Case No. 2:07-cv-0803.
June 2, 2008
OPINION AND ORDER
This case is currently before the Court by way of defendant Eric Stafford's motion to compel Rule 30(b)(6) depositions. The gravamen of Mr. Stafford's motion is that the single individual which plaintiff Boart Longyear produced in response to a 30(b)(6) deposition notice — L. Mark Knolle, a former Prosonic employee — knew little or nothing about many of the subjects described in the notice. Boart does not dispute that basic fact, but contends that many of the subjects described in the notice are not relevant to this case and that Mr. Stafford has already garnered much of the information sought in the Rule 30(b)(6) deposition through other discovery. For the following reasons, the Court concludes that Mr. Stafford has the better argument and that he is entitled to a new Rule 30(b)(6) deposition.
By way of very brief background, Mr. Stafford used to work for Prosonic, a company engaged in the sonic drilling business. He left and went to work for a competitor. Prosonic sued him for breach of a non-competition agreement and for disclosure of trade secrets. At some point, Boart acquired Prosonic's stock and created a new division (the E I Division) to carry on the sonic drilling business.
Boart subsequently became a plaintiff in this case. Mr. Stafford then served Boart with a deposition notice which, as authorized by Fed.R.Civ.P. 30(b)(6), described a number of subjects to be inquired about at the deposition. The deposition took place on March 7, 2008, a month after the notice was served. The only witness designated by Boart to testify on the subjects described in the notice was Mr. Knolle, who also used to work for Prosonic and who has worked for Boart only since January, 2007. Mr. Knolle candidly admitted at the deposition that he knew nothing about many of the subjects described in the notice and that he had not done any investigation to become informed about those subjects. Mr. Stafford now seeks an order which would compel Boart to produce witnesses at a reconvened deposition who do know something about those matters.
In support of his motion, Mr. Stafford cites to substantial case authority for the proposition that an organization which is served with a Rule 30(b)(6) deposition notice is obligated to produce a witness knowledgeable about the subjects described in the notice and to prepare that witness to testify not just to his or her own knowledge, but the corporation's knowledge. As the court in Starlight Intern. Inc. v. Herlihy, 186 F.R.D. 626, 638 (D.Kan. 1999) explained,
"[f]or a Rule 30(b)(6) deposition to operate effectively, the deposing party must designate the areas of inquiry with reasonable particularity, and the corporation must designate and adequately prepare witnesses to address these matters." United States v. Taylor, 166 F.R.D. 356, 360 (M.D.N.C.), aff'd, 166 F.R.D. 367 (1996). "If the rule is to promote effective discovery regarding corporations the spokesperson must be informed." Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 70, 75 (D.Neb. 1995) (quoting Protective Nat'l Ins. Co. v. Commonwealth Ins. Co., 137 F.R.D. 267, 278 (D.Neb. 1989)).
There is no serious dispute that cases such as this accurately state the law. Thus, once Mr. Stafford served a deposition notice that invoked Rule 30(b)(6) and described with particularity the subjects his counsel would be asking about at the deposition, Boart became obligated to produce an "informed spokesperson" for him to examine. As noted, Boart does not seriously dispute that it failed to do so, at least for a number of the subjects at issue. It offers several reasons why, despite this failure, it should not have to comply with the 30(b)(6) notice. Upon close examination, none of those reasons are sufficient to allow it to escape its discovery obligations.
In the Court's view, the primary issue raised by the motion to compel is whether Boart should be required to produce a witness who either knows, or has become informed about, many of the subjects which fell outside Mr. Knolle's scope of knowledge. Before delving into that issue, however, the Court will first address a conceptually distinct issue that has been lumped together with the primary issue. That issue, described in sections II(B)(3), (5) and (6) of the motion to compel, is the sufficiency of Mr. Knolle's testimony about Boart's allegations that Mr. Stafford solicited business from Boart's customers, caused Boart to lose certain projects upon which it had bid, attempted to lure employees away from Boart, or disclosed Boart's confidential materials.
Many of the other matters described in the deposition notice are directed toward matters of defense such as Boart's standing to enforce the restrictive covenant at issue or its practices concerning including such covenants or non-disclosure language in the contract of its current employees. However, the subjects discussed in section II(B)(3), (5) and (6) of the motion to compel were included in the deposition notice in order to allow Mr. Stafford to find out what, if any, evidence Boart possesses to support its affirmative claims against him. Mr. Knolle reaffirmed some prior evidence disclosed concerning one customer (Mike's Beer Barn) but said he knew of nothing beyond that which would support these particular claims.
One of the primary concerns of the drafters of the discovery and disclosure provisions of the Federal Rules of Civil Procedure was the potential that one party to litigation would withhold until trial evidence that supports its claims or defenses, thus depriving the other party of the opportunity to learn the basis of those claims or defenses during discovery and to prepare fairly to meet those claims or defenses at trial. So, for example, the initial disclosures required to be made by Rule 26(a)(1) include the identity of witnesses and the location of documents that the disclosing party "may use to support its claims or defenses. . . ." The drafters also provided that such initial disclosures, as well as responses to discovery requests served during the course of the litigation, must be seasonably supplemented as new information comes to light. Fed.R.Civ.P. 26(e). If a party fails to disclose such information during discovery, it may not use that information against the opposing party at trial. See, e.g., Fed.R.Civ.P. 37(c)(1).
These concepts clearly apply to questioning at a Rule 30(b)(6) deposition. In other words, if a party designates someone to testify on that party's behalf on the issue of evidence possessed by the party to support its claims or defenses, and the witness either disclaims any knowledge of such evidence or provides a limited amount of testimony on the subject, the organization may not use any evidence beyond that at trial (unless, of course, it has provided it in another way such as through initial disclosures or discovery responses and the testimony at the 30(b)(6) deposition is not inconsistent with those other disclosures).
Here, Boart put Mr. Knolle forth as its witness on these topics. He told Mr. Stafford's counsel that he knew either nothing, or next to nothing, which would support Boart's affirmative claims. In its response to the motion to compel, Boart reaffirms that, with respect to each of these matters, it and Prosonic "have provided Defendant with all information known to date on this topic." Opposing memorandum, at 8, 9 11 (emphasis in original). It has also resisted the effort to have it designate another witness to testify about these subjects.
Given this background, whether Boart did or did not designate its most knowledgeable employee on these subjects is beside the point. Boart had the opportunity to provide a company spokesperson who could tell Mr. Stafford that Boart had some additional support for these claims beyond what had already been provided. It did not avail itself of that opportunity and clearly does not want another chance to supplement its position. Under these circumstances, it is only Boart that will be disadvantaged if it possesses more information supporting its claims but failed to make Mr. Knolle aware of that information in advance of the Rule 30(b)(6) deposition. Consequently, there is no reason to grant Boart an additional opportunity (which it clearly does not want) to disclose such information so that it can be used against Mr. Stafford at trial. The Court notes Mr. Stafford's request that, if Mr. Knolle's testimony is taken at face value, these claims should be withdrawn or dismissed, but that is not a decision which can be made in the context of a motion to compel a new Rule 30(b)(6) deposition. Boart will simply have to determine whether it can, in good faith, proceed with these claims in light of Mr. Knolle's testimony and the other information it has disclosed in support of these particular claims, and if it believes that it can, Mr. Stafford will have to file an appropriate dispositive motion.
B.The more significant issue relates to Mr. Knolle's failure to provide meaningful testimony about matters pertaining to certain defenses raised by Mr. Stafford. In this situation, if Boart actually possesses more information than it shared with Mr. Knolle, Mr. Stafford will have been disadvantaged by not having been able to plumb the depths of Boart's knowledge through its designated witness. If that has occurred, the usual remedy would be to direct Boart to provide a more knowledgeable witness at a second Rule 30(b)(6) deposition.
Boart's response to Mr. Stafford's arguments on this issue has two parts. First, Boart claims that the very same information has already been provided through other depositions and other discovery. Second, Board contends that much of it is irrelevant. The Court will address these arguments in reverse order.
With respect to the issue of relevance, the Court notes first that Boart neither made written objection to the deposition notice nor moved for any type of protection from its scope prior to producing Mr. Knolle as a witness. As a general matter, of course, a witness at a deposition is required to answer even irrelevant questions, subject to objection, because the circumstances under which a witness may refuse to answer deposition questions are quite limited. See Fed.R.Civ.P. 30(d)(1). That rule is not different for Rule 30(b)(6) depositions. Banks v. Office of Senate Sergeant-at-Arms, 222 F.R.D. 7 (D.D.C. 2004). Certainly, a party may not circumvent this rule simply by producing a witness without knowledge of the subjects believed to be irrelevant. Such "self-help," especially when no notice has been given to opposing counsel that certain subjects were deemed by the responding party to be irrelevant and that no knowledgeable witness would be produced to address them, is inconsistent with the spirit of the Civil Rules. To permit a party to use such an argument as an after-the-fact justification for not producing an appropriate witness is equally inconsistent with the rules governing discovery. For these reasons, Boart's relevancy argument has no merit.
With respect to the question of whether the 30(b)(6) deposition was essentially duplicative of other discovery, a party may, under certain circumstances, successfully argue that all or a portion of the subject matter of such a deposition has already been addressed and that prior depositions may be deemed to be the organization's response. Thus, for example, the court in EEOC v. Boeing, 2007 WL 1146446 (D. Ariz. 2007) acknowledged that a corporate deponent may, in response to a 30(b)(6) notice, designate prior depositions as responsive and offer to be bound by the testimony given in those depositions in lieu of having to produce the same witnesses to answer the same questions again. However, such an intent should be clearly indicated as part of a response to a 30(b)(6) notice, as was done in that case, so that opposing counsel (and, if necessary, the Court) can evaluate whether the prior testimony is sufficiently on point to make a subsequent deposition superfluous. Further, at least one court has concluded that the issue of duplication is usually no reason to prevent the 30(b)(6) deposition from going forward, and that any issues of duplication or unnecessary expenditure of time can be addressed once the deposition has been taken. See Tri-State Hosp. Supply Co. v. United States, 226 F.R.D. 118 (D.D.C. 2005).
Again, Boart does not appear to have responded to the deposition notice by offering to substitute prior deposition testimony for the production of a knowledgeable witness on any of the subjects addressed in the notice, nor did it make any objection that portions of the deposition would be duplicative. Further, there are genuine disputes about the extent to which the testimony in those prior depositions actually addresses the subjects about which Mr. Stafford wished to inquire at the 30(b)(6) deposition. As his reply memorandum points out, Boart did not become a party to this case or assert affirmative claims against Mr. Stafford until those depositions were completed, and a number of the prior witnesses clearly did not have knowledge of some of the subjects under discussion, such as the due diligence performed by Boart prior to its acquisition of Prosonic's stock or its historic hiring practices. Thus, it is clear that even if Mr. Stafford had been offered the prior depositions as binding on Boart, he would have wished to ask additional questions of a knowledgeable witness at the 30(b)(6) deposition. However, he was prevented even from being aware that Boart considered prior depositions to be responsive to his notice because that fact does not appear to have been communicated in advance of the 30(b)(6) deposition. The failure to raise these issues in advance, the production of a witness who clearly does not meet the requirements of the rule, and the attempt to justify these failures with after-the-fact excuses, is precisely the type of gamesmanship that the drafters of the Civil Rules have tried so diligently to prevent, and it simply will not be countenanced by this Court.
The remedy in this situation is quite straightforward. Boart did not do what Rule 30(b)(6) requires, so Mr. Stafford did not get the deposition to which he was entitled. Boart must therefore act in compliance with the rule and produce, at a time and location to be agreed to by counsel, one or more witnesses who possess Boart's knowledge about the subjects listed in the notice — with the exception of those matters discussed in Section II(A) of this order. In an effort to streamline the procedure, Boart may offer to stipulate that certain prior testimony or other discovery is the equivalent of 30(b)(6) testimony with respect to the exact questions asked and answered, so that the 30(b)(6) inquiry need not repeat verbatim the prior questioning, but to the extent that Mr. Stafford has different or additional questions even on those subjects, he is entitled to ask them of a witness who stands a reasonable chance of knowing the answer. The parties shall make every effort to accomplish this deposition within the next thirty days.
This order resolves Mr. Stafford's motion to compel (#93) and that motion shall be removed from the Court's pending motions list.
Any party may, within ten (10) days after this Order is filed, file and serve on the opposing party a motion for reconsideration by a District Judge. 28 U.S.C. § 636(b)(1)(A), Rule 72(a), Fed.R.Civ.P.; Eastern Division Order No. 91-3, pt. I., F., 5. The motion must specifically designate the order or part in question and the basis for any objection. Responses to objections are due ten days after objections are filed and replies by the objecting party are due seven days thereafter. The District Judge, upon consideration of the motion, shall set aside any part of this Order found to be clearly erroneous or contrary to law.
This order is in full force and effect, notwithstanding the filing of any objections, unless stayed by the Magistrate Judge or District Judge. S.D. Ohio L.R. 72.4.