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Natural Resources Defense Council v. Illinois Power Resources Generating, LLC

United States District Court, C.D. Illinois

December 14, 2017




         This matter comes before the Court on Plaintiffs Motion to Compel Additional Deposition Time and Costs in Response to Improper and Obstructive Objections; Expedited Ruling Requested (d/e 160) (Motion). On November 30, 2017, Plaintiffs took the personal deposition of Ted Lindenbusch, Plant Manager of the Edwards Power Plant operated by Illinois Power. Plaintiffs will also depose Lindenbusch as a representative of Illinois Power in a Rule 30(b)(6) deposition later in December 2017. Plaintiffs assert that Defense counsel obstructed the November 30 deposition. Plaintiffs ask the Court to direct Defendant Illinois Power Resources Generating, LLC (Illinois Power), to make Lindenbusch available for an additional half-day (3.5 hours) of individual deposition in Chicago, Illinois no later than December 19, 2017; pay $2, 130 for the expected court reporting costs for the additional deposition, and for the incremental costs the Plaintiffs incurred to obtain a rush transcript for this Motion; and order Illinois Power's counsel to refrain from improper objections and comments during depositions. For the reasons set forth below, the Motion is ALLOWED IN PART.

         Depositions are generally limited to 7 hours, but can be lengthened if additional time if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination. Fed.R.Civ.P. (d)(1). Opposing counsel may object during a deposition. An objection must be stated concisely in a non-argumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a court ordered limitation, or to present a motion to terminate or limit an examination. Fed.R.Civ.P. 30(c)(2). See Specht v. Google, Inc., 268 F.R.D. 596, 599 (N.D. Ill. 2010).

         The Plaintiffs argue that defense counsel improperly made argumentative and suggestive objections that impeded the deposition. Plaintiffs further complain that defense counsel improperly directed Lindenbusch not to answer a question. The Court has carefully reviewed the 370-page transcript of the deposition attached to the Motion. Motion, attached Declaration of Ian Fisher, Exhibit A, Final Transcript of Deposition of Ted Lindenbusch dated November 30, 2017 (Transcript) (d/e 162) (filed separately under seal). The Court identified six instances in which defense counsel made improper argumentative objections. Plaintiffs' counsel was Ms. Kyle, and Defendant's counsel was Mr. Hyman. On page 32, defense counsel Hyman made the following argumentative objection:

2 Q. The annual budgeting process.
3 If there is different processes for
4 different kinds of budgets, let me know and we
5 can talk about --
6 MR. HYMAN: Don't let her know.
7 You need to ask him questions that he
8 can understand and answer directly, please.
9 So, I think there is a question
10 pending that seemed like one those.
11 If you could read it back, I would
12 appreciate it.
14 (Record read as
15 requested.)
17 MR. HYMAN: So, the question that
18 you asked, what's the annual budgeting process,
19 is that what you want to know?
20 MS. KYLE: Yes.
21 MR. HYMAN: Thank you.

Transcript, at 32:21. Counsel continued his argumentative objections on pages 33 and 34:

15 Q. I mentioned earlier that I realize there
16 may be different budgets or categories within
17 budgets at the plant. So, for example, does the
18 plant have a capital budget?
19 MR. HYMAN: Objection, form of the
20 question.
21 What you realize isn't important.
22 Please ask him a question without the commentary.
2 Q. Sir, I realize that you know more about
3 this budgeting process than I do. So, if I am
4 asking about something that has several
5 components, I just want to make sure that you
6 know that, like --
7 MR. HYMAN: No. Excuse me, that's
8 not how it works.
9 If you have a question, ask him a
10 question. But what I'm objecting to is the
11 predicate to some of the questions imposes upon
12 him an opinion or a statement that may or may not
13 be true and is not part of the record.
14 I think what you should do, and would
15 prefer, if you just ask him a question without the
16 commentary.
17 MS. KYLE: I would prefer there to
18 be an end to speaking objections.
19 MR. HYMAN: It is not a speaking
20 objection. It's a suggestion that would make
21 this go more smoothly. And I think you ...

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