Powers v. Memorial Sloan Kettering Cancer Center

Background

Defendants asked for a protective order relieving them from responding to Scott Powers’s requests to admit under Federal Rule of Civil Procedure 36 and from responding to portions of his Fourth Amended deposition notice under Rule 30(b)(6). The disputed deposition topics concerned information-technology issues.

After an earlier order requiring the parties to meet and confer, the parties narrowed their disputes. The requests to admit at issue were numbers 1 through 44, all concerning an ablation machine and information collected by or exported from it. The remaining deposition disputes concerned software running on the ablation machine and the methods used to search for responses to requests for production 1 through 64.

Rulings

The court explained that a request for “discovery on discovery”—discovery into how a party searched for and produced documents—requires an adequate factual basis and must be closely examined because it can prolong and increase the cost of discovery.

The court construed defendants’ request concerning requests to admit 1 through 44 as a motion to quash and granted it in part. The court found those requests unreasonably cumulative and disproportionate to the needs of the case. Powers was ordered to narrow the requests to ten requests with no subparts.

The court construed the request concerning the Fourth Amended Rule 30(b)(6) deposition notice, together with defendants’ portions of the parties’ joint letter, as a motion to quash two deposition topics. The court granted the request concerning software running on the ablation machine because the information was publicly available, could be obtained through other discovery methods—including a subpoena to Ethicon, Inc. and depositions of other fact witnesses—and was unreasonably cumulative and disproportionate to the needs of the case.

The court also granted the request concerning methods used to search for responses to requests for production 1 through 64. It found that Powers had not provided an adequate factual basis for believing the existing document production was deficient and that the proposed discovery would be unreasonably burdensome and disproportionate to the needs of the case.

Other Orders

The parties were ordered to bear the costs of their own copies of video-recorded depositions. The party that designates video recording must bear other videography costs. The parties were also ordered to meet and confer and file any pre-motion letters concerning remaining disputes, and any motions for clarification or reconsideration, by November 20, 2020.

Disposition

Judge Lorna G. Schofield granted in part the motion to quash requests to admit 1 through 44, granted the motions to quash the two specified deposition topics, entered the deposition-cost directives, and set the November 20, 2020 filing deadline.