United States District Court, D. Maryland, Southern Division
Charles B. Day United States Magistrate Judge
this Court are Defendant Nancy Behram's
(“Defendant”) request to prevent and enjoin
Plaintiff Maryland Physician's Edge, LLC
(“MPE”) and Plaintiff Advantia Health LLC
“Plaintiffs”) from designating multiple
“corporate representatives.” The Court has
reviewed the submissions of counsel and the applicable law.
No. hearing is deemed necessary. See Local Rule
105.6 (D. Md.). For the reasons presented below, the Court
hereby GRANTS Defendant's request and
enjoins Plaintiffs from designating key witnesses as
“corporate representatives” at each other's
depositions and furthermore instructs counsel to ensure that
neither individual will have the opportunity to review or
otherwise be informed of the testimony given by the other
before said witnesses are deposed.
case arises out of the July, 2017 termination of Defendant by
MPE. Plaintiffs' allege that Defendant breached her
employment obligations in violation of the parties'
contractual restrictive covenants as well as misappropriated
trade secrets, while Defendant's counter-claim alleges
breach of contract and violation of the Maryland Wage Payment
Collection Law. Central to the issue of whether
Defendant's termination was lawful is whether MPE
conducted a “sufficient investigation” into
Defendant's conduct or reached a “good faith
determination” that Defendant's alleged conduct
breached the parties' contract.
11, 2018, Defendant deposed Advantia and Sean Glass, with Mr.
Glass testifying as Advantia's Fed.R.Civ.P. 30(b)(6)
designee and in his individual capacity. Mr. Glass testified
that MPE's Chief Financial Officer Brent Westhoven and
MPE's Practice Manager Tracey Moran were integral to the
investigation regarding Defendant's alleged misconduct
and her subsequent termination, resulting in both individuals
being labeled as “key witnesses.” At the
deposition, Mr. Westhoven attended and served as MPE's
corporative representative, and Advantia's general
counsel Tania Khan attended and served as Advantia's
corporate representative. In response to Defendant's
request, counsel for Plaintiffs refused to confirm that Mr.
Westhoven would continue to serve as MPE's representative
in the future. Counsel for Defendant then objected and
continues to object to Plaintiffs designating anyone other
than Mr. Westhoven to serve as MPE's corporate
Westhoven and Ms. Moran were scheduled to be deposed on June
12, 2018, at 9:30 a.m. and 2:30 p.m., respectively. On June
12, 2018, prior to the start of Mr. Westhoven's
deposition, Defendant confirmed that Plaintiffs intended to
have Ms. Moran attend Mr. Westhoven's deposition as the
“corporate representative” of MPE and then to
have Mr. Westhoven serve as the corporate representative at
Ms. Moran's deposition. Upon conferring, the parties
reached an impasse on this issue which led to them requesting
an emergency telephone conference with the Court.
12, 2018, the Court held a telephone conference with counsel
regarding the matter. The Court subsequently instructed
counsel to make brief submissions with authorities in
support. The Court did not require said submissions to be
is now well recognized that sequestering witnesses is . . .
‘one of the greatest engines that the skill of man has
ever invented for the detection of liars in a court of
justice.'” Opus 3 Ltd. v. Heritage Park,
Inc., 91 F.3d 625, 628 (4th Cir. 1996). This
well-articulated statement becomes incredibly prevalent in
situations such as the one at hand in which the interests of
justice must be weighed against the technical compliance with
the Federal Rules of Civil Procedure. On the one hand,
Plaintiffs seek to have knowledgeable people attend
depositions as its “corporate representatives”;
on the other hand, Defendant is concerned that the
“corporate representatives, ” who also happen to
be key witnesses to the claims asserted, are being designated
as such for purely tactical purposes. The core issues in this
case will be driven by the evidence regarding the motives and
intentions of these three key witnesses. In an academic
vacuum, there is nothing nefarious about a corporation
designating more than one person to serve as its
representative, persons who also may happen to be key
witnesses. More troubling however, is when said designations
amount to a litigation shell game as to which key witness may
be sitting in the room for any given deposition.
Defendant's reliance on Federal Rule of Evidence 615 is
to Federal Rule of Evidence 615, Defendant moves to have the
Court prevent and enjoin Plaintiffs from designating Ms.
Moran and Mr. Westhoven as “corporate
representatives” for each others depositions. Rule 615
states that “at a party's request, the court must
order witnesses excluded so that they cannot hear other
witnesses' testimony. . . But this rule does not
authorize excluding an officer or employee of a party that is
not a natural person, after being designated as the
party's representative by its attorney.” Defendant
argues that the exception set forth should not be applied in
the situation at hand, as MPE had already designated Mr.
Westhoven to serve as MPE's corporate representative on
prior occasions. However, as Plaintiffs point out, the
general consensus arising out of the 1993 Amendment to
Fed.R.Civ.P. 30(c) is that a party seeking to exclude
witnesses from a deposition must seek a protective
order under Fed.R.Civ.P. 26(c)(5). Indeed, the 1993 Amendment
states “[t]he revision provides that other witnesses
are not automatically excluded from a deposition simply by
the request of a party. Exclusion, however, can be ordered
under Rule 26(c)(5) when appropriate.” Advisory
Committee Notes on 1993 amendments to Fed. R. Civ. P 30(c).
Case law and the Federal Rules support Plaintiffs' view
that the rule of sequestration is strictly limited to the
exclusion of witnesses from the courtroom, and is
inapplicable to federal deposition practices. See,
i.e., Stoyanov v. Mabus, 126 F.Supp.3d 531 (D.
Md. 2015) (“The Fourth Circuit has noted that Rule
615's ‘plain language relates only to witnesses,
and it served only to exclude witnesses from the
courtroom.'”) (citing to United States v.
Rhynes, 218 F.3d 310, 316 (4th Cir. 2000)).
Defendant's request on the basis of Rule 615 is without
support. However, unlike Stoyanov or Rule 615,
Defendant's request is not a “broad blanket”
request for sequestration of witnesses. 126 F.Supp.3d at 552.
Instead, it is a specific request for the Court to limit the
shuffling of “corporate representatives” that
Plaintiffs are attempting to designate.
Pursuant to Federal Rule of Civil Procedure 26(c) and
Appendix A, Rule 6(h) of the Local Rules, the Court finds
“good cause” to enjoin Plaintiffs from
designating certain people to serve as corporate
Rule 26(c) of the Federal Rules of Civil Procedure,
“the court may, for good cause, issue an order
to protect a party or person from . . . oppression, or undue
burden or expense, including . . . designating the persons
who may be present while the discovery is conducted.”
Fed.R.Civ.P. 26(c)(1)(E) (emphasis added). However,
“protective orders pursuant to Rule 26(c) should be
sparingly used and cautiously granted.” Gioioso v.
Thoroughgood's Transport LLC, Civ. Ac. No.
ADC-16-3841, 2017 WL 3726028, at *1 (D. Md. Aug. 28, 2017)
(citation omitted). “The proponent [seeking the
protective order] may not rely on stereotyped or conclusory
statements . . . but must present a particular and specific
demonstration of fact as to why a protective order should
issue.” Fish v. Air & Liquid Systems
Corp., Civ. No. GLR-16-496, 2017 WL 697663, at *2 (D.
Md. Feb. 21, 2017) (citation omitted). When viewed in
conjunction with Fed.R.Civ.P. 30, one is left with the
impression that in the absence of a court order, any witness
can attend the deposition of any other witness. With a
somewhat different stroke of the pen, our Local Rules limit
those who can be present at depositions to “individual
parties, a representative of non-individual parties, and
expert witnesses of parties, ” and of course counsel.
Local Rules App'x A, at 6(h). Therefore, to the extent
that a party seeks to have someone else attend the
deposition, said party is required to obtain permission from
all parties, and if not successful, then move for permission
by the Court.
face, the apparent designations by Plaintiffs here comply
with Fed.R.Civ.P. 30. Accordingly, Plaintiffs argue that
Defendant has “failed to make its required good cause
showing, ” relying on Fed.R.Civ.P. 26(c) and caselaw
from district courts within the Fourth Circuit. Pls.'
Submission, p. 3. However, Plaintiffs' election to change
representatives here unnecesarily infects the pursuit of
truth; if Plantiffs had elected to use the same
representative throughout the discovery process,
Defendant's cry of foul would be silenced. The same would
be true if said representatives were not intricately
intertwined in this case as key witnesses. It is this
combination of factors that renders the mixture toxic.
Indeed, the Court may find a showing of “good
cause” “upon a specific showing that some harm or
prejudice might occur to a party or the deponent through the
disclosure of secret or sensitive information learned by
virtue of their attendance.” Bell ex rel. Estate of
Bell v. Board of Educ. of County of Fayette, 225 F.R.D.
186, 196 (S.D. W.V. 2004). The ...