McIntyre v. BF Capital Holding LLC

Filing 113

ORDER denying 108 third party defendants' motion to compel. See attached ruling. Signed by Judge Donna F. Martinez on 9/20/16. (Brierley, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
TONYA MCINTYRE,
Plaintiff,
v.
BF CAPITAL HOLDING, LLC, ET AL.,
Defendants.

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CASE NO. 3:14cv33(RNC)

ORDER ON MOTION TO COMPEL
Pending before the court is third party defendants Michael
Petrucci and Petrucci Painting, LLC’s (the “Petrucci defendants”)
motion to compel the production of Richard Cottrell for a
corporate designee deposition on behalf of MAB Enterprises, LP
(“MAB”) pursuant to Fed.R.Civ.P. 30(b)(6). (Doc. #108.)

For the

following reasons, the motion is DENIED.
Rule 30 of the Federal Rules of Civil Procedure governs the
taking of depositions by oral examination.
30(a).

See Fed.R.Civ.P.

The purpose of a deposition is “to find out what the

witness saw, heard, and knows, or what the witness thinks,
through a question and answer conversation between the deposing
lawyer and the witness.”
30.02 (3d ed. 2016).
non-party.

7 James Wm. Moore, Moore’s Fed. Prac. §

A party may depose any person, including a

Fed.R.Civ.P. 30(a)(1); see also Less v. Taber

Instrument Corp., 53 F.R.D. 645, 647 (W.D.N.Y. 1971) (“Rule 30(a)
. . . does not distinguish between parties and non-parties; it

simply provides that any party may take the testimony of any
person, including a party, by deposition upon oral
examination.”).

To take a deposition under Rule 30(a), the party

seeking the deposition must give reasonable written notice to
every other party.

Fed.R.Civ.P. 30(b)(1).

The notice must

include the time and place of the deposition, as well as the name
and address of the deponent, or a general description sufficient
to identify the deponent.

Id.

The scope of discovery obtained

by a deposition is limited by the scope and limits set forth in
Rule 26(b).

See Fed.R.Civ.P. 26(b) (“Parties may obtain

discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the needs of the
case.”).
In addition to deposing an individual, a party may depose an
organization pursuant to Rule 30(b)(6).

To take a Rule 30(b)(6)

deposition, in its notice or subpoena, the party must name as the
deponent the organization it seeks to depose and must also
describe with reasonable particularity the matters for
examination.

Fed.R.Civ.P. 30(b)(6).

The named organization then

must designate one or more officers, directors, managing agents,
or other persons who consent to testify on its behalf, and set
out the matters on which each person designated will testify.
Id.

2

A deposition noticed under Rule 30(b)(6) is markedly
different than one noticed under Rule 30(a).

Perhaps the most

significant difference is that “[t]he testimony provided by a
corporate representative at a 30(b)(6) deposition binds the
corporation,” Dongguk Univ. v. Yale Univ., 270 F.R.D. 70, 74 (D.
Conn. 2010), whereas the “[t]he testimony of a witness noticed as
an individual does not bind an entity.”

Sabre v. First Dominion

Capital, LLC, No. 01 CIV. 2145 (BSJ), 2002 WL 31556379, at *2
(S.D.N.Y. Nov. 15, 2002).

The Petrucci defendants’ motion

disregards this distinction.

They ask the court to order MAB to

designate Cottrell as its corporate designee and produce him for
a Rule 30(b)(6) deposition.

That request ignores an important

facet of Rule 30(b)(6): the noticed organization is empowered
with the right--and obligation--to designate the person(s) to
testify on its behalf.

There is no procedural vehicle for the

Petrucci defendants to choose MAB’s corporate designee.

Nor does

the court have authority to enter an order requiring MAB to
designate and produce Cottrell as its 30(b)(6) witness.

See

Wultz v. Bank of China Ltd., 298 F.R.D. 91, 99 (S.D.N.Y. 2014)
(“[T]here is no binding authority permitting the court to compel
a corporation deponent to designate a specific person to be its
Rule 30(b)(6) witness.”).

For these reasons, the motion to

compel is DENIED.

3

All that said, as a practical matter, counsel routinely
schedule depositions without court intervention.

It is unclear

from the Petrucci defendants’ motion whether they satisfied the
meet and confer obligations under the Federal and Local Rules1
before filing this motion to compel.

Counsel for the Petrucci

defendants states only that he “made good faith efforts to confer
and attempt to confer with opposing counsel in order to locate
Mr. Richard Cottrell in accordance with Rule 37.” (Doc. #108, p.
1.)

This statement does not inform the court of the extent of

counsel’s efforts to confer or whether they engaged in a
meaningful dialogue about the deposition.

See, e.g., Doe v.

Mastoloni, 307 F.R.D. 305, 313 (D. Conn. 2015) (“A certification
from a movant that he has merely attempted to meet and confer
with opposing counsel does not satisfy the requirements of the
Local Rules.

Rather, under Local Rule 37(a), a movant must

confer with opposing counsel and must discuss discovery disputes
in detail and in good faith.”).

1See

Fed.R.Civ.P. 37(a)(1) (“The motion [to compel] must
include a certification that the movant has in good faith
conferred or attempted to confer with the person or party failing
to make disclosure or discovery in an attempt to obtain it
without court action.”); D.Conn.L.Civ.R. 37(a) (“No motion [to
compel] . . . shall be filed unless counsel making the motion has
conferred with opposing counsel and discussed the discovery
issues between them in detail in a good faith effort to eliminate
or reduce the area of controversy, and to arrive at a mutually
satisfactory resolution.”).
4

The court also notes that MAB failed to file a response to
the motion to compel.2

Under different circumstances, this

failure could have provided sufficient cause to grant the motion.
See D.Conn.L.Civ.R. 7(a)(1) (“Failure to submit a memorandum in
opposition to a motion may be deemed sufficient cause to grant
the motion, except where the pleadings provide sufficient grounds
to deny the motion.”).
SO ORDERED at Hartford, Connecticut this 20th day of
September, 2016.
___________/s/________________
Donna F. Martinez
United States Magistrate Judge

2This

is not the first time MAB has failed to respond to a
motion to compel. In May, plaintiff filed a motion to compel
MAB’s initial disclosures and discovery responses. (Doc. #81.)
MAB did not file a memorandum in opposition. On June 13, 2016,
the court scheduled oral argument for July 8, 2016 and ordered
MAB to file its memorandum by June 17, 2016. (Doc. #89.) Despite
this order, MAB did not file its memorandum until July 4, 2016-just four days before oral argument. (Doc. #94.) At oral
argument, counsel for MAB accepted responsibility, but offered no
compelling reason for MAB’s failure to file a timely memorandum
or comply with discovery rules. The court granted plaintiff’s
motion to compel and awarded plaintiff reasonable attorney’s fees
and costs, to be paid by MAB’s counsel. (Doc. #97.)
5