-revealed documents and information, the Court finds that more time is warranted.

II. Photographs

Defendants assert that the photographs were taken in anticipation of litigation, and are therefore exempt from discovery as work product. This is a federal question case, so the federal common law of privilege applies. Fed. R. Evid. 501, and see In Re Keeper of Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16, 22 (1st Cir.2003). Defendants, who are invoking the privilege, bear the burden of establishing that the privilege applies. State of Maine v. United States Dept of the Interior,

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312 F.R.D. 245, 93 Fed. R. Serv. 3d 676, 2016 A.M.C. 602, 2015 WL 8483253, 2015 U.S. Dist. LEXIS 165084, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thai-le-v-diligence-inc-mad-2015.