United States District Court, D. Massachusetts
Thai Le, Plaintiff: Carolyn M. Latti, David F. Anderson,
Latti & Anderson LLP, Boston, MA.
Diligence, Inc., Nice Glide Fishing, LLC, Defendants: Joseph
A. Regan, LEAD ATTORNEY, Jeffrey W. Ward, Sean P. Scanlon,
Regan & Kiely, LLP, Boston, MA.
ORDER ON PLAINTIFF'S MOTION TO COMPEL A SECOND
30(B)(6) DEPOSITION AND TO COMPEL THE PRODUCTION OF
Kelley, United States Magistrate Judge.
case concerns injuries suffered by Plaintiff Thai Le on March
19, 2013 while he was employed by Defendant Nice Glide, Inc.,
as a crew member aboard the F/V DILIGENCE, a scallop vessel
owned and operated by Defendant Diligence, Inc. Plaintiff has
filed a Motion to Compel a second deposition of Captain Scott
Larsen (" Captain Larsen" ) and the production of
fourteen photographs of the F/V DILIGENCE taken on March 21,
8, 2014, Plaintiff propounded interrogatories and document
requests on both Defendants requesting, among other things,
maintenance records of the F/V DILIGENCE. (#49, exh. A, B, D,
E.) On August 29, 2014, Defendants responded jointly with 65
pages of documents. On March 25, 2015, Plaintiff took the
deposition of Captain Larsen, as the 30(b)(6) designee of
both Defendants. Plaintiff subsequently learned more
information about the condition of the " wind
station"  aboard the vessel at the time of the
incident. (#49 at 5-6.) On September 1, 2015, after prompting
by Plaintiff to supplement discovery, Defendants produced an
additional 1,089 responsive documents relating to maintenance
of the vessel during the relevant time period. (#49 at 6,
exh. H.) These records indicated that the wind station may
have been removed from the F/V DILIGENCE
in 2012, and replaced in 2014 after Plaintiff's injury.
Based on that newly-revealed discovery and facts gleaned from
other depositions, Plaintiff now seeks to conduct a second
30(b)(6) deposition of Captain Larsen.
also seeks fourteen photographs of the F/V DILIGENCE taken by
Defendants on March 21, 2013, two days after Plaintiff's
injuries. (#48 at 10-11, #51 at 9.) These photographs show
the condition of the vessel at the time of the incident,
before later structural changes were made. (#48 at 11.)
Defendants object to both requests, on grounds that a second
deposition would be " unreasonably cumulative and
duplicative," and that the photographs fall into the
work-product exception to the discovery rules. (#51 at 3,
7-8.) After careful consideration of the applicable law and
the parties' filings, the Court makes the following
who wishes to depose a person more than once must seek and
obtain prior leave of court, absent the parties' written
stipulation. Fed.R.Civ.P. 30(a)(2)(A). Although the decision
is discretionary, courts have generally allowed re-opening a
deposition where, as here, new information is unearthed only
after the initial deposition. See, e.g., Quality
Aero Tech., Inc. v. Telemetrie Elektronik GmbH, 212
F.R.D. 313, 319 (E.D.N.C. 2002) (allowing second 30(b)(6)
deposition, finding that " newly-discovered information
[is]... sufficient for a finding of good cause under Rule
30" ), Dixon v. Certainteed Corp., 164 F.R.D.
685, 692 (D. Kan. 1996) (second deposition warranted where
plaintiff was unaware of, and thus could not inquire about,
statements in the first deposition), and Keck v.
Union Bank of Switzerland, No. 94-4912, 1997 WL 411931,
at *1 (S.D.N.Y. July 22, 1997) (" a second deposition is
often permitted, where new information comes to light
triggering questions that the discovering party would not
have thought to ask at the first deposition" ). Here,
Defendants failed to disclose the maintenance invoices
concerning the wind station until one year after their
initial discovery response, when pressed by Plaintiff to
supplement. Defendants have provided no reason for the
delayed disclosures, and it is only fair that Plaintiff
should not be penalized for their lack of promptness.
have argued that a second deposition would be cumulative and
duplicative because Plaintiff's counsel questioned
Captain Larsen about the wind station during the first
deposition. The transcripts provided show the following line
Q: Do you have one of those wind gauges?
A: I do.
Q: Do you ever use ...