United States District Court, W.D. Louisiana, Shreveport Division
MARTHA DENMON STORER, ET AL.
CROWN CORK & SEAL COMPANY, ET AL.
ELIZABETH E. FOOTE JUDGE.
L. HAYES UNITED STATES MAGISTRATE JUDGE.
the undersigned Magistrate Judge, on reference from the
District Court, is a third motion to compel Trane US,
Inc.'s Rule 30(b)(6) deposition, and for costs [doc. #
133] filed by plaintiffs, Martha Denmon Storer, et al. For
reasons detailed below, the motion is GRANTED.
instant ongoing discovery dispute is between plaintiffs
Martha Denmon Storer, et al. and defendant Trane US, Inc.
(“Trane”). This is plaintiffs' third motion
to compel Trane's corporate deposition. The court sets
forth the following chronology:
November 25, 2015, plaintiffs' counsel transmitted his
initial request to counsel for Trane for an agreeable date on
which to depose Trane's 30(b)(6) witness. At that time,
plaintiffs sought to take the corporate representative
deposition in January 2016, prior to the deposition of
another witness whose testimony would depend on Trane's
December 1, 2015, plaintiffs' counsel sent the proposed
30(b)(6) notice to counsel for Trane and requested that he
look it over so the parties “could come to an agreement
on these areas of inquiry by the end of the week.” On
December 2, 2015, plaintiffs' counsel advised defense
counsel that he had added an additional area of inquiry to
encompass all documents that Trane obtained after it
reclaimed its franchise from H.E. Storer Sales, Inc.
January 12, 2016, plaintiffs' counsel noticed Trane's
corporate deposition for February 22, 2016, in New Orleans,
at counsel for Trane's office.
February 18, 2016, counsel for Trane advised plaintiffs'
counsel that his client's corporate deposition would not
go forward as scheduled, because neither he nor the
representative were available. Counsel stated that he would
submit alternative dates for the deposition.
February 18, 2016, plaintiffs filed a motion to compel Trane
to produce a representative for its corporate deposition
noticed for February 22.
February 19, 2016, one business day before its February 22
corporate deposition, Trane filed a motion to quash the
deposition of its corporate representative, Dennis Dorman.
Trane explained that Mr. Dorman was caring for his ill
father, and that counsel had a conflict with the deposition
March 31, 2016, the court granted-in-part the pending
discovery-related motions, and ordered Trane's 30(b)(6)
deposition to be taken on May 19 or 20 in Minneapolis,
Minnesota. (March 31, 2016, Mem. Order [doc. 103]).
deposition, however, was not taken in May, and Trane's
designated corporate representative, Dennis Dorman, was not
available again until September 2016. This prompted
plaintiffs' second motion to compel Trane's 30(b)(6)
deposition that was filed on July 7, 2016. (Pl.
2nd M/Compel [doc. # 113]).
August 10, 2016, plaintiffs' counsel emailed defense
counsel an extended list of 34 proposed matters entitled,
“UPDATED Conference Request re 30(b)(6) Areas of
Inquiry.” (Aug. 10, 2016, email from Scott Hendler to
Joe Morton; 3rd M/Compel, Exh 4 and Decl. of Scott
Hendler, 3rd M/Compel, Exh. 5.
August 18, 2016, pursuant to a telephone conference/hearing
with the parties and Mr. Dorman, plaintiffs' counsel
agreed that the reasons for the delay provided by Trane's
corporate representative were satisfactory. (Aug. 18, 2016,
Minutes of Proceedings [doc. # 125]). Accordingly, the court
denied the motion to compel, as moot. Id.
on the morning of August 18, 2016, before the conference with
the court, counsel conferred about several discovery matters
including the 30(b)(6) deposition notice. See Decl.
of Scott Hendler; 3rd M/ Compel, Exh. 5. Following
the call, plaintiffs' counsel believed that all
outstanding issues were resolved and reported same to the
court during the phone hearing. Id. Moreover, Trane
did not challenge any of the proposed matters for the
the hearing, however, defense counsel emailed plaintiffs'
counsel that he had concern about five of the proposed
matters. (Aug. 18, 2016, email from J. Morton to S. Hendler;
3rd M/Compel, Exh. 6). Defense counsel promised to
serve objections by August 23 and to confer again on August
26 to resolve any outstanding issues. Id.
did not serve objections by August 23 and defense counsel was
unable to attend the scheduled call on August 26. On
September 1, counsel conferred and defense counsel reiterated
his concern about the five areas that he had identified in
his August 18, 2016, email, but assured plaintiffs'
counsel that he would allow the witness to answer questions
about those subject matters (subject to spoken objections).
(Decl. of Scott Hendler; 3rd M/Compel, Exh. 5).
Thereafter, on September 1, 2016, plaintiffs served all
parties with their formal notice of deposition for Trane.
(Notice of Deposition; 3rd M/Compel, Exh. 7).
September 7, 2016, one day before the scheduled deposition,
Trane served plaintiffs with objections to every matter in
the notice. (Trane's Objections to 30(b)(6) Corporate
Representative Deposition; 3rd M/Compel, Exh. 8).
By that time, plaintiffs' counsel already was in
Minnesota and-in light of the ten months and two motions to
compel it had required to schedule the deposition-opted to
proceed because counsel for Trane had assured him that the
witness would answer questions regarding all the matters in
the notice. (Decl. of Scott Hendler).
produced its corporate representative, Dennis Dorman, for
deposition on September 8, 2016. However, Dorman was
unprepared to testify regarding many of the matters in
plaintiffs' notice. In addition, counsel for Trane
instructed Mr. Dorman not to answer on eleven occasions.
Nonetheless, Trane did not file a motion for protective order
regarding any of the matters in the deposition notice or
otherwise seek a ruling on any of the matters in the notice.
October 31, 2016, plaintiffs filed the instant (third) motion
to compel Trane's 30(b)(6) deposition and request for
costs. Trane filed its opposition on December 1, 2016, in
which it maintained that, 1) Mr. Dorman was prepared for the
deposition; 2) Trane's claim of attorney-client privilege
was valid; 3) counsel properly instructed Mr. Dorman not to
answer questions related to Matter Item Nos. 30 & 31; and 4)
Matter Item No. 34 was not a valid area of inquiry. [doc. #
December 21, 2016, plaintiffs filed their reply memorandum.
[doc. # 154]. Thus, the matter is ripe.
may, by oral questions, depose any person, including another
party, but must provide reasonable written notice to every
other party. Fed.R.Civ.P. 30(a) &(b)(1). In addition, a party
may name an entity as a deponent so long as the party also
describes with reasonable particularity the matters for
examination. Fed.R.Civ.P. 30(b)(6). The named entity/deponent
then must designate one or more persons or officials and the
matters upon which each will testify.
seeking discovery may move for an order compelling a Rule
30(b)(6) designation if a corporation or other entity fails
to do so. Fed.R.Civ.P. 37(a)(3)(B)(ii). Further, upon motion,
a court may order sanctions “if a party or a
party's officer, director, or managing agent - or a
person designated under Rule 30(b)(6) or 31(a)(4) - fails,
after being served with proper notice, to appear for that
person's deposition . . .” Fed.R.Civ.P.
37(d)(1)(A)(i). Sanctions may include, inter alia,
reasonable expenses, including attorney's fees - unless
the failure was justified or other circumstances make an
award unjust. Fed.R.Civ.P. 37(d)(3). Failure to appear at a
deposition is not excused on the basis that the discovery
sought was objectionable - unless the party failing to appear
had a pending motion for protective order under Rule 26(c).
any time during a deposition, the deponent or a party may
move to terminate or limit it on the ground that it is being
conducted in bad faith or in a manner that unreasonably
annoys, embarrasses, or oppresses the deponent or
party.” Fed.R.Civ.P. 30(d)(3)(A). If, however, the
deponent, another person, or any other circumstance impedes
or delays the examination, the court must allow additional
time, if needed, to fairly examine the deponent. Fed.R.Civ.P.
30(d)(1). Furthermore, the court may impose an appropriate
sanction - including reasonable expenses and attorney's
fees incurred by any party - on a person who impedes, delays,
or frustrates the fair examination of the deponent.
showing of good cause, a court may issue an order to
“protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense,
including [an order] . . . specifying terms, including time
and place or the allocation of expenses, for the disclosure
or discovery . . . ” Fed.R.Civ.P. 26(c)(1)(B). The
party seeking the protective order must establish good cause
for the entry of the order by making a “particular and
specific demonstration of fact, as distinguished from
stereotyped and conclusory statements.” Gulf Oil
Co. v. Bernard, 452 U.S. 89, 102 n. 16, 101 S.Ct. 2193
(1981); see also, In re Terra Int'l,
Inc., 134 F.3d 302, 306 (5th Cir. 1998). Furthermore,
“Rule 26(c) confers broad ...