Typical drug and medical device litigation involves an MDL, consolidated state-court proceeding(s), and/or numerous cases spread across different state and federal courts. Defense expenses associated with corporate discovery in these cases are immense, and the discovery is disruptive generally to the company and specifically to dozens of corporate witnesses who must prepare for and give depositions. Although defendants try their best to coordinate and cross-notice corporate witness depositions, inevitably defendants will be faced with additional expense and disruption when a plaintiff notices the depositions of corporate witnesses who were already deposed. No matter the context, however, defendants have several arguments available to oppose or limit second depositions of corporate witnesses.
First, if the witness was deposed as part of an MDL or other consolidated proceeding, defendants can invoke the legislative intent of such proceedings in opposing or limiting second depositions of corporate witnesses regardless of the case in which the plaintiff notices the deposition. The MDL rules were born out of concern in the 1960s that about 2000 similar private-damages actions involving electrical equipment that had inundated federal district courts would lead to extensive duplication of pretrial efforts. To avoid such an outcome, Congress established the Judicial Panel on Multidistrict Litigation in 1968 with the objective of establishing a mechanism to coordinate and consolidate pretrial proceedings to eliminate duplication in discovery, avoid conflicting rulings, reduce litigation costs, and prevent wasting the parties' and witnesses' time in complex litigation. Manual for Complex Litigation (Fourth) § 2031 (citing In re Plumbing Fixture Cases, 298 F. Supp. 484 (J.P.M.L. 1968)). To that end, MDLs provide a structure in which each corporate witness deposition is available for use in each pending and future case transferred to the MDL, and a second deposition of the witness is not permitted absent leave of court pursuant to Federal Rule of Civil Procedure 30(a)(2) and subject to the limitations of Rule 26(b)(2). Defendants can argue, therefore, that the intent of consolidated proceedings is for corporate witness depositions taken as part of the consolidated proceedings to be taken once and then made available in all pending and future cases involving the product at issue regardless of when and where the cases are filed. Thus, if plaintiffs in a later-filed case outside of the consolidated proceeding claim that they are entitled to a second deposition of the corporate witnesses, defendants can point to the nature of the depositions in the consolidated proceeding as a basis to resist the depositions.
Second, Federal Rule of Civil Procedure 26(b)(2)(C)(i) and corresponding state-court rules of civil procedure provide that "the court must limit . . . the extent of discovery otherwise allowed . . . if it determines that the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive." A previously taken deposition of a corporate witness, whether taken in a consolidated proceeding or separate case, falls within the scope of Rule 26(b)(2)(C)(i) because it contains testimony on many issues relevant to the case at hand that can be obtained from the transcript in a more convenient, less burdensome, and less expensive fashion than from a second deposition. Indeed, courts recognize the burden on, and unfairness toward, corporate witnesses in sitting for multiple depositions: "[E]ach new deposition requires the deponent to spend time preparing for the deposition, traveling to the deposition, and providing testimony. In addition, allowing for serial depositions, whether of an individual or organization, provides the deposing party with an unfair strategic advantage, offering it multiple bites at the apple, each time with better information than the last." State Farm Mut. Auto Ins. Co. v. New Horizon, Inc., 254 F.R.D. 227, 235 (E.D. Pa. 2008). As such, the Rules of Civil Procedure support either denying a second deposition of a corporate witness or limiting the scope of the second deposition to material not covered during the first deposition. See, e.g., Moore's Federal Practice (Third) § 30.05[c] (citing cases).
Third, throughout the Manual for Complex Litigation (Fourth), the Federal Judicial Center repeatedly discusses the virtues of limiting or preventing repetitive depositions. For example, the Manual encourages courts to require litigants to review depositions from other similar litigation before undertaking additional discovery, and encourages courts to limit any discovery to supplemental issues not covered in the similar litigation. Section 11.423; § 20.14 ("Relevant discovery already completed should ordinarily be made available to litigants in the other cases"); § 11.455 ("it may also be economical for the judges to afford parties in the present litigation access to depositions previously taken in other litigation"); § 22.84 ("discovery that has already been competently conducted need not be reopened for later-added parties, absent a showing of a specific need"). The Manual also encourages coordination of common discovery in related litigation pending in different courts to prevent duplication. Id. § 20.14; § 20.31 (encouraging informal coordination of common discovery across cases to reduce costs and duplication); § 11.451 ("in exercising its authority to limit depositions, the court should use the information provided by the parties about the need for the proposed depositions, subject matter to be covered, and the available alternatives"). The courts in the silicon gel breast implant litigation engaged in the type of federal-state coordination espoused in the Manual. With state court cases pending and discovery progressing in Texas, California, Michigan, and Pennsylvania by the time an MDL was formed, the MDL judge recognized that discovery in Texas had progressed the furthest, designated Texas depositions as the official depositions for the entire MDL, and the state-court judges agreed that all subsequent depositions would be taken in the MDL and would be the global depositions available in all of the cases. Sandra Mazer Moss, Response to Judicial Federalism: A Proposal to Amend the Multidistrict Litigation Statute from a State Judge's Perspective, 73 Tex. L. Rev. 1573, 1574 (1995). Therefore, defendants can cite to the Manual and cases adopting its recommendations as supporting single depositions of corporate witnesses across all cases.
Fourth, like the Manual for Complex Litigation, legal commentary discusses the need to admit testimony of witnesses from prior cases involving the same issues, concluding that "[i]f, under the broad formulation of Rule 32(a) and Rule 804(b)(1), the prior deposition would be usable in the subsequent action, the court in the subsequent action should entertain seriously a motion to avoid a repeat deposition of the same deponent." Mitchell A. Lowenthal, Modern Mass Tort Litigation, Prior Action Depositions and Practice Sensitive Procedure, 63 Fordham L. Rev. 989, 1025 (1995). The author concludes that only if a second deposition would involve new factual or legal issues absent from the first deposition should the court allow a limited deposition to go forward and only as to those matters, which is also consistent with Federal Rule of Civil Procedure 26(b)(2)(C)(i). Id. Coordinating and cross-noticing corporate witness depositions usually will not avoid the prospect of repeat depositions. Thus, given the expense and disruption associated with repeat depositions, defendants in drug and medical device cases should harness the intent of depositions taken previously in consolidated proceedings, the Rules of Civil Procedure, the Manual for Complex Litigation, and legal commentary to oppose or drastically limit the scope of corporate witness depositions.