Nancy Stein Nowak, United States Magistrate Judge
The matter before the Court is defendant Barron's objection to Magistrate Judge's ruling granting FDIC's motion to quash (docket entry no. 518), which I have construed as a motion to reconsider. This motion concerns my earlier ruling (docket entry no. 494) quashing the plaintiffs Rule 30(b)(6) deposition noticed by Barron.
In its original motion to quash the notice of deposition made pursuant to Federal Rule of Civil Procedure 30(b)(6), plaintiff argued that the FDIC did not have anyone with personal knowledge of the facts and circumstances giving rise to the liability of the defendants. In order to prepare a 30(b)(6) witness for the deposition, the FDIC argued, it would be necessary for FDIC's counsel to work with or in essence "teach" the witness the case. Finding that a deposition in this situation would compromise plaintiff's opinion work product, I quashed the 30(b)(6) deposition as I did in my 1993 Order on this issue (docket entry no. 132).
In the interests of justice, I have reviewed my ruling of December 15 and the arguments and authorities originally presented. After careful review and reconsideration, I will GRANT the objections and DENY the motion to quash (docket entry no. 489).
I begin by noting that plaintiff has the burden of establishing entitlement to protection from discovery and the applicability of the work product privilege here. In support of its motion, plaintiff offers nothing more than the bare assertion that to prepare a 30(b)(6) witness, it is necessary for the FDIC's counsel to work with or in essence "teach" the witness the case. Plaintiff has failed to develop this assertion, which is essential to bring an otherwise permissible 30(b)(6) deposition within the nearly inviolate protection offered opinion work product.
Early on in this litigation when there were only attorneys and boxes of documents, this assertion had a ring of truth, sufficient to support protection when all parties had yet to engage in substantial discovery and when contention interrogatories appeared to offer defendants the direction needed to prepare their defenses. Accepting the representation that there were no persons with the corporation with personal knowledge and that counsel would be required to spoon-feed a corporate representative to prepare for an imminent deposition, there was legitimate concern that a 30(b)(6) deposition of the FDIC would in effect become a deposition of plaintiff's counsel.
That concern is no longer apparent and plaintiff has failed to demonstrate how the responses elicited from a designated representative at this stage of the case would improperly divulge attorneys' thinking and strategy. Defendant has designated areas of inquiry for the 30(b)(6) deposition which would otherwise be appropriate areas for contention interrogatories. Indeed, the final pretrial order is due in three and a half months when the FDIC will be required to isolate and list those facts (disputed and undisputed) which are relevant to its claims. Given the near universal rejection of "trial by ambush", as exemplified by the detail required by most courts in final pretrial orders, the opinion work product privilege must necessarily be limited to shielding those matters of pure thinking and strategy at this stage of the litigation. I fail to see how Mr. Walls, plaintiffs in-house investigator, who recently answered the contention interrogatories for the FDIC and who I presume would be the designated corporate representative at a 30(b)(6) deposition, would need to be spoon-fed for the deposition; nor how his deposition answers would necessarily reveal thinking and strategy of counsel which is not otherwise apparent from the responses to those contention interrogatories.
Plaintiff also argues that a 30(b)(6) deposition would be duplicative of other discovery — specifically the contention interrogatories and the soon to be released expert reports — and therefore serves no purpose other than to inquire of privileged matters. However, neither an interrogatory response nor a report from a third-party expert binds or limits the party/corporation in the same manner as 30(b)(6) deposition testimony. They are not truly duplicative.
For the above reasons, it is ORDERED that Barron's objections are GRANTED and that the FDIC shall submit to the 30(b)(6) deposition. It is further ORDERED that my ruling of December 15 at page 6 (docket entry no. 494) is VACATED and the motion to quash as to the 30(b)(6) deposition (docket entry no. 489) noticed by defendant Barron is similarly DENIED.