CHRHRISTOPHERISTOPPHER L. RAY, Magistrate Judge.
Before the Court is Manufacturers Alliance Insurance Company and Pennsylvania Manufacturers' Association Insurance Company's (collectively "PMA") Motion to Compel, doc. 64, and Amended Motion to Compel, doc. 65. For the following reasons, the motion is
The Court has already recited the pertinent factual background of this case in disposing its myriad discovery disputes. Docs. 61, 101, 102. All that is relevant now is the December 19, 2018 Notice of Taking Rule 30(b)(6) Depositions PMA sent to plaintiffs. Doc. 65-1 at 3. This notice included 59 topics covering a variety of issues. Id. Only days before the deposition was set to occur, plaintiffs served objections to the majority of topics and indicated that they would not designate a deponent for many others. Id. at 3.
The deposition went forward, but not as planned. Before asking any questions, counsel engaged in an extended, on the record, debate regarding the appropriate manner in which to handle the examination. Doc. 65-4 at 3-11 (the deposition transcripts begin with a 33-page dispute which, although it is difficult to determine for certain, appeared to encompass over an hour of deposition time). After bandying about in this fashion, defendants left the room to give plaintiff a two-hour break to further prepare before resuming the deposition, and swearing the witness. Doc. 65-4 at 13. Over the course of the next three days, all defendants pressed plaintiff's 30(b)(6) designee, Ms. Grimes, on a variety of topics—including the financial arrangements of plaintiffs (more on this later). For some of these questions, Ms. Grimes was suitably prepared. For others, she was not. Defendants raised the following issues with her preparation:
Doc. 65-1 at 16-17. More concerning, however, is that defendants allege that Ms. Grimes may lack the authority to speak for plaintiffs.
Plaintiffs object to this characterization of the events. They argue that defendants PMA manipulated a deposition exhibit to exclude relevant information. Doc. 67 at 4. Plaintiffs also note that Ms. Grimes was able to answer many questions from memory—although there were exhibits that could have been used to refresh her recollection—and that she appropriately relied on her broker to determine which policies to purchase. Id. at 6-7. Plaintiffs also argue that it is inappropriate for the defendants to argue about the failure to produce a safety manual when no formal discovery request was made. Id. at 8. Finally, plaintiffs argue that defendants violated this Court's October 17, 2018 order which prohibited defendants from deposing Ms. Grimes on "plaintiffs' financial health." Id. at 9. Both parties are requesting sanctions from the Court for the other's misdeeds.
Rule 30(b)(6) requires that a deposition notice "describe with reasonable particularity the matters for examination." "The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify." Id. "The persons designated must testify about information known or reasonably available to the organization." Id. This "duty to present and prepare a Rule 30(b)(6) designee goes beyond matters personally known to that designee or to matters in which that designee was personally involved. The [entity] must prepare the designee to the extent matters are reasonably available, whether from documents, past employees, or other sources." Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 433 (5th Cir. 2006) (quotations and citations omitted) (see also In re Brican American LLC Equip. Lease Litig., 2013 WL 5519969, at *3 (S.D. Fla. Oct. 1 2013) ("A corporation must make a conscientious good-faith endeavor to designate the persons having knowledge of the matters sought and to prepare those persons in order that they can answer fully, completely, unevasively, the questions posed as to the relevant subject matters.") (citing Bank of New York v. Meridien Biao Bank Tanzania Ltd., 171 F.R.D. 135, 151 (S.D.N.Y. 1997))).
It is clear, however, that "absolute perfection is not required of a 30(b)(6) witness." QBE Ins. Corp. v. Jorda Enters. Inc., 277 F.R.D. 676, 691 (S.D. Fla. 2012). In fact, "[t]he mere fact that a designee could not answer every question on a certain topic does not necessarily mean that the corporation failed to comply with its obligation." Id. (citing Costa v. Cnty. of Burlington, 254 F.R.D. 187, 191 (D. N.J. 2008); Chick-fil-A v. ExxonMobile Corp., 2009 WL 3763032, at *13 (S.D. Fla. Nov. 10, 2009)). It is equally clear that "[i]f the designated deponent cannot answer questions regarding the subject matter as to which he is designated, then `the corporation has failed to comply with its Rule 30(b)(6) obligations and may be subject to sanctions.'"
First, some of the questions noticed for plaintiff's 30(b)(6) deposition strayed over the boundaries established in the Court's October 17, 2018 Order. These topics, numbers 6, 8, 9, 10, 12, 13, 14, and 15, request information about plaintiffs' formation and financial health. Defendants have not indicated why they think these requests are relevant at this point in the case. Instead, in a footnote, the defendants state that they strongly disagree with the plaintiff's characterization and believe that they adequately tailored their requests to conform with the contours of the Court's order. Doc. 70 at 9.
As this Court has already explained, is explaining now, and will explain again infra, these questions are out-of-bounds by the terms of this Court's prior Order, irrelevant to the issues at hand, and should have been reserved only for post judgment discovery. As the Court previously explained, "[a]ny allegations of transfers specifically to avoid liabilities, of course, would be subject to another suit." Doc. 61 at 5. Searching for potentially actionable or voidable transfers "is premature and unnecessary to the dispute at hand: whether the Worker's Compensation insurance premiums were calculated correctly to begin with and whether additional payments are owed." Id. at 6. Defendants are not entitled to discovery on these issues. Thus, Ms. Grimes' failure to adequately respond—if her responses were indeed inadequate— cannot justify compelling further testimony.
Nor was Ms. Grimes as woefully unprepared as defendants suggest. For example, they allege that Ms. Grimes was uncertain as to the dates covered by the relevant insurance policies. However, a review of the deposition indicates that while she was initially slightly uncertain, she answered the question. Doc. 65-4 at 29. Likewise, her "failure" to read the entire insurance policy and answer questions about multiple several hundred-page documents is similarly irrelevant to the adequacy of her preparation. In her capacity as a 30(b)(6) witness, she was obligated to answer questions on a wide swath of information. That she was unable to remember all of the details involved in the insurance policy is hardly dispositive. Monopoly Hotel Grp., LLC v. Hyatt Hotels Corp., 2013 WL 12246988, *6 (N.D. Ga. June 4, 2013) (noting that it is not unusual that a "corporate representative or representatives might not know every answer to every question about specific dates or details of that sort.").
However, defendants are not incorrect in their concern for Ms. Grimes' overall preparation.
Doc. 65-4 at 97.
"Because I didn't know I needed to," is no excuse. "Ignorantia legis neminem excusat," after all. Whether she should have understood her obligations, counsel certainly should have and they were responsible for ensuring that she was prepared as the Federal Rules and applicable jurisprudence required. Accordingly, the Court will allow defendants to redepose Ms. Grimes (or another suitable corporate representative).
Unfortunately, the practical outcome of the discovery dispute is not the only issue the parties raise. Each side has accused the other of "gamesmanship." Plaintiffs argue that defendants deliberately withheld or doctored exhibits during the course of Ms. Grimes' deposition in an effort to paint her as "unprepared." Doc. 67 at 3. Defendants argue that plaintiffs deliberately served their objections to plaintiff's deposition notice only one business day before the deposition necessitating an emergency motion to compel. Doc. 64-1 at 3. To combat the apparent misbehavior of the parties, this additional deposition will therefore be subject to the following requirements so as to prevent some of the "gamesmanship" that the parties have complained about.
"Where a motion to compel is granted, attorney fees and expenses must be awarded to the prevailing party unless there was no good faith effort to resolve the motion, the non-disclosure was substantially justified, or other circumstances make an award of expenses otherwise unjust." FormFactor, Inc. v. Micro-Probe, Inc., 2012 WL 1575093 at *9 (N.D. Cal. May 3, 2012) (citing Fed. R. Civ. P. 37(a)(5)). "[E]ven an innocent failure [to answer discovery] is subject to sanctions, though the reason for the failure is relevant in determining what sanction, if any, to impose." 8B CHARLES A. WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 2281 (3d ed. 2010). Because the Court grants in part defendants' motion to compel, and requires the production of Ms. Grimes—or whatever representative plaintiff identifies—some sanction is warranted. Accordingly, within ten days from the date of this order, the Court will accept briefing from defendants as to the reasonable cost and fees associated with having had to bring the motion to compel. Defendants shall have five days to respond, if they so desire. In the alternative, plaintiffs and defendants may confer and agree on the reasonable costs of bringing this motion and inform the Court jointly within ten days from the date of this order that all disputes over sanctions have been resolved.
However, defendants are not off the hook. The Court denies the motion to the extent that it seeks to compel discovery specifically precluded under this Court's October 17, 2018 Order. After reviewing the entire deposition of Ms. Grimes as well as the motions and supporting exhibits the parties submitted, it became patently obvious from the transcript that defendants spent almost an entire day seeking information regarding plaintiffs' financial status and circumstances. The Court expected that its prior order made clear to the parties that further discovery of the plaintiffs' financial condition was relevant only to the subject of post-judgment discovery. Doc. 61 at 6. Nevertheless, defendants sought to suss out further information regarding plaintiff's circumstances. For example, the following requests were made in the 30(b)(6) deposition at issue
Doc. 64-2 at 6-7. Each of these questions directly contravenes or ignores the Court's previous order
Doc. 65-4 at 51. The deposition is littered with similar lines of inquiry designed to elicit information regarding plaintiff's ability to pay a potential judgment.
Defendants were informed that they were not entitled to information regarding plaintiff's structure and financial circumstances pre-judgment. They nevertheless noticed deposition topics that violated that instruction, and required Ms. Grimes to answer questions in violation of that Order over the objection of plaintiff's attorney. If the failure to abide the Court's Order were, somehow, the result of oversight, plaintiffs alerted them to the issue by objecting. Rather than seek clarification of the Order, defendants filed a motion asking the Court to
For the foregoing reasons, the motion is