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Hunt Valley Baptist Church, Inc. v. Baltimore County

United States District Court, D. Maryland

January 16, 2019

Hunt Valley Baptist Church, Inc.
v.
Baltimore County et al.

          LETTER TO ALL COUNSEL OF RECORD

         Dear Counsel:

         This case concerns an action filed by Hunt Valley Baptist Church, Inc. (“HVBC”) against Baltimore County (the “County”) and the Baltimore County Board of Appeals (the “Board”) for allegedly violating the Religious Land Use and Institutionalized Persons Act of 2000, and the First and Fourteenth Amendments to the United States Constitution by prohibiting the construction of a church at 821 Shawan Road, Hunt Valley, MD, 21030. This matter was referred to me for discovery and related scheduling. (ECF No. 71). Pending before this Court is Plaintiff's Motion to Compel the Deposition Answers of the Defendants' Designee. (ECF No. 91). The issues are briefed, and no hearing is necessary. Loc. R. 105.6 (D. Md. 2016). For the reasons stated below, Plaintiff's Motion is DENIED.

         On October 19, 2018, Plaintiff served a Notice of Deposition upon Defendants that included forty-one (41) topics to be testified to by the Defendants' designee(s).[1] (ECF No. 96-2). Defendants responded to the notice on November 27, 2018, (ECF No. 91-2), and the Rule 30(b)(6) deposition was held on November 28, 2018. During the deposition Defendants produced nine (9) designees to testify and permitted the deposition to continue for ten (10) hours. (ECF No. 95 at 3). Notably, the Parties contacted this Chambers concerning the issues at hand that morning, but I was in a settlement conference and unable to take the call. (ECF No. 96-3 at 44:1-6). Fortunately, the Parties did proceed and now present to the Court the disputes that arose.

         Plaintiff contends that no individuals were designated to testify as to Topics 35 and 37; and that Defendants' designees were inadequately prepared to testify as to Topics 2, 12, 26, 28, and 29. (ECF No. 91). Based on these failures, Plaintiff asks this Court to reopen discovery for an additional Rule 30(b)(6) deposition of the Defendants and to compel the designation of adequately prepared individuals to testify as to the seven outstanding topics. (Id.). In the alternative, Plaintiff asks this Court to bar the Defendants from making any argument or introducing evidence at trial related to the topics at issue. (ECF No. 96 at 20). Plaintiff further requests sanctions in the form of attorneys' fees and cost. (Id.).

         Defendants' objections generally fall into three categories: (1) the topics are vague, overbroad, lack particularity, or are unduly burdensome; (2) the demanded answers are either nonexistent or unconnected to their “related” topic; and (3) the topics are temporally overbroad. (See ECF No. 95). Each topic will be addressed in turn.

         Topic 2

         Topic 2 asks for a designee to testify as to “[t]he County's review, report, recommendations, decisions, and communications concerning the Plaintiff's Applications and proposed use of the Subject Property.” (ECF No. 91). Plaintiff argues that none of the three original designees, nor the additional designee at the deposition, could adequately testify on this topic. Specifically, Plaintiff asserts that none of the designees could testify as to “whether the recommendations made by the County's Zoning Advisory Committee regarding the Plaintiff's application were satisfied.” (ECF No. 96 at 7). In response, Defendants argue that there is no such thing as “satisfaction of recommendations” and that each designee testified extensively. (ECF No. 95-6).

         As an initial matter, Plaintiff cannot obtain testimony concerning a practice that does not exist. Notwithstanding that barrier, it is the Court's belief that the dispute arose because Topic 2 lacks reasonable particularity. Under Federal Rule of Civil Procedure 30(b)(6), a party may send notice of a deposition to an organization, in which it must “describe with reasonable particularity the matters in which examination is requested.” Fed.R.Civ.P. 30(b)(6). The Rule represents a tradeoff: an organization will be bound by the answers of the designee, but only if the notice gives fair warning of the specific area of inquiry. When a topic is not reasonably particular “the responding party is unable to identify the outer limits of the areas of inquiry noticed, and designating a representative in compliance with the deposition notice becomes impossible.” Lipari v. U.S. Bancorp, N.A, No. 07-2146-CM-DJW, 2008 WL 4642618, at *5 (D. Kan. Oct. 16, 2008). Blanket requests for testimony regarding unidentified “communications” do not meet the reasonable particularity standard. See Richardson v. Rock City Mech. Co., LLC, CV 3-09-0092, 2010 WL 711830, at *9 (M.D. Tenn. Feb. 24, 2010) (ordering the plaintiff to revise his deposition topics “to focus on the information he really seeks in contrast to all communications, in whatever form . . . .”); Phoenix Life Ins. Co. v. Raider- Dennis Agency, Inc., 07-CV-15324, 2010 WL 4901181, at *3 (E.D. Mich. Nov. 24, 2010) (striking topics seeking “all communications” because “[t]he burden of this far-reaching topic far outweighs its likely benefit.”); In re Jemsek Clinic, P.A., 06-31766, 2013 WL 3994666, at *6 (Bankr. W.D. N.C. Aug. 2, 2013) (topics requesting unspecified “communications” with various parties “encompass thousands of potentially irrelevant communications.”).

         Topic 2 calls for the designee to be familiar with a potentially countless amount of communications, many, if not most, of which would be irrelevant to the claims at issue. Furthermore, Plaintiff's interpretation of the topic's scope appears to encompass any information regarding the County and its actions related to the Property. This leaves the designees in the impossible position of either knowing everything or being inadequately prepared. Therefore, the Court will not compel further testimony as to Topic 2.

         Topic 12

         Topic 12 requests a designee to testify as to “[c]ommunications between the County's and the Board's officials, agents, and/or employees and third parties, including but not limited to the Protestants, concerning the Church's Applications.” Plaintiff argues that the one designee had no knowledge and that “Plaintiff is aware that there were such communications, and these are relevant to Plaintiff's claims under the Nondiscrimination section of RLUIPA . . .” (ECF No. 91). Defendants objected to the topic as overbroad and unduly burdensome before and during the deposition. The Court agrees with Defendants.

         Not only does Topic 12 lack reasonable particularity by demanding testimony as to unidentified communications, but it further expands any perceivable limits to communications with “officials, agents, and/or employees and third parties, including but not limited to the Protestants . . . .” (emphasis added). The reasonable particularity required by Rule 30(b)(6) is severely undermined by amorphous language such as “and/or” and “including but not limited to.” See Richardson, 2010 WL 711830, at *10 (2010) (stating, “topics in a rule 30(b)(6) notice are themselves overbroad if they include ‘including but not limited to' language”); Tri-State Hosp. Supply Corp. v. United States, 226 F.R.D. 118, 125 (D.D.C.2005) (finding topics overbroad due to “including but not limited to” language and stating, “[l]isting several categories and stating that the inquiry may extend beyond the enumerated topics defeats the purpose of having any topics at all”). Ultimately Topic 12's language expands the possible subjects of testimony to an indefinite limit and effectively prevents any designee from adequately preparing. Considering the extensive discovery already completed by the parties, Plaintiff could have reasonably narrowed the Topic to focus on those communications that served as the basis for its Topic 12 request. Thus, the Court will not compel further testimony as to Topic 12.

         Topic 26

         Topic 26 asks to depose a designee as to “[t]he County's policies, practices and procedures for reviewing applications for special exceptions and/or special hearings.” Plaintiff argues that the designees' testimony was insufficient in that it only focused on the initial processing of applications. Defendants counter that the three designees adequately testified and all information under the topic is easily accessible public knowledge. While the existence of documents elsewhere does not excuse designation and testimony, the Court is, nevertheless, inclined to deny Plaintiff's request concerning Topic 26. Plaintiff briefly addresses a deficiency in the designees' Topic 26 testimony in its initial motion, (ECF No. 91), but provides no elaboration, evidence, records, or argument to substantiate its request to compel testimony. (See ECF No. 96). Since these motions came ...


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