Lutes et al v. Kawasaki Motors Corp U.S.A. et al

Filing 159

ORDER granting in part and denying in part 135 Motion to Compel re: Rule 30(b)(6) Deposition of Kawasaki Motors Corp., and granting in part and denying in part 137 Motion to Compel Rule 30(b)(6) Testimony By Kawasaki Motors Manufacturing Corp. on Additional Topics and Production of All Documents Related to the Agreed and Court Ordered Deposition Topics. Signed by Judge Holly B. Fitzsimmons on 2/20/2014. (Katz, Samantha)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CARLY LUTES, KEVIN LUTES, AND :
S.L., PPA KEVIN AND CARLY
:
LUTES
:
:
v.
:
:
KAWASAKI MOTORS CORP., USA
:
AND KAWASAKI MOTORS
:
MANUFACTURING CORP.
:

CIV. NO. 3:10CV1549 (WWE)

RULING ON PLAINTIFFS’ MOTIONS TO COMPEL RE: 30(b)(6) DEPOSITIONS
[DOC. ## 135, 137]
Plaintiffs Carly and Kevin Lutes bring this products
liability action against defendants Kawasaki Motors Corporation,
USA (KMC), and Kawasaki Motors Manufacturing Corporation (KMM).
It arises out of personal injuries plaintiffs sustained from an
accident involving a Jet Ski manufactured by KMM and marketed
and distributed by KMC. Pending before the Court are two
discovery motions, plaintiffs‟ motion to compel related to the
Rule 30(b)(6) deposition testimony of KMC [Doc. #135] and
plaintiffs‟ motion to compel 30(b)(6) testimony of KMM on
additional topics and production of all documents related to the
agreed and court-ordered deposition topics. [Doc. #137].

Upon

careful consideration, plaintiffs‟ motions to compel are GRANTED
IN PART AND DENIED IN PART, for the reasons articulated below.
I.

Background
This matter has been pending before the Court since

September 30, 2010.

[Doc. #1].

Over the course of this matter,

the parties have engaged in extensive fact discovery that has
required several extensions of the pre-trial scheduling order.

Fact discovery is scheduled to close on February 28, 2014.
Plaintiff issued 30(b)(6) notices of depositions to KMM and KMC
in January 2013.

The Court then held hearings in February and

July 2013 to address and limit the notices‟ scope.

Plaintiffs

conducted the 30(b)(6) depositions of KMC and KMM
representatives in December 2013. Plaintiffs filed the pending
motions to compel in response to the testimony received during
these depositions.
II.

30(b)(6) Depositions
Rule 30(b)(6) provides:
[A] party may name as the deponent a public or
private corporation… and must 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… The persons
designated must testify about information known
or reasonably available to the organization.

Fed. R. Civ. P. 30(b)(6). “Pursuant to Rule 30(b)(6), the
deponent „must make a conscientious good-faith endeavor to
designate the persons having knowledge of the matters sought by
[the party noticing the deposition] and to prepare those persons
in order that they can answer fully, completely, unevasively,
the questions posed ... as to the relevant subject matters.‟”
Sony Elec., Inc. v. Soundview Techn., Inc., 217 F.R.D. 104, 112
(D. Conn. 2002) (quoting Bank of New York v. Meridien BIAO Bank
Tanzania Ltd., 171 F.R.D. 135, 151 (S.D.N.Y. 1997)).

“While the

30(b)(6) deponents need not have personal knowledge concerning
the matters set out in the deposition notice… the corporation is
obligated to prepare them so that they may give knowledgeable
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answers.”

Scoof Trading Dev. Co., Ltd. v. GE Fuel Cell Sys.,

LLC, No. 10 Civ. 1391(LGS)(JCF), 2013 WL 1286078, at *2
(S.D.N.Y. March 28, 2013) (compiling cases; internal quotations
omitted).

Accordingly, a party responding to a 30(b)(6) notice

must “prepare the designee to the extent matters are reasonably
available, whether from documents, past employees, or other
sources.”

Id.

With respect to whether a 30(b)(6) examination may exceed
the scope of the 30(b)(6) notice, courts are divided.

Some

adhere to the rule that, “when a deponent is produced pursuant
to Fed. R. 30(b)(6), the scope of questioning at the deposition
is not defined by the notice of deposition – instead, Fed. R.
Civ. P. 26(1) defines the scope of discovery unless otherwise
ordered by the Court.”

Meyer Corp. U.S. v. Alfay Designs, Inc.,

No. CV 2010 3647(CBA)(MDG), 2012 WL 3536987, at *4 (E.D.N.Y.
Aug. 13, 2012) (citation omitted).

Under this line of cases,

“[t]he topics designated in a notice of deposition cannot be
used to limit what is asked of the designated witness, but
rather, it constitutes the minimum, not the maximum, about what
a deponent must be prepared to speak.” Id.

Other courts,

however, take a more restrictive view that, “If a party opts to
employ the procedures of Rule 30(b)(6), to depose the
representative of a corporation, that party must confine the
examination to the matters stated with reasonable particularity
which are contained in the Notice of Deposition.” Falchenberg v.
N.Y. State Dept. of Educ., 642 F. Supp. 2d 156, 164 (S.D.N.Y.
2008)(citation omitted). Pursuant to this view, “Questions and
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answers exceeding the scope of the 30(b)(6) notice will not bind
the corporation, but are merely treated as answers of the
individual deponent.” Id. (compiling cases).

Therefore, “If the

30(b)(6) deponent does not know the answer to questions outside
the scope of the matters described in the notice, then that is
the examining party‟s problem.”

Id. (compiling cases).

Under the circumstances presented here, especially in light
of the Court intervention sought to limit the scope of the
subject 30(b)(6) notices, the more sound approach is to adopt
the view that a 30(b)(6) examination should be confined to
matters stated with reasonable particularity in the notice of
deposition.

However, in enforcing such limitation, the Court is

inclined “to read the notice broadly to permit substantial
inquiry so that the witness does not avoid testimony on a
technicality…” 7 JAMES WM. MOORE,

ET AL.,

MOORE‟S FEDERAL PRACTICE

§30.25[4](3d ed. 2013).
III. Discussion
Doc. #135 Motion to Compel Regarding KMC‟s 30(b)(6) Deposition
1. Motion to compel production of properly prepared KMC
representative to testify regarding all agreed and Courtordered deposition topics
Plaintiffs point to deficiencies in KMC‟s designated
representative, Russel Brenan‟s, 30(b)(6) testimony as to topics
1, 7, and 8.

As to topic #11, plaintiffs argue that Mr. Brenan

was unable to provide a specific answer regarding KMC‟s input
1

“KMC to produce a corporate representative to testify that it is not
responsible for design development testing and manufacturing and that KMC
performed certain overall product endurance testing of the overall product,
including various riding sessions and, while they were not specific to the
hooks they were tests of the durability and functionality of the overall
product…” [Doc. #125-2, at 3].
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into the design of the subject recessed hooks.

KMC responds

that Mr. Brenan testified to, and confirmed, each of the points
designated by the Court in topic #1. After a review of Mr.
Brenan‟s testimony, the Court agrees that he adequately
testified on the issues designated in topic #1.

Apparently,

plaintiffs seek KMC to designate a new representative on topic
#1 because Mr. Brenan was not able to provide a specific answer
to one question.

However, Mr. Brenan‟s inability to answer this

specific question does not warrant the designation of a new
witness.

Rather, plaintiffs may seek leave to serve excess

interrogatories addressing this question, to the extent that
plaintiffs have not already addressed this question via written
discovery. See, e.g., Alexander v. F.B.I., 186 F.R.D. 137, 14243 (D. D.C. 1998) (citing United States v. Massachusetts Idus.
Finance Agency, 162 F.R.D. 410 (D. Mass. 1995)) (allowing party
to submit questions to which it did not receive answers at
30(b)(6) deposition via interrogatories).
Plaintiffs also argue that Mr. Brenan did not testify
satisfactorily regarding market research activities conducted by
KMC for Kawasaki Heavy Industries, Ltd. (KHI).

A broad reading

of topic #1 does not lend itself to an inquiry regarding
marketing activities.

Therefore, “If the 30(b)(6) deponent does

not know the answer to questions outside the scope of the
matters described in the notice, then that is the examining
party‟s problem.”

Falchenberg, 642 F. Supp. 2d at 164.

Plaintiffs‟ motion to compel the production of a new KMC
representative regarding topic #1 is DENIED.
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With respect to topics 7 and 8, KMC has agreed to produce a
corporate representative to address these topics for the
remaining two hours of the 30(b)(6) deposition. [Doc. #150, at
12].

Therefore, plaintiffs‟ motion to compel as to the

redesignation of a KMC witness on topics 7 and 9 is denied as
MOOT.

The parties shall confer and set a mutually agreeable

time and date for these depositions.
2. Motion to compel the production of all non-privileged
documents
Plaintiffs next seek the production of all non-privileged
documents related to each agreed and Court-ordered deposition
topic, or for KMC to attest for each topic that despite diligent
efforts, no responsive documents have been identified.
Plaintiffs have gleaned from deposition testimony that KMC did
not conduct a thorough search and inquiry for such documents.
KMC argues that the motion to compel should be denied because
the parties have agreed2 that absent plaintiffs‟ specific
identification of relevant documents, KMC is not required to
produce any additional documents and, here, plaintiffs have
failed to provide any such specific identification.
The Court GRANTS in part plaintiffs‟ motion to compel on
this issue. In light of the parties‟ agreement, plaintiffs
should specifically identify any non-privileged documents they
2

“The parties have agreed that KMC does not have to produce documents in
response to the below Schedule A other than KMC will produce, to the extent
they exist, the documents that will be responsive to Topic Nos. 10 and 12 as
modified by this pleading. Moreover, the parties have agreed that if
documents are identified by deponent that are relevant and responsive to the
items sought in Schedule A as modified by the agreed upon depositions topics
that KMC will either produce the document at the deposition or after the
deposition.” [Id. at Sched. A].
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seek that are responsive to the 30(b)(6) topics, which
plaintiffs believe have not been produced.

In so doing,

plaintiffs should refer to supporting deposition testimony.
Defendant KMC shall produce such documents, or attest in writing
that despite diligent effort, no such documents have been
located, within thirty (30) days of receiving plaintiffs‟
designation of the documents sought.
3. Motion to compel answers to questions deponent instructed
not to answer
During the course of Mr. Brenan‟s deposition, counsel for
KMC instructed Mr. Brenan not to answer questions on various
topics.

Plaintiffs claim the questions asked are reasonably

calculated to lead to the discovery of admissible evidence, and
that counsel‟s instructions were not proper under Rule 30(c)(2).
KMC responds that any instruction not to answer was proper under
Rule 30(c)(2) because the questions posed were outside the
specific limitations set by the Court regarding the scope of the
30(b)(6) deposition.
Rule 30(c)(2) provides that, “A person may instruct a
deponent not to answer [questions] only when necessary to
preserve a privilege, to enforce a limitation ordered by the
court, or to present a motion under Rule 30(d)(3).”
Civ. P. 30(c)(2).

Fed. R.

“Absent one of these exceptions, the

testimony should be provided subject to objection.”

Namoury v.

Tibbetts, No. 3:04CV599(WWE)(HBF), 2007 WL 638436, at *1 (D.
Conn. Feb. 27, 2007) (citation omitted). Courts in the Second
Circuit, and others, have recognized a party‟s right to object
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during a 30(b)(6) deposition where matters fall outside the
scope of the 30(b)(6) notice. See, e.g., Meyer Corp. U.S. v.
Alfay Designs, Inc., No. CV 2010 3647(CBA)(MDG), 2012 WL
3536987, at *5 (E.D.N.Y. Aug. 13, 2012) (noting that a party “is
permitted to object to a question as beyond the scope of the
[30(b)(6)] notice in order to preserve for the record that the
deponent is answering such a question in an individual, not
corporate capacity[…].”).
The questions posed by plaintiffs‟ counsel are reasonably
calculated to lead to the discovery of admissible evidence.

As

previously noted by the Court during the December 11, 2013
telephone conference regarding this same issue, KMC‟s counsel
should have allowed Mr. Brenan to testify and noted its
objections to scope on the record.

Prior to trial, KMC may seek

jury instructions that such answers were merely answers of the
individual witness, and not admissions of the KMC.

See, e.g.,

Falchenberg, 642 F. Supp. 2d at 165 (citing cases) (“Questions
and answers exceeding the scope of the 30(b)(6) notice will not
bind the corporation, but are merely treated as the answers of
the individual deponent.”);

7 JAMES WM. MOORE,

ET AL.,

MOORE‟S FEDERAL

PRACTICE §30.25[4](3d ed. 2013) (“[I]f a party has fears about the
scope of questioning, instructing the witness not to answer is
not a proper resolution of the matter.

Rather, one court has

suggested that counsel may note on the record which questions it
believes are beyond the scope of the deposition notice, and that
answers to [these] questions [] are not intended as the answers
of the designating party.

Then the witness should be permitted
8

to answer to the best of his or her ability. Prior to trial,
counsel may request jury instructions that such answers were
merely the answers or opinions of the individual witness, not
admissions of the entity.”).

Therefore, plaintiffs‟ motion to

compel on this issue is GRANTED.

KMC shall make Mr. Brenan

available to answer the subject questions at a mutually
agreeable date and time.

Mr. Brenan‟s examination on such

matters shall be limited to one (1) hour.
Doc. #137 Motion to Compel Regarding KMM‟s 30(b)(6) Deposition
and Production of Documents
1. Motion to compel designation of KMM corporate
representative on two additional topics
Plaintiffs first seek to compel KMM to designate a
corporate representative who is properly prepared to give
binding testimony on the topics of (a) all documents which
relate to the inspection of personal watercraft by the U.S.
Coast Guard at KMM for January 1, 2000 through December 31, 2008
and (b) all policies/procedures for KMM employees relating to
these inspections.

Plaintiffs claim that these additional

topics arose during the deposition of KMM‟s designee, Charles
Kost, on December 13, 2013.

Plaintiffs argue they are entitled

to explore such information because it is reasonably calculated
to lead to the discovery of admissible evidence.

KMM argues,

inter alia, that the Court should not permit the addition of new
30(b)(6) deposition topics at this late stage of discovery where
the subject of Coast Guard inspections arose as early as
September 20, 2012.
The Court agrees that plaintiffs should not be permitted to
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seek new 30(b)(6) deposition topics at this late stage of
discovery.

First, although plaintiffs contend this issue arose

during Mr. Kost‟s December deposition,

KMM‟s answers to

plaintiffs‟ second set of interrogatories dated September 20,
2012 reference the Coast Guard‟s annual inspection visits of
KMM. [Doc. #151-3].

Second, plaintiffs have failed to provide

good reason why this topic was not included in its original
30(b)(6) notice, or previously raised during the two hearings on
the scope of the 30(b)(6) notice.

See State Farm Mut. Auto.

Ins. Co. v. New Horizont, Inc., 254 F.R.D. 235, 236 (E.D. Pa.
2008) (denying defendants leave to conduct additional 30(b)(6)
depositions where the defendants had ample opportunity to obtain
the information and had not provided a good reason for failing
to do so).

Therefore, the Court DENIES plaintiffs‟ motion to

compel KMM to designate a corporate representative on these
additional topics. To the extent that plaintiffs also seek the
production of documents related to this topic, this request is
also denied on the grounds set forth above.
2. Motion to compel the production of all non-privileged
documents
Plaintiff next seeks the production of all non-privileged
documents related to each agreed and Court-ordered deposition
topic, or for KMM to attest for each topic that despite diligent
efforts, no responsive documents have been identified.
Plaintiffs have gleaned from Mr. Kost‟s deposition testimony
that KMM did not conduct a thorough search and inquiry for such
documents.

KMM argues that the motion to compel should be
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denied because the parties have agreed3 that absent plaintiffs‟
specific identification of relevant documents, KMM is not
required to produce any additional documents and, here,
plaintiffs have failed to provide any such specific
identification.
The Court GRANTS in part plaintiffs‟ motion to compel on
this issue. In light of the parties‟ agreement, plaintiffs
should specifically identify any non-privileged documents they
seek that are responsive to the 30(b)(6) topics, which
plaintiffs believe have not been produced.

In so doing,

plaintiffs should refer to supporting deposition testimony.
Defendant KMM shall produce such documents, or attest in writing
that despite diligent effort, no such documents have been
located, within thirty (30) days of receiving plaintiffs‟
designation of the documents sought.
3. Motion to compel production of KMM representative to
testify regarding Topic #54
Finally, plaintiff seeks the deposition of a KMM 30(b)(6)
witness who is adequately prepared to provide complete,
knowledgeable and binding answers on behalf of KMM to questions
3

“The parties have agreed that KMM does not have to produce documents in
response to the below Schedule A. Rather, if documents are identified by
deponent that are relevant and responsive to the items sought in Schedule A
as modified by the agreed upon depositions topics that KMM will either
produce the document at the deposition or after the deposition.” [Doc. #1511, Sched. A].
4

“KMM to produce a corporate representative to testify that it does not
receive reports from consumers and the like. The warranty that is provided
with the product is not a KMM warranty. If, by happenstance, KMM receives a
complaint or consumer inquiry that would relate to safety or personal injury,
KMM has a policy that that information is to be forwarded to KMC. KMM has
never received any information that there were any injuries or safety risks
associated with the STX-15F cargo hooks. KMM is not the designer & is not
responsible for determining defects in any components that it manufactures.”
[Doc. #151-1].
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regarding court-ordered Topic #5.

Plaintiffs seek such

redesignation on the basis that Mr. Kost did not know whether
KMM had ongoing communication with KMI on a daily basis.
Plaintiffs also seek a properly prepared witness to testify
regarding databases shared among KMM, KMC, and KHI.

Defendants

argue that Mr. Kost adequately testified as to each of the
points identified in Court-ordered topic #5, and additionally
that the issue of the shared database falls outside the scope of
the deposition notice. The Court‟s review of Mr. Kost‟s
deposition testimony reveals that he did testify as to the items
designated by the Court in topic #5, and also testified with
respect to the issue of a shared database.

However, it is

reasonable to assume that whether the Kawasaki entities
communicate on a daily basis should readily be known or
reasonably available to KMM.

Indeed, this is also true with

respect to the general relationship between the entities.
Because questions on this issue are reasonably calculated to
lead to admissible evidence, KMM should designate a new
corporate representative to testify as to topic #5, specifically
with respect to the relationship between and among the Kawasaki
entities.

Accordingly, the Court GRANTS plaintiffs‟ motion to

compel KMM‟s 30(b)(6) deposition at which a witness will testify
regarding Topic #5, specifically with respect to the
relationship between and among the Kawasaki entities.

This

deposition shall be limited to one (1) hour, and shall occur on
a date and time agreed to by the parties.
The above rulings necessitate yet another extension of the
12

scheduling order.

The parties shall submit, within ten (10)

days of this ruling, a joint motion for extension of the
discovery deadlines and, if warranted, of the dispositive motion
deadlines.
IV.

Conclusion

Plaintiffs‟ motions to compel [Doc. ##135, 137] are GRANTED IN
PART AND DENIED IN PART, as articulated above.
This is not a Recommended Ruling. This is a discovery ruling
or order which is reviewable pursuant to the “clearly erroneous”
statutory standard of review. 28 U.S.C. § 636(b)(1)(A); Fed. R.
Civ. P. 72(a); and D. Conn. L. Civ. R. 72.2. As such, it is an
order of the Court unless reversed or modified by the district
judge upon motion timely made.
SO ORDERED at Bridgeport this 20th day of February 2014.

_____/s/__________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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