Virginia’s “ever-evolving discovery rules”[1] necessarily afford counsel wide latitude within which to maneuver in undertaking their duty to zealously advocate. The rules, however, also furnish aggrieved parties with effective means to combat oppressive discovery practices initiated by attorneys who seek to gain an unfair advantage and those who are merely dilatory in undertaking discovery. In such cases, parties commonly seek protection under Va. Sup. Ct. R. 4:1(c), which defines the somewhat nebulous bounds of permissible discovery.
Particularly vulnerable to dispute is the oft-encountered corporate designee deposition.[2] Earlier this year, the Circuit Court for the County of Fairfax provided guidance for counsel confronted with delayed notice of a corporate designee deposition. In Friedman v. Five Guys Enters., LLC, 91 Va. Cir. 457, the Honorable John M. Tran opined on the court’s limited, yet critical, role in overseeing discovery, stating that the “discovery rules invest the courts with the authority and responsibility to manage the cases that come before it rather than relinquishing control to the pursuit of discovery brinkmanship.”[3]
There, Plaintiff’s counsel served notice of a corporate designee deposition (“Notice”) only twelve days prior to the already-extended discovery deadline. The Notice denoted that the deposition was to take place just eight days following service, and detailed twenty-nine topics of inquiry. Defense counsel promptly filed a Motion for a Protective Order to limit the breadth of the proffered inquiry.[4] Following a hearing, the court granted the Defendant’s motion and quashed the corporate deposition in its entirely.[5]
In a well-reasoned memorandum opinion, the court explained that the “Plaintiff’s Notice was unduly burdensome and intended to oppress the Defendant, and that the topics were facially overly broad, irrelevant or duplicative of information provided in prior depositions.”[6] The Court found unavailing the Plaintiff’s argument that: (1) one month before serving of the Notice, Plaintiff’s counsel alerted Defense counsel of his intention to depose a corporate designee near the discovery deadline, and (2) purported deficiencies in the Defendant’s earlier deposition testimony warranted additional exploration to the tune of twenty-nine subject areas.[7] The Friedman court based its decision, in large part, on the “materially greater” duty imposed on a corporate designee, who must testify about all relevant matters known to the corporation, and not just facts within the witnesses’ independent personal knowledge. Consequently, the court found, it is “patently unreasonable and unduly burdensome to require [a] Defendant to produce and adequately prepare a corporate designee to testify about all 29 topics listed in the Notice in . . . five[ ] business days.”[8]
In light of Friedman, when confronted with eleventh-hour corporate deposition efforts and/or those that seek expansive inquiry, defense counsel should consider the elevated burden imposed on a corporate designee and evaluate – under the totality of the circumstances – whether such notice produces an “in torrem” effect on the Defendant.[9]
For more information, please contact one of Sands Anderson’s Coverage and Casualty Litigation Group attorneys.
———————————–
[1] Friedman v. Five Guys Enters., LLC, 91 Va. Cir. 457, 465 (Fairfax 2016).
[2] See Va. Sup. Ct. R. 4:5(b)(6).
[3] Id.
[4] The parties failed to reconcile their disagreement as to the propriety of the proffered Notice prior to Defense counsel’s filing of the motion.
[5] The Court issued its memorandum opinion in conjunction with a hearing on the award of attorney’s fees in light of its earlier decision to quash the Defendant’s corporate deposition notice. The court awarded the Defendant $3,500.00 in attorney’s fees and costs pursuant to Rule 4:1(c), Rule 4:12(a)(4) and Rule 4:1(g).
[6] Id. at 458 (internal quotation marks and alterations omitted).
[7] The court also considered the parties’ reasonableness throughout the dealing, specifically – plaintiff’s unwillingness to limit the scope of the Notice without significant stipulation, and the fact that defendant’s motion did not seek to quash the entire Notice.
[8] Id. at 459.
[9] Id. at 464.