United States District Court, S.D. West Virginia, Charleston Division
IN RE BOSTON SCIENTIFIC CORP., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO THE FOLLOWING CASE: Katrina Hinnewinkel, Civil Action No. 2:17-cv-04127
A. Eifert, Judge
before the court is Defendant C. R. Bard, Inc.'s
(“Bard”) Motion for Protective Order Quashing
Plaintiff's Notice of Deposition of Ronald Bracken. (ECF
No. 55). Bard argues that Plaintiff should be precluded from
deposing Mr. Bracken, a former employee of Bard, for three
overarching reasons. First, Mr. Bracken was already deposed
regarding Bard's products, including the Alyte product
used by Plaintiff, and Plaintiff has failed to demonstrate
“exigent circumstances” justifying a second
deposition of the same witness. Second, Bard is producing a
corporate designee under Fed.R.Civ.P. 30(b)(6) to testify
regarding the same subject matter about which Plaintiff
intends to question Mr. Bracken. Finally, Mr. Bracken's
deposition would be cumulative and duplicative of information
already supplied in the Bard and Boston Scientific
multidistrict litigations (“MDL”), and the
deposition would be burdensome, because Mr. Bracken left the
employ of Bard six years ago.
response, Plaintiff contends that Mr. Bracken has never been
deposed in the Boston Scientific MDL; rather, he was
deposed in 2014 in the Bard MDL. Therefore, Plaintiff argues,
the deposition is not a “second” deposition of
the same witness and does not require a showing of exigent
circumstances by Plaintiff. Plaintiff adds that, in any case,
recent events justify the deposition of Mr. Bracken.
Specifically, Plaintiff points to a 2018 document production
by Bard concerning the Alyte product and recent
communications by the Federal Drug Administration relating to
transvaginal mesh. Lastly, Plaintiff asserts that Mr.
Bracken's deposition is not cumulative or duplicative as
the Alyte product was not the subject of focused discovery at
the time of Mr. Bracken's previous deposition.
Accordingly, Plaintiff did not have an opportunity to ask
in-depth questions about Alyte. Plaintiff claims that Mr.
Bracken is an important witness, because at the time Alyte
was developed, marketed, and initially sold by Bard, Mr.
Bracken was Bard's Vice President of Research and
filed a reply memorandum advising the Court that
Plaintiff's response is untimely and should be
disregarded on that basis alone. Bard also reiterates that
Plaintiff should not be permitted to take the deposition,
because Plaintiff will have the opportunity to ask Bard's
corporate designee all of the same questions she intends to
ask Mr. Bracken.
considered the arguments, the Court GRANTS
the motion, in part, and DENIES the motion,
in part. The record supports Plaintiff's contention that
the Alyte product was not the focus of Mr. Bracken's
prior deposition. Consequently, the deposition proposed by
Plaintiff would not constitute a second deposition of the
same witness on the same subject matter. Moreover, Bard's
production of Alyte-specific documents years after Mr.
Bracken's 2014 deposition provides justification for
Rules 26(b)(2)(C) and 26(c), “the court has broad
authority to limit discovery and prescribe alternative
discovery mechanisms, ” Minter v. Wells Fargo Bank,
N.A., 258 F.R.D. 118, 124 (D. Md. 2009); in other words,
to determine “when a protective order is appropriate
and what degree of protection is required.” Furlow
v. United States, 55 F.Supp.2d 360, 366 (D. Md.1999)
(quoting Seattle Times Co. v. Rhinehart, 467 U.S.
20, 36, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984)). Nevertheless,
protective orders “should be sparingly used and
cautiously granted.” Baron Fin. Corp. v.
Natanzon, 240 F.R.D. 200, 202 (D. Md. 2006) (quoting
Medlin v. Andrew, 113 F.R.D. 650, 653 (M.D. N.C.
1987)). A court's customary reluctance to constrain
discovery is heightened in the case of a motion seeking to
prevent the taking of a deposition. Minter, 258
F.R.D. at 125 (citing Static Control Components, Inc. v.
Darkprint Imaging, 201 F.R.D. 431, 434 (M.D. N.C.
2001))(“By requesting the Court to prohibit plaintiff
from deposing a witness, defendant ... assumes a heavy burden
because protective orders which totally prohibit a deposition
should be rarely granted absent extraordinary
circumstances.”). The reason for this is fundamental.
Usually, the subject matter of a deposition is not
well-defined in advance; thus, the need for prospective
relief is more difficult to establish than in other methods
of discovery. In addition, “a motion can be made if any
need for protection emerges during the course of the
examination;” therefore, a ruling prior to commencement
of the deposition is not necessary to achieve a fair
resolution. 8 Wright & Miller, Federal Practice and
Procedure, § 2037 (3d Ed.). Consequently, the
burden to show good cause for an order prohibiting the taking
of a deposition is especially heavy. Medlin, 113
F.R.D. at 653; Motsinger v. Flynt, 119 F.R.D. 373,
378 (M.D. N.C. 1988) (“Absent a strong showing of good
cause and extraordinary circumstances, a court should not
prohibit altogether the taking of a deposition.”). For
these reasons, the motion for protective order is denied to
the extent it seeks preclusion of Mr. Bracken's
same time, a witness should not be subjected to multiple
depositions covering the same subject matter; effectively,
giving one party numerous “bites at the apple” to
the detriment of the party offering the witness. Furthermore,
one party should not be permitted to take depositions of
multiple witnesses covering the very same subject matter;
particularly, in a case where a corporate designee intends to
present the corporation's position on documents, factual
information, and other events that are not unique to a
specific witness, or are not the subject of eyewitness
testimony. Accordingly, to the extent Bard seeks limitations
on the scope of the deposition, the motion is granted.
the court ORDERS as follows: Plaintiff shall
be permitted to depose Mr. Bracken regarding the Alyte
product. However, Mr. Bracken's deposition shall take
place after the deposition of Bard's corporate designee.
Mr. Bracken's testimony shall be limited to his personal
knowledge; it shall not be a rehash of the questions posed to
the corporate designee. In addition, Mr. Bracken shall not be
asked questions that he already answered at his prior
deposition. The parties shall meet ...