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Thai Le v. Diligence, Inc.

United States District Court, D. Massachusetts

December 9, 2015

THAI LE, Plaintiff,
v.
DILIGENCE, INC. and NICE GLIDE FISHING LLC, Defendants

          For Thai Le, Plaintiff: Carolyn M. Latti, David F. Anderson, Latti & Anderson LLP, Boston, MA.

         For 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 PHOTOGRAPHS (#48)

         M. Page Kelley, United States Magistrate Judge.

         This 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, 2013. (#48.)

         On July 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" [1] 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

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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.

         Plaintiff 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 findings.

         I. Deposition

         A party 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.

         Defendants 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 of questioning:

Q: Do you have one of those wind gauges?
A: I do.
Q: Do you ever use ...

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