Opinion
No. 00-CV-737.
October 13, 2004
MEMORANDUM ORDER
AND NOW, this day of October, 2004, after consideration of a Motion to Compel Deposition of the United States Pursuant to Federal Rule of Civil Procedure 30(b)(6) filed by Defendants, Merck-Medco Managed Care, LLC, et al. ("Medco Defendants") (No. 199), the Response of the United States Government, et al. (collectively, "Plaintiffs") (No. 217), and Defendants' Reply (No. 225), it is hereby ORDERED that the Motion is DENIED, as follows:
This matter is before me pursuant to the governing Case Management Order signed by the Honorable Clarence C. Newcomer, District Court Judge for the Eastern District of Pennsylvania.
1. Medco Defendants seek to depose a designee of the United States pursuant to Federal Rule of Civil Procedure 30(b)(6), and has noticed nineteen (19) deposition topics ("Topics"). See Deposition Notice, attached to Motion at Exhibit "A." Rule 30(b)(6) allows a party to name as a deponent "a public or private corporation." Fed.R.Civ.P. 30(b)(6). The United States, like other political entities, constitutes an "organization" for purposes of deposition under Rule 30(b)(6). See McLellan Highway Corp. v. United States, 95 F.Supp.2d 1, 9 (D. Mass. 2000).
2. Plaintiffs oppose the motion on both technical and substantive grounds. As for the technical grounds, Plaintiffs argue that the Deposition Notice is defective because it is not specifically addressed to "the relevant governmental agency."See Response at 21-26. The Court disagrees. Medco Defendants directed the Deposition Notice to the United States Attorney's Office, which has been recognized as a "government agency." See United States v. One Million Three Hundred Thousand Two Hundred Forty-Two Dollars and Fifty-Eight Cents, 938 F.2d 433, 441 (3d Cir. 1991). Although another agency conceivably could have information regarding this case, the United States Attorney's Office is clearly best suited to answer the specific Topics. Moreover, the Deposition Notice states that Medco Defendants seek to depose "Plaintiff United States of America through one or more United States attorneys or other persons most knowledgeable to testify" about the Topics. See Deposition Notice, attached to Motion at Exhibit "A." This is consistent with Rule 30(b)(6)'s requirement that the noticed agency designate "one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf." Fed.R.Civ.P. 30(b)(6). Therefore, the Deposition Notice is not defective on its face.
3. Substantively, Plaintiffs generally oppose the instant motion because it would allegedly result in the deposition and disqualification of Assistant United States Attorney James Sheehan ("AUSA Sheehan"), the lead prosecutor. Plaintiffs also specifically object to Topics 3, 6 through 17, and 19 of the Deposition Notice because they are more properly reserved for contention interrogatories; to Topics 1 and 5 because they improperly seek Plaintiffs' work product and trial strategy; and to Topic 4 because it seeks information that is not relevant.See Response at 1-2, 8-21. Because the Court bases its conclusions on Plaintiffs' specific arguments, it is not necessary to address the issue of whether AUSA Sheehan would necessarily be deposed and disqualified.
Nevertheless, the Court notes that, under Rule 30(b)(6), the noticed agency has the right to designate the person to be deposed. As a result, AUSA Sheehan would not be compelled to testify in response to the Deposition Notice, nor is it clear that a disqualification would follow even if AUSA Sheehan were to testify.
4. In Topics 3, 6 through 17, and 19, Medco Defendants seek testimony regarding "[t]he basis for all allegations" made by Plaintiffs related to specific acts of fraud. See Deposition Notice, attached to Motion at Exhibit "A." These types of requests have been specifically identified as contention discovery. See R. Braun Medical, Inc. v. Abbott Laboratories, 155 F.R.D. 525, 527 (E.D. Pa. 1994) (defining contention discovery as, inter alia, that which asks a party to "state all the facts upon which it bases a contention"). In SmtihKline Beecham Corp. v. Apotex Corp., 2004 WL 739959 (E.D. Pa. March 23, 2004), this Court held that "[w]hether contention interrogatories are more appropriate than Rule 30(b)(6) depositions will be a case by case factual determination" in which the Court "will be guided by which device would yield most reliably and in the most cost-effective, least burdensome manner, information that is sufficiently complete to meet the needs of the parties and the court." 2004 WL 739959 at *2. Here, the parties have engaged in a tremendous amount of discovery; meaningful discovery is still ongoing; and Medco Defendants continue to retain substantial amount of material, including documents this Court has previously ordered to be produced. Under such circumstances, it would be unduly burdensome and fundamentally unfair to compel Plaintiffs to provide binding testimony at a Rule 30(b)(6) deposition as to all facts supporting Plaintiffs' contentions. Therefore, the Court finds that the preferable mechanism for obtaining the information sought in Topics 2, 3 and 6 through 19 of the Deposition Notice is by way of contention discovery provided for by Federal Rule of Civil Procedure 33(c).
Topic 3 uses slightly different language insofar as it seeks deposition testimony regarding all claims for payment "that form the basis for any claim for relief stated in the Complaints." See Deposition Notice, attached to Motion at Exhibit "A."
Although Plaintiffs do not specifically address Topics 2 or 18 in their Response, the Court will address them here in order to avoid further motion practice. In Topic 2, Medco seeks testimony regarding "all contracts relevant to Plaintiffs' Complaints," while Topic 18 seeks testimony regarding "[t]he communications that allegedly occurred between Medco and the United States Attorney's Office in Philadelphia, including the participants and the specific statements related to paragraph 160 of the Amended Complaint." See id. The information sought by Topics 2 and 18 should already be known to Medco Defendants, for obvious reasons. To the extent that further information regarding the contracts and/or communications is sought at the conclusion of discovery, the Court incorporates them this part of the Memorandum Order.
Rule 33(c) states in relevant part:
An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pre-trial conference or other later time.
Fed.R.Civ.P. 33(c) (emphasis added).
5. In Topic 1, Medco Defendants seek testimony regarding "[e]ach individual listed in Plaintiffs' Amended Initial Disclosures, including the information he or she possesses [and] how Plaintiffs became aware he or she possesses such information;" and in Topic 5, Medco Defendants seek testimony regarding the "[w]itness interviews conducted, or attempted to be conducted," by United States Attorneys in this case. These Topics clearly seek Plaintiffs' work product and trial strategy. See United States v. District Council of New York and Vicinity of the United Brotherhood of Carpenters and Joiners of America, 1992 WL 208284 at *15 (S.D.N.Y. Aug. 18, 1992) ("How a party, its counsel and agents choose to prepare their case, the efforts they undertake, and the people they interview is not factual information to which an adversary is entitled"). As a result, Medco Defendants' Motion is denied as to Topics 1 and 5.
6. In Topic 4, Medco Defendants seek testimony regarding "[t]he speeches and presentations [and] public statements" made by United States Attorneys and their counsel related to this case, as well as unspecified "media coverage." Plaintiffs argue that Topic 4 irrelevant for purposes of this litigation. The Court agrees, and further finds that Topic 4 seeks improper information (to the extent that it seeks statements made by private attorneys) and is unduly burdensome (to the extent that the scope of the testimony regarding "media coverage" is not defined). Moreover, Plaintiffs have represented to the Court that they have already provided Medco Defendants with a copy of all available news articles related to this case. See Response at 20. As a result, Medco Defendants' Motion is denied as to Topic 4.
8. Consistent with the foregoing, Medco Defendants' Motion to Compel Deposition of the United States Pursuant to Federal Rule of Civil Procedure 30(b)(6) is denied. Instead, Medco Defendants may issue contention interrogatories relating to Topics 2, 3 and 6 through 19 at the close of fact discovery.
It is so ordered.