In Guest Tek Interactive Entertainment, Ltd. v. Nomadix, Inc., C.A. No. 18-1394-RGA (D. Del.), plaintiff sent RFPs for various financial documents, but defendant produced only a single page profit and loss statement for each year, claiming no more was available.
Plaintiff brought a discovery dispute and asked Judge Andrews to order production of any further documents in defendant's possession.
Judge Andrews declined. Instead, he sua sponte suggested that the parties resolve this via a 30(b)(6) deposition about the kinds of financial information that defendant keeps:
[D]o a 30(b)(6) deposition and find out if there are any other documents. And you know, if there are later, come back and get some sanctions.
Plaintiff instead asked the Court order defendant to provide a sworn declaration describing what financial information they have. Judge Andrews again declined, pointing out some problems with that approach:
[Y]ou need to get to a live person because, you know, a declaration, an affidavit, whatever it is, it's going to be heavily gone over by lawyers. And . . . you're going to be still wanting to follow up when it's done, so you might as well just cut to the chase and find out what they have.
Judge Andrews then ordered the 30(b)(6) deposition, and said that if it turns out that defendant can produce more detailed financial reports, he would order them to:
And the other thing is, you know, find out whether this underlying data system, how easily manipulable it is. Because if it turns out that, you know, you can produce this report, you just have to say hold this variable, hold that variable, or do something, yeah, I'm going to order them to produce it. But you don't know what they have, I don't know what they have, and I'm not entirely sure Mr. Lezama knows what they have. So that's what I'm going to do about the financial information is do a Rule 30(b)(6) deposition, do it promptly. And after you find out what it is they have, if anything, that they haven't produced that would be helpful to you, you know, talk to Mr. Lezama and see if they'll just produce it. . . . But if . . . you learn that they can, without much effort, produce a report, . . . I'm going to order that they produce it.
Guest Tek Interactive Entertainment, Ltd. v. Nomadix, Inc., C.A. No. 18-1394-RGA, D.I. 134 (D. Del. Sep. 3, 2020) (transcript).
He later clarified that his concern was that defendant was "hiding the ball" by only producing such limited financial information:
ORAL ORDER: I read the letter (D.I. 127) and Guest Tek has a better understanding of what I meant at the discovery conference [that there be a preliminary 30(b)(6) deposition regarding financial information, followed by further discovery and a regular 30(b)(6) deposition]. I limit the [preliminary] Rule 30(b)(6) deposition to ninety minutes. The idea is that Nomadix appeared to be playing hide the ball, and, while unusual, a preliminary [30(b)(6)] deposition is necessary so that Guest Tek can find out where the ball is. Ordered by Judge Richard G. Andrews on 9/22/2020. (nms) (Entered: 09/22/2020)
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