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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
© Kosieradzki • Smith Law Firm 2015
Tell them what you want to find out.
They need to tell you.
7
© Kosieradzki • Smith Law Firm 2015
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
© Kosieradzki • Smith Law Firm 2015
Not Restricted to Corporations
9
© Kosieradzki • Smith Law Firm 2015
Possible 30(b)(6) deponents…
• Public Corp.
• Private Corp.
• Partnership
• Governmental Agency
• Association
• Other entity
10
© Kosieradzki • Smith Law Firm 2015
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
© Kosieradzki • Smith Law Firm 2015
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
© Kosieradzki • Smith Law Firm 2015
Not Restricted to a Party
13
© Kosieradzki • Smith Law Firm 2015
• 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
© Kosieradzki • Smith Law Firm 2014
Number & Length of 30(b)(6) Depositions
15
© Kosieradzki • Smith Law Firm 2015
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
© Kosieradzki • Smith Law Firm 2015
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
© Kosieradzki • Smith Law Firm 2015
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.
18
© Kosieradzki • Smith Law Firm 2015
Scenario 2
Multiple 30(b)(6) Notices
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:
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:
Matters in Issue
19
© Kosieradzki • Smith Law Firm 2015
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....
20
© Kosieradzki • Smith Law Firm 2015
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:
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:
Matters in Issue
Designee Individual
Scenario 3
21
© Kosieradzki • Smith Law Firm 2015
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
© Kosieradzki • Smith Law Firm 2015
Designee Individual
23
© Kosieradzki • Smith Law Firm 2015
Party vs Non-party
Scenario 4
Deposition Location
24
© Kosieradzki • Smith Law Firm 2015
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
25
© Kosieradzki • Smith Law Firm 2015
Non-party: Rule 45
• Subpoena
• Selected Designee
• Within 100 miles:
– Residence
– employed
26
© Kosieradzki • Smith Law Firm 2015
Location of Designee Controls
Entity v Designee
27
© Kosieradzki • Smith Law Firm 2015
Party Non-party
Deposition Location
28
© Kosieradzki • Smith Law Firm 2015
What’s in the 30(b)(6) Notice?
29
© Kosieradzki • Smith Law Firm 2015
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:
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
30
© Kosieradzki • Smith Law Firm 2015
The 30(b)(6) Notice
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:
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:.
Matters in Issue
Witness Designation
31
© Kosieradzki • Smith Law Firm 2015
What can you ask about?
32
© Kosieradzki • Smith Law Firm 2015
Facts
33
© Kosieradzki • Smith Law Firm 2015
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
170A Federal Civil Procedure
170AX Depositions and Discovery
170AX(C) Depositions of Parties and Others Pending Action
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
34
© Kosieradzki • Smith Law Firm 2015
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:
Matters of Inquiry
Example
Wrongful Discharge
1. All facts leading up to, or involving the decision to
terminate Angela Martinez.
35
© Kosieradzki • Smith Law Firm 2015
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:
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.
36
© Kosieradzki • Smith Law Firm 2015
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:
Example
Inadequate Security
1. Policies and procedures establishing security in the Wal-Mart parking lots.
Matters in Issue
37
© Kosieradzki • Smith Law Firm 2015
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:
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
© Kosieradzki • Smith Law Firm 2015
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)
© 2013 Thomson Reuters. No claim to original U.S. Government Works. 1
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.
Attorneys and Law Firms
*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
© Kosieradzki • Smith Law Firm 2015
Sources of Information
40
© Kosieradzki • Smith Law Firm 2015
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.
41
© Kosieradzki • Smith Law Firm 2015
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:
Example
Payroll Punch Detail
1. The method of querying the “punch-in/punch-out”
clock system used by Kindred Healthcare.
Matters in Issue
42
© Kosieradzki • Smith Law Firm 2015
Positions
43
© Kosieradzki • Smith Law Firm 2015
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
170A Federal Civil Procedure
170AX Depositions and Discovery
170AX(C) Depositions of Parties and Others Pending Action
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
© Kosieradzki • Smith Law Firm 2015
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:
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
© Kosieradzki • Smith Law Firm 2015
Claims & Defenses
46
© Kosieradzki • Smith Law Firm 2015
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
170A Federal Civil Procedure
170AX Depositions and Discovery
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
© Kosieradzki • Smith Law Firm 2015
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
© Kosieradzki • Smith Law Firm 2015
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)
49
© Kosieradzki • Smith Law Firm 2015
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:
Affirmative Defenses (cont)
3. All facts and documents upon which you base your contention set forth in the Fourth Affirmative Defense that:
Matters in Issue
50
© Kosieradzki • Smith Law Firm 2015
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:
Affirmative Defenses (cont)
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
© Kosieradzki • Smith Law Firm 2015
The sky is the limit
© Kosieradzki • Smith Law Firm 2015
• Electronically stored data
• Corporate structure
• Medical Device FDA protocols
• Subrogation
• Payroll analytics
• Programing “Source Codes”
• Product liability testing
• Bad Faith claims handling protocols
53
© Kosieradzki • Smith Law Firm 2015
Crafting the Notice
54
© Kosieradzki • Smith Law Firm 2015
“The quality of your answers is in direct proportion to the quality of your questions.”
-- Albert Einstein
55
© Kosieradzki • Smith Law Firm 2015
Strategically Plan
56
© Kosieradzki • Smith Law Firm 2015
Crafting the Notice: Two Schools…
57
© Kosieradzki • Smith Law Firm 2015
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
© Kosieradzki • Smith Law Firm 2015
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)
© 2013 Thomson Reuters. No claim to original U.S. Government Works. 1
!
236 F.R.D. 524 United States District Court,
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.
Attorneys and Law Firms
*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
© Kosieradzki • Smith Law Firm 2015
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
© Kosieradzki • Smith Law Firm 2015
Responding entity needs to know outer limits of requested examination
61
© Kosieradzki • Smith Law Firm 2015
Hartford Fire Ins. Co. v. P & H Cattle Co., Inc., Not Reported in F.Supp.2d (2009)
© 2013 Thomson Reuters. No claim to original U.S. Government Works. 1
2009 WL 2951120 Only the Westlaw citation is currently available.
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.
Attorneys and Law Firms
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
© Kosieradzki • Smith Law Firm 2015
NO Weasel Words
63
© Kosieradzki • Smith Law Firm 2015
“including, but are not be limited to”
64
© Kosieradzki • Smith Law Firm 2015
Reasonable Particularity
65
© Kosieradzki • Smith Law Firm 2015
Painstaking Specificity
66
© Kosieradzki • Smith Law Firm 2015
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:
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
© Kosieradzki • Smith Law Firm 2015
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:
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
© Kosieradzki • Smith Law Firm 2015
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:
Matters in Issue
Surveillance
2. The position/location of all video cameras.
69
© Kosieradzki • Smith Law Firm 2015
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:
Matters in Issue
Surveillance
3. The method of operation of all video cameras
70
© Kosieradzki • Smith Law Firm 2015
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:
Matters in Issue
Surveillance
4. The location & storage of video or digital images
captured on may 4, 2013.
71
© Kosieradzki • Smith Law Firm 2015
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:
Matters in Issue
Surveillance
5. Identity of all persons involved in maintenance and
operation of the video/security system.
72
© Kosieradzki • Smith Law Firm 2015
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:
Matters in Issue
Surveillance
6. All policies regarding retention of Surveillance
video/digital images following notice of incident.
73
© Kosieradzki • Smith Law Firm 2015
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:
Matters in Issue
Surveillance
7. The identity of all persons who reviewed the video/
digital images.
74
© Kosieradzki • Smith Law Firm 2015
Binding Effect & Sanctions
75
© Kosieradzki • Smith Law Firm 2015
30(b)(6): silent
• Organization
• Produce person
• “Matters on which examination is requested”
76
© Kosieradzki • Smith Law Firm 2015
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)
© 2013 Thomson Reuters. No claim to original U.S. Government Works. 1
125 F.R.D. 121
United States District Court, M.D. North Carolina
, 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]
Federal Civil Procedure
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.
4 Cases that cite this headnote
[3]
Federal Civil Procedure
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 Cases that cite this headnote
[4]
Federal Civil Procedure
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.
10 Cases that cite this headnote
[5]
Federal Civil Procedure
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.”
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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
170A Federal Civil Procedure
170AX Depositions and Discovery
170AX(C) Depositions of Parties and Others Pending Action
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
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Rainey v. American Forest and Paper Ass’n, Inc., 26 F.Supp.2d 82 (1998)
137 Lab.Cas. P 33,794
© 2013 Thomson Reuters. No claim to original U.S. Government Works. 1
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.
Attorneys and Law Firms
*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
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QBE Ins. Corp. v. Jorda Enterprises, Inc., --- F.R.D. ---- (2012)
© 2013 Thomson Reuters. No claim to original U.S. Government Works. 1
2012 WL 266431 Only the Westlaw citation is currently available.
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.
Attorneys and Law Firms
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
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QBE Ins. Corp. v. Jorda Enterprises, Inc., --- F.R.D. ---- (2012)
© 2013 Thomson Reuters. No claim to original U.S. Government Works. 1
2012 WL 266431 Only the Westlaw citation is currently available.
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.
Attorneys and Law Firms
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)
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.
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Yeah But … it doesn’t work
83
© Kosieradzki • Smith Law Firm 2015
“ I know nothing.”
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© Kosieradzki • Smith Law Firm 2015
Courts Never Grant our Motions
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What is the Solution?
86
© Kosieradzki • Smith Law Firm 2015
Litigation Jujitsu
Power comes from deflecting the adversary’s obstructive conduct back upon them.
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Expose the Obstruction
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Duties of the Designating Party They need to tell you
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© Kosieradzki • Smith Law Firm 2015
The 30(b)(6) Notice
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:
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:.
Matters of Inquiry
Witness Designation
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Duty 1 Must Appear
Pac. Elec. Wire & Cable Co .v. Set Top,
2005 WL 2036033
… had no authority to “cancel”
depositions unilaterally.
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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 ”
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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…”
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© Kosieradzki • Smith Law Firm 2015
Duty 2 Designate Deponents
• Officer
• Director
• Managing agent
• Other person who consents
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:.
Witness Designation
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Duty 3 Provide all Organization’s Knowledge
“The person designated must testify about information known or reasonably available to the organization.”
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© Kosieradzki • Smith Law Firm 2015
“To the best of my knowledge”
Studio53/Alex Anton
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QBE Ins. Corp. v. Jorda Enterprises, Inc., --- F.R.D. ---- (2012)
© 2013 Thomson Reuters. No claim to original U.S. Government Works. 1
2012 WL 266431 Only the Westlaw citation is currently available.
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.
Attorneys and Law Firms
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)
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.
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© Kosieradzki • Smith Law Firm 2015
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.
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© Kosieradzki • Smith Law Firm 2015
Not the Person with the Most Knowledge
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Not the Person with the Most Knowledge
All Information Known to Organization
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© Kosieradzki • Smith Law Firm 2015
...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
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© Kosieradzki • Smith Law Firm 2015
“must prepare deponents by having them
review prior fact witness deposition testimony
as well as documents and deposition exhibits.”
Prokosch v. Catalina Lighting
193 F.R.D. 633 (D.Minn. 2000)
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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)
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
262 F.R.D. 552 United States District Court,
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.
Ordered accordingly.
West Headnotes (12)
[1]
Federal Civil Procedure
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 Cases that cite this headnote
[2]
Federal Civil Procedure
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.
2 Cases that cite this headnote
[3]
Federal Civil Procedure
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.
1 Cases that cite this headnote
[4]
Federal Civil Procedure
Objections to taking and grounds for refusal
Federal Civil Procedure
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
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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
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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
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Great American Ins. Co. of New York v. Vegas Const. Co., Inc., 251 F.R.D. 534 (2008)
© 2013 Thomson Reuters. No claim to original U.S. Government Works. 1
!
251 F.R.D. 534 United States District Court,
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.
Motion granted in part and denied in part.
Attorneys and Law Firms
*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
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Great American Ins. Co. of New York v. Vegas Const. Co., Inc., 251 F.R.D. 534 (2008)
© 2013 Thomson Reuters. No claim to original U.S. Government Works. 1
!
251 F.R.D. 534 United States District Court,
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.
Motion granted in part and denied in part.
Attorneys and Law Firms
*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
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Prokosch v. Catalina Lighting
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
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Reconvene
110
© Kosieradzki • Smith Law Firm 2014
Yeah But … “objection beyond scope.”
111
© Kosieradzki • Smith Law Firm 2015
Objection
112
© Kosieradzki • Smith Law Firm 2015
Sustained
113
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Looks like
you can't
get that
information.
114
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Who is the Judge?
115
© Kosieradzki • Smith Law Firm 2015
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
© Kosieradzki • Smith Law Firm 2015
Instruction Not to Answer:
• Privilege
• Ct. directed evidence limitation
Fed. R. Civ. P. 30(d)(1)
117
© Kosieradzki • Smith Law Firm 2015
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
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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
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• 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
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Don’t Give Up!
© Kosieradzki • Smith Law Firm 2015 122
© Kosieradzki • Smith Law Firm 2015
Mark Kosieradzki
Kosieradzki Smith Law Firm
Minneapolis, MN
Trial Guides trialguides.com/product/30b6/