Federal district courts have begun to apply the relevance and proportionality constraints highlighted by newly-amended Federal Rule of Civil Procedure 26(b)(1) to curb over-reaching corporate representative deposition requests. Litigants seeking depositions under Rule 30(b)(6) often serve notices containing dozens of topics, some of them only vaguely connected to the lawsuit’s claims and defenses. Corporations receiving such deposition notices, prior to adoption of the 2015 amendments to Rule 26, faced the daunting challenge of convincing courts that the proposed deposition would be “unduly burdensome” or did not appear “reasonably calculated to lead to the discovery of admissible evidence.” Recent rulings that recognize the narrower scope of discovery now allowed have sustained objections to Rule 30(b)(6) depositions on issues not relevant to the claims asserted or not proportional to the needs of the case.
A January 3, 2017 Order entered in Crocs, Inc. v. Effervescent, Inc., a lawsuit in the U.S. District Court for Colorado, exemplifies the new balance required after adoption of amended Rule 26. In Crocs, the court began its assessment by recognizing that Rule 30(b)(6) topics now “must first and foremost be relevant.” Next, the court noted that “the recent revisions to Rule 26 emphasize that the information sought must be ‘proportional to the needs of the case.’” The court then found that a number of requested deposition topics ran afoul of these discovery constraints. First, the court found impermissible several topics regarding corporate organization and personnel that did not specify a pertinent time period, as the request “would likely elicit a large amount of irrelevant evidence.” Next, the court found problematic a requested topic that sought information not referenced in the pleadings or directly implicated by the claims asserted in the lawsuit. Because such information has no relevance, the court precluded the deposition on that topic. The court took particular issue with an expansively-phrased request for a corporate representative to address “every communication” on a subject, finding the topic as phrased “almost ludicrously overbroad.” And on a request for a witness to address the corporation’s litigation hold process to ensure that the company preserved and captured all documents and other materials “potentially relevant” to the lawsuit, the court found the topic as phrased “both irrelevant under Fed. R. Civ. P. 26 and not ‘proportional to the needs of the case’” and sustained the objection to producing a witness on this subject.
The Crocs ruling reflects the mandate that all forms of discovery, including Rule 30(b)(6) depositions, may not stray beyond the permitted scope. The relevance and proportionality constraints seek at least to mitigate, if not eliminate, the burdens of over-discovery. The Rule 30(b)(6) deposition procedure, which faces few other limitations under current practice, warrants particularly close scrutiny by the courts to ensure that discovery is not abused.