United States District Court, W.D. Washington, Seattle
FEDERAL DEPOSIT INSURANCE CORPORATION as Receiver for Washington Mutual Bank, Plaintiff,
ARCH INSURANCE COMPANY, et al., Defendants.
ORDER DENYING PLAINTIFF'S MOTION FOR PROTECTIVE
ORDER AGAINST NATIONAL UNION'S 30(B)(6) DEPOSITION
S. Lasnik United States District Judge.
matter comes before the Court on “Plaintiff Federal
Deposit Insurance Corporation's Motion for Protective
Order Against National Union's 30(B)(6) Deposition
Notice.” Dkt. # 133. In this case, plaintiff Federal
Deposit Insurance Corporation, as Receiver for Washington
Mutual Bank (“FDIC-R”), sues various insurance
companies for refusing to cover certain losses under fidelity
bond insurance policies held by Washington Mutual Bank
(“WaMu”). Pursuant to Federal Rule of Civil
Procedure 30(b)(6), defendant National Union Fire Insurance
Company of Pittsburgh (“National Union”) seeks to
depose an officer of FDIC-R to testify on FDIC-R's behalf
regarding WaMu's knowledge of the events giving rise to
this suit. In response, FDIC-R filed this motion for a
protective order, claiming that as Receiver for WaMu it has
no special knowledge of the facts underlying this case or of
the discovery materials it has produced because those
materials were mostly produced by WaMu. Having reviewed the
parties' briefing, declarations, exhibits, and the
remainder of the record, the Court finds as follows.
the Federal Rules of Civil Procedure, parties may generally
obtain discovery regarding any non-privileged matter that is
relevant to any party's claim or defense and proportional
to the needs of the case. Information need not be admissible
at trial to be discoverable. Fed.R.Civ.P. 26(b)(1). During
discovery, a party may depose a public or private
corporation, or a governmental agency, which must then
designate one or more officers to testify on its behalf, as
well as the matters on which each designated person will
testify. The person designated must testify about information
known or reasonably available to the organization.
argues that the information that National Union seeks to
glean from an FDIC-R Rule 30(b)(6) witness is not actually
“known or reasonably available” to anyone at
FDIC-R, and accordingly that it would be disproportionately
burdensome to “create” a Rule 30(b)(6) witness by
“educating” an FDIC-R officer about the relevant
WaMu history solely for the purpose of the deposition. FDIC-R
thus asks the Court to quash National Union's Rule
30(b)(6) deposition notice, or alternatively to issue a
protective order narrowing the scope of the subjects set
forth in the notice and ordering National Union to reschedule
the deposition so that FDIC-R's designated officer may
have time to prepare.
Union points to a number of cases in which district courts
have rejected this same objection from FDIC-R to a Rule
30(b)(6) deposition notice. In all of those cases, the court
concluded that FDIC-R's status as Receiver did not
constitute a per se bar on its Rule 30(b)(6)
obligations. See Fed. Deposit Ins. Corp. v.
Giancola, No. 13 C 3230, 2015 WL 5559804, at *3 (N.D.
Ill. Sept. 18, 2015) (holding that FDIC-R's lack of
involvement with the bank prior to its failure “does
not absolve FDIC-R from the duty to present a witness to
testify about the factual allegations that FDIC-R - after a
lengthy investigation - chose to make”); Fed.
Deposit Ins. Corp. v. Hutchins, No. 1:11-CV-1622-AT,
2013 WL 12109446, at *2 (N.D.Ga. Oct. 25, 2013)
(“[S]uch a broad holding precluding 30(b)(6)
depositions in this context would vitiate almost all requests
to depose an FDIC corporate designee.”); Fed.
Deposit Ins. Corp. v. Wachovia Ins. Servs., Inc., No.
3:05 CV 929(CFD), 2007 WL 2460685, at *2 (D. Conn. Aug. 27,
2007) (“[T]hat FDIC had no pre-failure involvement with
[the bank] does not, standing alone, relieve it of its
obligation to designate a responsive Rule 30(b)(6)
those courts concluded that FDIC-R's Receiver status
affected the scope of the information that could be
considered “reasonably available” to FDIC-R for
purposes of the Rule 30(b)(6) analysis. For example, in
Federal Deposit Insurance Corporation v. Giancola,
the district court found that
the information available to FDIC-R as to Midwest may be
affected by the fact that it had no involvement with the bank
prior to its failure. Accordingly, we find . . . that FDIC-R
is not required to undertake an exhaustive investigation to
obtain information that it does not know and does not have
access to because of its lack of involvement with the failed
bank. Rather, FDIC-R's Rule 30(b)(6) deponent is required
only to testify as to “reasonably available”
facts . . . .
2015 WL 5559804, at *3 (internal citations and quotation
marks omitted); see also Hutchins, 2013 WL 12109446,
at *6-7 (“FDIC is required to make a good faith effort
to prepare a 30(b)(6) deponent based on reasonably available
information, and the mere fact that a designee cannot answer
every question on a certain topic . . . does not necessarily
mean that it has failed to comply with its obligation. . . .
FDIC is under no affirmative obligation to track down and
interview former [bank] employees.” (internal citations
and quotation marks omitted)).
Court finds these decisions persuasive and concludes that
FDIC-R's Receiver status does not relieve it of the
obligation to produce a Rule 30(b)(6) witness. Rather, FDIC-R
must “make a good faith effort to prepare a 30(b)(6)
deponent based on reasonably available information, ”
Hutchins, 2013 WL 12109446, at *6 - information
which may or may not be obtained through JPMorgan Chase,
see Dkt. # 142 at 31-32. Of course, National Union
may find that FDIC-R's Rule 30(b)(6) deponent is not the
best source of the information it seeks. Cf.
Hutchins, 2013 WL 12109446, at *6 (“Defendant
Hutchins's exploration of an FDIC designee's
knowledge . . . may reveal little in return for his and his
counsel's effort, but it is his right to conduct such
exploration.”). Given that trial in this matter has
been reset for June 2018, with a discovery deadline of
February 4, 2018, the parties have ample time to work
together to ensure that National Union's deposition of
FDIC-R's designated Rule 30(b)(6) officer is productive
rather than overly burdensome.
the foregoing reasons, FDIC-R's motion for a protective