Fed. R. Civ. P. 1 used to limit Rule 30(b)(6) depositions addressing a party’s email policies and search for responsive emails

Newman v. Borders, Inc., 2009 WL 931545 (D.D.C. April 6, 2009)

In Newman v. Borders, Judge John Fasciola relied upon Rule 1 of the Federal Rules of Civil Procedure to limit a party’s request for an additional 30(b)(6) deposition sought by the plaintiff in a motion to compel. Newman involved a racial discrimination claim where the discovery costs dwarfed the potential recovery. Thus, in order to bring the discovery dispute to “a just and inexpensive conclusion,” rather than allowing another costly 30(b)(6) deposition requested by the plaintiff, Judge Fasciola ordered the defendant to submit an affidavit from a knowledgeable company representative answering a series of nine questions which he outlined, addressing the issues that were the subject of the motion to compel.

In light of the costs of electronic discovery, given Rule 1’s mandate that the Federal Rules should be interpreted to secure the “inexpensive determination of every action and proceeding,” it should be part of any party’s playbook to control ediscovery costs. Frequently however, it seems that court and counsel lose sight of Rule 1’s approach. Perhaps Newman, and other likeminded decisions will signal the way to control the costs of discovery.

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Privilege waived by failing to object to deposition questions about the content of inadvertently produced documents

AHF Community Development, LLC v. City of Dallas, 2009 WL 348190 (N.D. Tex. Feb. 12, 2009).

The district court in AHF Community concluded that a party which had inadvertently produced privileged documents waived attorney-client privilege by failing to object to deposition questions which focused on the content of the privileged documents that were marked as exhibits at the deposition. The decision underscores the need for nonwaiver orders under Fed. R. Evid. 502(d), or if unavailable clawback agreements. Lurking behind the decision however, are several equally important ethical issues that should not be overlooked by attorneys when privileged information is inadvertently produced in discovery.

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