Opinion
Civil Action No. 00-760 c/w 00-2154 01-2642, Section "T"(2)
August 20, 2002
ORDER AND REASONS
Plaintiffs in limitation/third-party plaintiffs, Transocean Offshore (U.K.) Inc., Transocean Offshore Ventures Inc., Transocean Offshore USA, Inc. and Transocean Deepwater Drilling, Inc. (collectively referred to herein as "Transocean"), filed a motion to compel third-party defendant, Aker Marine Contractors, Inc., to produce certain discovery responses. Record Doc. No. 213. After the court continued the motion hearing date at the request of the parties, they amicably resolved all but four of the disputed issues. The court commends counsel for these efforts.
The four outstanding issues are set forth in Transocean' s supplemental memorandum in support of motion to compel inspection/production of documents. Record Doc. No. 227. Transocean submitted certain documents for in camera review along with its supplemental memorandum. Aker filed a timely opposition to Transocean' s supplemental memorandum. Record Doc. No. 230. Aker also received leave to file a supplemental memorandum in opposition to the motion to compel. Record Doc. Nos. 256, 257.
Having reviewed the documents in camera, the written submissions and arguments of the parties, the record and the applicable law, and for the following reasons, IT IS ORDERED that Transocean' s motion to compel is GRANTED IN PART AND DENIED IN PART as follows.
ANALYSIS
A. Aker's Project List for 1999 and 2000
Aker gave Transocean a list of all of Aker's projects for all of its customers for the years 1999 and 2000. However, Aker objected to Transocean's professed intent to deposit the project list in the document depository for these consolidated cases. Aker claims that the list contains sensitive and confidential information, and that Section III(G) of the Agreed Order Concerning the Document Depository Guidelines, Plaintiff's Exh. 7, permits it to withhold the document from the depository, although any party may review it upon giving notice, as provided in the Guidelines. Plaintiff's Exh. 6, letter from Aker's counsel.
The Agreed Order Concerning the Document Depository Guidelines was filed with the court, Record Doc. No. 109, and adopted by the presiding district judge. Record Doc. No. 110. Section III(G) of the Guidelines provides:
If a party has particularly sensitive discoverable documents that it does not wish to deposit with the depository, it may elect to retain the documents without depositing them with the depository, but must provide each party to the litigation with an index of the documents withheld, including descriptive information sufficient to identify the withheld document or group of documents. Thereafter, it must make the withheld documents available for inspection by any party and/or its expert(s) or consultant(s) upon request, with reasonable notice.
Record Doc. No. 110, Section III(G) (emphasis added). It is apparent from the emphasized portions that this provision gives a party the discretion to withhold a document from the depository at its own election.
Transocean produced the project list to the court for in camera review. Transocean argues that the list should be placed in the document depository because it contains information that is in the public domain. Transocean contends that, pursuant to the parties' Agreed Protective Order, Aker may not designate the project list as confidential if it contains information that is already in the public domain. Plaintiff's Exh. 8; Record Doc. No. 101.
Paragraph 9 of the Agreed Protective Order provides, in pertinent part:
Nothing shall be designated as "For Counsel Only" (or "Attorneys' Eyes Only") information except information of the most sensitive nature, which if disclosed to persons of expertise in the area would reveal significant technical or business advantages of the producing or designating party, and which includes as a major portion subject matter which is believed to be unknown to the opposing party or parties, or any of the employees of the corporate parties. Nothing shall be regarded as "Confidential", or "For Counsel Only" (or "Attorneys' Eyes Only") information if it is information that either:
(a) is in the public domain at the time of disclosure, as evidenced by a written document;. . . .
Record Doc. No. 101, ¶ 9.
In support of its argument that the information contained in the project list is already in the public domain, Transocean has provided me with a marketing brochure for Aker's services, which Transocean contends reveals the same information that is in the project list. Plaintiff's Exh. 9. The court rejects Transocean's argument. There is no discernible relationship between Aker's generalized marketing brochure and its specific list of projects, dates and clients, and certainly no disclosure of the specific information from the list in the brochure. Because the information sought to be protected is not in the public domain, the exception in the Agreed Protective Order does not apply.
Aker further argues that it produced the project list, not in response to any specific discovery request propounded by Transocean, but only to satisfy Transocean's request that Aker demonstrate its thoroughness in reviewing its job files to produce otherwise responsive documents. Thus, Aker contends, in the absence of a discovery request to which the project list is responsive, there is nothing to compel.
Aker nonetheless concedes that Transocean's Interrogatory No. 1 arguably requests the information contained in the project list, but only as to "each and every contract or request for your services pertaining to the rig move of TRANSOCEAN 96 during 1998 to 2001." Transocean's Interrogatory No. 1 (emphasis added). Had the interrogatory requested similar information concerning all of its customers, Aker states that it would have objected on the grounds of overbreadth and irrelevance.
Despite these arguments, Aker is willing to permit the project list for 1999 and 2000 to be deposited in the document depository, provided that all client names and project descriptions other than Transocean-related jobs are redacted. Insofar as Transocean has formally requested only information concerning Transocean-related jobs, the court finds that Aker may produce such a redacted list for deposit in the document depository and satisfy its discovery obligations as to this issue.
B. Aker's Project List for 1998 and 2001
Aker has agreed to produce a project list for these two years, subject to the same restrictions described above for the already produced project list. The same arguments and the same ruling detailed above apply to Transocean's request for a project list for 1998 and 2001.
C. Designation of a Corporate Representative for a Rule 30(b)(6) Deposition
Transocean contends that it has reviewed the project lists and all of the job files produced by Aker at its office in Amelia, Louisiana, but that the files "do not disclose services rendered by Aker' s engineering department," which is located in Houston. Transocean therefore requests that Aker be compelled to designate an additional corporate representative who can testify concerning Aker's engineering services, including any mooring analyses associated with Transocean 96, at a continuation of Aker's Fed.R.Civ.P. 30(b)(6) deposition.
Aker responds that it has produced all responsive job files, that Transocean has already deposed two of Aker's corporate representatives, Tom Fulton and Chuck Minton, and that Fulton in particular has already testified concerning all of the engineering issues raised in Transocean's Notice of Deposition pursuant to Fed.R.Civ.P. 30(b)(5) and 30(b)(6). According to its supplemental memorandum in opposition to Transocean s supplemental motion to compel, Aker nonetheless agreed to produce its current chief of engineering, Bill Wilde, for deposition on August 14, 2002. According to Aker, the person who was chief of engineering at the time of the accident at issue is no longer employed by Aker, Wilde did not become head of the engineering department until the spring of 2001 and he has no personal knowledge concerning any engineering analyses or other documents related to the accident at issue. Aker therefore refused to designate him as a corporate representative, but offered to produce him as a fact witness. Transocean declined to depose him as a fact witness and the Rule 30(b)(6) deposition scheduled for August 14, 2002 was cancelled.
First, if Aker has indeed produced all responsive job files or other documents in its possession, it must so state in a formal written response to the appropriate Request for Production as required by Fed.R.Civ.P. 34 and 30(b)(5). Aker cannot produce documents that it does not have, but Transocean is entitled to rely on that response if Aker makes it. If Aker has additional responsive files in its Houston office or elsewhere, it must produce them to Transocean, along with a supplemental written response designating the appropriate files and stating that they will be made available for inspection pursuant to Fed.R.Civ.P. 34.
Second, it appears that Aker has cooperated with Transocean's request for a continued Rule 30(b)(6) deposition. However, in its supplemental memorandum in opposition to Transocean's supplemental motion to compel, Aker contends that only it, not Transocean, can designate a corporate representative to answer questions about outstanding engineering issues and that Transocean cannot compel it to name Wilde, or any other particular person, as a corporate representative.
Aker is correct that Transocean cannot compel it to name a specific person, but at the same time Aker cannot avoid its obligation to designate someone who is prepared with appropriate responsive knowledge of the corporation sufficient to permit the deposition to be taken.
If in the course of taking the deposition it becomes apparent that the person or persons designated are not able to provide testimony on the matters specified in the notice, it is the duty of the corporation immediately to make a new designation substituting someone who can give the needed testimony. . . . Because Rule 30(b)(6) imposes on the organization the obligation to select the individual witness, the party seeking discovery is not permitted to insist that it choose a specific person to testify unless the person designated is an officer, director, or managing agent whom the corporation may be required to produce under Rule 30(b)(1).
8A C.A. Wright, A.R. Miller R.L. Marcus, Federal Practice and Procedure § 2103, at pp. 31-32 (2d ed. 1994) (emphasis added).
Aker cannot avoid designating a corporate representative to address outstanding issues in the deposition notice merely by pleading that no individual employee possesses specific, personal knowledge. Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979); Kanaji v. Philadelphia Child Guidance Ctr., No. 00-937, 2001 WL 708898, at *2 nn. 4, 5 (E.D. Pa. June 20, 2001); Horsewood v. Kids "R" Us, No. 92-2441-GTV, 1998 WL 526589, at *6-7 (D. Kan. Aug. 13, 1998).
1) Rule 30(b)(6) obligates the responding corporation to provide a witness who can answer questions regarding the subject matter listed in the notice. 2) If the designated deponent cannot answer those questions, then the corporation has failed to comply with its Rule 30(b)(6) obligations and may be subject to sanctions, etc. The corporation has an affirmative duty to produce a representative who can answer questions that are both within the scope of the matters described in the notice and are "known or reasonably available" to the corporation.King v. Pratt Whitney, 161 F.R.D. 475, 476 (S.D. Fla. 1995) (emphasis added), aff'd, 213 F.3d 646, 647 (11th Cir. 2000). Aker must prepare its designated witness to address the noticed topics as well as it can with pertinent information reasonably available to the corporation. Kanaji, 2001 WL 708898, at *2; United States v. Massachusetts Indus. Fin. Agency, 162 F.R.D. 410, 412 (D. Mass. 1995). At this point, Aker has not shown that it has no witness capable of answering Transocean's questions.
Moreover, Aker states in its supplemental memorandum that it will produce Wilde as a fact witness or will produce Fulton again as a corporate representative to testify about any outstanding engineering issues. Accordingly, Aker must designate an additional corporate representative to answer questions about the outstanding engineering issues and must produce that witness for a continued deposition under Rule 30(b)(6) within 20 days of entry of this order.
D. Personnel Files
Transocean seeks to compel production of the complete personnel files of several Aker employees. Some of these files were requested in Transocean's Rule 30(b)(5) Request for Production No. 35 and some were subsequently requested by letter from Transocean' s counsel to Aker's counsel. Aker produced some of the documents requested in the deposition notice, but objected at the Rule 30(b)(6) deposition and in its opposition memorandum to production of the complete personnel files, citing privacy concerns of the employees and unspecified, "possible" violations of federal privacy laws.
To the extent that Transocean seeks to compel the personnel files of Chuck Minton, Tom Fulton, Larry Puckett and Tony Palmature, the motion is denied because no Rule 34 request for production was ever made for these files. Thus, there is nothing to compel with regard to these files.
As to the personnel files that were specifically requested in Transocean' s Rule 30(b)(5) Request for Production No. 35, Aker's privacy objection may be well founded. Transocean's motion to compel is therefore DEFERRED as to this request. While these personnel files may be relevant to the subject matter of this case in that they may lead to the discovery of admissible evidence concerning the employees' actions during the relevant time period, the employees are not parties to this lawsuit. Discovery of the personnel files of non-party individual employees presents special concerns about the privacy rights of the individuals involved. Balancing the interests of the parties in obtaining relevant discovery against the privacy interests of individual non-parties can best be accomplished by in camera review of the requested files. Atkinson v. Denton Publishing Co., 84 F.3d 144, 148 (5th Cir. 1996). By reviewing these records in camera I can also make an informed ruling as to their relevance. Accordingly, IT IS ORDERED that Aker must produce the subject personnel files to me no later than August 26, 2002, for in camera review. Thereafter, this part of the motion will be decided on the record without oral argument.
CONCLUSION
Accordingly, IT IS ORDERED that Transocean's motion to compel is GRANTED IN PART AND DENIED IN PART as stated above. Aker must produce the withheld documents to the extent discussed above to Transocean's counsel within 10 days of entry of this order. The motion is DEFERRED as to the requested personnel files, which must be produced to me for in camera review no later than August 26, 2002. IT IS FURTHER ORDERED that the discovery deadline is extended for 20 days from the date of entry of this order solely for the purpose of completing the Rule 30(b)(6) deposition of Aker.