Powers v. Memorial Sloan Kettering Cancer Center

Background

Scott Powers sought permission to take more than ten fact-witness depositions, including two depositions of witnesses designated to testify for Memorial Sloan Kettering Cancer Center under Federal Rule of Civil Procedure 30(b)(6). One proposed deposition concerned electronic medical-record and information-technology issues; another concerned policies, procedures, protocols, practices, and the factual bases of the defendants’ defenses.

In an October 8, 2020 order, the court had denied Powers’s request to exceed ten depositions and had granted the defendants’ request to quash a deposition notice concerning their policies and procedures. The court had also directed the parties to narrow the topics for an information-technology witness and directed Powers to serve an amended notice.

The defendants later filed a pre-motion letter seeking, among other things, a discovery conference, a protective order concerning Powers’s requests to admit and several deposition notices, permission to move to quash an amended subpoena served on non-party Ethicon, Inc., and permission to seek sanctions and attorney’s fees.

Rulings

The court ordered the parties to meet and confer by November 12, 2020 about each request to admit that the defendants considered improper, unreasonably cumulative, or disproportionate to the needs of the case. They also had to discuss the scope of the information-technology deposition notice and submit a joint letter identifying any remaining disputes.

The court construed the defendants’ request for a protective order relieving them of the obligation to respond to Powers’s first deposition notice concerning the substance of records as a motion to quash. That motion was granted. The court found that Powers had previously indicated that he intended to take only two organizational-witness depositions, that the relevant information could be obtained through other fact-witness depositions, and that a deposition about the substance of records would be cumulative and not proportional to the needs of the case.

The court denied the defendants’ anticipated motion to quash Powers’s amended subpoena to testify and produce documents served on non-party Ethicon, Inc. It held that the defendants lacked standing to challenge that subpoena. The court stated that, absent a privilege claim, a party generally lacks standing to object to a subpoena directed to a non-party on relevance or undue-burden grounds.

Effect of the Order

The order required further discussion of the requests to admit and the information-technology deposition notice, granted the motion to quash the deposition notice concerning the substance of records, and denied the anticipated challenge to the Ethicon subpoena. The Clerk of Court was directed to close the motion at Docket No. 94. Judge Lorna G. Schofield’s order addressed discovery and did not resolve the underlying claims.