Free Order on Motion for Protective Order - District Court of Federal Claims - federal

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In the United States Court of Federal Claims
No. 05-776 C (Filed: May 30, 2008) ************************************* AG-INNOVATIONS, INC., LARRY * FAILLACE, LINDA FAILLACE, * HOUGHTON FREEMAN, DOREEN * FREEMAN, SKUNK HOLLOW * FARM, INC., & FREEMAN FAMILY LLC,* * Plaintiffs, * * v. * * THE UNITED STATES, * * Defendant. * *************************************

Discovery; Motion for Protective Order; Motion to Compel; RCFC 26(b); RCFC 26(c); RCFC 30(b)(6); Designated Deposition Testimony; Required Showing for "Good Cause"; Certification of Good Faith Conferment; RCFC 37(a)(4).

Jonathan Lynwood Abram, Washington, DC, for plaintiffs. Sheryl L. Floyd, United States Department of Justice, Washington, DC, for defendant. RULING ON DEFENDANT'S MOTION FOR PROTECTIVE ORDER AND PLAINTIFFS' CROSS-MOTION TO COMPEL SWEENEY, Judge This discovery dispute comes before the court upon Defendant's Motion for Protective Order to Preclude the Taking of a Rule 30(b)(6) Deposition on Certain Topics ("motion") and Plaintiffs' Cross-Motion to Compel the United States to Identify and Produce a Rule 30(b)(6) Designee(s) on Certain Topics ("cross-motion to compel"). The parties' dispute concerns eleven of a total of twenty-one topics contained in plaintiffs' notice of deposition of the United States Department of Agriculture ("USDA"). Following briefing and continued discussions, the parties represented that they reached a resolution as to five of the eleven disputed topics. J. Status Report 1, Feb. 15, 2008. Therefore, the court addresses the remaining six topics in dispute. For the reasons set forth below, defendant's motion is granted in part and denied in part, and plaintiffs' cross-motion to compel is granted in part and denied in part.

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I. BACKGROUND A. Nature of Plaintiffs' Claims In this takings case, plaintiffs allege that the USDA "slaughtered hundreds of healthy, valuable, European-imported and domestically bred milking sheep, and destroyed their genetic stock material, on the premise that the sheep were infected with what the Government termed `an atypical [transmissible spongiform encephalopathy (TSE)] of foreign origin.'" Am. Compl. ¶ 10 (alteration in original); see also id. ¶ 44 (alleging that defendant "seized and destroyed germ plasm, gourmet cheese stock, crops, buildings, cheesemaking equipment, and other businessrelated assets"). Plaintiffs argue that an atypical TSE of foreign origin "is neither an actual nor a scientifically-recognized disease." Pls.' Mem. Supp. Pls.' Opp'n Def.'s Mot. Protective Order Preclude Taking Rule 30(b)(6) Dep. Certain Topics & Pls.' Cross-Mot. Compel United States Identify Produc. Rule 30(b)(6) Designee(s) Certain Topics ("Pls.' Opp'n & Cross-Mot.") 4. Rather, plaintiffs maintain that defendant "declared the sheep to be `affected with or exposed to' this so-called `disease' to justify their slaughter as a pretext for maintaining the perception that the United States was free of Bovine Spongiform Encephalopathy (BSE), a TSE commonly found in cattle." Id. Alternatively, plaintiffs allege that, "if the sheep are found to have been `affected or exposed' to any communicable disease," then defendant "acted arbitrarily and capriciously and in abuse of its discretion in calculating the sheep's fair market value . . . ." Am. Compl. ¶ 51; see also id. (alleging that defendant considered "irrelevant factors and unsupported assumptions" when making valuation assessments); id. ¶ 12 (claiming that, following the slaughter of plaintiffs' sheep, the USDA "improperly, arbitrarily, capriciously, and in abuse of its discretion, calculated the sheep's fair market value by failing to account for the sheep's superior quality and economic purpose as a business asset and by making unsupported assumptions regarding their use as meat and feed and their conformation"); id. ¶ 52 (alleging that defendant selected appraisers who exhibited bias and possessed conflicts of interest, which "prevent[ed] a proper, accurate assessment of the sheep's fair market value"). B. Procedural History Plaintiffs filed their initial complaint on July 22, 2005, and the parties exchanged initial disclosures pursuant to Rule 26(a)(1) of the Rules of the United States Court of Federal Claims ("RCFC") on March 14, 2006. See Pls.' Opp'n & Cross-Mot. 6. Pursuant to the court's April 5, 2006 order, fact and expert discovery were scheduled to conclude by December 15, 2006, and February 28, 2007, respectively. The parties commenced discovery in August 2006. Def.'s Mot. Protective Order Preclude Taking Rule 30(b)(6) Dep. Certain Topics ("Def.'s Mot.") 3; Pls.' Opp'n & Cross-Mot. 6. By order dated September 13, 2006, the court extended the deadlines for the conclusion of fact and expert discovery to January 5, 2007, and March 19, 2007, respectively. As discovery progressed, the parties encountered disagreements over depositions and other discovery. On April 6, 2007, the parties represented to the court that "[d]iscovery had not yet concluded" and that they "have not been able to agree upon how much additional time will be -2-

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required to complete discovery . . . ." J. Status Report 1, Apr. 6, 2007. By mid-June 2007, the parties were unable to agree upon plaintiffs' requests to depose witnesses pursuant to RCFC 30(b)(6). See Order 1, June 20, 2007. The following section details the dispute that precipitated the instant motions. C. The Instant Discovery Dispute1 According to plaintiffs, a "large number" of individuals were involved in the events and decisions underlying the claims in this case. Pls.' Opp'n & Cross-Mot. 6. Accordingly, plaintiffs filed a motion seeking leave to conduct more than ten depositions on November 22, 2006. During a status conference held on January 22, 2007, the parties "agreed to utilize RCFC 30(b)(6) as a mechanism to target topics rather than individuals in order to pare down the individuals whom plaintiffs would have to depose." Id. at 7; see also Def.'s Reply Pls.' Mem. Supp. Pls.' Opp'n Def.'s Mot. Protective Order Preclude Taking Rule 30(b)(6) Dep. Certain Topics & Def.'s Opp'n Pls.' Cross-Mot. Compel United States Identify & Produc. Rule 30(b)(6) Designee Certain Topics ("Def.'s Reply & Opp'n") 3 ("During the January 22nd status conference, the Government agreed to go forward with Rule 30(b)(6) depositions upon the assumption that using this method would reduce the number of witnesses who had to be deposed, not increase the number of witnesses who would have to be deposed."). The court denied plaintiffs' motion without prejudice and instructed the parties to "cooperate to conduct discovery expeditiously."2 Order 2, Jan. 24, 2007. Following the January 22, 2007 status conference, the parties proceeded with discovery, and plaintiffs deposed Dr. Linda Detwiler on January 30, 2007. Pls.' Opp'n & Cross-Mot. 8. According to plaintiffs, "[a]t no point prior to or during this deposition did the Government indicate that Dr. Detwiler could potentially be designated in response to any RCFC 30(b)(6) topic." Id. Defendant notes that five depositions­those of Dr. Detwiler, Dr. Richard Rubenstein, Dr. William Smith, Dr. Wayne Zeilenga, and Mr. Yves Berger­occurred before plaintiffs served their RCFC 30(b)(6) deposition notices. Def.'s Reply & Opp'n 4. As such, defendant emphasizes that

In addition to defendant's motion and plaintiffs' cross-motion to compel, defendant filed a Reply to Plaintiffs' Memorandum in Support of Plaintiffs' Opposition to Defendant's Motion for Protective Order to Preclude the Taking of a Rule 30(b)(6) Deposition on Certain Topics & Defendant's Opposition to Plaintiffs' Cross-Motion to Compel the United States to Identify and Produce a Rule 30(b)(6) Designee on Certain Topics ("reply and opposition"), and plaintiffs filed their Reply in Support of Plaintiffs' Cross-Motion to Compel the United States to Identify and Produce a Rule 30(b)(6) Designee(s) on Certain Topics ("reply"). Defendant filed separate, consecutively paginated appendices with its motion and reply and opposition, and plaintiffs filed separate, consecutively paginated appendices with their cross-motion to compel and reply. The court also denied defendant's motion for a protective order without prejudice. See Order 2, Jan. 24, 2007. -32

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it "could not possibly have notified the plaintiffs that these witnesses were likely to be USDA Rule 30(b)(6) designees because the Government did not know what plaintiffs' USDA Rule 30(b)(6) deposition topics were until after these witnesses had been deposed." Id. at 4. Plaintiffs served two RCFC 30(b)(6) notices upon defendant in February 2007. The first, directed toward the National Veterinary Services Laboratory ("NVSL"), was served on February 8, 2007. Def.'s App. 4-11. The second, directed toward the USDA, was originally served on February 12, 2007.3 Id. at 13-22. In their RCFC 30(b)(6) NVSL notice, plaintiffs identified fourteen topics "addressing certain information and methodologies relating to testing performed by or for the NVSL." Pls.' Opp'n & Cross-Mot. 8; see also Def.'s App. 4-11 (containing plaintiffs' RCFC 30(b)(6) NVSL notice). In their RCFC 30(b)(6) USDA notice, plaintiffs identified twenty-one topics "concerning certain decisions made by­and other critical information held by­USDA personnel." Pls.' Opp'n & Cross-Mot. 8; see also Def.'s App. 13-22 (containing plaintiffs' original RCFC 30(b)(6) USDA notice). These notices were, according to plaintiffs, "in line with the parties' discussions and agreements about focusing the depositions on the most important governmental personnel . . . ." Pls.' Opp'n & Cross-Mot. 8. In a February 12, 2007 letter to defendant's counsel that accompanied plaintiffs' RCFC 30(b)(6) USDA notice, plaintiffs' counsel stated: [S]everal of the topics identified in the Notice may already have been addressed by one or more individuals, or will be addressed by certain individuals whose depositions already have been scheduled. To the extent certain individuals already have been deposed, I am willing to discuss designating certain portions of such depositions as responsive to those topics so as to avoid having to recall such individuals. For other individuals yet to be deposed, I would appreciate you letting me know prior to the deposition what topic(s) each will address . . . . Def.'s App. 12. However, plaintiffs state that, "[f]rom February 12, 2007, until mid-May, plaintiffs received no response from the Government on the Original USDA 30(b)(6) Deposition Notice, with the exception of Topic ## 3 and 21," despite "repeated[] request[s]" to schedule the RCFC 30(b)(6) USDA depositions. Pls.' Opp'n & Cross-Mot. 9; see also id. (recounting several attempts to schedule depositions); Pls.' Reply Supp. Pls.' Cross-Mot. Compel United States Identify & Produc. Rule 30(b)(6) Designee(s) Certain Topics ("Pls.' Reply") 2 ("For more than five months, the Government completely neglected [its] duty [to designate a live witness] as to all but two topics, leaving plaintiffs no choice but to move to compel."); id. ("The Government's lack of diligence and timely response to plaintiffs' 30(b)(6) deposition notice to the USDA created the issue about which the Government now complains."). But see Def.'s Reply & Opp'n 6 (stating that defendant defended five depositions, including the deposition of Dr. Mark Hall, who was defendant's designee in response to plaintiffs' RCFC 30(b)(6) NVSL notice, deposed six of plaintiffs' witnesses, and "worked with plaintiffs' counsel" to schedule four additional
3

As discussed infra, plaintiffs served upon defendant a revised RCFC 30(b)(6) USDA notice on June 28, 2007. Def.'s App. 116-25. -4-

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depositions of government witnesses); Pls.' App. 15-18, 21-26 (containing several April 2007 and May 2007 electronic mail communications between counsel regarding the scheduling of depositions). In its May 24, 2007 response to plaintiffs' RCFC 30(b)(6) USDA notice, defendant objected that the topics "covered many of the subject areas upon which the Government witnesses had previously provided deposition testimony."4 Def.'s Mot. 4; see also Def.'s App. 24 ("We note further that you have already conducted a Rule 30(b)(6) deposition of topics numbered 10, 12, 15, 16, 17, and 18. Conducting another Rule 30(b)(6) deposition on these topics is unnecessarily duplicative."). Defendant instead agreed to proceed with live testimony concerning topic numbers 3 and 21, Def.'s App. 24, and designated previously obtained deposition testimony as responsive to RCFC 30(b)(6) USDA topic numbers 3-6 and 9-20, id. at 25-56. Defendant submitted a corrected copy of its response to plaintiffs on May 29, 2007. Id. at 63; Def.'s Mot. 5. Throughout their dispute, the parties indicated that they "may need the Court's assistance." J. Status Report 1, Apr. 6, 2007. Accordingly, the court conducted two status conferences, the first on April 23, 2007, and the second on May 29, 2007.5 According to plaintiffs, other depositions were taken following the April 23, 2007 status conference "with no reference to these deponents or their deposition testimony being used to satisfy any of the topics in the Original USDA 30(b)(6) Deposition Notice." Pls.' Opp'n & Cross-Mot. 11; see also id. at 12 (stating that defendant "made no mention" of offering Dr. Katherine O'Rourke's testimony in response to any RCFC 30(b)(6) USDA topic). But see Pls.' App. 25 (containing a May 7, 2007 electronic mail communication from defendant's counsel stating that "the court has given [defendant] until May 24th to identify [its] Rule 30(b)(6) deposition witnesses"). Defendant states that, "[t]wo hours prior" to the May 29, 2007 status conference, "plaintiffs notified the Government that they believed that the Government's [May 24, 2007] designations of testimony in response to plaintiffs' Rule 30(b)(6) deposition notice were not adequate because they allegedly contained incorrect page references and the designations purportedly failed to satisfy plaintiffs' need for evidence on certain topics." Def.'s Mot. 5; Def.'s App. 58-62. Plaintiffs did agree, however, to accept designated testimony in response to topic numbers 6, 10, and 15-19, subject to certain revisions in defendant's designations. Pls.' Opp'n & Cross-Mot. 13; Def.'s App. 58.

Plaintiffs emphasize that defendant's response came "almost four and one-half months after plaintiffs gave notice of their intent to seek an RCFC 30(b)(6) deposition of the USDA and almost three and one-half months after service of the Original USDA 30(b)(6) Deposition Notice . . . ." Pls.' Opp'n & Cross-Mot. 12. During the first status conference on April 23, 2007, plaintiffs "raised the issue that the Government still had not designated any witnesses, with the exception of Dr. [Diane] Sutton, in response to the Original USDA 30(b)(6) Deposition Notice." Pls.' Opp'n & Cross-Mot. 11. The parties agreed that additional time was necessary to complete discovery. See Order 1, Apr. 23, 2007. The court scheduled a second status conference for May 29, 2007. -55

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During their May 29, 2007 status conference with the court, the parties agreed to "continue to work together to try to resolve these difficulties." Def.'s Mot. 5. To that end, plaintiffs, on June 1, 2007, proposed the following terms: they would agree to narrow the scope of RCFC 30(b)(6) USDA topic numbers 4-5, 7-9, 11-14, and 20 in exchange for defendant's agreement to provide live witness testimony for revised topic numbers 2, 4-5, 7-9, 11-14, and 20. Def.'s App. 64; see also id. at 64-66 (containing proposed revisions to these deposition topics). Defendant emphasizes that plaintiffs "did not serve their further revised USDA Rule 30(b)(6) deposition topics until June 28, 2007." Def.'s Reply & Opp'n 8; see also Def.'s App. 116-25 (containing plaintiffs' revised RCFC 30(b)(6) USDA deposition notice); id. at 126-27 (stating that plaintiffs "had not formally revised their Rule 30(b)(6) deposition topics in their June 1, 2007 letter). In its June 19, 2007 response to plaintiffs' June 1, 2007 communication, defendant "declined plaintiffs' offer to designate any additional witness(es)." Pls.' Opp'n & Cross-Mot. 14; Def.'s App. 67-74. In doing so, defendant noted that it "do[es] not believe that [plaintiffs] have completely addressed [its] objections." Def.'s App. 68. It also indicated that it corrected references to testimony it previously designated in response to topic numbers 6, 10, and 15-19, proposed changes to topic number 21, proposed responses to plaintiffs' revised topics contained in the June 1, 2007 communication, and submitted its second corrected response to plaintiffs' RCFC 30(b)(6) USDA deposition topics. Id. at 67-107; Def.'s Mot. 5. On June 28, 2007, plaintiffs responded to defendant and cited "additional errors" in defendant's designations. Def.'s App. 108. Plaintiffs also enclosed their revised RCFC 30(b)(6) USDA notice "to capture in one document the changes that have been made to the original notice" and to further clarify and narrow the scope of disputed topics. Id. at 109. Plaintiffs proposed a solution to the parties' dispute: If Drs. Detwiler, Hall, [Richard] Race, Rubenstein, Smith, and Zeilenga are the most appropriate witnesses that the USDA has on these topics, then their entire deposition testimony should be attributed to the USDA. By designating the entirety of these witnesses' deposition testimony to Topic ## 2, 4, 5, 9, 11, 12, 13, 14, and 20, plaintiffs will no longer require a designee for these topics and will forego a designee on Topic ## 7 and 8. If the Government is not willing to agree to designate the testimony requested, then plaintiffs will require a designee(s) from the USDA on the eleven remaining topics (Topic ## 2, 4, 5, 7, 8, 9, 11, 12, 13, 14, and 20). Id. at 111. Plaintiffs also expressed their concern that defendant's "further delay in refusing to identify and produce a designee(s) prejudices [plaintiffs] and borders on obstructionism." Id. at 115. Defendant responded to plaintiffs' proposal on July 24, 2007. In its response, defendant stated, among other things, that it revised its responses to topic numbers 4, 12, and 14 "to provide a context for the deposition testimony you requested us to include," id. at 127; Def.'s Mot. 7 (stating that defendant "accepted plaintiffs' proposal with respect to topics numbered 4, 12, and -6-

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14"), but it declined plaintiffs' proposal to designate the entirety of the depositions of Drs. Detwiler, Hall, Race, Rubenstein, Smith, and Zeilenga as responsive to topic numbers 2, 4-5, 9, 11-14, and 20 because "either your colleague or you asked the witness questions about issues for which (1) they were not the most knowledgeable person to provide testimony, and (2) they had not prepared to testify at the deposition,"6 Def.'s App. 127. On July 27, 2007, plaintiffs accepted defendant's additional designations for topic number 4 subject to a correction, confirmed acceptance of defendant's revised designations for topic numbers 6, 10, and 15-19 as sufficient, reiterated their objection to "cherry-pick[ed] prior testimony that favors the USDA from depositions of witnesses it failed to designate as 30(b)(6) deponents," and renewed their request that defendant either designate the entirety of the Detwiler, Hall, Race, Rubenstein, Smith, and Zeilenga depositions or designate witnesses to address the relevant RCFC 30(b)(6) USDA topics. Id. at 163. The parties' efforts to resolve their dispute without further court intervention proved unsuccessful. At the time defendant filed its motion, plaintiffs had conducted twelve fact and expert depositions, which included defendant's responses to plaintiffs' RCFC 30(b)(6) NVSL notice and plaintiffs' RCFC 30(b)(6) USDA topic number 3.7 Def.'s Mot. 3. The parties also scheduled a deposition of an additional government witness, Dr. John Clifford, in response to plaintiffs' USDA Rule 30(b)(6) topic number 21. Id. Ultimately, the parties resolved their dispute as to USDA Rule 30(b)(6) topic numbers 5, 7-9, and 13. J. Status Report 1, Feb. 15, 2008. As such, the remaining issues before the court concern RCFC 30(b)(6) USDA topic numbers 2-3, 11-12, 14, and 20. After briefing concluded on the instant motions, plaintiffs filed an amended complaint on January 25, 2008. On February 8, 2008, the parties filed a joint stipulation for dismissal of Count II of the amended complaint, wherein plaintiffs sought compensation for the quarantines imposed upon their real property. See Am. Compl. ¶¶ 47-49. The court dismissed with prejudice Count II of plaintiffs' amended complaint. See Order 1, Feb. 27, 2008. Before the court proceeds to the substantive arguments set forth in defendant's motion and plaintiffs' cross-motion to compel, it notes that plaintiffs' allegation that defendant provided

Defendant stated that, although it designated "some of the testimony of Dr. Rubenstein as responsive to a few of plaintiffs' Rule 30(b)(6) Revised Deposition topics," it would normally not have done so because Dr. Rubenstein "was not and has never been a federal employee." Def.'s App. 127. Plaintiffs deposed the following government witnesses: Drs. Detwiler, Hall, O'Rourke, Race, Bradley Reiff, Robert Rohwer, Rubenstein, Smith, Sutton, and Zeilenga; and Messrs. Berger, Axel Meister, and Peter Welkerling. Def.'s Mot. 3; Def.'s Reply & Opp'n 6 & n.2. Dr. Hall was proffered in response to plaintiffs' RCFC 30(b)(6) NVSL notice, and Dr. Sutton was defendant's designee for plaintiffs' RCFC 30(b)(6) USDA topic number 3. Def.'s Mot. 3; Def.'s Reply & Opp'n 6. -77

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no notice that Dr. Detwiler could potentially serve as an RCFC 30(b)(6) designee is both wholly unfounded and disingenuous. See Pls.' Opp'n & Cross-Mot. 8. Dr. Detwiler's deposition, like the depositions of Drs. Rubenstein, Smith, Zeilenga, and Mr. Berger, all occurred prior to February 8, 2007, and February 12, 2007, the dates upon which plaintiffs served their RCFC 30(b)(6) NVSL and RCFC 30(b)(6) USDA notices, respectively. See Def.'s Reply & Opp'n 4 (indicating that these witnesses were deposed between November 15, 2006, and February 7, 2007). While defendant must respond to plaintiffs' RCFC 30(b)(6) notices, it is not required to either exhibit clairvoyance or resort to soothsaying to anticipate such notices. With limited exception, the parties have been unable to cooperate with each other, and each disagreement over the RCFC 30(b)(6) topics discussed below evidences the extent to which their counsel have exacerbated, rather than mitigated, this dispute. See infra Part III. Although it must address this dispute as the parties have presented it, the court believes that the situation in which the parties find themselves could have been wholly avoidable if discovery had been conducted in a more cooperative manner and had not been hampered by opposition at nearly every possible turn. II. LEGAL STANDARDS It is "axiomatic that a trial court has broad discretion to fashion discovery orders[.]" White Mountain Apache Tribe of Ariz. v. United States, 4 Cl. Ct. 575, 583 (1984); see also Florsheim Shoe Co., Div. of Interco, Inc. v. United States, 744 F.2d 787, 797 (Fed. Cir. 1984) ("Questions of the scope and conduct of discovery are, of course, committed to the discretion of the trial court."); Shell Petroleum, Inc. v. United States, 46 Fed. Cl. 583, 585 (2000) ("Trial courts enjoy broad discretion in controlling discovery."). Although discovery rules "are to be accorded a broad and liberal treatment," Hickman v. Taylor, 329 U.S. 495, 507 (1947), the court must, "[i]n deciding either to compel or quash discovery, . . . balance potentially conflicting goals," Evergreen Trading, LLC ex rel. Nussdorf v. United States, 80 Fed. Cl. 122, 126 (2007). Thus, "discovery, like all matters of procedure, has ultimate and necessary boundaries." Hickman, 329 U.S. at 507. A. RCFC 26(b) RCFC 26(b)(1) is "the general provision governing the scope of discovery." Sparton Corp. v. United States, 77 Fed. Cl. 10, 21 n.14 (2007). It permits parties to "obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter." RCFC 26(b)(1). RCFC 26(b) mirrors Rule 26(b) of the Federal Rules of Civil Procedure ("FRCP").8 Sys. Fuels, Inc. v. United States, 73 Fed. Cl. 206, 215 (2006).
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"[T]o the extent permitted by this court's jurisdiction," the RCFC "shall be consistent with the FRCP . . . ." RCFC 83(a). Interpretation of RCFC 26 "will be guided by case law and the Advisory Committee Notes that accompany the Federal Rules of Civil Procedure." RCFC rules committee note (2002); see also Zoltek Corp. v. United States, 71 Fed. Cl. 160, 167 (2006) -8-

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The 1946 amendment to FRCP 26(b) "ma[de] clear the broad scope of examination," which included not only evidence for use at the trial but also inquiry into matters in themselves inadmissible as evidence but which will lead to the discovery of such evidence. The purpose of discovery is to allow a broad search for facts, . . . or any other matters which may aid a party in the preparation or presentation of his case. FRCP 26 advisory committee note (1946 amendment); see also Int'l Paper Co. v. United States, 36 Fed. Cl. 313, 317 (1996) (citing RCFC 26 and stating that "we are similarly mindful of the generally broad scope of discovery in this court"). FRCP 26(b)(1) was amended in 2000, at which time the advisory committee "introduce[d] a note of caution about the provision . . . ." 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure § 2007 (2d ed. 1994). The amendments were "intend[ed for] the parties and the court [to] focus on the actual claims and defenses involved in the action," FRCP 26(b)(1) advisory committee note (2000 amendment), whereas previously parties "were entitled to discovery of any information that was not privileged so long as it was relevant to the `subject matter involved in the pending action,'" 6 James Wm. Moore et al., Moore's Federal Practice ¶ 26.41 (3d ed. 2008) (quoting the 1983 version of FRCP 26(b)(1)). Accordingly, the 2000 amendments "narrowed the scope of party-controlled discovery to matters `relevant to any party's claim or defense.'" Id. (quoting FRCP 26(b)(1)). While courts would "retain[] authority to order discovery of any matter relevant to the subject matter involved in the action for good cause," the amended rule was "designed to involve the court more actively in regulating the breadth of sweeping or contentious discovery."9 FRCP 26(b)(1) advisory

(noting that interpretation of an FRCP "informs the Court's analysis" of the corresponding RCFC). The FRCP were amended on December 1, 2007, "as part of the general restyling of the Civil Rules." FRCP 26 advisory committee note (2007 amendment). As those changes were "stylistic only," id., the court relies upon authorities construing the previous version of FRCP 26(b).
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Thus, where a party objected that requested discovery

goes beyond material relevant to the parties' claims or defenses, the court would become involved to determine whether the discovery is relevant to the claims or defenses and, if not, whether good cause exists for authorizing it so long as it is relevant to the subject matter of the action. The good-cause standard warranting broader discovery is meant to be flexible. FRCP 26(b)(1) advisory committee note (2000 amendment). The court's determination of the scope of discovery, when its intervention is sought by the parties, would be made "according to the reasonable needs of the action." Id. -9-

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committee note (2000 amendment). Under the current standard, courts are advised to focus upon the specific claims or defenses when determining the scope of discovery. See id. However, "[t]his does not mean that a fact must be alleged in a pleading for a party to be entitled to discovery of information concerning that fact. It means that the fact must be germane to a specific claim or defense asserted in the pleadings for information concerning it to be a proper subject of discovery." 6 Moore et al., supra, ¶ 26.41. Additionally, a party's right to pretrial discovery is constrained by RCFC 26(b)(2)(C). Pursuant to this rule, the court is required to limit "[t]he frequency or extent of use of the discovery methods otherwise permitted under these rules" upon a determination that the discovery sought is unreasonably cumulative or duplicative, the requesting party had ample opportunity to obtain the information sought, or the burden or expense of the proposed discovery outweighs its likely benefit. RCFC 26(b)(2)(C). The court may act upon its own initiative after reasonable notice or pursuant to a motion under RCFC 26(c). B. RCFC 26(c) RCFC 26(c) "tempers the breadth of discovery by authorizing the court, for good cause shown, to issue a protective order `to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.'" Boston Edison Co. v. United States, 75 Fed. Cl. 557, 561 (2007) (quoting RCFC 26(c)); see also 8 Wright, Miller & Marcus, supra, § 2036 (stating that FRCP 26(c) was adopted "as a safeguard for the protection of parties and witnesses in view of the almost unlimited right of discovery given by Rule 26(b)(1)"). It provides that, [u]pon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . .10 RCFC 26(c) (footnote added). Such an order "is directed to the broad discretion of the court." St. Matthew Publ'g, Inc. v. United States, 41 Fed. Cl. 142, 145 (1998). Like its FRCP counterpart, RCFC 26(c) "lists eight kinds of protective orders that may be made," although the court may also "be as inventive as the necessities of a particular case require in order to achieve the benign purposes of the rule." 8 Wright, Miller & Marcus, supra, § 2036.
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The court notes that defendant's motion contains the requisite certification: "The parties have attempted to resolve amicably their disputes concerning the scope of these depositions through negotiation; . . . However, despite several offers and counter-offers, the parties have been unable to reach agreement upon the remaining 11 deposition topics . . . ." Def.'s Mot. 1-2. -10-

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The court may, for example, order, among other things, that (1) the discovery may not be had at all, (2) the discovery may be had only on specified terms and conditions, including a designation of the time or place, (3) the discovery may be had by a method of discovery other than that selected by the party seeking discovery, or (4) certain matters may not be inquired into, or that the scope of the discovery be limited to certain matters. RCFC 26(c). Where the court denies a motion for protective order either in whole or in part, it may, "on such terms and conditions as are just, order that any party or other person provide or permit discovery."11 Id. RCFC 26(c) requires that "good cause" be shown for issuance of a protective order. The burden of demonstrating "good cause" rests with the party seeking to shield itself from discovery. Capital Props., Inc. v. United States, 49 Fed. Cl. 607, 611 (2001). In order to establish "good cause," a party must show "that the discovery request is considered likely to oppress an adversary or might otherwise impose an undue burden." Sparton Corp. v. United States, 44 Fed. Cl. 557, 561 (1999); see also Forest Prods. Nw., Inc. v. United States, 62 Fed. Cl. 109, 114 (2004) (indicating that good cause is established "by specifically demonstrating that `disclosure will cause a clearly defined and serious injury'" (quoting Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995))), aff'd, 453 F.3d 1355 (Fed. Cir. 2006). The "`good cause' requirement is strict. . . . [T]he party . . . must make a particularized factual showing of the harm that would be sustained if the court did not grant a protective order." Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 Harv. L. Rev. 427, 433 (1991). Thus, broad allegations of harm, unsubstantiated by specific examples, are insufficient to justify issuance of a protective order. Forest Prods. Nw., Inc., 62 Fed. Cl. at 114; see also Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986) ("[T]he party seeking the protective order must show good cause by demonstrating a particular need for protection."); 8 Wright, Miller & Marcus, supra, § 2035 ("[C]ourts have insisted on a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements, in order to establish good cause."). Courts may consider several factors, "which are neither mandatory nor exhaustive," Glenmede Trust Co., 56 F.3d at 483, in their determination of whether to issue a protective order. These include: (1) whether disclosure will violate any privacy interests; (2) whether the information is being sought for a legitimate purpose or for an improper purpose; (3) whether disclosure of the information will cause a party embarrassment; (4) whether confidentiality is being sought over information important to the public health and safety; (5) whether the sharing of information among litigants will promote fairness and efficiency; (6) whether a party benefiting from the order of
11

The rule also states that the provisions of RCFC 37(a)(4) apply to the award of expenses incurred in relation to the motion. RCFC 26(c). For a discussion of RCFC 37, see infra Part II.C. -11-

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confidentiality is a public entity or official; and (7) whether the case involves issue[s] important to the public. Forest Prods. Nw., Inc., 62 Fed. Cl. at 114 n.9 (citing Glenmede Trust Co., 56 F.3d at 483). The trial court "is best situated to determine what factors are relevant to the dispute . . . ." Glenmede Trust Co., 56 F.3d at 483. Although protective orders "are not exceptional with regard to interrogatories and requests to produce," it is "difficult to show grounds for ordering that discovery not be had when it is a deposition that is sought." 8 Wright, Miller & Marcus, supra, § 2037. C. RCFC 37 RCFC 37 addresses the failure to make disclosures or cooperate in discovery and permits sanctions. Subsection (a)(2) pertains to depositions and provides: If a . . . corporation or other entity fails to make a designation under RCFC 30(b)(6) or 31(a), . . . the discovering party may move for an order compelling . . . a designation . . . . The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action. RCFC 37(a)(2)(B). If the court grants the motion or the disclosure or requested discovery is provided after the motion was filed, "the court shall . . . require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion," unless (1) the motion was filed without the moving party first engaging in a good faith effort to obtain discovery without court intervention; (2) the opposing party's nondisclosure, response, or objection was substantially justified; or (3) other circumstances make an award of expenses unjust. RCFC 37(a)(4)(A). "The decision whether to impose discovery sanctions rests within the sound discretion of the trial court." Ingalls Shipbuilding, Inc. v. United States, 857 F.2d 1448, 1450 (Fed. Cir. 1988). RCFC 37, like its FRCP counterpart, does not specify a time limit for filing a motion to compel. Cabot v. United States, 35 Fed. Cl. 80, 81 (1996); see also Days Inn Worldwide, Inc. v. Sonia Invs., 237 F.R.D. 395, 396 (N.D. Tex. 2006) (noting that FRCP 37 provides no deadline for the filing of motions to compel discovery). Nonetheless, "[i]f the moving party has unduly delayed, the court may conclude that the motion is untimely." 8A Wright, Miller & Marcus, supra, § 2285. Thus, courts have looked to the deadline for completion of discovery when determining the timeliness of a motion to compel. See Days Inn Worldwide, Inc., 237 F.R.D. at 396-97 (citing cases); Cabot, 35 Fed. Cl. at 81 (rejecting plaintiff's timeliness argument that the motion was brought after discovery closed, based upon plaintiff's prior unwillingness to respond to defendant's requests). -12-

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"In order to succeed on a motion to compel discovery, a party must first prove that it sought discovery from its opponent." Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1310 (3d Cir. 1995). Furthermore, the certification must evidence "good faith confer[ment]." RCFC 37(a)(2)(B). Good faith "cannot be shown merely through the perfunctory parroting of statutory language on the certificate to secure court intervention; rather it mandates a genuine attempt to resolve the discovery dispute through non-judicial means." Shuffle Master, Inc. v. Progressive Games, Inc., 170 F.R.D. 166, 171 (D. Nev. 1996). Conferment requires that the moving party "must personally engage in two-way communication with the nonresponding party to meaningfully discuss each contested discovery dispute in a genuine effort to avoid judicial intervention." Id. Although a party may satisfy the requirements of RCFC 37(a), the decision to grant a motion to compel discovery that meets the standards of RCFC 26(b), see supra Part II.A, is, like all questions of discovery, committed to the discretion of the court, see Vons Cos., Inc. v. United States, 51 Fed. Cl. 1, 5 (2001) ("A motion for protective order to limit the scope of discovery, and, contrapuntally, a motion to compel discovery, are both committed to that discretion."), modified by 2001 WL 1555306 (Fed. Cl. Nov. 30, 2001). D. RCFC 30(b)(6) RCFC 30(b)(6) affords parties the right to serve a deposition notice upon a business or governmental entity. Because it is "not literally possible" to depose a corporation or other entity, 8A Wright, Miller & Marcus, supra, § 2103, the rule states: A party may in the party's notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization.12 RCFC 30(b)(6) (footnote added). The rule requires that the deposition notice describe the matters on which examination is requested with "reasonable particularity," RCFC 30(b)(6), and the governmental or business deponent has "an affirmative duty to make available persons who will be able to `give complete, knowledgeable and binding answers' on its behalf," Dairyland Power Coop. v. United States, 79 Fed. Cl. 709, 714 (2007) (quoting Reilly v. NatWest Mkts.
12

The FRCP counterpart to RCFC 30(b)(6) was added to "reduce the difficulties now encountered in determining . . . whether a particular employee or agent is a `managing agent'" and to "curb the `bandying' by which officers or managing agents of a corporation are deposed in turn but each disclaims knowledge of facts that are clearly known to persons in the organization and thereby to it." FRCP 30(b)(6) advisory committee note (1970 amendment). -13-

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Group, Inc., 181 F.3d 253, 268 (2d Cir. 1999)). The deponent also has "an affirmative duty to produce a representative who can answer questions that are both within the scope of the matters described in the notice and are `known or reasonably available' to the corporation." King v. Pratt & Whitney, 161 F.R.D. 475, 476 (S.D. Fla. 1995) (quoting FRCP 30(b)(6)), aff'd, 213 F.3d 646 (11th Cir. 2000). In this regard, RCFC 30(b)(6) "sets a high burden of knowledge, but only regarding the noticed topics, no more and no less." Payless Shoesource Worldwide, Inc. v. Target Corp., No. 05-4023-JAR, 2008 WL 973118, at *10 (D. Kan. Apr. 8, 2008). "When a corporation or association designates a person to testify on its behalf, the corporation appears vicariously through that agent." Resolution Trust Corp. v. S. Union Co., 985 F.2d 196, 197 (5th Cir. 1993). "In other words, the testimony of the Rule 30(b)(6) designee is deemed to be the testimony of the corporation itself." State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., No. 03-6516, 2008 WL 1977522, at *7 (E.D. Pa. May 7, 2008). Thus, RCFC 30(b)(6) "implicitly requires the designated representative to review all matters known or reasonably available to it in preparation for the Rule 30(b)(6) deposition. This interpretation is necessary in order to make the deposition a meaningful one and to prevent . . . a half-hearted inquiry . . . ." Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., No. 05-2164MLB-DWB, 2007 WL 1054279, at *3 (D. Kan. Apr. 9, 2007). If a designee cannot answer questions within the scope of the noticed topics, then the deponent "has failed to comply with its Rule 30(b)(6) obligations . . . ." King, 161 F.R.D. at 476; see also Resolution Trust Corp., 985 F.2d at 197 ("If that agent is not knowledgeable about relevant facts, and the principal has failed to designate an available, knowledgeable, and readily identifiable witness, then the appearance is, for all practical purposes, no appearance at all.") The preparation required for an RCFC 30(b)(6) deposition RCFC 30(b)(6) "can be burdensome." Heartland Surgical Specialty Hosp., 2007 WL 1054279, at *3. Indeed, courts have recognized that the rule "imposes burdens on both the discovering party and the designating party" because the former must describe the matters on which testimony is sought with reasonable particularly, while the latter must produce at least one designee with knowledge about the subject matter contained in the deposition notice. Great Am. Ins. Co. of N.Y. v. Vegas Constr. Co., No. 2:06-CV-00911-BES-PAL, 2008 WL 818947, at *3 (D. Nev. Mar. 24, 2008). However, "the burden upon such a responding entity is justified since a corporation can act only through its employees." ICE Corp. v. Hamilton Sundstrand Corp., No. 05-4135-JAR, 2007 WL 1732369, at *4 (D. Kan. June 11, 2007); see also Heartland Surgical Specialty Hosp., 2007 WL 1054279, at *3 (stating that the burden "is merely the result of the concomitant obligation from the privilege of being able to use the corporate (or other organizational) form in order to conduct business"). One court has opined that this burden can be lessened through the designation of a single witness, Khoa Hoang v. Trident Seafoods Corp., No. C06-1158 RSL, 2007 WL 2138780, at *1 (W.D. Wash. July 23, 2007). In some circumstances, an RCFC 30(b)(6) designee may also be deposed in his or her individual capacity. Because "methods of discovery may be used in any sequence," RCFC 26(d), a witness may be deposed either prior to or following his or her testimony as an RCFC 30(b)(6) -14-

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designee. Although RCFC 30(b)(6) and individual depositions are similar, they have an important distinguishing feature. Testimony obtained during the former "represents the knowledge of the corporation, not of the individual deponents." United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C.), aff'd, 166 F.R.D. 367 (M.D.N.C. 1996); see also id. (explaining that a Rule 30(b)(6) designee "does not give his personal opinions," but instead "presents the corporation's `position' on the topic"). Testimony obtained during the latter is limited by "memory [that] is no more extensive than [the deponent's] life." Id. Unlike an individual, an entity "has a life beyond that of mortals." Id. As such, it has a "duty to present and prepare a Rule 30(b)(6) designee . . . beyond matters personally known to that designee or to matters in which that designee was personally involved," Alloc, Inc. v. Unilin Decor N.V., Nos. 02-C-1266, 03-C-342, 04-C-121, 2006 WL 2527656, at *2 (E.D. Wis. Aug. 29, 2006). Due to this "qualitative difference in the testimony that one witness may give as an individual and as a Rule 30(b)(6) deponent," id., "just because [plaintiff] may choose to designate certain individual[s] as its corporate designees whose fact depositions have already occurred does not insulate [plaintiff] from the requirements of Rule 30(b)(6). Such a finding would eviscerate Rule 30(b)(6)," ICE Corp., 2007 WL 1732369, at *3 (alterations in original). Therefore, prior deposition testimony by a witness in his or her individual capacity does not preclude an RCFC 30(b)(6) deposition of the same witness, or vice versa. See LendingTree, Inc. v. LowerMyBills, Inc., No. 3:05CV153C, 2006 WL 2443685, at *2 (W.D.N.C. Aug. 22, 2006) ("Although there is no binding case authority on point, . . . there is no prohibition on deposing a witness in both individual and corporate capacities."). III. DISCUSSION In this case, discovery did not close until February 29, 2008. See J. Status Report 1, Feb. 15, 2008. Although plaintiffs' cross-motion to compel was timely, the court notes that plaintiffs did not file the necessary certification, as required by RCFC 37(a)(2)(B). Nevertheless, under the present circumstances, the court finds that such a deficiency is harmless because both plaintiffs' cross-motion to compel and the negotiations that continued through February 2008 clearly evidence the parties' attempts to engage in "good faith confer[ment]." RCFC 37(a)(2)(B). For example, plaintiffs detail throughout their cross-motion to compel the parties' efforts to resolve their dispute. See Pls.' Opp'n & Cross-Mot. 5-16. Moreover, plaintiffs supplemented their cross-motion to compel and reply with appendices exceeding 130 pages. While some courts have denied motions to compel because the moving party failed to comply with either FRCP 37, see, e.g., Kelly v. MBNA Am. Bank, No. CIV.A.06-228 JJF, 2006 WL 2993268, *2 (D. Del. Oct. 20, 2006) ("Plaintiff does not comply with the requisites of Rule 37(a) inasmuch as it does not contain a certification that Plaintiff in good faith conferred or attempted to confer . . . to secure discovery without court action. Therefore, the motion will be denied."), or FRCP 37 and a corresponding local rule, see, e.g., Pinkham v. Gen. Prods. Corp., No. 1:07-CV-174, 2007 WL 4285376, at *1 (N.D. Ind. Dec. 3, 2007) ("Here, it is immediately apparent that the Defendant's motion should be denied because no good faith `certification' was filed, as Local Rule 37.1 informs the term."), other courts have proceeded to the merits of the underlying motion despite the absence of a Rule 37 certification, see, e.g., Harmon v. City of Southaven, Miss., No. -15-

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2:06cv183-P-A, 2008 WL 1821467, at *1 n.1 (N.D. Miss. Apr. 22, 2008) (stating that, because plaintiff's motion to compel was not accompanied by a good faith certification as required by local rule 37.1, "[u]nder normal circumstances, this motion would be denied on the basis of this omission," but ultimately reaching the merits of the motion because the court was unaware of the absence of the certification until after briefing had been completed); Vigilant Ins. v. E. Greenwich Oil Co., 234 F.R.D. 20, 24-26 (D.R.I. 2006) (determining that "[b]oth [plaintiff's] failure to respond to the two discovery requests and [defendant's] failure to include a certification must be considered in crafting an appropriate sanction for the violations," denying defendant's motion to exclude expert damages testimony but imposing sanctions that "minimize[] the prejudice facing [defendant] and deal[] comprehensively with [plaintiff's] discovery digressions," and ordering that plaintiff's counsel bear defendant's costs in bringing its motion); Travelers Cas. & Sur. Co. of Am. v. Gelbrich, No. A04-0165CV(RRB), 2005 WL 1958418, at *2 (D. Alaska Aug. 12, 2005) (considering the merits of and ultimately granting defendant's motion to compel, with an award of partial fees, despite the fact that defendant did not file the requisite good faith certificate with its motion, as required by local rule 37.1, and that defendant "attempted to cure its failure to do so and resolve the present discovery matter in good faith, but to no avail"). Based upon the facts presented in this case, the court believes the latter approach is appropriate here. Accordingly, the court is satisfied that plaintiffs conferred with defendant in good faith despite the absence of an express certification in their cross-motion to compel. See supra Part I.C; see also J. Status Report 1, Feb. 15, 2008 (stating that the parties reached agreement as to five of the eleven disputed topics that are the subject of the instant motions). In its motion, defendant requests that the court enter a protective order precluding plaintiffs from taking additional deposition testimony concerning revised RCFC 30(b)(6) USDA topic numbers 2-3, 11-12, 14, and 20. Def.'s Mot. 39. Plaintiffs contend that defendant "has completely manipulated the RCFC 30(b)(6) process." Pls.' Opp'n & Cross-Mot. 16. They allege that defendant, "in contravention of the appropriate and customary method of identifying and producing a live designee(s) in response to a deposition notice issued pursuant to Rule 30(b)(6)," seeks a protective order in an attempt to "bar[] plaintiffs from obtaining an RCFC 30(b)(6) deposition from the USDA on certain topics and, for others, seeks to designate testimony of certain fact and proposed expert witnesses who were deposed in their individual capacities." Id. at 1. Defendant argues that plaintiffs' proposed resolution of this dispute, namely designating the entirety of certain individuals' depositions, would have the effect of over-designating certain testimony as attributable to the Government under Rule 30(b)(6). Because the witness's testimony on each and every topic[] was not necessarily the position of the agency, it would be misleading to identify all of the deposition testimony . . . as Rule 30(b)(6) testimony. Def.'s Reply & Opp'n 30. Plaintiffs further maintain that defendant "knew the specific topics for which plaintiffs had requested a designee since receiving Plaintiffs' Rule 30(b)(6) Notice of -16-

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Deposition of the USDA on February 12, 2007," but instead "sat back and allowed the depositions of the individuals from whose depositions it now wants to designate testimony to be scheduled" in order to avoid responding to plaintiffs' RCFC 30(b)(6) requests. Pls.' Opp'n & Cross-Mot. 1. Plaintiffs claim that they "have gone above and beyond their RCFC 30(b)(6) duties, trying repeatedly to schedule USDA 30(b)(6) deposition(s), and accepting the Government's retroactively-selected testimony for . . . topics that are not at issue." Pls.' Reply 2 (citation omitted). Plaintiffs request that the court order defendant to produce an appropriate designee or designee to address the disputed topics. Pls.' Opp'n & Cross-Mot. 48. Alternatively, plaintiffs request that the court order defendant to designate the entirety of certain individuals' depositions as responsive to these topics. Id. In the event that the court declines either of these options, plaintiffs request that the court permit them to depose certain decision-makers from the USDA "so the plaintiffs can gather the evidence which the RCFC 30(b)(6) process initially was intended to obtain." Id. Plaintiffs emphasize that, although they "have no interest in duplicating work, having already accepted the Government's selections of prior testimony as that of the USDA on certain topics," they are entitled to additional testimony for topics that defendant's designees "did not fully address" or where "there exists no record evidence." Pls.' Reply 4; see also id. at 3 n.5 (questioning whether plaintiffs actually deposed the primary witnesses who are capable of explaining agency action). A. Plaintiffs' Revised RCFC 30(b)(6) USDA Topic Number 2 In topic number 2, plaintiffs seek testimony from a designee concerning "[d]ocuments relating to the decision to permit the Faillaces to import live sheep from Belgium in 1996."13 Def.'s App. 121. According to defendant, a large proportion of these documents "appear to be applications to import sheep prepared by plaintiffs or plaintiffs' agents," while the remaining Plaintiffs cite specific documents, indicated by Bates numbers, in their revised topic number 2. See Def.'s App. 121. Plaintiffs' previous version of topic number 2, which did not identify specific documents, sought a designee who could testify regarding [t]he USDA's decision permitting the Faillaces to import live sheep in 1996 from Belgium, including but not limited to the timing of that decision, the parties involved in that decision, the basis for that decision, any communication about that decision, and any documents or other information relied upon in making that decision. Id. at 18. In response to defendant's contention that topic number 2 was overly broad, plaintiffs "narrowed" topic number 2 "[i]n an attempt to reduce the scope of the deposition topic[] even further." Id. at 64. Plaintiffs emphasize that they "specifically deleted the reference `including but not limited to' in order to make the limitations of the topic clear." Pls.' Opp'n & Cross-Mot. 45 n.24. -1713

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documents "include USDA regulations that govern the importation of sheep and other small ruminants . . . and documents that were generated by USDA officials . . . who otherwise have no knowledge of the facts that are at issue in this case . . . ." Def.'s Mot. 12. Defendant argues that topic number 2 is irrelevant to a determination of "whether (1) [the] USDA violated plaintiffs' right to receive fair compensation under the Fifth Amendment when the USDA seized plaintiffs' sheep and quarantined a portion of their premises for five years, or (2) [the] USDA violated plaintiffs' right to receive fair market value for the sheep seized . . . ." Id. at 12-13. According to defendant, [a]ll of the parties have conceded that the sheep that were seized from the Faillace and Freeman premises were imported or descended from sheep that were imported from either Belgium or the Netherlands. Moreover, the parties agree that, as of mid-July 1996, there was concern expressed by members of the scientific community in Europe that bovine spongiform encephalopathy (BSE) had spread from England to the Netherlands and Belgium and that meat and bonemeal contaminated with BSE had been fed to the livestock population in those countries. Def.'s App. 68. While defendant acknowledges that the documents referenced in topic number 2 "discuss the status of the health of the sheep," Def.'s Mot. 13, it nonetheless maintains that "the import documents which the plaintiffs would like to use during their USDA Rule 30(b)(6) deposition have no bearing upon the question of whether plaintiffs' sheep were or were not infected with a transmissible spongiform encephalopathy (TSE) of foreign origin," Def.'s Reply & Opp'n 10; accord id. ("[T]he importation documents have no bearing upon whether plaintiffs' sheep were infected with a TSE of foreign origin."); Def.'s App. 76 (raising relevancy objections to topic number 2 in defendant's Second Corrected Response to Plaintiffs' Rule 30(b)(6) Notice of Deposition of the United States Department of Agriculture). In fact, according to defendant, "[g]iven the relatively long incubation periods for TSE and the lack of definitive information about how [TSEs] in sheep are spread, the scrapie status of plaintiffs' sheep has no bearing upon whether plaintiffs' sheep were at risk to develop a TSE other than scrapie." Def.'s Reply & Opp'n 10 (citation omitted). Accordingly, defendant believes that its relevancy objection warrants issuance of a protective order precluding plaintiffs from obtaining testimony on this topic. Def.'s Mot. 13. Alternatively, defendant argues that, even if the court determines that topic number 2 is relevant, a protective order is appropriate for three reasons. First, defendant maintains that topic number 2 is overly broad because it identifies some, but not all, documents upon which a designee would be required to testify.14 Id. Second, defendant interprets topic number 2 to
14

Defendant states, however, that plaintiffs "concede [that] they will not require . . . [testimony] about any documents other than those identified in topic number 2." Def.'s Reply & -18-

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require government witnesses to "shed light upon documents which the plaintiffs, their agents, or agents of a foreign government prepared," which, according to defendant, contravenes the purpose of an RCFC 30(b)(6) designee, who is only required to testify as to matters known or reasonable available to the organization. Id. at 13-14. Finally, defendant argues that topic number 2 is unduly burdensome because it identifies a significant number of documents that "were generated by USDA officials, such as importation officials, who otherwise have no knowledge of the facts in this case" and would require "[l]ocating such individuals or educating USDA witnesses regarding such documents." Id. at 14. As a result, defendant asserts that plaintiffs "do not explain how Government witnesses can be expected to testify about the information contained in documents that were prepared by plaintiffs' witnesses or by officials from foreign countries," Def.'s Reply & Opp'n 10, and "offer no explanation as to how the Government could possibly prepare its witness to testify concerning documents about which it has no knowledge,"15 id. at 11. Plaintiffs respond that topic number 2 is relevant because it proves that their sheep were free of a TSE at the time of their importation.16 Pls.' Opp'n & Cross-Mot. 44; Pls.' Reply 12-13 ("[Topic number 2] bears directly on whether plaintiffs' sheep carried a `foreign' disease into the United States and demonstrates the foreign certifications that showed that plaintiffs' sheep were free of a TSE"). Plaintiffs argue that testimony about "specific documents relating to the USDA's decision to permit the Faillaces to import live sheep from Belgium in 1996" is necessary in order to "authenticate and to question a USDA witness about certain USDA import protocols." Pls.' Opp'n & Cross-Mot. 44. According to plaintiffs, these protocols "required confirmation that plaintiffs' sheep had no contact with any herd where scrapie disease had been diagnosed or suspected during the previous sixty months." Id.; see also Def.'s App. 165-233 (containing various applications for import, quarantine reservation forms, laboratory reports, health certificates, and United States rules and regulations concerning importation of sheep generally as well as importation specifically from Belgium). Plaintiffs seek testimony concerning the

Opp'n 10. Defendant further states that it "does not have any way to prepare itself about a number of the documents . . . because they were prepared by the plaintiffs themselves or by officials from Belgium or the Netherlands." Def.'s Reply & Opp'n 10-11 (citation omitted); see also id. at 11 ("[G]iven the vast array of documents that come from a number of different sources, the task of preparing one or more witnesses to testify concerning the variety of documents plaintiffs have identified will be extremely burdensome."). Topic number 2 is also relevant, plaintiffs claim, because "the scrapie-status of the sheep goes directly to whether former 21 U.S.C. § 134a and the supposed `other regulations' on which the Government relied are applicable . . . . Further, the scrapie-status of the sheep bears on whether the Government can assert a nuisance defense based on any allegedly foreign `disease.'" Pls.' Reply 13. -1916 15

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USDA's examination of these health certificates certifying that plaintiffs' sheep had no contact with scrapie within the sixty months prior to importation because "[t]he fact that the Government had in its possession documents certifying that the sheep did not have scrapie when they entered the United States makes it far less likely that plaintiffs' sheep carried a TSE into this country." Pls.' Opp'n & Cross-Mot. 45; see also Pls.' Reply 13 ("[T]he Government cannot deny that these documents do involve whether plaintiffs' sheep were infected with scrapie, which was at the time the only TSE believed naturally to infect sheep"). The documents encompassed by topic number 2, plaintiffs argue, "[n]ot only . . . raise the question of where plaintiffs' sheep allegedly contracted this `foreign' disease, they make it less likely that the sheep had scrapie . . . ." Pls.' Opp'n & Cross-Mot. 45; see also Def.'s App. 72 (stating defendant's position that "plaintiffs' assumption that [the] USDA has ruled out the possibility that the disease with which plaintiffs' sheep were infected was not scrapie or BSE is incorrect"). Plaintiffs maintain that they should be permitted to disprove defendant's claim that the sheep were possibly infected by scrapie. Pls.' Opp'n & Cross-Mot. 45. In response to defendant's alternative arguments, plaintiffs first emphasize that they revised topic number 2 such that it cannot be construed as overly broad. See supra notes 13-14; see also Pls.' Reply 13 n.12 (indicating that topic number 2 requests a designee "to address less than 30 documents"). Next, with respect to defendant's arguments that plaintiffs, plaintiffs' agents, or agents of a foreign government prepared most of the documents at issue, plaintiffs argue that "the preparer of the documents is of no consequence in designating a[n] RCFC 30(b)(6) witness." Pls.' Opp'n & Cross-Mot. 45 n.24 (citing Calzaturficio S.C.A.R.P.A. s.p.a. v. Fabiano Shoe Co., 201 F.R.D. 33, 38 (D. Mass. 2001) (rejecting arguments that witnesses could not testify on the grounds that tax returns were prepared by professional accountants because the witnesses "were still required to review all documentation and to educate themselves to the extent possible on all of the 30(b)(6) topics")). Additionally, plaintiffs note that defendant "reviewed and relied on the health certificates when it permitted the sheep to be imported, and the protocols were negotiated and followed by the USDA itself." Pls.' Reply 13 (citations omitted). Finally, as to defendant's argument that the documents were generated by USDA officials "who otherwise have no knowledge of the facts in this case" and that "[l]ocating such individuals or educating USDA witnesses regarding such documents would be unduly burdensome," Def.'s Mot. 14, plaintiffs assert that defendant is "incorrect[]," Pls.' Opp'n & Cross-Mot. 45 n.24. According to plaintiffs, defendant's designee need only have knowledge of the subject matter of the topic for which the witness is designated, rather than any personal knowledge of any facts of the case. Id. (citing ICE Corp., 2007 WL 1732369, at *4 (stating that a party may not undermine the purpose of FRCP 30(b)(6) "by responding that no witness is available who personally has knowledge concerning the areas of inquiry")). The court is not persuaded by defendant's relevancy objections. "Where there is doubt over relevance, [FRCP 26(b)(1)] indicates that the court should be permissive." Heat & Control, Inc. v. Hester Indus., Inc., 785 F.2d 1017, 1023 (Fed. Cir. 1986) (citing Deitchman v. E.R.