Crescent Point Energy Corp. v. Tachyus Corporation

Background

Tachyus declined to provide a corporate witness under Federal Rule of Civil Procedure 30(b)(6) for three topics noticed by Crescent Point. Rule 30(b)(6) allows a party to require an organization to designate a witness to testify about specified matters. The dispute concerned Topics 1, 2, and 7.

Topics 1 and 2

Topic 1 sought testimony about errors, difficulties, anomalies, or other problems Tachyus encountered while implementing the software during the Backtesting Phase that affected the software’s ability to provide Crescent Point with feasible opportunities for meaningful financial upside. Tachyus argued that the topic was overbroad, insufficiently specific, and would require an impossible amount of memorization.

The court rejected those objections. It held that Topic 1 was limited to matters directly informing whether the Backtesting Phase was successful and satisfied Rule 30(b)(6)’s requirement that the noticing party describe the matters for examination with “reasonable particularity.” The court also found that Tachyus had not shown that the topic would require an impossible amount of memorization. Tachyus was required to prepare and produce a witness who could meaningfully testify about the topic, although the witness did not need to memorize every fact or document.

Topic 2 concerned the software’s ability or inability to perform during the Backtesting Phase as required by the agreement. The listed subjects included using machine learning to forecast oil production, predicting and optimizing waterflooding pressure, predicting and optimizing water injection rates and speeds, maximizing oil extraction, gathering and analyzing Crescent Point’s fracking and log data, and modeling hydraulic fractures.

The court overruled Tachyus’s objections to Topic 2 for the same reasons it rejected the objections to Topic 1. Tachyus was required to produce a Rule 30(b)(6) witness for Topics 1 and 2 by August 4, 2023.

Topic 7

Topic 7 sought Tachyus’s position on whether Crescent Point terminated the agreement. The court explained that the topic related to Tachyus’s counterclaim alleging that Crescent Point breached the agreement by failing to pay amounts due and by failing to properly terminate the contract under the parties’ termination provision.

The court sustained Tachyus’s objection to Topic 7. It characterized contract termination and Tachyus’s position that Crescent Point failed to terminate properly as legal issues and a legal position. The court stated that Crescent Point might have sought discovery about that position through a properly timed contention interrogatory, but concluded that a Rule 30(b)(6) deposition on Topic 7 would require Tachyus’s representative to rely on legal advice and attorney-client communications. Tachyus therefore did not have to provide a witness on Topic 7.

Disposition

United States Magistrate Judge Alex G. Tse ordered Tachyus to produce a Rule 30(b)(6) witness on Topics 1 and 2 and sustained Tachyus’s objection to Topic 7. The order stated that it addressed timely noticed discovery and did not authorize new discovery sought after the fact-discovery deadline.