CENTURYLINK COMMUNICATIONS LLC, et al. Plaintiffs, v. PEERLESS NETWORK, INC., et al. Defendants Case No. 18 C 3114 United States District Court, N.D. Illinois, Eastern Division Signed January 28, 2020 Counsel Charles Walter Steese, Pro Hac Vice, Douglas Nelson Marsh, Pro Hac Vice, Armstrong Teasdale LLP, Denver, CO, Bradley J. Axel, Robert James Slobig, Torshen, Slobig, Genden, Dragutinovich & Axel, Ltd., Chicago, IL, for Plaintiff CenturyLink Communications, LLC. Bradley J. Axel, Robert James Slobig, Torshen, Slobig, Genden, Dragutinovich & Axel, Ltd., Chicago, IL, Charles Walter Steese, Pro Hac Vice, Armstrong Teasdale LLP, Denver, CO, for Plaintiffs Level 3 Communications, L.L.C., Global Crossing Telecommunications, Inc. Bradley J. Axel, Torshen, Slobig & Axel, Ltd., Chicago, IL, Charles Walter Steese, Pro Hac Vice, Armstrong Teasdale LLP, Denver, CO, for Plaintiff WilTel Communications, LLC. Henry T. Kelly, Catherine E. James, Michael Ryan Dover, Kelley Drye & Warren LLP, Stephanie Patrice Addison, Taft Stettinius & Hollister LLP, Chicago, IL, for Defendants. Fuentes, Gabriel A., United States Magistrate Judge ORDER *1 Before the Court is the motion of Plaintiffs for leave to take an additional Rule 30(b)(6) deposition of defendant Peerless Network, Inc. (“Defendant” or “Peerless”), and to compel additional Rule 30(b)(6) testimony (D.E. 110, “Motion”) from a prior deposition given by Peerless, which is among numerous related defendants in this case (“Defendants”). For the reasons stated below, the motion is granted in part and denied in part. I. Legal Background Rule 30(b)(6) depositions permit a party to bind another party, through the testimony of one or more representative deponents, to testimony given on the topics contained in the notice of deposition. See Fed. R. Civ. P. 30(b)(6). The rule is intended to streamline the discovery process and to do away with the practice of “bandying,” in which business entities would present individual witnesses who would disclaim knowledge of particular issues and put the other party to a costly and burdensome task of determining which individual witnesses might be competent to testify to a variety of relevant issues. Fed. Deposit Ins. Corp. v. Giancola, 13 C 3230, 2015 WL 5559804, at *2 (N.D. Ill. Sept. 18, 2015), citing SmithKline Beecham Corp. v. Apotex Corp., No 98 C 3952, 2000 WL 116082, at *8 (N.D. Ill. Jan. 24, 2000). But by its very terms, Rule 30(b)(6) recognizes that the task of educating and presenting a representative deponent to testify on the topics in the notice can be burdensome, and thus the rule requires the “matters for examination” to be “describe[d] with reasonable particularity.” Fed. R. Civ. P. 30(b)(6). Courts have limited or narrowed Rule 30(b)(6) topics that were found not to describe the matters for examination with reasonable particularity. See Ball Corp. v. Air Tech of Michigan, Inc., 329 F.R.D. 599, 604-05 (N.D. Ind. 2019). Courts also have frowned on 30(b)(6) notices that describe the topics with the term “including but not limited to.” See Winfield v. City of New York, No. 15-cv-05236 (LTS)(KHP), 2018 WL 840085, at *5 (S.D.N.Y. Feb. 12, 2018) (“The Court must evaluate ‘reasonable particularity’ [of Rule 30(b)(6) topics] based on the nature of the topics listed in the deposition. ‘Reasonable particularity’ requires the topics listed to be specific as to subject area and to have discernible boundaries.... This means that the topics should not be listed as ‘including but not limited to;’ rather, they must be explicitly stated.”). Even before the 2015 amendments to Rule 26(b)(1), courts commonly held that topic descriptions containing the term “includ[ing] but not limited to” were too broad to comply with Rule 30(b)(6) and subjected the noticed party to an impossible task of preparing a 30(b)(6) witness. See Trs. of Boston Univ. v. Everlight Elecs. Co., Ltd., Nos. 12-cv-11935-PBS, 12-cv-12326-PBS, 12-cv-12330-PBS, 2014 WL 5786492, at *3 (D. Mass. Sept. 24, 2014); Fed. Ins. Co. v. Delta Mech. Contractors, LLC, No. CA No. 11-048ML, 2013 WL 1343528, at *4 (D.R.I. Apr. 2, 2013); RM Dean Farms v. Helena Chem. Co., No. 11CV00105-JLH, 2012 WL 169889, at *1 (E.D. Ark. Jan. 19, 2012); Reed v. Bennett, 193 F.R.D. 689, 692 (D. Kan. 2000). *2 The 2015 amendments to Rule 26(b)(1) provided that the scope of permissible discovery is not only relevance to claims or defenses in the action but also proportionality to the needs of the case. Fed. R. Civ. P. 26(b)(1). After the 2015 amendments, courts have applied the proportionality limitation on discovery under Rule 26(b)(1) to overbroad Rule 30(b)(6) notices. See Schyvincht v. Menard, Inc., 18 C 50286, 2019 WL 3002961, at *2 (N.D. Ill. July 10, 2019); Ball, 329 F.R.D. at 602. But proportionality must be considered on an individualized basis with attention to the needs of the particular case. The amended rule dictates that judicial consideration of the needs of a particular case includes consideration of “the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). As Magistrate Judge Schenkier of this district has stated, “the factual nuances of each case are what guide the courts.” Giancola, 2015 WL 5559804, at *3, citing cases. For example, 30(b)(6) topics calling for representative deponents to address legal contentions or conclusions are disfavored. See Schyvincht, 2019 WL 3002961, at *3 (holding that legal conclusions, legal opinions, and legal positions in the case are outside the scope of permissible Rule 30(b)(6) discovery). And some courts have exercised their discretion to determine that written interrogatories (directed at a party's contentions or bases for those contentions) are a more efficient means of obtaining discovery than a 30(b)(6) deposition, while others have viewed the circumstances as making the 30)(b)(6) deposition the better vehicle. Compare Clauss Constr. v. UChicago Argonne LLC, 13 C 5479, 2015 WL 191138, at *5 (N.D. Ill. Jan. 1, 2015) (allowing 30(b)(6) testimony where court determined that written interrogatories would not be efficient) with Schyvincht, 2019 WL 3002961, at *3 (concluding that inquiry into the legal bases for certain contentions is better suited to contention interrogatories than to Rule 30(b)(6) testimony). II. The Additional Rule 30(b)(6) Deposition Sought by Plaintiffs Dealing with the first prong of Plaintiffs' motion, calling for an additional 30(b)(6) deposition of Peerless on 11 additional topics numbered 30-40, the Court grants the motion in part. Peerless previously produced four representative deponents to give 30(b)(6) testimony on 29 topics over four days. Plaintiffs characterize their request for the additional 30(b)(6) deposition on the new 11 topics as justified by a “newly suggested basis for the charges at issue” in the case, and by Defendants' counterclaims, which Plaintiffs answered some eight months ago. (D.E. 57.) Topic Nos. 30-33 These topics are: 30. Your policies and practices for billing indirect DTTP charges under Section 6.1.2(A)(5)(b) of Your Interstate tariff, including but not limited to why indirect DTTP is submitted as SECAB rate element 36 (“common trunk port”) instead of other SECAB rate elements, the functions Peerless performs to justify these charges. 31. Your policies and practices for billing direct DTTP charges on SIP connections under Section 6.1.2(A)(5)(a) of Your Interstate tariff, including but not limited to when you started billing these charges on entities, including Plaintiffs, whether you billed DTTP on SIP connections to anyone before the tariff change in late 20015 [sic], and if so to whom you were billing such charges, and if not, why you were not billing such charges prior. 32. A description of the entities (including but not limited to carriers) who connect to You via SIP technology (as described in Section 6.1.2(A)(5)(a) of Your interstate access tariff), and the date on which they first connected to You via SIP connections. 33. Facts and evidence regarding how You determine when an entity (including but not limited to carriers) is responsible for indirect DTTP charges as described in Section 6.1.2(A)(5)(b) of Your interstate access tariff. (Mot. at 3-4.) Only Topic Nos. 30-33 appear to bear on the “newly suggested basis” for Peerless's charges that are disputed by Plaintiffs, namely, charges for indirect “Dedicated Tandem Trunk Port” rather than “Common Trunk Port.” See id. at 3-4. Peerless further responded to Plaintiffs' demand for a Rule 30(b)(6) deposition on Topic Nos. 30-32 by stating that it has agreed to confer with Plaintiffs' counsel to point them to documents Peerless has produced or will help Plaintiffs “locat[e].” (D.E. 120 at 1-2.) But producing or “locating” documents (whatever “locating” might mean) is not the same as producing a representative deponent, and that is what Plaintiffs are seeking. As to Topic No. 33, Peerless responded that “Mr. Phipps provided testimony in his 30(b)(6) deposition on this subject matter. (Id. at 2.) First, the point of Rule 30(b)(6) is to allow depositions of the entity, so that deposition could not have been “his,” though as explained below, Peerless tried to make it so. Second, on the pages relied on by Peerless for the proposition that it already supplied 30(b)(6) testimony on this topic, Plaintiffs did appear to be inquiring about matters related to Topic No. 33, but counsel for Peerless objected to the questions as “[o]utside the scope of Mr. Phipps' 30(b)(6) topics.” (D.E. 121-3, Tr. at 85.) Counsel for Peerless instructed the representative deponent to “give your personal testimony.” (Id.) Having taken the position that Plaintiffs were not obtaining the testimony of Peerless on this subject, Peerless cannot now be heard to argue that Plaintiffs already received that testimony. *3 Accordingly, the Court grants the Plaintiffs' motion as to Topic Nos. 30-33, based on the needs of the case as viewed through the proportionality lens of Rule 26(b)(1). This is a complex case, with an amount in controversy in the millions of dollars. The parties are well-represented and possess substantial resources. The discovery issues presented by these five topics present important matters for resolution in the lawsuit, namely the basis for the assessment of certain charges and whether similarly situated carriers were charged differently in some manner that supports Plaintiffs' claims. And the parties' relative access to information was a recurring theme at oral argument on this motion, and in arguments previously presented to the Court. Both parties have asserted that they do not have full access to the basis for the other's claims, particularly as they relate to why one party charged the other for a particular service. In view of all of these factors, the Court views Topic Nos. 30-33 as appropriate for a further Rule 30(b)(6) deposition and grants the Motion. However, Topic Nos. 30 and 31 describe the subject matter with the term “including but not limited to,” which is impermissibly broad. The deposition on those topics is limited to the subject matter stated in the topics, without the words “including but not limited to.” As to Topic No. 33, the words “and evidence” are deleted from the topic as to which the additional Rule 30(b)(6) deposition is compelled. The question of what is “evidence” supporting a particular proposition is a legal conclusion not proper for a Rule 30(b)(6) examination. Topic No. 34 Topic No. 34 is as follows: 34. A description of the entities to which You bill the $250 per circuit [sic] installation charges as set forth in Section 6.6.2 of Your interstate access tariff, the date when you started to bill such charges to each entity, and the reason why you started billing each entity for the charge on that date. (Mot. at 4.) Topic No. 34 appears to relate to Plaintiffs' damages claims for certain installation charges that Plaintiffs claim were wrongfully or unfairly billed to them under the relevant tariff. As with Topic Nos. 30-32, Peerless has offered to help Plaintiffs “locate” relevant documents. But in addition, Peerless already has testified about this topic at the earlier Rule 30(b)(6) deposition, through representative deponent Kell. Peerless, through Mr. Kell, testified about the Peerless “process” for imposing the $250 installation charge. (D.E. 121-4, Tr. 114-19.) Peerless did not object to these questions. Although Plaintiffs might well want more Rule 30(b)(6) testimony on Topic No. 34, they had a fair opportunity to question Peerless about that topic at the Kell representative deponent session, and efficiency counsels against granting them another 30(b)(6) deposition on this subject. Moreover, “[t]he discovery rules are not an excursion ticket to an unlimited, never-ending exploration of every conceivable matter that captures an attorney's interest.” Robinson v. Stanley, No. 06 C 5158, 2010 WL 1005736, at *5 (N.D. Ill. March 17, 2010). The Motion is denied as to Topic No. 34. Topic No. 35 Topic No. 35 seeks a 30(b)(6) deposition on “[t]he 2017 Settlement Agreement and any addenda or modifications thereto, including but not limited to its negotiation, execution, implementation, and interpretation.” (Mot. at 4.) Peerless responds to the Motion by stating that representative deponent Kell addressed the topic of the 2017 Settlement Agreement during his portion of the Peerless Rule 30(b)(6) deposition, and it is plain from the deposition excerpt that he did so at a very high level. (D.E. 121-1, Tr. at 274-77.) But Topic No. 35 is incredibly broad and fails to come close to meeting Rule 30(b)(6)'s “reasonable particularity” requirement. The Motion is denied as to Topic No. 35. Topic Nos. 36-39 Topic Nos. 36-39 seek “the legal and factual basis” for various Peerless claims asserted in Peerless's counterclaims. (Mot. at 4.) Each also contains the unhelpful “including but not limited to” term. But the Court concludes, at least in this case, that legal conclusions and positions are inappropriate subjects for Rule 30(b)(6) inquiry and are better addressed through so-called “contention” interrogatories. See Schyvincht, 2019 WL 3002961 at *3. Thus, the Court is denying the Motion as to Topics 36-39. Peerless contends it has responded to the questions posed by these topics in its response to Interrogatory No. 24 (see D.E. 121, Ex. 7), but the Court disagrees. The response contains mostly objections, before a short statement that Plaintiffs have failed to pay Peerless's lawful charges without submitting “proper disputes” because Plaintiffs have not “provide[d] sufficient facts to explain or support their disputes.” (Id. at 5.) Instead of producing another Rule 30(b)(6) witness on these topics that are better suited for interrogatory responses, see Schyvincht, 2019 WL 3002961 at *3, Peerless is ordered to supplement their response to Interrogatory No. 24 to provide the information requested in Topic Nos. 36-39, with the words “including but not limited to” deleted from those topics. *4 In denying the additional Rule 30(b)(6) deposition on these topics, the Court also is considering the unrebutted representation by Peerless at oral argument that its preparation of the four representative deponents for the earlier Rule 30(b)(6) deposition (which lasted about four days) took weeks. The Court is ordering the interrogatory responses in lieu of the additional deposition time in an effort to meld efficiency with the needs of this case. The discovery rules are, again, not an unlimited excursion ticket. Robinson, 2010 WL 1005736, at *5. Topic No. 40 Topic No. 40 seeks identification of disputes or disputed amounts that Peerless contends should be paid by Plaintiffs. This subject too is better suited to an interrogatory response than a 30(b)(6) deposition. Plaintiffs sought the information through their Interrogatory No. 25, to which Peerless responded with the same cursory language it used to respond to Interrogatory No. 24. The Motion is denied as to Topic No. 40, but Peerless is ordered to supplement its response to Interrogatory No. 25. III. Plaintiffs' Request for a Continued 30(b)(6) Deposition on Three Topics from the Initial Notice Plaintiffs' Motion additionally seeks to compel a continued Rule 30(b)(6) deposition on Topics 12 and 13, and on a portion of Topic 4, all from the original 30(b)(6) notice issued by Plaintiffs. The Court is persuaded that the representative deponent(s) who testified for Peerless supplied incomplete information as to these topics and/or indicated that they were not fully familiar with them. (Mot. Exh. C.) Plaintiffs are correct that the Court has the discretion to order Peerless to educate its representative deponent(s) further on these topics and to present them for further Rule 30(b)(6) deposition testimony. But the Court does not believe that the needs of the case require such a burdensome and costly remedy. The goal of giving Plaintiffs the relevant discovery they seek, within the bounds of proportionality, would be met by ordering Peerless to provide an affidavit supplementing the Rule 30(b)(6) testimony on these three topics, and specifically the subject matter of the questioning in Exhibit C to the Motion, insofar as (1) the representative deponent testified that he did not know or was not familiar with the process or matter about which he was questioned, and (2) to the extent that information is known or reasonably available to Peerless. Rule 26(e) provides a mechanism to allow parties to supplement discovery they have provided under Rule 26. Although the Advisory Committee's notes to the 1993 amendment to Rule 26(e) make clear that its supplementation mechanism does not “ordinarily” apply to depositions, it applies to supplemental expert discovery, which is not unlike what is sought here: additional information beyond what the representative deponent provided in the 30(b)(6) deposition. The Court concludes here that in the interest of promoting the “just, speedy and inexpensive determination” of the matter, see Fed. R. Civ. P. 1, an affidavit from a person with knowledge, providing the information Peerless at the earlier 30(b)(6) deposition said it could not provide with respect to Topic Nos. 4, 12 and 13, is preferable to requiring Peerless to educate and present a representative deponent to give a second oral deposition on these three topics. CONCLUSION For the reasons stated above, the Motion is granted in part and denied in part. Peerless is to present a Rule 30(b)(6) on Topic Nos. 30-33 as edited above on or before February 28, 2020. Peerless is to supplement its responses to Interrogatory Nos. 24 and 25 as ordered, and is to provide Plaintiffs with a supplemental affidavit as to Topic Nos. 4, 12 and 13, on or before February 28, 2020. The Motion is denied in all other respects. *5 SO ORDERED.