United States Court of Appeals
For the First Circuit
No. 00-1901
AMERISTAR JET CHARTER, INC.,
Plaintiff,
v.
SIGNAL COMPOSITES, INC. d/b/a
SIGNAL AEROSPACE,
Defendant, Appellant.
GENERAL ELECTRIC AIRCRAFT ENGINES,
PAUL WHELAN, MARK DANCWICZ and DAVE COHEN,
Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Lipez, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stearns,* U.S. District Judge.
Jennifer A. Creedon, with whom Lawrence C. Ecoff, Zimmerman,
Rosenfeld, Gersh & Leeds, LLP, Lawrence G. Cetrulo, and Cetrulo
& Capone LLP were on brief, for Signal Composites, Inc. d/b/a
Signal Aerospace, appellant.
Joseph L. Stanganelli, with whom Hale and Dorr LLP were on
brief, for General Electric Aircraft Engines, Paul Whelan, Mark
Dancwicz and Dave Cohen, appellees.
April 2, 2001
______________________
*Of the District of Massachusetts, sitting by designation.
BOWNES, Senior Circuit Judge. The appellant argues
that the district court erred when it granted the appellees'
motion for a protective order quashing appellant's deposition
subpoenas. Appellant claims that this decision was "plainly
wrong and resulted in substantial prejudice to Appellant." We
disagree, and for the reasons stated below, affirm the district
court's ruling.
I. BACKGROUND
The appellant, Signal Composites, Inc. d/b/a Signal
Aerospace ("Signal"), is a party to a civil action pending in
the United States District Court, Northern District of Texas
(Ameristar Jet Charter, Inc. v. Signal Composites, Inc., et al.,
No. 3-98-CV-1360-M). In that action, the plaintiff, Ameristar
Jet Charter, Inc. ("Ameristar"), seeks damages against Signal
based upon several causes of action arising out of the alleged
sale of counterfeit combustion liners,1 including breach of
warranty, fraud and conspiracy to defraud. The appellees are
non-party movants General Electric Aircraft Engines ("GEAE") and
its employees Paul Whelan, Mark Dancwicz and Dave Cohen.
A very brief factual history of the underlying action
is necessary to understand how and why GEAE got involved in this
1 A combustion liner is part of an aircraft that must
periodically be replaced.
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case. Ameristar operates a jet charter service. A Texas
partnership, 3-D Industries ("3D") purchased, on behalf of
Ameristar, military combustion liners from Signal. Ameristar
claims that the combustion liners were represented to be
manufactured by GEAE, or an authorized GEAE vendor, as required
by the Federal Aviation Administration ("FAA"). The premises of
3D was visited by the FAA and the Department of Transportation
("DOT"). The FAA and DOT obtained combustion liners, and sent
them to GEAE for a team of employees to analyze and evaluate for
authenticity. The team concluded that the liners differed in a
number of ways from GEAE manufactured liners. Paul Whelan, Mark
Dancwicz and David Cohen were some of the GEAE employees on the
team.
In March, 1999, Ameristar subpoenaed GEAE pursuant to
Federal Rule of Civil Procedure 30(b)(6).2 GEAE presented two
witnesses to testify on its behalf in depositions taken on April
8, 1999. The two witnesses deposed pursuant to Fed. R. Civ. P.
2 Fed. R. Civ. P. 30(b)(6) provides, in pertinent part:
A party may in the party's notice and in a
subpoena name as the deponent a public or
private corporation . . . and describe with
reasonable particularity the matters on
which examination is requested. In that
event, the organization so named shall
designate one or more officers, directors,
or managing agents, or other persons who
consent to testify on its behalf . . . .
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30(b)(6) were Thomas Woo, GEAE's Mature Engines Program Quality
Manager, who led the team of employees that analyzed the
combustion liners; and Ronald Gould, another member of the team
and Technical Leader for GEAE's Engine Systems Design and
Integration Group. Counsel for Ameristar and Signal were
present at the deposition.
Ameristar moved for partial summary judgment, and on
March 27, 2000, Magistrate Judge Boyle issued her findings,
conclusions and recommendations in favor of granting the motion.
One year after the two GEAE depositions were taken, and after
the magistrate judge issued her report, Signal moved on April
10, 2000, to extend the time to file its objections to
Magistrate Judge Boyle's report. On April 10, 2000, Signal also
served a Rule 30(b)(6) deposition subpoena on GEAE. On April
27, 2000, District Judge Lynn granted Signal's motion to extend
the time within which it had to file objections, but stated that
"none of the discovery set out in the motion will now be
permitted." She referred any additional discovery requests to
Magistrate Judge Boyle. On May 2, 2000, Signal subpoenaed
depositions from GEAE employees Whelan, Dancwicz and Cohen. On
May 16, 2000, Magistrate Judge Boyle denied "at this late
juncture" Signal's request for additional discovery of GEAE and
its employees.
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Meanwhile, on May 10, 2000, GEAE and its employees
moved, in the United States District Court for the District of
Massachusetts, 3 for a protective order quashing the four
subpoenas issued to them. Signal opposed that motion. On June
15, 2000, District Judge Lindsay granted GEAE's motion to quash
the non-party subpoenas "both on the merits and because [the]
discovery sought appears to be precluded by Judge Boyle's order
of May 16, 2000." Signal now appeals Judge Lindsay's order,
arguing that it was "plainly wrong and resulted in substantial
prejudice to the Appellant."
II. DISCUSSION
The hurdle which the appellant must overcome to prevail
is high. As we have stated, "[t]he standard of review in
discovery matters is not appellant-friendly." Faigan v. Kelly,
184 F.3d 67, 84 (1st Cir. 1999). "We will intervene in such
matters only upon a clear showing of manifest injustice, that
is, where the lower court's discovery order was plainly wrong
and resulted in substantial prejudice to the aggrieved party."
Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 186 (1st Cir.
1989). Signal cannot clear the hurdle; it has not demonstrated
3 GEAE and its employees are located in Massachusetts
and, therefore, the subpoenas were issued under the authority of
the District Court of Massachusetts.
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that the district court's order was plainly wrong or that the
order resulted in substantial prejudice.
The Supreme Court has long recognized that the Federal
Rules of Civil Procedure are to be construed liberally in favor
of discovery. Hickman v. Taylor, 329 U.S. 495, 507 (1947)
("[T]he deposition-discovery rules are to be accorded a broad
and liberal treatment."); see also SEC v. Sargent, 229 F.3d 68,
80 (1st Cir. 2000) (quoting Hickman). There are, however,
limitations on pre-trial discovery. Mack, 871 F.2d at 187
(discussing amendments made to the Federal Rules of Civil
Procedure "to deal with the problem of over-discovery").
Federal Rule of Civil Procedure 26(b)(2) provides, in
pertinent part, that discovery
shall be limited by the court if it
determines that: (i) the discovery sought is
unreasonably cumulative or duplicative, or
is obtainable from some other source that is
more convenient, less burdensome, or less
expensive; (ii) the party seeking discovery
has had ample opportunity by discovery in
the action to obtain the information sought;
or (iii) the burden or expense of the
proposed discovery outweighs its likely
benefit . . . .
Rule 26(c) provides for protective orders, issued by
the district court, to limit or eliminate discovery sought.
Upon a showing of "good cause" by the movant, a court "may make
any order which justice requires to protect a party or person
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from annoyance, embarrassment, oppression, or undue burden or
expense . . . ." Fed. R. Civ. P. 26(c).
Further, Rule 45(c)(3)(A) gives the court the power to
"quash or modify the subpoena if it . . . (iii) requires
disclosure of privileged or other protected matter and no
exception or waiver applies, or (iv) subjects a person to undue
burden."
At issue in this appeal are four deposition subpoenas
issued on behalf of Signal to GEAE and its employees Whelan,
Dancwicz and Cohen. GEAE had been subpoenaed by Ameristar in
March of 1999 in the same case. We rule that the district court
correctly granted the appellees' protective order to quash all
four subpoenas. Our reasons follow.
First, it was not "plainly wrong" for the district
court to quash the subpoena issued to GEAE pursuant to Rule
30(b)(6). Pursuant to Rule 30(a)(2)(B), "[a] party must obtain
leave of court . . . if . . . the person to be examined already
has been deposed in the case . . . ." Here, GEAE was previously
deposed. On April 8, 1999, GEAE presented two witnesses--Thomas
Woo and Ronald Gould--to testify on its behalf. Counsel for
Signal was present. One year later and after Magistrate Judge
Boyle's recommendation for partial summary judgment against it,
Signal issued a Rule 30(b)(6) subpoena to GEAE. Because this
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second Rule 30(b)(6) subpoena was issued to GEAE without leave
of the court, it was invalid. Even assuming arguendo that
Signal sought leave of the Texas District Court4 to re-depose
GEAE pursuant to Rule 30(b)(6), such request was denied by
Magistrate Judge Boyle on May 16, 2000. For the foregoing
reasons, it was not "plainly wrong" for Judge Lindsay to grant
the protective order quashing the second Rule 30(b)(6) subpoena
issued to GEAE.
We next turn to the three individual subpoenas issued
to GEAE employees Whelan, Dancwicz and Cohen in May, 2000. The
district court was not "plainly wrong" when it quashed the
subpoenas issued to the three employees, and Signal has not
shown that it was "substantially prejudiced" by the court's
ruling.
Unsatisfied with the findings and recommendations of
Magistrate Judge Boyle, Signal attempted to depose three other
members of the GEAE team. This request was belated, duplicative
and cumulative, and otherwise unduly burdensome to the
appellees. Two GEAE representatives were already deposed, and
4 Arguably, Signal requested additional discovery when
it moved for an extension of time within which to file its
objections to Magistrate Judge Boyle's findings and
recommendations. We need not decide whether Signal actually
requested leave of the court, as it was required to do pursuant
to Rule 30(a)(2), because the result is the same.
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Signal did not articulate any dissatisfaction with the testimony
it received. Moreover, it did not seek additional testimony
until after Magistrate Boyle issued her findings and
recommendations a year later.
Signal presents no evidence that any new, relevant
information will be obtained if it is permitted to take the
depositions of the three GEAE employees. Signal merely has
"hope" that the testimony of Whelan, Dancwicz or Cohen will
contradict the testimony of the GEAE representatives already
deposed. Counsel for Signal concedes, however, that it has no
evidence that it will receive contradictory testimony. We will
not allow Signal to go on a "fishing expedition," with the mere
"hope" that it will obtain such information. See Mack, 871 F.2d
at 187 (holding that a party may not "undertake wholly
exploratory operations in the vague hope that something helpful
will turn up.").
The district court has the discretion to limit
discovery. The court may limit discovery if it determines that
"the discovery sought is unreasonably cumulative or duplicative,
or is obtainable from some other source that is more convenient,
less burdensome, or less expensive . . . ." Fed. R. Civ. P.
26(b)(2)(i). Signal had an opportunity to question GEAE
representatives and did so in March, 1999. See Fed. R. Civ. P.
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26(b)(2)(ii). Signal has not shown that the information sought
from Whelan, Dancwicz or Cohen would be anything but cumulative
or duplicative. Therefore, it would be an "undue burden" on
GEAE, a non-party, to permit such a "fishing expedition." Fed.
R. Civ. P. 26(c) (a court "may make any order which justice
requires to protect a party or person from . . . undue burden").
III. CONCLUSION
For the aforementioned reasons, the district court was
not "plainly wrong" when it granted the appellees' motion for a
protective order to quash the four subpoenas and the appellant
has not shown that it was "substantially prejudiced" by this
order. The order of the district court is affirmed.
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