Corporate Representative Depositions in Personal Injury Cases

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Presenting a live 90-minute webinar with interactive Q&A

Taking 30(b)(6) Corporate Representative

Depositions in Personal Injury Cases Preparing the Deposition Notice, Questioning the Corporate

Rep, Raising and Defending Objections, and More

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

TUESDAY, NOVEMBER 8, 2016

Mark R. Kosieradzki, Partner, Kosieradzki Smith Law Firm, Plymouth, Minn.

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Mark Kosieradzki

Kosieradzki Smith Law Firm

Minneapolis, MN

Deposing Organizations

30(b)(6) Depositions

© Kosieradzki • Smith Law Firm 2015

30(b)(6): Depositions by Designation

• Organization

• Produce person

• “Matters on which examination is requested”

6


Tell them what you want to find out.

They need to tell you.

7


Curb the “bandying” by which officers or managing agents of a corporation are deposed in turn but each disclaims knowledge of facts that are clearly known to persons in the organization.

30(b)(6): Advisory Committee

30(b)(6) Purpose

8


Not Restricted to Corporations

9


Possible 30(b)(6) deponents…

• Public Corp.

• Private Corp.

• Partnership

• Governmental Agency

• Association

• Other entity

10


Carolina Cas. Ins. Co. v. Elliott, Not Reported in F.Supp.2d (2010)

© 2013 Thomson Reuters. No claim to original U.S. Government Works. 1

2010 WL 5089988 Only the Westlaw citation is currently available.

United States District Court, E.D. Wisconsin.

CAROLINA CASUALTY INSURANCE COMPANY, Plaintiff,

v. Peter T. ELLIOTT, Associated Bank National

Association, Phil Elliott, Jr., Anthony J. Staskunas, Elliott, Elliott & Staskunas, Bethany

Evangelical Lutheran Church, and Erwin Wehse, Defendants.

No. 09–CV–66. | Dec. 7, 2010.

Attorneys and Law Firms

Jeffrey A. Goldwater, Robert A. Chaney, Lewis Brisbois

Bisgaard & Smith LLP, Chicago, IL, for Plaintiff.

Christopher E. Ware, David O. Krier, Reinhart Boerner

Van Deuren SC, Ahndrea R. Van Den Elzen, Terry E.

Johnson, Peterson Johnson & Murray SC, William P.

Croke, Von Briesen & Roper SC, Milwaukee, WI, for

Defendants.

Opinion

ORDER

J.P. STADTMUELLER, District Judge.

*1 On November 30, 2010, Associated Bank National

Association (“Associated Bank”) filed a motion pursuant

to Civil L.R. 7(h) to compel co-defendant Elliott, Elliott

& Staskunas (“EE & S”) to answer interrogatories and

appear for depositions with regard to the above-entitled

action. (Docket # 86). Associated Bank states in its

motion to the court that on September 2, 2010, the bank

served EE & S with interrogatories and document

requests. (Associated Bank’s Mot. at 2). Moreover, the

bank avers that EE & S’s responses “were not verified by

an officer or agent of EE & S,” and, despite Associated

Bank’s demands, EE & S refused to verify its responses

because of its contention that EE & S as an entity “does

not exist.” Id. Associated Bank’s attempt to depose a

representative of EE & S were similarly unsuccessful, as

the counsel for EE & S similarly asserted that “EE & S

would not produce a 30(b)(6) witness ... because EE & S

‘does not exist.’ “ Id. Ultimately, Associated Bank argues

that EE & S, a party who is represented by counsel and

was, at the time of the filing of the motion to compel,

seeking affirmative relief in this court, cannot disclaim its

own existence to avoid discovery. Id. at 3. On December

3, 2010, EE & S filed a response to the motion to compel

(Docket # 88) and, with the benefit of the parties’ briefs,

the court is prepared to address the matter.

The court first looks to the question of whether EE & S

was required to respond to Associated Bank’s written

interrogatories. The federal rules allow a party “to serve

on any other party no more than 25 written

interrogatories.” Fed.R.Civ.P. 33(a)(1). Moreover, if an

interrogatory is served on a party, and that party is a

“public or private corporation, a partnership, an

association, or a government agency,” the interrogatories

“must be answered” by an officer or agent of that

organization. Fed.R.Civ.P. 33(b)(1)(B). The resolution of

the dispute over responding to interrogatories is quite

simple. EE & S is a party to this litigation. “It is

undisputed that a party has a duty to provide all

information available to” it in answering interrogatories.

Trane Co. v. Klutznick, 87 F.R.D. 473, 476

(W.D.Wis.1980) (Warren, J.). Accordingly, an officer or

an agent of EE & S must provide all information a given

agent has available to him or her in answering Associated

Bank’s interrogatories.

EE & S argues that because a Wisconsin state court has

ruled that EE & S as an entity is not a partnership under

the laws of the state of Wisconsin, the issue of whether

the entity has to answer an interrogatory is “resolved.”

(EE & S’s Resp. Br. at 1). Whether or not EE & S is a

partnership, is almost wholly irrelevant to the issue before

the court. Partnerships are not the only organization that

must answer interrogatories in the course of federal

litigation. Indeed, the federal rules contemplate that

interrogatories can be served on an unincorporated

“association” that is a party to the case. Fed.R.Civ.P.

33(b)(1)(B). An association is a broad term, referring to

“mere collections of individuals” who have joined

together for a common purpose. Navarro Sav. Ass’n v.

Lee, 446 U .S. 458, 461, 100 S.Ct. 1779 (1980); see also 6

Am Jur 2d Associations and Clubs § 1 (“An ‘association’

is a collection of persons who have joined together for a

certain object.”). While there may be doubt that EE & S is

a partnership, there is no doubt that EE & S is an

association, as EE & S readily admits that it was the

vehicle for a “contractual office expense relationship.”

(EE & S’s Resp. Br. at 1). Accordingly, as an association

who is a party in this matter, EE & S “is subject to

discovery through interrogatories,” 7–33 Moore’s Federal

Carolina Casualty Co. v. Elliot WL 5089988 (E.D. Wis.)

An association is a broad term, referring to “mere

collections of individuals” who have joined

together for a common purpose.

Association is …

11


30(b)(6): 2007 Advisory Committee

Legal Status Unnecessary

“… reach information known or reasonably

available to an organization no matter what

abstract fictive concept is used to describe

the organization.”

12


Not Restricted to a Party

13


• Subrogated insurer

• Auto Dealer who inspected car

• Vendor product training

• Hospital billing

• Accounting firm doing regulatory compliance

• Subcontractors

• IT company

Potential Non-Party Deponents

14


Number & Length of 30(b)(6) Depositions

15


1.

2.

3.

4.

5.

6.

7.

8.

PLEASE TAKE NOTICE that this Request is deemed continuing to and through trial of this case.

Should you in the future discover any items relating to any of the above matters of this Request, you are required

to notify Plaintiff’s counsel of said information by way of Supplemental Answers to this Request, or an objection

will be made at trial for the use of information not revealed.

Respectfully submitted,

DATE: _____________________________________

Mark R. Kosieradzki (ID #57745)

KOSIERADZKI LAW FIRM 13100 Wayzata Boulevard, Suite 140

Minnetonka, MN 55305

952/ 545-7600

Attorney for Plaintiffs

NOTE: Diane M. Wright & Associates has implemented a court reporting fee agreement with plaintiff's counsel. Please contact plaintiff's counsel

immediately if you intend to object pursuant to Minn.Stat. §215.

cc:

Scenario 1

Multiple Matters & Multiple Designees

1. Why were side rail used for Willy Mae Powell?

2. What were Defendant’s policies for side rails?

3. What training did Delta Rehab. provide regarding use of side rails?

16


Quality Aero Technology, Inc. v.

Telemetrie Elektronic GMBH

212 F.R.D. 313 (E.D.N.C. 2002)

Multiple Designees = 1 Deposition

A 30(b)(6) deposition is separately counted as

a single deposition, regardless of the number of

witnesses designated.

17


For purposes of this duration limit, the deposition

of each person designated under Rule 30(b)(6)

should be considered a separate deposition.

2000 Amendment – Rule 30. subd. (d)

Each Designee = 7 Hrs.

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Scenario 2

Multiple 30(b)(6) Notices

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2.

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7.

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Matters in Issue

19


Multiple 30(b)(6) Permitted

Quality Aero Technology, Inc. v.

Telemetrie Elektronic GMBH

212 F.R.D. 313 (E.D.N.C. 2002)

There is no aspect of the Rules which restricts a

party to a single 30(b)(6) deposition....

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Matters in Issue

Designee Individual

Scenario 3

21


Sabre v. First Dominion Capital, LLC

2001 WL 1590544 (S.D.N.Y.)

Designee v. Individual

30(b)(6) deposition of an witness is a separate

deposition from the deposition of that same

person as an individual witness and is

presumptively subject to a separate, independent

seven-hour time limit.

22


Designee Individual

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Party vs Non-party

Scenario 4

Deposition Location

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Principal Place of Entity Business

Party: Rebuttable Presumption

• Location of counsel

• # of designees

• Likelihood of judicial intervention

• Location of documents

• Relative financial positions

• Danger

• Equities

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Non-party: Rule 45

• Subpoena

• Selected Designee

• Within 100 miles:

– Residence

– employed

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Location of Designee Controls

Entity v Designee

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Party Non-party

Deposition Location

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What’s in the 30(b)(6) Notice?

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UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

____________ DIVISION

and

Plaintiff(s)

vs.

and

Defendant(s),

vs.

Third-Party

CIVIL FILE NUMBER:

Magistrate:

PLAINTIFF’S NOTICE OF VIDEO

DEPOSITION OF PURSUANT TO

FED.R.CIV.P. 30.(b)(6)

TO: ABOVE-NAMED DEFENDANT(S) AND THEIR ATTORNEY: , , , , , representing ; and ,

, , , , , representing .

PLEASE TAKE NOTICE, pursuant to Fed.R.Civ.P. Rule 30(B)(6), the stenographic deposition

video of will be taken before Diane M. Wright & Associates, or any qualified Notary Public at 13100

Wayzata Boulevard, Suite 140, Minnetonka, MN on , and thereafter by adjournment until the same shall

be completed.

Pursuant to Fed.R.Civ.P. 30(B)(6) [Organization] is required to designate, and fully prepare,

one or more officers, directors, managing agents or other persons with the most knowledge concerning

the following designated matters; or other persons who consent to testify on its behalf, and whom

[Organization] will fully prepare, to testify, regarding the following designated matters and as to such

information which is known or reasonably available to the organization:.

Pursuant to Fed.R.Civ.P. 30(b)(6), Defendant is required to

designate and fully prepare one or more officers, directors, managing

agents or other persons who consent to testify on behalf of Defendant,

and whom Defendant will fully prepare to testify regarding the

following designated matters and as to such information that is

known or reasonably available to Defendant’s organization:

The 30(b)(6) Notice

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The 30(b)(6) Notice

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____________ DIVISION

and

Plaintiff(s)

vs.

and

Defendant(s),

vs.

Third-Party

CIVIL FILE NUMBER:

Magistrate:









be completed.






Matters in Issue

Witness Designation

31


What can you ask about?

32


Facts

33


United States District Court, M.D. North Carolina

, Rockingham Division. .

UNITED STATES of America, Plaintiff,

v.

J.M. TAYLOR, et al., Defendants.

No. 3:89CV00231.

Feb. 27, 1996.

Government brought action under the Comprehensive Environmental Response, Compensation and

Liability Act (CERCLA). Resolving various pretrial matters, the District Court, Eliason, United States

Magistrate Judge, held that: (1) areas of inquiry to be addressed in deposition of corporation were stated

with sufficient particularity; (2) corporation remained obliged to prepare designee to give deposition

testimony even if corporation no longer employed any individual with knowledge of events at issue; (3)

inadequate preparation of designee at deposition would warrant sanctions; and (4) corporation did not

satisfy its obligation in responding to requests for admissions by denying authenticity of documents

without checking its own files.

Ordered accordingly.

Affirmed at 166 F.R.D. 367.

West Headnotes

[1] Federal Civil Procedure 170A 1325

170A Federal Civil Procedure

170AX Depositions and Discovery

170AX(C) Depositions of Parties and Others Pending Action

170AX(C)1 In General

170Ak1323 Persons Whose Depositions May Be Taken

170Ak1325 k. Officers and Employees of Corporations. Most Cited Cases

Federal Civil Procedure 170A 1432.1




U.S. v. Taylor

166 F.R.D. 356 (MDNC 1996)

The designee must not only testify about facts

within the corporation’s knowledge, but also its

subjective beliefs and opinions ... its

interpretation of documents and events

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Matters of Inquiry

Example

Wrongful Discharge

1. All facts leading up to, or involving the decision to

terminate Angela Martinez.

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Matters in Issue

Example

Products Liability

1. The recommended protocol settings and the actual

protocol settings programmed into the infusion device

on Dec. 31, 2012.

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1.

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3.

4.

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Example

Inadequate Security

1. Policies and procedures establishing security in the Wal-Mart parking lots.

Matters in Issue

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1.

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Matters of Inquiry

Example

Medical Malpractice

1. Any and all facts leading up to, concerning, or surrounding any sponge, soaking towel, or foreign object left in Megan Wilson’s body …

38


Wilson v. Lakner

228 F.R.D. 524 (D.Md. 2005)

NOT Work Product or Quality Assurance

Wilson v. Lakner, 228 F.R.D. 524 (2005)


228 F.R.D. 524 United States District Court,

D. Maryland.

Megan M. WILSON, et al., Plaintiffs, v.

Stephen LAKNER, M.D., et al., Defendants.

No. CIV. PJM 04–2110. | April 28, 2005.

Synopsis

Background: Patient suing hospital for medical

malpractice objected to Magistrate Judge’s partial denial

of her motion to compel discovery.

[Holding:] The District Court, Messitte, J., held that

hospital could not avoid its discovery obligations by

claiming that relevant documents or investigations were

subject to either attorney work-product or medical peer

review committee privilege.

Objection sustained in part and overruled in part.


*525 John G. Gill, Jr., Esquire, Rockville, MD, Roger

Mark Adelman, Esquire, Washington, DC, for Plaintiffs.

Roxanne L. Ward, Esquire, Annapolis, MD, Edward A.

Gonsalves, Esquire, Andrew J. Marter, Esquire, Benjamin

S. Vaughan, Esquire, Rockville, MD, for Defendants.

Opinion

OPINION

MESSITTE, District Judge.

I.

A discovery dispute in this case raises the important

question of the interplay between Federal Rule of Civil

Procedure 30(b)(6) depositions and claims of privilege.

The matter is before the Court on Plaintiff-requesting

party’s Rule 72(a) objections to an order of the Magistrate

Judge.1

Megan Wilson2 has sued two physicians and Adventist

Healthcare, Inc. d/b/a/ Shady *526 Grove Adventist

Hospital for medical malpractice as a result of injuries she

sustained when a foreign object was left in her stomach

while undergoing a hysterectomy at the time of the birth

of her child. In the course of discovery, Wilson noticed a

Rule 30(b)(6) deposition for one or more designees of the

hospital, defining inter alia the following areas which she

wished to inquire into:

2. Any and all facts leading up to, concerning, or

surrounding any sponge, soaking towel, or foreign

object left in Megan Wilson’s body after her giving

birth and undergoing an operation and/or procedures

to remove a placenta at Shady Grove Adventist

Hospital on or about March, 2001.

3. The results of any investigation into the

leaving of a sponge or soaking towel or foreign

object in Megan Wilson’s body on March 20,

2001. [The left-in sponge, towel, or foreign

object was removed on August 5, 2002.]

7. Any and all facts concerning and/or

surrounding the incident in which Megan

Wilson was found with depressed respiration on

August 5, 2002, while a patient at Shady Grove

Adventist Hospital.

8. The results of any investigation into the cause

or circumstances surrounding the incident in

which Megan Wilson was found to have

depressed respiration on August 5, 2002.

The hospital filed this response to the requests:

RESPONSE # 2: Objection. No corporate designee can

or will testify to these matters. These are matters of fact

and information responsive to this inquiry has been

produced to the Plaintiffs. The Plaintiffs are referred to

this Defendants’ answer to the Plaintiffs’ Interrogatory

No. 1 to this Defendant, and the Plaintiff’s medical

records. This defendant will produce fact witnesses,

where possible, upon request.

RESPONSE # 3: Objection. This area of inquiry is

improper and, if any such information exists, it is non-

discoverable as it involves attorney work-product,

attorney/client communications, and/or risk

management/peer review matters. A corporate designee

“If that preparation means tracking much the same

investigative ground that counsel and the risk

management/peer review committee have already

traversed, but independently of that investigation, so

be it.”

39


Sources of Information

40


EEOC v. Caesars Entertainment, Inc.

237 F.R.D. 428, 434 (D.Nev. 2006)

Areas of inquiry seek the discovery of facts and the

source of information … which are clearly relevant

and discoverable.

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Example

Payroll Punch Detail

1. The method of querying the “punch-in/punch-out”

clock system used by Kindred Healthcare.

Matters in Issue

42


Positions

43





v.


No. 3:89CV00231.

Feb. 27, 1996.











West Headnotes












U.S. v. Taylor

166 F.R.D. 356 (MDNC 1996)

The designee must not only testify about facts

within the corporation’s knowledge, but also its

subjective beliefs and opinions ... its

interpretation of documents and events

44


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Matters of Inquiry

Example

Positions

Wal-Mart Stores Inc. position and/or opinion as to how

the incident occurred in which John Sullivan was struck

on or about the head by the steel roller door at the

Wal-Mart Store.

45


Claims & Defenses

46


237 F.R.D. 428 Page 1 237 F.R.D. 428, 66 Fed.R.Serv.3d 71 !

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

U.S. E.E.O.C. v. Caesars Entertainment, Inc.

D.Nev.,2006.

United States District Court,D. Nevada.

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,

v.

CAESARS ENTERTAINMENT, INC, et al., Defendants,

andElina Masid, et al., Plaintiff-Intervenors.

No. 2:05-cv-0427-LRH-PAL.

Aug. 22, 2006.

Background: Equal Employment Opportunity Commission (EEOC) brought this action on

behalf of six female employees, and a class of similarly situated employees, against employer

alleging unlawful sexual harassment, sex-based harassment in the form of verbal harassment,

hostile work environment, retaliation and/or termination. Defendant filed renewed motion for

protective order.

Holdings: The District Court, Leen, United States Magistrate Judge, held that:

(1) attorney-client privilege and work product doctrine did not preclude deposition questioning

of defendant's corporate representative regarding factual bases for defendant's position

statements in response to EEOC charges, and for its affirmative defenses in suit;

(2) proposed questioning was not unduly burdensome on theory it would require non-lawyer to

perform legal analysis; and

(3) no sanctions were warranted in connection with defendant's unsuccessful motion for

protective order.

Motion denied.

West Headnotes

[1] Federal Civil Procedure 170A 1271.5



170AX(A) In General

170Ak1271.5 k. Protective Orders. Most Cited Cases

In order to meet its burden of persuasion, the party seeking a protective order must show good

cause by demonstrating a particular need for the protection sought. Fed.Rules Civ.Proc.Rule

In Re Classicstar Mare lease Litigation,

2009 WL 1313311 (E.D. KY.)

“A party which intends to assert claims and defenses

in litigation must adequately prepare an individual to

testify as to those claims and defenses.”

47


Example

Affirmative Defenses

EEOC v. Caesars Entertainment, Inc.

237 F.R.D. 428, 434 (D.Nev. 2006)

discovery of facts and the source of information

about the defendants’ claims and defenses, are

clearly relevant and discoverable.

48


Fourth Affirmative Defense

Plaintiff’s damages were cause by the conduct and/or

lack of due care of persons other than Defendants,

whether individual, corporate, associate or otherwise,

and whether named or unnamed in Plaintiff’s

Complaint, for whose conduct Defendants are not

responsible.

Affirmative Defenses (cont)

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3. All facts and documents upon which you base your contention set forth in the Fourth Affirmative Defense that:

Matters in Issue

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3. All facts and documents upon which you base your contention set forth in the Fourth Affirmative Defense that, “Plaintiff’s damages were caused by the conduct and/or lack of due care of persons other than Defendants, whether individual, corporate, associate or otherwise, and whether named or unnamed in Plaintiff’s Complaint, for who conduct Defendants are not responsible.”

Matters in Issue

51


The sky is the limit


• Electronically stored data

• Corporate structure

• Medical Device FDA protocols

• Subrogation

• Payroll analytics

• Programing “Source Codes”

• Product liability testing

• Bad Faith claims handling protocols

53


Crafting the Notice

54


“The quality of your answers is in direct proportion to the quality of your questions.”

-- Albert Einstein

55


Strategically Plan

56


Crafting the Notice: Two Schools…

57


Great American Ins. v. Vegas Const. Co.

251 F.R.D. 534, 538 (D. Nev. 2008)

“describe with reasonable particularity the

matters on which examination is requested”

Reasonable Particularity

58


Sprint Comm. Co. v. Theglobe Com. Inc., 236 F.R.D. 524, 528 (D. Kan. 2006)

Sprint Communications Co., L.P. v. Theglobe.com, Inc., 236 F.R.D. 524 (2006)


!


D. Kansas.

SPRINT COMMUNICATIONS CO., L.P., Plaintiff, v.

THEGLOBE.COM, INC., et al., Defendants.

No. 05–2433–JWLDJW. | April 10, 2006.

Synopsis

Background: Plaintiff corporation brought patent

infringement action against defendant corporation, and

then moved for protective order in response to defendant

corporation’s request to depose corporate representative.

Holdings: The District Court, Waxse, United States

Magistrate Judge, held that:

[1]

attorneys were not the only possible deponents able to

testify as to the preparation and filing of patents, and

[2]

plaintiff corporation did not establish that every

relevant piece of information regarding patents was

protected by attorney-client privilege.

Motion denied.


*526 Adam P. Seitz, Eric A. Buresh, Shook, Hardy &

Bacon L.L.P., Kansas City, MO, for Plaintiff.

Henry C. Lebowitz, James W. Dabney, Malcolm J.

Duncan, Fried, Frank, Harris, Shiver & Jacobson LLP,

New York, NY, James D. Oliver, Scott C. Nehrbass,

Foulston Siefkin LLP, Overland Park, KS, Patrick J.

Kaine, Dysart, Taylor, Lay, Cotter & McMonigle, P.C.,

Kansas City, MO, for Defendants.

Barry Golob, Patrick D. McPherson, Patrick C. Muldoon,

Duane Morris LLP, Washington, DC, Don R. Lolli,

Dysart, Taylor, Lay, Cotter & McMonigle, P.C., Kansas

City, MO, for Defendants and Counter Claimants.

Basil Trent Webb, Shook, Hardy & Bacon L.L.P., Kansas

City, MO, for Plaintiff and Counter Defendant.

Opinion

MEMORANDUM AND ORDER

WAXSE, United States Magistrate Judge.

Pending before the Court is a Motion for Protective Order

(doc. 46) filed by Plaintiff Sprint Communications

Company, L.P. (“Sprint”). For the reasons set forth

below, Sprint’s Motion for Protective Order will be

denied.

Background

Sprint filed this patent infringement suit asserting that

Defendants wilfully infringed, and continue to wilfully

infringe, one or more claims of United States Patent Nos.

6,304,572; 6,633,561; 6,463,052; 6,452,932; 6,473,429;

6,298,064; and 6,665,294 (collectively “Sprint’s

Patents”).

On January 6, 2006, Defendant Voiceglo filed and served

upon Sprint a Notice of Deposition pursuant to Rule

30(b)(6) of the Federal Rules of Civil Procedure (“the

Notice”). The Notice lists eight deposition topics, the first

seven of which seek testimony on “[t]he preparation and

filing” of each of Sprint’s Patents referenced above. The

final deposition topic seeks testimony regarding the

preparation and filing of amendments to claims made in

the applications of Sprint’s Patents.

After receiving this Notice, Sprint filed a motion for

protective order seeking to prohibit the deposition on

grounds that the employee inventor died; thus, the only

potential *527 corporate designees with knowledge of the

subjects listed are former and/or present in-house Sprint

attorneys, each of which have extensive involvement in

the present litigation. In support of its request for

protection, Sprint argues the deposition of these attorneys

is inappropriate because

(1) there is a general prohibition against depositions

of opposing counsel; and

(2) even if such a deposition was justified under the

circumstances presented, all information pertaining

to the subjects listed in the Notice are protected from

disclosure by attorney-client privilege pursuant to the

“describe with painstaking specificity”

Painstaking Specificity

59


The Practical Standard

Hartford Fire Ins. v. P & H Cattle Co., Inc.,

2009 WL 2951120 (D. Kan. Sept. 10, 2009)

“sufficiently definite and limited in scope that

it can be said to apprise a person of ordinary

intelligence. . . ”

60


Responding entity needs to know outer limits of requested examination

61


Hartford Fire Ins. Co. v. P & H Cattle Co., Inc., Not Reported in F.Supp.2d (2009)



United States District Court, D. Kansas.

HARTFORD FIRE INSURANCE COMPANY, Plaintiff,

v. P & H CATTLE COMPANY, INC., et al.,

Defendants.

Civil Action No. 05–2001–DJW. | Sept. 10, 2009.


Frank Wendt, Richard W. Byrum, Brown & Ruprecht,

PC, Kansas City, MO, for Plaintiff.

P & H Cattle Company, Inc., c/o Vick Peak, Emporia,

KS, pro se.

Emporia Livestock Sales, Inc., c/o Vick Peak, Emporia,

KS, pro se.

Velma M. Peak, Emporia, KS, pro se.

Amby Scott Peak, Emporia, KS, pro se.

Virginia L. Morris, Emporia, KS, pro se.

Chrysanne M. Haselhorst, Emporia, KS, pro se.

Trustees of the Olma V. Peak and Velma M. Peak

Irrevocable Trust, Emporia, KS, pro se.

Olma V. Peak and Velma M. Peak Irrevocable Trust,

Emporia, KS, pro se.

Opinion

MEMORANDUM AND ORDER

DAVID J. WAXSE, United States Magistrate Judge.

*1 This matter comes before the Court on Plaintiff’s

Motion to Compel Responses to Discovery (doc. 124) and

Motion to Quash Depositions (doc. 135). Plaintiff

requests, pursuant to Fed.R.Civ.P. 37, that the Court

compel the Peak Trust Defendants to serve complete

answers and responses to its First Interrogatories and

Request for Production of Documents. In its Motion to

Quash Deposition, Plaintiff requests that the Court quash

the Notice to Take Deposition Duces Tecum served upon

it pursuant to Rule 30(b)(6). As set forth below, the

motions are granted in part and denied in part.

I. BACKGROUND

Plaintiff Hartford Fire Insurance Company (“Hartford”)

commenced the instant action against P & H Cattle

Company, Inc. (“P & H Cattle”); Emporia Livestock

Sales, Inc.; Olma V. Peak; Velma Peak; Tim Reece d/b/a

Reece Cattle Company (“Reece”); the Olma V. Peak and

Velma M. Peak Irrevocable Trust (“Peak Trust”); and the

Peak Trust’s co-trustees, Amby Scott Peak, Virginia L.

Morris, and Chrysanne M. Haselhorst. Count I of

Plaintiff’s Complaint asserted a claim for contractual

indemnity under a general indemnity agreement against P

& H Cattle, Emporia Livestock Sales, Inc., Olma V. Peak,

and Velma Peak (hereinafter the “Peak Indemnity

Defendants”). Count II asserted a claim for common law

implied indemnity against Reece. In Counts III and IV,

Plaintiff seeks to set aside fraudulent conveyances to the

Peak Trust under common law and K. S.A. 33–201 et seq.

against Olma V. Peak, Velma M. Peak, the Peak Trust,

and the Peak Trust trustees. In their Answer, the Peak

Indemnity Defendants, Peak Trust, and its trustees

asserted a counterclaim against Hartford for negligence,

and a cross claim for implied indemnity against

Defendant Reece.

On July 28, 2006, the Court entered summary judgment in

favor of Plaintiff on its contractual indemnity claim

(Count I) against the Peak Indemnity Defendants. Final

judgment was entered against these defendants on Count

I, jointly and severally, on January 4, 2007 in the amount

of $183,051.68.1 The Court further dismissed Plaintiff’s

claim for common law implied indemnity (Count II)

against Defendant Reece. In addition, the Court dismissed

the Peak Indemnity and Peak Trust Defendants’

negligence counterclaim against Plaintiff, as well as their

cross-claim for implied indemnity against Defendant

Reece. Counts III and IV, which allege that on February

17, 1998, Olma and Velma Peak fraudulently conveyed a

substantial number of their assets into the Peak Trust, are

the only remaining claims.

On August 15, 2007, the Court granted Plaintiff’s motion

for an order requiring Defendants Olma and Velma Peak

to appear for a hearing in aid of execution. On October 7,

2007, the Court held a hearing in aid of execution

pursuant to Fed.R.Civ.P. 69, at which Plaintiff inquired of

Defendants Olma and Velma Peak regarding their assets.

Plaintiff had previously served a request for production of

documents upon these defendants directing that they

Hartford Fire Ins. Co. v P & H Cattle Co., 2009 WL 2951120

“overbroad because noticed organization cannot

identify the outer limits of the areas of inquiry

noticed”

62


NO Weasel Words

63


“including, but are not be limited to”

64


Reasonable Particularity

65


Painstaking Specificity

66


1.

2.

3.

4.

5.

6.

7.

8.






DATE: _____________________________________




952/ 545-7600




cc:

Matters in Issue

reasonable particularity

Surveillance

1. Electronic surveillance system used at the

Wal-Mart Stare in Moses lake, Wa. on May 4, 2013.

67


1.

2.

3.

4.

5.

6.

7.

8.






DATE: _____________________________________




952/ 545-7600




cc:

Matters in Issue

painstaking specificity

Surveillance

1. Electronic surveillance system used at the

Wal-Mart Store in Moses lake, Wa. on May 4, 2013.

68


1.

2.

3.

4.

5.

6.

7.

8.






DATE: _____________________________________




952/ 545-7600




cc:

Matters in Issue

Surveillance

2. The position/location of all video cameras.

69


1.

2.

3.

4.

5.

6.

7.

8.






DATE: _____________________________________




952/ 545-7600




cc:

Matters in Issue

Surveillance

3. The method of operation of all video cameras

70


1.

2.

3.

4.

5.

6.

7.

8.






DATE: _____________________________________




952/ 545-7600




cc:

Matters in Issue

Surveillance

4. The location & storage of video or digital images

captured on may 4, 2013.

71


1.

2.

3.

4.

5.

6.

7.

8.






DATE: _____________________________________




952/ 545-7600




cc:

Matters in Issue

Surveillance

5. Identity of all persons involved in maintenance and

operation of the video/security system.

72


1.

2.

3.

4.

5.

6.

7.

8.






DATE: _____________________________________




952/ 545-7600




cc:

Matters in Issue

Surveillance

6. All policies regarding retention of Surveillance

video/digital images following notice of incident.

73


1.

2.

3.

4.

5.

6.

7.

8.






DATE: _____________________________________




952/ 545-7600




cc:

Matters in Issue

Surveillance

7. The identity of all persons who reviewed the video/

digital images.

74


Binding Effect & Sanctions

75


30(b)(6): silent

• Organization

• Produce person

• “Matters on which examination is requested”

76


Marker. v. Union Fidelity Life Ins.,

125 F.R.D. 121 (MDNC 1989)

Binding

Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121 (1989)


125 F.R.D. 121


, Greensboro Division.

.

Raymond M. MARKER, Plaintiff, v.

UNION FIDELITY LIFE INSURANCE COMPANY, Defendant.

No. C–88–223–G. | March 9, 1989.

Insured brought action against insurer to recover payment

under health policy and for bad-faith refusal to pay.

Insured moved to compel discovery. The District Court,

Russell A. Eliason, United States Magistrate, held that:

(1) insured was not entitled to discover lawsuits against

insurer, and (2) insurer breached duty to substitute

another person at deposition after claims representative

could not answer insured’s questions.

Motion granted in part and denied in part.

West Headnotes (10)

[1]

Federal Civil Procedure

Scope

Relevancy is to be broadly construed for

discovery purposes and is not limited to precise

issues set out in pleadings or to merits of case;

discovery request may be deemed relevant if

there is any possibility that information may be

relevant to general subject matter of action.

Fed.Rules Civ.Proc.Rule 26(b)(1), 28 U.S.C.A.

39 Cases that cite this headnote

[2]


Scope

Insured in action to recover payment for elective

appendectomy under health policy and to

recover for bad-faith refusal to pay was not

entitled to discover suits against insurer, similar

claims under similar policies, and claims

determined to be medically unnecessary; insured

failed to demonstrate sufficient need in light of

nature of controversy, simplicity of lawsuit,

importance of discovery, and monetary amount;

producing litigation histories was by its nature

burdensome. Fed.Rules Civ.Proc.Rule 26(b)(1),

28 U.S.C.A.


[3]


Scope

Conclusory claims of bad faith may not be bases

for conducting marginally relevant discovery

that is by nature burdensome. Fed.Rules

Civ.Proc.Rule 26(b)(1), 28 U.S.C.A.


[4]


Name and address of deponent

Insured’s request to depose person

knowledgeable about claims processing and

claims records and persons familiar with general

file keeping, storage, and retrieval systems of

insurer was sufficiently specific and

understandable to require insurer to comply with

request. Fed.Rules Civ.Proc.Rule 30(b)(6), 28

U.S.C.A.


[5]


Subject of examination

Notice of deposition that designates topics for

examination with reasonable particularity

requires corporation to produce persons to

satisfy request and to prepare them so that they

can give complete, knowledgeable, and binding

answers on behalf of corporation. Fed.Rules

“corporation then must not only produce such

number of persons as will satisfy the request, but

more importantly, prepare them so that they may

give complete, knowledgeable and binding

answers on behalf of the corporation.”

77





v.


No. 3:89CV00231.

Feb. 27, 1996.











West Headnotes












U.S. v. Taylor

166 F.R.D. 356 (MDNC 1996)

[d]oes not mean that said statement is

tantamount to a judicial admission. Rather, just

as in the deposition of individuals…if altered,

may be explained and explored through cross-

examination.

Binding, but not admission

78


79


Rainey v. American Forest and Paper Ass’n, Inc., 26 F.Supp.2d 82 (1998)

137 Lab.Cas. P 33,794


26 F.Supp.2d 82 United States District Court,

District of Columbia.

Doreen RAINEY, Plaintiff, v.

AMERICAN FOREST AND PAPER ASSOCIATION, INC., Defendant.

No. CIV. A. 97–2115–LFO. | Oct. 19, 1998.

Former employee brought action for declaratory judgment

that employer improperly classified her as exempt from

the Fair Labor Standards Act’s overtime pay

requirements, and sought damages award. On

cross-motions for partial summary judgment, the District

Court, Oberdorfer, J., held that: (1) additional tasks taken

on by employee did not bring her within FLSA overtime

exemption for administrative workers; (2) affidavit of

employee’s supervisor could not be considered in

opposition to employee’s motion; (3) employer could not

prove that its reclassification of employee to exempt was

made in good faith; and (4) employer could not avail itself

of fluctuating workweek method for payment of overtime

compensation.

Plaintiff’s motion granted, defendant’s motion denied.


*85 Nils George Peterson, Arlington, VA, Brian Cooper

Plitt, Washington, DC, for Plaintiff.

Robert M. Goldrich, Caroline M. Austin, Wolf, Block,

Schorr & Solis–Cohen, Philadelphia, PA, Cynthia

Heckathorn Evans, Robert Alan Kirshner, for Defendant.

Opinion

ORDER

OBERDORFER, District Judge.

Upon consideration of particular undisputed facts as to

plaintiff’s role during the course of her employment by

defendant, and of the relevant regulations, 29 C.F.R. §§

541.2, 541.103, 541.205, 541.207, 778.114, and for

reasons stated from the bench and in a memorandum to be

filed, it is this 15th day of July, 1998, hereby

ORDERED: that plaintiff’s motion for partial summary

judgment as to liability is GRANTED; and it is further

ORDERED: that defendant’s motion for partial summary

judgment as to damages is DENIED; and it is further

DECLARED: that the information in the affidavit of

Melissa M. Kurtz, filed by defendant in support of its

opposition to plaintiff’s motion for summary judgment as

to liability, could and should have been provided to

plaintiff through defendant’s corporate representative

before plaintiff filed its motion for summary judgment,

and is therefore unavailable to defendant to traverse

plaintiff’s motion, see Fed.R.Civ.P. 30(b)(6); and it is

further

DECLARED: that even if the Kurtz affidavit were

received into the record for purposes of summary

judgment, it and the other elements of defendant’s

“showing” in opposition to plaintiff’s motion would not

effectively traverse plaintiff’s “showing” that her position

throughout her employment by defendant was not-exempt

under §§ 207 and 213 of the Fair Labor Standards Act, 29

U.S.C. § 207 et seq. See Celotex Corp. v. Catrett, 477

U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)

(“The moving party is ‘entitled to a judgment as a matter

of law’ because the nonmoving party has failed to make a

sufficient showing on an essential element of her case

with respect to which she has the burden of proof.”)

(quoting Fed.R.Civ.P. 56(c)); and it is further

DECLARED: that no reasonable jury could find that there

was a “clear mutual understanding of the parties that the

fixed salary [wa]s compensation (apart from overtime

premiums) for the hours worked each workweek,

whatever their number,” 29 C.F.R. § 778.114 (parentheses

in original); and it is further

DECLARED: that, during the period November 1995

through January 1997, defendant was obligated, but

failed, to pay plaintiff proper overtime for hours worked

in excess of forty (40) per week; and it is further

DECLARED: that plaintiff is entitled to an award of back

pay in an amount equal to one and one-half times her

regular rate of compensation for every hour she worked in

excess of 40 per week during that period; and it is further

DECLARED: that plaintiff is entitled to liquidated

damages in an amount in addition to, and equal to, the

award of back pay; and it is further

ORDERED: that on or before July 24, 1998, the parties

shall make a good faith effort to agree upon, and file a

Unless it can prove that the information was not known or was inaccessible, a corporation cannot later proffer new or different allegations that could have been made at the time of the 30(b)(6) deposition.

Rainey v American Forest & Paper

Assoc.,

26 F. Supp. 2d 82 (D.DC 1998)

Can’t Change Without Reason

80


QBE Ins. Corp. v. Jorda Enterprises, Inc., --- F.R.D. ---- (2012)



United States District Court, S.D. Florida, Miami Division.

QBE INSURANCE CORPORATION, Plaintiff, v.

JORDA ENTERPRISES, INC., Defendant.

No. 10–21107–CIV. | Jan. 30, 2012.


Sorraya Solages, William S. Berk, Melissa M. Sims,

Berk, Merchant & Sims, PLC, Coral Gables, FL, for

Plaintiff.

Steven David Ginsburg, Josephine Elizabeth Graddy,

Atlanta, GA, Warren Daniel Zaffuto, Duane Morris,

Miami, FL, Christopher Bopst, Buffalo, NY, Edward

Joseph Pfister, Phillips Cantor & Berlowitz, P.A.,

Hollywood, FL, for Defendant.

Opinion

ORDER ON DEFENDANT’S MOTION FOR

SANCTIONS FOR FAILURE TO COMPLY WITH

RULE 30(B)(6)

JONATHAN GOODMAN, United States Magistrate

Judge.

*1 This cause is before me on Defendant’s Motion for

Sanctions for Failure to Comply With Rule 30(b)(6).

(ECF 70). The Court has reviewed the motion, Plaintiff’s

response (ECF 75) and the post-hearing submissions. The

court also held a comprehensive hearing on January 6,

2012. For the reasons outlined below, the Court grants in

part and denies in part the motion.

I. Introduction

This motion requires the Court to confront the following

issue: what consequences should flow from a plaintiff

insurance company’s failure to designate a witness to bind

the corporation under Fed. R. Civ. Pro. 30(b)(6) when (1)

it lacks knowledge of several topics listed in the corporate

deposition notice because it is pursuing a subrogation

claim assigned to it by its insured, (2) it has no material of

its own to review for certain topics and has no employees

or agents with the requisite knowledge, (3) it cannot

prepare a designee on certain topics because the insured

(who presumably does have knowledge of the issues)

refuses to cooperate with the insurer even though it

received payments and is under a contractual obligation to

cooperate, and (4) the discovery deadline has expired?

There is surprisingly little authority on this question,

though there is authority on a morecommon question

which is also present in the motion: what happens if a

party fails to adequately prepare its own designee, who

does not review all available materials, and the sole

designee proclaims that he is not being produced to

provide testimony on some of the topics listed in the

notice?

As outlined below in the factual background section of

this Order, Plaintiff QBE Insurance Corp., which is

pursuing a subrogation claim against Jorda Enterprises,

Inc., a plumbing subcontractor, after paying more than $3

million on a water damage claim to an insured

condominium association, is embroiled in both types of

scenarios.

First, in response to a 30(b)(6) corporate deposition notice

listing 47 topics, QBE produced one witness, a claims

examiner, and announced for the first time at the

deposition that its designee did not have knowledge on

many issues but agreed to produce another corporate

representative who would have the requisite knowledge.

QBE intended to secure one or more representatives from

the insured condominium association, but that plan was

thwarted. Nevertheless, the one representative it did

produce was unable to adequately answer questions on

many topics and he reviewed only a small portion of the

documents which QBE had or had access to before the

deposition.

For this first scenario, sanctions are appropriate. Because

the discovery deadline has expired, because QBE did not

fulfill its obligation to properly prepare its own designee,

because QBE waited until the corporate representative

deposition began to give notice of its designee’s partial

inadequacy and because its designee could have (but did

not) review substantially more material in order to be a

more-responsive witness, Defendant’s requested sanction

will be imposed. Specifically, QBE will be precluded

from offering any testimony at trial on the subjects which

its designee was unable or unwilling to testify about at the

30(b)(6) deposition.

*2 Second, because this is a subrogation case, QBE is not

directly familiar with many of the underlying facts and

was relying on its insured to consent to be the corporate

QBE v Jorda

277 F.R.D. 676 (S.D. Fla. 2012)

QBE will be precluded from offering any

testimony at trial on the subjects, which its

designee was unable or unwilling to testify

about at the 30(b)(6) deposition.

Unprepared deponent

81








No. 10–21107–CIV. | Jan. 30, 2012.




Plaintiff.






Opinion



RULE 30(B)(6)


Judge.








I. Introduction






















notice?







scenarios.













deposition.
















QBE v Jorda

277 F.R.D. 676 (S.D. Fla. 2012)

Unable v. Unwilling

relief is triggered either as a sanction (for

failing to comply with the 30(b)(6) obligations)

or as a natural consequence of not having a

pre-trial position on certain topics.

82


Yeah But … it doesn’t work

83


“ I know nothing.”

84


Courts Never Grant our Motions

85


What is the Solution?

86


Litigation Jujitsu

Power comes from deflecting the adversary’s obstructive conduct back upon them.

87


Expose the Obstruction

88


Duties of the Designating Party They need to tell you

89


The 30(b)(6) Notice

1.

2.

3.

4.

5.

6.

7.

8.






DATE: _____________________________________




952/ 545-7600




cc:



____________ DIVISION

and

Plaintiff(s)

vs.

and

Defendant(s),

vs.

Third-Party

CIVIL FILE NUMBER:

Magistrate:









be completed.






Matters of Inquiry

Witness Designation

90


Duty 1 Must Appear

Pac. Elec. Wire & Cable Co .v. Set Top,

2005 WL 2036033

… had no authority to “cancel”

depositions unilaterally.

91


Failure to Appear Sanctionable

Fed. R. Civ. P. 37(d)(1)(A)(i)

“sanctions if…person designated under Rule 30(b)(6) fails … to appear ”

92


Motion Must Predate Deposition

Fed. R. Civ. P 37(d)(2)

“failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought is objectionable, unless the party failing to act has a pending motion for protective order…”

93


Duty 2 Designate Deponents

• Officer

• Director

• Managing agent

• Other person who consents



____________ DIVISION

and

Plaintiff(s)

vs.

and

Defendant(s),

vs.

Third-Party

CIVIL FILE NUMBER:

Magistrate:









be completed.






Witness Designation

94


Duty 3 Provide all Organization’s Knowledge

“The person designated must testify about information known or reasonably available to the organization.”

95


“To the best of my knowledge”

Studio53/Alex Anton

96








No. 10–21107–CIV. | Jan. 30, 2012.




Plaintiff.






Opinion



RULE 30(B)(6)


Judge.








I. Introduction






















notice?







scenarios.













deposition.
















QBE v Jorda

277 F.R.D. 676 (S.D. Fla. 2012)

Not Person with Most Knowledge

many lawyers issue notices and subpoenas which purport to

require the producing party to provide “the most

knowledgeable” witness. Not only does the rule not provide

for this type of discovery demand, but the request is also

fundamentally inconsistent with the purpose and dynamics

of the rule.

97


US v. Taylor 166 F.R.D. 356 (MDNC 1996)

All Institutional Knowledge

The testimony elicited at the Rule 30(b)(6) deposition represents the knowledge of the corporation, not the individual deponents.

98

© Kosieradzki • Smith Law Firm 2015 99


Not the Person with the Most Knowledge

100


Not the Person with the Most Knowledge

All Information Known to Organization

101


...obligated to produce, a knowledgeable

deponent who was competently prepared to

fully and responsibly address the questions

posed by the Plaintiffs.

Prokosch v. Catalina Lighting

193 F.R.D. 633 (D.Minn. 2000)

Duty 4 Prepare Deponent

102


“must prepare deponents by having them

review prior fact witness deposition testimony

as well as documents and deposition exhibits.”


193 F.R.D. 633 (D.Minn. 2000)

103


Pioneer Drive, LLC v Nissan

262 FRD 552, (D. MT. 2009.)

Failure to Prepare Sanctionable

Pioneer Drive, LLC v. Nissan Diesel America, Inc., 262 F.R.D. 552 (2009)



D. Montana, Missoula Division.

PIONEER DRIVE, LLC, a Montana Limited Liability Co., Plaintiff,

v. NISSAN DIESEL AMERICA, INC., a Texas

Corporation, Nissan Diesel Motor Co., Ltd., a Japanese Corporation, Defendant.

No. CV 08–115–M–DWM. | Dec. 3, 2009.

Synopsis

Background: Plaintiff moved to sanction defendant for

discovery violations.

Holdings: The District Court, Donald W. Molloy, J., held

that:

[1]

independent professional was not required to videotape

deposition that was being recorded by stenographer;

[2]

defense counsel wrongfully obstructed deposition

examinations by objecting to manner of visual recording

without then letting court address objection after

depositions were completed;

[3]

award of sanctions could not be denied on basis that

videographer’s fees incurred could have been recouped as

taxable cost;

[4]

deponent failed to appear; and

[5]

monetary sanctions were adequate to deter defendant’s

conduct.


West Headnotes (12)

[1]


Record of testimony; furnishing copies

Independent professional was not required to

videotape deposition that was being recorded by

stenographer. Fed.Rules Civ.Proc.Rules

30(b)(3)(A), (c)(2), (d)(3), 28 U.S.C.A.


[2]


Record of testimony; furnishing copies

A party may record a deposition without the

assistance of an independent videographer.

Fed.Rules Civ.Proc.Rules 30(b)(3), 30(b)(5)(B),

28 U.S.C.A.


[3]


Objections to taking and grounds for refusal

Defense counsel wrongfully obstructed

deposition examinations by objecting to manner

of visual recording without then letting court

address objection after depositions were

completed. Fed.Rules Civ.Proc.Rule 30(c)(2),

(d)(3), 28 U.S.C.A.


[4]


Objections to taking and grounds for refusal


Failure to Appear or Testify; !Sanctions

Defense counsel’s refusal to allow deposition to

proceed after making objection was in bad faith,

warranting sanctions; despite counsel’s

statement that if quality of recording was

insufficient, defendant too would be deprived of

video record of depositions, counsel had

previously declared that he was comfortable

with depositions proceeding without them being

videotaped. Fed.Rules Civ.Proc.Rule 30(d)(2),

28 U.S.C.A.

Failure to provide knowledgeable designees

who can answer on behalf of Defendant shall

be treated as contempt of court pursuant to

Fed.R.Civ.P. 37(b), and in such a

circumstance Defendant’s designee(s) and

counsel may be jailed until the matters are

testified to properly.

104


Sciarietta v Lincoln Nat. Ins. Co.,

No. 13-12559 (11th Cir 2015)

Selective Preparation = Bad Faith

Preparing a designated witness with only the self-

serving half of the story that is the subject of his

testimony is not an act of good faith.

105


Sciarietta v Lincoln Nat. Ins. Co.,

No. 13-12559 (11th Cir 2015)

Selective Preparation Sanctionable

The district court issued an order assessing

sanctions in the amount of $850,000

106


Great American Ins. Co. of New York v. Vegas Const. Co., Inc., 251 F.R.D. 534 (2008)


!


D. Nevada.

GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, et al., Plaintiffs,

v. VEGAS CONSTRUCTION COMPANY, INC, et al.,

Defendants.

No. 2:06-cv-00911-BES-PAL. | March 24, 2008.

Synopsis

Background: Insurer filed action seeking declaratory

judgment that portion of settlement proceeds it paid to

settle underlying litigation was for damages not covered

under its policies. Insurer filed motion for sanctions and

to compel.

Holdings: The District Court, Peggy A. Leen, United

States Magistrate Judge, held that:

[1]

corporation did not satisfy its obligation to make

conscientious, good faith effort to produce thoroughly

educated witness about noticed deposition topics and facts

known to corporation or its counsel;

[2]

corporation had to educate designee witness to provide

knowledgeable answers reasonably available to

corporation; and

[3]

inability of designee witness to provide knowledgeable

answers about majority of noticed deposition topics was

tantamount to nonappearance, and warranted sanctions.



*536 Dominica C. Anderson, David B. Avakian, Ryan A.

Loosvelt, Duane Morris, LLP, Jennifer D. McKee, Las

Vegas, NV, for Plaintiffs.

Robert D. Martin, Martin & Allison, Ltd., Las Vegas, NV,

for Defendants.

Opinion

ORDER

PEGGY A. LEEN, United States Magistrate Judge.

Before the court is plaintiffs’ (“Great American”) Motion

for Sanctions and to Compel (# 92) filed October 25,

2007. The court has considered the motion (# 92),

Loosvelt’s Declaration (# 93) in support of the motion,

Distinctive Homes’ opposition (# 102), and plaintiffs’

Reply (# 104).

BACKGROUND

This is an action brought by Great American to recover a

portion of settlement proceeds paid by Great American to

settle a lawsuit against Distinctive Homes in an

underlying construction defect case. Great American filed

this declaratory relief action seeking a judgment that a

portion of the settlement proceeds it paid to settle the

underlying litigation was for damages not covered under

its policies. Specifically, Great American asserts some of

the defects or damages alleged in the underlying action

which it paid to settle (1) do not constitute “property

damage” within the meaning of the policies; and/or (2)

are excluded from coverage by the “Your Work”

exclusion in the policies. In the underlying action (the

“Villa Pacifica” litigation), Great American and other

insurers of Distinctive Homes retained the law firm of

Lee & Russell to defend the insured against construction

defect claims brought by the Villa Pacifica Homeowners

Association and homeowners.

On June 18, 2007, Great American served Distinctive

Homes with a Notice of Deposition (# 92 at Exh. “1”)

pursuant to Rule 30(b)(6) of the Federal Rules of Civil

Procedure, setting the deposition for July 24, 2007. The

notice contained 23 subjects of examination mostly

related to the work Distinctive Homes performed on the

Villa Pacifica construction project, its participation in

settlement negotiations and payments in the Villa Pacifica

case, and its discovery responses in the instant case.

Distinctive Homes did not object to or seek a protective

order regarding any of the examination topics. Distinctive

Homes informed Great American that its 30(b)(6)

representative, Anthony Musso, was out of the country

during the discovery period, which ended on July 30,

2007. The parties therefore agreed to depose Musso on

.

Great American Ins. Co.. Vegas Const.

251 FRD 534,541 (D. Nev. 2008)

Privilege Waiver

Facts communicated by an attorney are

not protected by the attorney-client

privilege.

107


Great American Ins. Co. of New York v. Vegas Const. Co., Inc., 251 F.R.D. 534 (2008)


!


D. Nevada.

GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, et al., Plaintiffs,

v. VEGAS CONSTRUCTION COMPANY, INC, et al.,

Defendants.

No. 2:06-cv-00911-BES-PAL. | March 24, 2008.

Synopsis

Background: Insurer filed action seeking declaratory

judgment that portion of settlement proceeds it paid to

settle underlying litigation was for damages not covered

under its policies. Insurer filed motion for sanctions and

to compel.

Holdings: The District Court, Peggy A. Leen, United

States Magistrate Judge, held that:

[1]

corporation did not satisfy its obligation to make

conscientious, good faith effort to produce thoroughly

educated witness about noticed deposition topics and facts

known to corporation or its counsel;

[2]

corporation had to educate designee witness to provide

knowledgeable answers reasonably available to

corporation; and

[3]

inability of designee witness to provide knowledgeable

answers about majority of noticed deposition topics was

tantamount to nonappearance, and warranted sanctions.



*536 Dominica C. Anderson, David B. Avakian, Ryan A.

Loosvelt, Duane Morris, LLP, Jennifer D. McKee, Las

Vegas, NV, for Plaintiffs.

Robert D. Martin, Martin & Allison, Ltd., Las Vegas, NV,

for Defendants.

Opinion

ORDER

PEGGY A. LEEN, United States Magistrate Judge.

Before the court is plaintiffs’ (“Great American”) Motion

for Sanctions and to Compel (# 92) filed October 25,

2007. The court has considered the motion (# 92),

Loosvelt’s Declaration (# 93) in support of the motion,

Distinctive Homes’ opposition (# 102), and plaintiffs’

Reply (# 104).

BACKGROUND

This is an action brought by Great American to recover a

portion of settlement proceeds paid by Great American to

settle a lawsuit against Distinctive Homes in an

underlying construction defect case. Great American filed

this declaratory relief action seeking a judgment that a

portion of the settlement proceeds it paid to settle the

underlying litigation was for damages not covered under

its policies. Specifically, Great American asserts some of

the defects or damages alleged in the underlying action

which it paid to settle (1) do not constitute “property

damage” within the meaning of the policies; and/or (2)

are excluded from coverage by the “Your Work”

exclusion in the policies. In the underlying action (the

“Villa Pacifica” litigation), Great American and other

insurers of Distinctive Homes retained the law firm of

Lee & Russell to defend the insured against construction

defect claims brought by the Villa Pacifica Homeowners

Association and homeowners.

On June 18, 2007, Great American served Distinctive

Homes with a Notice of Deposition (# 92 at Exh. “1”)

pursuant to Rule 30(b)(6) of the Federal Rules of Civil

Procedure, setting the deposition for July 24, 2007. The

notice contained 23 subjects of examination mostly

related to the work Distinctive Homes performed on the

Villa Pacifica construction project, its participation in

settlement negotiations and payments in the Villa Pacifica

case, and its discovery responses in the instant case.

Distinctive Homes did not object to or seek a protective

order regarding any of the examination topics. Distinctive

Homes informed Great American that its 30(b)(6)

representative, Anthony Musso, was out of the country

during the discovery period, which ended on July 30,

2007. The parties therefore agreed to depose Musso on

.

Great American Ins. Co.. Vegas Const.

251 FRD 534, 541 (D. Nev. 2008)

Privilege Waiver

“clients cannot refuse to disclose facts

which their attorneys conveyed to them

and which the attorneys obtained from

independent sources.”

108



193 F.R.D. 633 (D.Minn. 2000)

“[I]f it becomes obvious during the course of a

deposition that the designee is deficient, the

[organization] is obligated to provide a substitute.”

Duty 5 Substitute

109


Reconvene

110


Yeah But … “objection beyond scope.”

111


Objection

112


Sustained

113


Looks like

you can't

get that

information.

114


Who is the Judge?

115


Plaisted v Geisinger

210 F.R.D.527 (MD Penn. 2002)

“it is not the prerogative of counsel, but of the court, to rule on objections.”

116


Instruction Not to Answer:

• Privilege

• Ct. directed evidence limitation

Fed. R. Civ. P. 30(d)(1)

117


Redwood v. Dobson

476 F.3d 462 (7th Cir. 2007)

Instructions not to respond that neither

shielded a privilege nor supplied time to apply

for a protective order – were unprofessional

and violated the Federal Rules of Civil

Procedure as well as the ethical rule

118


King v. Pratt & Whitney, 161 F.R.D.

475, 476 (S.D.Fla.,1995)

Rule 30(b)(6) cannot be used to limit what is asked of a

designated witness at a deposition. Rather, the Rule simply

defines a corporation's obligations regarding whom they are

obligated to produce for such a deposition and what that

witness is obligated to be able to answer.

119


• 30(b)(6) not a limitation

• 30(b)(6) defines minimum, not maximum scope of inquiry

• 26(b)(1) anything leading to relevant information

King v. Pratt & Whitney, 161 F.R.D.

475, 476 (S.D.Fla.,1995)

120


Don’t Give Up!

© Kosieradzki • Smith Law Firm 2015 122


Mark Kosieradzki

Kosieradzki Smith Law Firm

Minneapolis, MN

[email protected]

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