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Storer v. Crown Cork & Seal Co.

United States District Court, W.D. Louisiana, Shreveport Division

January 31, 2017

MARTHA DENMON STORER, ET AL.
v.
CROWN CORK & SEAL COMPANY, ET AL.

          ELIZABETH E. FOOTE JUDGE.

          MEMORANDUM ORDER

          KAREN L. HAYES UNITED STATES MAGISTRATE JUDGE.

         Before 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.[1]

         Background[2]

         The 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:

         On 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 testimony.

         On 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.

         On January 12, 2016, plaintiffs' counsel noticed Trane's corporate deposition for February 22, 2016, in New Orleans, at counsel for Trane's office.

         On 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.

         On February 18, 2016, plaintiffs filed a motion to compel Trane to produce a representative for its corporate deposition noticed for February 22.

         On 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 date.

         On 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]).

         The 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]).

         On 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.

         On 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.

         Meanwhile, 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 30(b)(6) deposition.

         After 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.

         Trane 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).

         On 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).

         Trane 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.

         On 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. # 142].

         On December 21, 2016, plaintiffs filed their reply memorandum. [doc. # 154]. Thus, the matter is ripe.

         Law[3]

         A party 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. Id.[4]

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

         “At 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. Fed.R.Civ.P. 30(d)(2).

         Upon a 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 ...


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