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IN RE LORAZEPAM & CLORAZEPATE ANTITRUST LITIGATION

May 20, 2004.

IN RE LORAZEPAM & CLORAZEPATE ANTITRUST LITIGATION; This document relates to: HEALTH CARE SERVICE CORPORATION, Plaintiff
v.
MYLAN LABORATORIES, INC., et al., Defendants; BLUE CROSS BLUE SHIELD OF MINNESOTA, et al, Plaintiffs v. MYLAN LABORATORIES, INC., et al, Defendants



The opinion of the court was delivered by: JOHN FACCIOLA, Magistrate Judge

MEMORANDUM OPINION

Plaintiffs Blue Cross Blue Shield of Minnesota and Massachusetts and Federated Mutual Insurance Company (hereafter "the Blues")*fn1 served a notice of deposition upon defendants Mylan Laboratories and Mylan Pharmaceuticals ("Mylan") pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure. Appended to the notice was a list of seventeen topics that were the subjects of the deposition. Mylan indicated that Brian S. Roman ("Roman") was to be the 30(b)(6) designee, and the 30(b)(6) deposition proved to be remarkably contentious. The Blues argue that Mylan's objections and its counsel's direction to Roman not to answer certain questions rendered the deposition an exercise in futility. For its part, Mylan insists that the Blues should be sanctioned because their questions to Roman were duplicative of questions asked of other witnesses and exceeded the scope of the seventeen topics in the notice of the deposition. Hence, by this Memorandum Opinion, I resolve Plaintiffs' Motion to Compel Defendants Mylan Laboratories, Inc. and Mylan Pharmaceuticals, Inc., to Make Available for Deposition a Knowledgeable and Prepared Corporate Designee, as Required under Rule 30(b)(6) and for Leave for Additional Time to Question Such Designee [#528]. I defer action on Mylan's Motion for Sanctions [#535] until the completion of the depositions that remain to be taken.

INTRODUCTION

  The major controversy that erupted during the deposition flows from radically different perceptions of the nature of the Rule 30(b)(6) deposition that was being taken. Mylan insists that Chief Judge Hogan prohibited duplicative discovery, meaning that the Blues could not ask the 30(b)(6) witness the same questions that were answered by other Mylan employees or require him to indicate his agreement or disagreement with statements made during the depositions of other Mylan employees. The Blues take a very different view-there was no duplication because the purpose and effect of the 30(b)(6) deposition of Mylan are radically different from the purpose and effect of the deposition of an employee. Hence, covering the same topics with a 30(b)(6) witness as were covered with another Mylan employee in a non-30(b)(6) deposition was appropriate because the deposition was of the corporation itself. There were other problems. The Blues complain that Mylan purposefully selected Roman because he lacked the knowledge necessary to answer their questions while Mylan objected again and again to questions that it complained were not within the topics designated in the attachment to the notice of deposition.

  Hence, I am obliged to determine whether Mylan can fairly be accused of designating as a 30(b)(6) witness a person who could not reasonably be expected to answer the Blues' questions and the validity of Mylan's objection that a 30(b)(6) witness need not answer a question that does not fall within the topics identified by the Blues as the subject of the 30(b)(6) deposition. I will then turn to the actual questions that Roman refused to or was unable to answer and decide what relief is due the Blues if I find that they were entitled to answers from Mylan to such questions.

  I must make another point. Reading the transcript of Roman's deposition has been an exceedingly painful experience. The frequent objections and the reactions to them led to an atmosphere of such hostility that I did not know whether I was reading a deposition transcript or the script of the next episode of "the Sopranos."*fn2 That hostility and the most fundamental difference between counsel as to the very nature of the deposition being taken have left me with the clear belief that it was impossible for this deposition to accomplish its purposes. Had I anticipated that this was going to occur when counsel called me during the deposition, I would have adjourned the deposition and insisted that it continue in the courtroom adjacent to my chambers so that I could have ruled immediately on the questions presented. This opinion and accompanying order represent my effort to reassert control over the deposition.

  DISCUSSION

 I. A 30(b)(6) Deposition Is Different

  There is a significant difference between a statement made by an employee during a deposition and one made by a corporate designee under Rule 30(b)(6). As explained below, the former statement can be imputed to the corporation, but the latter is itself the corporation's statement.

  A statement by an agent or servant that concerns a matter within the scope of agency or employment and is made during the existence of the relationship is not hearsay and can be admitted as an admission by a party opponent. Fed.R.Evid. 801(d)(2)(D). Hence, if a bus driver were to state, as he exited from a bus after an accident, that the brakes failed, that would be admissible against the transit company that owns the bus. Similarly, when a deposition is taken of the bus driver, as long as he is still employed by the transit company, his statements about the cause of the accident are admissible as admissions by the corporate entity. The finder of fact may consider them as evidence, but the company is free to counter such statements with evidence demonstrating that the accident was caused by other factors. This is because the statements are only attributable to the corporation and do not represent the definitive position of the corporate entity.

  On the other hand, statements made during a 30(b)(6) deposition by a corporate designee are statements of the corporation itself. If the transit company were to designate a 30(b)(6) witness and that individual stated during his deposition that the brakes failed, that statement would be admissible against the transit company as a statement by the organization. See Fed.R. Civ. P. 30(b)(6); Fed.R.Evid. 801(d)(2)(A). The finder of fact would evaluate this evidence as an admission by the company itself because it is through a 30(b)(6) deponent that an organization or corporation speaks. Simply put, the 30(b)(6) deposition presents for the finder of fact an unequivocal admission by a party opponent.

  It follows, therefore, that it is not duplicative to ask a 30(b)(6) deponent a question previously asked of a non-30(b)(6) witness because there is a legally significant difference in the two depositions. I therefore see no impediment to the Blues reading to the 30(b)(6) witness the testimony of another Mylan employee and asking questions about that testimony, culminating in a question as to whether the 30(b)(6) witness disagreed with the testimony or had reason to believe that it was not true. This mechanism was obviously designed to have Mylan, as a party and deponent, adopt as its testimony the testimony of one of its employees or indicate why Mylan's testimony was different so that the difference, once highlighted and explained, would become the testimony of Mylan, even if it differed from the employee's.

  By the same token, the unique purpose of a 30(b)(6) deposition should inform the court's exercise of discretion in supervising it in any case, let alone this one where the Chief Judge has insisted that neither the court's nor the parties' resources be needlessly expended in duplicative discovery. If, as occurred here, the deposition occurs at the end of discovery, the deposition must be designed to elicit statements that can be used to articulate a party's position and thereby shape an admission from it. It should not be used to plow old ground for no apparent purpose.

  Additionally, certain questions are so intrinsically factual that seeking the corporation's answer while already having a sufficient answer that binds the corporation as an admission is a waste of time in any case and, in this case, surely offends the Chief Judge's prohibition against duplicative discovery. Finally, if documents that are obviously authentic and admissible as business records establish a fact, asking the 30(b)(6) witness whether that fact is true is wasteful. While inquiry into the meaning of an ambiguous document is ...


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