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Sunflower Redevelopment, LLC v. Illinois Union Insurance Co.

United States District Court, W.D. Missouri, Western Division

November 9, 2017

SUNFLOWER REDEVELOPMENT, LLC, Plaintiff,
v.
ILLINOIS UNION INSURANCE CO., Defendant.

          ORDER ON DISCOVERY DISPUTE

          GREG KAYS, CHIEF JUDGE.

         This case involves an insurance coverage dispute alleging damages in excess of $66 million. Now before the Court is a discovery dispute between the parties concerning a corporate representative's deposition under Federal Rule of Civil Procedure 30(b)(6).

         After reviewing the parties' memoranda regarding the discovery dispute (Docs. 97, 98, 99), the Court rules as follows.

         Background

         Relevant to this dispute are two deposition notices. On October 18, 2017, Defendant filed a notice to depose Plaintiff's corporate representative under R. 30(b)(6) at 9:30 a.m. on October 26, 2017 (Doc. 80).[1] Then on October 27, 2017, Defendant filed a notice to depose Ms. Randall, at 9:30 a.m. on October 30, 2017 (Doc. 90).

         At a witness deposition taken for this case, Plaintiff's counsel and defense counsel discussed that Ms. Randall was the corporate representative designated for some of the 30(b)(6) topics proposed for the corporate representative deposition.[2] Due to a scheduling problem, the parties agreed to reschedule the corporate representative deposition for October 30, 2017.

         On October 30, 2017, shortly after the deposition of Ms. Randall began, Plaintiff's counsel informed defense counsel that Ms. Randall was Plaintiff's 30(b)(6) witness for topics 1-5, 8, and 10. Defense counsel objected to the timing of this designation, but proceeded to depose Ms. Randall as a fact witness only.

         At the conclusion of defense counsel's questions of Ms. Randall as a fact witness, Plaintiff's counsel indicated Ms. Randall was prepared to stay for another hour to address the topics in the 30(b)(6) deposition. Defense counsel again objected to conducting the 30(b)(6) deposition because Plaintiff identified Ms. Randall and her designated topics only earlier that morning. Plaintiff's counsel stated, absent a court order, Plaintiff would not designate another corporate representative to testify on topics 1-5, 8, and 10. Defendant filed a motion for an order compelling Plaintiff to produce a witness for topics 1-5, 8, and 10 in its 30(b)(6) deposition notice (Doc. 97).

         Standard

         A district court has wide discretion in handling pretrial discovery matters. Chavis Van & Storage of Myrtle Beach, Inc. v. United Van Lines, LLC, 784 F.3d 1183, 1198 (8th Cir. 2015). Under Fed.R.Civ.P. 30(b)(6), once a party names an entity and describes the matter for examination in its notice for deposition, the entity “must” designate a person to testify on its behalf and “may” identify the matters the person designated will testify. The same person may be deposed as a fact witness and a corporate representative in separate depositions. Miller v. Waseca Med. Ctr., 205 F.R.D. 537, 540 (D. Minn. 2002); see also Sabre v. First Dominion Capital, No. 01CIV2145BSJHBP, 2001 WL 1590544, *1 (S.D.N.Y. 2001). When an entity expects its designee to testify only on certain topics, it should advise the opposing party of the designee's limitations before the deposition begins. See Calzaturficio S.C.A.R.P.A. s.p.a. v. Fabiano Shoe Co., 201 F.R.D. 33, 39 (D. Mass. 2001); QBE Ins. Corp. v. Jorda Enterprises, Inc., 277 F.R.D. 676, 691 (S.D. Fla. 2012). Generally, the length of a deposition is limited to one day of seven hours. Fed.R.Civ.P. 30(d)(1).

         Discussion

         Defendant argues it was not prepared to take a 30(b)(6) deposition of Ms. Randall because Plaintiff did not designate her as the representative until after her fact witness deposition started, did not state in advance what topics she would be testifying, and only allotted one hour to cover the topics in its 30(b)(6) notice. Defense counsel stated he travelled from New York to Kansas City, Missouri for the fact witness deposition and did not bring with him the paperwork for the 30(b)(6) deposition. Defendant argues Plaintiff's actions have prejudiced it because it was forced to conduct the deposition in an “unprepared, inorderly, and hurried manner.” (Doc. 97 at 5).

         Plaintiff argues it is not required to designate a corporate representative in advance, but as a courtesy, it did inform defense counsel that Ms. Randall would be the corporate representative on some topics.

         This dispute boils down to a lack of communication between the parties. Defendant scheduled two depositions on the same day and the same time. At no time did Defendant attempt to reschedule the 30(b)(6) deposition, clarify with Plaintiff how the parties were going to handle the scheduling overlap, or propose extending the length of the deposition to include both the fact witness questions and the 30(b)(6) topics. It appears Defendant just forgot that it had a 30(b)(6) deposition scheduled. The Court is not sympathetic to Defendant's complaint it suffered ...


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