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LLC v. Behram

United States District Court, D. Maryland, Southern Division

June 22, 2018

NANCY BEHRAM, M.D., Defendant.


          Charles B. Day United States Magistrate Judge

         Before 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 (“Advantia”) (collectively “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.

         I. Procedural History

         This 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.

         On June 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 representative.

         Mr. 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.

         On June 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 filed.

         II. Analysis

         “It 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.

         A. Defendant's reliance on Federal Rule of Evidence 615 is misplaced

         Pursuant 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.”[1] 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.

         B. 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 representatives

         Under 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.

         On its 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 ...

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