U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. UFP RANSON, LLC, Defendant CIVIL ACTION NO.: 3:21-CV-149 United States District Court, N.D. West Virginia Filed November 01, 2022 Counsel Casey M. Shea, Pro Hac Vice, Ronald L. Phillips, Pro Hac Vice, Equal Employment Opportunity Commission Baltimore Field Office, Baltimore, MD, Gregory A. Murray, Pro Hac Vice, Nina A. Menniti, Pro Hac Vice, U.S. Equal Employment Opportunity Commission, Pittsburgh, PA, Jordan Vincent Palmer, Maximillian F. Nogay, Stephanie K. Savino, U.S. Attorney's Office, Wheeling, WV, for Plaintiff. Bruce G. Hearey, Pro Hac Vice, Bruce G. Hearey, Esq., Cleveland, OH, Cory E. Ridenour, Richard L. Etter, Pro Hac Vice, Ogletree, Deakins, Nash, Smoak & Stewart, PC, Pittsburgh, PA, Edward M. George, III, Phillips, Richard N. Beaver, Phillips, Gardill, Kaiser & Altmeyer, PLLC, Wheeling, WV, for Defendant. Trumble, Robert W., United States Magistrate Judge ORDER GRANTING PLAINTIFF'S MOTION FOR PROTECTIVE ORDER *1 On October 18, 2022, Defendant UFP Ranson served a Notice of Rule 30(b)(6) Deposition on Plaintiff U.S. Equal Employment Opportunity Commission (“EEOC”), seeking testimony from a designated EEOC witness on November 1, 2022. Presently pending before the Court is Plaintiff EEOC's Motion [ECF No. 84] for Protective Order, filed on October 25, 2022, in which the EEOC seeks to cancel the Rule 30(b)(6) Deposition.[1] On October 28, 2022, Defendant UFP Ranson filed a Response [ECF No. 89]. The Court then held a Zoom hearing on October 31, 2022. Discovery in this case ends in four days on November 4, 2022. For the reasons that follow, Plaintiff's Motion [ECF No. 84] for Protective Order is GRANTED. Pursuant to Federal Rule of Civil Procedure 30(b)(6), a party may name a governmental agency as a deponent via notice and must describe with reasonable particularity the matters for examination. Fed. R. Civ. P. 30(b)(6). The agency must then designate one or more government personnel to testify on its behalf. Id. In this case, the EEOC was served with a Rule 30(b)(6) notice on October 18, 2022, seeking the deposition of its designated representative on November 1, 2022. Twenty-four discrete areas of inquiry were included in the notice. The Defendant seeks to obtain information as to facts supporting the EEOC's claims obtained from a number of potential witnesses. The EEOC asserts that EEOC counsel are the only agency personnel with the ability to answer questions regarding most of the noticed subject matter for examination. Alternatively, the EEOC submits that preparing a non-counsel proxy witness for the deposition would be overly burdensome and take at least a couple of weeks to bring someone up to speed on the facts of the case. Plaintiff argues that Defendant cannot make any showing of exceptional circumstances that would justify deposing opposing counsel, particularly on subject matter that improperly intrudes upon attorney work-product and attorney-client privilege. Plaintiff then argues that the deposition would be unduly burdensome and seeks cumulative and duplicative information because Defendant is already in possession of much of the information sought and has otherwise enjoyed ample opportunity to obtain the factual information it seeks through other means of discovery. In response, Defendant contends it is neither seeking to depose EEOC counsel nor does it seek privileged information. Defendant also contends the noticed topics are discoverable and that a Rule 30(b)(6) deposition is a permissible method of discovery under the rules. “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). “Relevance is not, on its own, a high bar.” Va. Dep't of Corrs. v. Jordan, 921 F.3d 180, 188 (4th Cir. 2019). As such, information “need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). Information sought is relevant if it “bears on, [or] reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). *2 But discovery, “like all matters of procedure, has ultimate and necessary boundaries.” Gilmore v. Jones, 2021 WL 68684, at *3 (W.D. Va. Jan. 8, 2021). Courts must limit the frequency or extent of proposed discovery if it is “outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C)(iii). Although Rule 26(b)(1)'s relevance inquiry does not, itself, pose a “high bar,” its proportionality requirement mandates consideration of multiple factors in determining whether to allow discovery of even relevant information. Jordan, 921 F.3d at 188–89. These factors include: “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 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). Additionally, the court may, for good cause, issue an order forbidding inquiry into certain discovery matters to protect a party from annoyance, undue burden, or expense. Fed. R. Civ. P. 26(c). Further, the court must also limit the frequency or extent of discovery otherwise allowed if it determines that: the discovery sought is unreasonably cumulative or duplicative, can be obtained from some other source that is more convenient, less burdensome, or less expensive; or the party seeking discovery has had ample opportunity to obtain the information by discovery in the action. Fed. R. Civ. P. 26(b)(2)(C). The Court finds that the Rule 30(b)(6) deposition, scheduled with only four days remaining in discovery, is not proportional to the needs of the case at this late stage. Plaintiff EEOC has shown good cause for a protective order barring the Rule 30(b)(6) deposition, as it would be an undue burden on the agency. EEOC claims that preparing a non-counsel proxy witness for the deposition would be overly burdensome and take not days, but weeks to prepare a proxy witness to testify as to the facts obtained through attorney-conducted interviews. Further, Defendant is already in possession of much of the information sought in this deposition and has otherwise had a sufficient discovery period to obtain the information through other means. Non-burdensome alternatives to a Rule 30(b)(6) deposition have been readily available and utilized by Defendant. Defendant has taken, or could have taken, EEOC class member depositions, witness depositions, and interviewed witnesses on its own, many of whom are former UFP Ranson employees. Defendant also served requests for production of documents and interrogatories. Plaintiff timely responded to this discovery,[2] which included the production of EEOC's complete investigation file[3] and interrogatory answers. In short, Defendant's relative access to the information, the amount of discovery already produced, and the importance of the requested information, all show that the deposition topics at issue are not proportional to the needs of the case. This is particularly true when coupled with the fact that Defendant's deposition will place an undue burden of time and expense on the EEOC that outweighs any likely benefit. For the reasons set forth above, Plaintiff's Motion [ECF No. 84] for Protective Order is GRANTED. It is hereby ORDERED that Plaintiff EEOC shall not be required to appear and give deposition testimony concerning the Notice of Rule 30(b)(6) Deposition that is the subject of the Motion. *3 Any party may, within fourteen (14) days of this Order, file with the Clerk of the Court written objections identifying the portions of the Order to which objection is made, and the basis for such objection. Fed. R. Civ. P. 72(a). A copy of such objections should also be submitted to the Honorable Gina M. Groh, United States District Judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(a). Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. See 28 U.S.C. § 636(b)(1); Wright v. Collins, 766 F.2d 841, 845–48 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984); see also Thomas v. Arn, 474 U.S. 140, 155 (1985). The Court directs the Clerk of the Court to provide a copy of this Order to all counsel of record, as provided in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia. Footnotes [1] On October 26, 2022, Judge Groh entered an Order [ECF No. 86] of Referral on the Motion. [2] Despite Defendant's assertion that the discovery responses provided by the Plaintiff fail to disclose information needed to prepare for trial and avoid surprise, the Defendant failed to compel responses to written discovery that it believed to be insufficient and/or unresponsive. [3] At oral argument on the matter, the parties did not dispute that all of the notes compiled from interviews during the administrative investigation were produced in their entirety without redaction.