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Federal District Court Grants Protective Order re Deposition of Government Attorney

In a long-running environmental case (yes, I recognize the redundancy), the federal district court has granted the United States' motion for protective order respecting the deposition of one of its attorneys. The Court said the proposed testimony, to the extent it has not been covered by other, prior discovery, could be provided by a different witness whom the Government said it would make available. The Court also precluded discovery of alleged contamination by the Government at other sites.

The case involves liability for pollution and remediation at a site in North Providence, Rhode Island. One party issued notices for depositions of numerous Government witnesses including attorneys and a paralegal. As a result of other rulings, all but one of the attorney deposition notices had been withdrawn. The party said it wanted to conduct the deposition with respect to the attorney's communications with it, other parties, state agencies and other potentially responsible persons. The party said the deposition would provide it with a "roadmap" for further discovery.

In addition, the party had issued a Rule 30(b)(6) notice respecting the disposal of Agent Orange and other herbicides used at a Canadian military facility in New Brunswick in the 1960s . Reportedly, some of the herbicides were disposed of or stored at Quonset Point, Rhode Island.

The Court said the First Circuit uses a three-part test to determine whether the deposition of a party's attorney is appropriate: (1) whether the deposition was issued primarily for purposes of harassment; (2) whether there are other available means to obtain the same evidence; and (3) to what extent the information is relevant, nonprivileged and crucial to the deposing party's case. The Court said the specific topics on which the party wished to depose the attorney had been covered by voluminous document discovery to date, or been the topic of other depositions or could be more easily provided by the deposition of another witness whom the Government had promised it would produce.

With respect to the proposed discovery about the Government herbicides at other sites, the Court held it was not relevant to any claim or defense. Accordingly, the party had to show "good cause" for the discovery. The Court said that the party's "mere suspicion or speculation" that there was a connection between the herbicides at the other sites and pollution at the subject site was an insufficient basis to allow the discovery.

Accordingly, the Court granted the Government's motion for a protective order.

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Emhart Industries, Inc. v. New England Container Co., Inc., C.A. No. 06-218S, slip op., (D.R.I. Nov. 8, 2013)

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