Strategic Decisions, LLC v. The Martin Luther King, Jr. Center for Nonviolent Social Change, Inc.

Filing 111

OPINION AND ORDER that Plaintiff's Motion to Reopen Discovery #89 is DENIED. IT IS FURTHER ORDERED that Plaintiff's Motion for Reconsideration #92 is DENIED. IT IS FURTHER ORDERED that Plaintiff's Motion in Limine and/or for Sanctions #97 is GRANTED. Defendant is precluded at trial from introducing evidence on topics 2, 6, 7, 8, 9, and 10 of the 30(b)(6) Re-Notice of Deposition that contradicts, alters, supplements, amends or explains Bernices testimony on the Rule 30(b)(6) Topics. Signed by Judge William S. Duffey, Jr on 5/5/2015. (anc)

Plaintiff’s First Request for Production of Documents, and explain whether any
recordings of Executive Committee meetings contain information relevant to
Plaintiff’s claims. On December 10, 2014, Defendant responded to the Court’s
Show Cause Order and stated that it did not have, in its possession, custody or
control, audio recordings of board meetings. Defendant also stated that the
recording of a July 23, 2013, Executive Committee meeting was the only recording
in Defendant’s possession. This recording was produced to Plaintiff and the
parties do not dispute that it does not contain information relevant to Plaintiff’s
claims.
On December 23, 2014, Plaintiff moved to reopen discovery for the limited
purpose of deposing a representative of Defendant regarding the audio recordings
of board meetings and committee meetings. Plaintiff seeks to elicit testimony
regarding the existence of audio recordings of board meetings and committee
meetings, including whether the audio recordings were lost or destroyed.
Plaintiff’s request is based on the assumption that the audio recordings, in fact,
exist or existed in the past. To support this assumption, Plaintiff relies on the
testimony of Plaintiff’s corporate representative, Bernice King (“Bernice”). At her
deposition, Bernice testified that “some” Executive Committee meetings were
recorded, and if the Executive Committee held a meeting, it would have “dealt

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with issues like the Strategic Decisions contract.” See Bernice Dep. at 238:22239:23. Bernice stated that she does not keep the recordings at the King Center
because “Dexter’s the one that records them.” Id. Plaintiff also relies on a
document showing that, in March 2012, Defendant was in the process of
transcribing board audio files, and on Martin Luther King III’s (“Martin”)
testimony that he thought board meetings were recorded. See Ex. C, attached to
Pl.’s Resp. to Def.’s Dec. 10, 2014, Filing; Martin Dep. 120:15-22.1
B.

Analysis

“Generally, a motion for additional discovery is properly denied where a
significant amount of discovery has already been obtained and further discovery
would not be helpful.” Artistic Entm’t, Inc. v. City of Warner Robins, 331 F.3d
1196, 1202-03 (11th Cir. 2003) (citing Avirgan v. Hull, 932 F.2d 1572, 1580–81
(11th Cir. 1991)). Plaintiff’s reliance on Bernice’s testimony regarding audio
recordings of Executive Committee meetings is misplaced. Plaintiff did not
specifically request that such recordings be produced, and Bernice’s testimony
regarding “Executive Committee” meetings does not necessarily mean that “board
meetings” were recorded. Martin’s testimony that he “did not know” if “board or
1

At his deposition, Martin testified that he did not know whether board or
committee meetings were recorded, and he “believed–certainly board meetings are.
There was some recording going on.” See Martin Dep. at 120:15-22.

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committee meetings” were recorded also does not support that recordings were
made or that they are available to be produced. See Martin Dep. at 120:15-22.
Defendant represents that it does not have audio recordings of board or committee
meetings in its possession, custody or control. The lone document showing that, in
March 2012, Defendant was in the process of transcribing board audio files is not
sufficient to reopen discovery in view of the Defendant’s unqualified
representation that recordings do not exist. The Court concludes that a significant
amount of discovery has already been conducted, and it is not reasonably likely
that additional discovery would show that recordings exist.
Plaintiff’s Motion to Reopen Discovery is also required to be denied because
Plaintiff moved to reopen discovery only after the Court denied the parties’
Motions for Summary Judgment. See Ashmore v. Sec’y, Dep’t of Transp., 503 F.
App’x 683, 686 (11th Cir. 2013) (affirming the district court’s denial of a motion
to reopen discovery because “the [defendant] would have been prejudiced by
additional discovery [since] it had already filed its motion for summary
judgment.”). Plaintiff’s Motion to Reopen Discovery is denied.

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II.

MOTION FOR RECONSIDERATION
A.

Background

On October 15, 2014, Plaintiff filed its Motion for Partial Summary
Judgment on its breach of contract claim. Plaintiff incorporated the arguments it
made in its Response in opposition to the Defendant’s Motion for Summary
Judgment. In that Response, Plaintiff generally claimed that it had satisfied all the
elements of a breach of contract claim and was entitled to summary judgment
because
the parties executed a valid contract under which [Plaintiff] was to
provide consultative services. (Ex. G; see Ex. C. at 70:3-71:7).
Defendant promised to pay $216,000 for the services. (Ex. G.).
[Plaintiff] provided the services. (Ex. C at 73:15-78:16; see Ex. B at
166:12-174:11). Defendant breached the agreement by failing to pay
the amount owed. (See Ex. B at 230:19-231:7). Defendant damaged
[Plaintiff] by denying [Plaintiff] money it was contractually obligated
to pay.
Pl.’s Resp. to Def.’s Mot. for Summ. J. at 14.
On November 25, 2014, Plaintiff filed its Reply in support of its Motion for
Summary Judgment. In it, Plaintiff raised new arguments to support that it
adequately performed under the Agreement. Plaintiff relied on Martin’s deposition
to argue that there is no genuine issue of fact regarding whether it fulfilled its
obligations under the Agreement. At his deposition, Martin, the former CEO of

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Defendant, testified that (1) he was “tremendously satisfied” with Plaintiff’s
services, (2) he believed that Plaintiff performed at a “significant level,” and
(3) affirmed that Plaintiff satisfactorily performed some of the tasks required under
the Agreement. See Martin Dep. at 73:15-24-78:16. Plaintiff also argued that
Defendant is obligated to pay the amount owed under the Agreement because
Defendant received the benefit of Plaintiff’s services, and Defendant did not assert
that Plaintiff failed to meet its contractual obligations during the term of the
Agreement.
On December 5, 2014, the Court denied Plaintiff’s Motion for Partial
Summary Judgment on its breach of contract claim. The Court found that
Plaintiff’s conclusory allegations, made in its Response to Defendant’s Motion for
Summary Judgment and incorporated by reference in its own Motion for Partial
Summary Judgment, were not supported by arguments or facts in the record. The
Court also found that Plaintiff made new arguments in its Reply that were not
raised in its Motion for Partial Summary Judgment, and that Plaintiff did not, in its
Reply, assert or identify evidence to support that it provided all the “deliverables”
required to be provided by the Agreement.
The Court noted that Plaintiff bears the initial burden to demonstrate the
basis for its Motion for Partial Summary Judgment “by identifying those portions

6

of the pleadings, depositions, answers to interrogatories, and admissions which it
believes show that there is an absence of any genuine issue of material fact” on its
breach of contract claim. See Hairston v. The Gainesville Sun Publishing Co.,
9 F.3d 913, 918 (11th Cir. 1993). The Court found that Plaintiff did not meet this
burden. Its failure to do so was problematic because Plaintiff must show that it
performed its obligations under the Agreement to recover damages, and to
establish that a valid agreement exists. These issues are important here because
Martin did not immediately sign the Agreement, and Defendant acknowledged, in
August, 2011, that a written contract did not exist for the services provided to
Defendant. See Corrosion Control, Inc. v. William Armstrong Smith Co., 251
S.E.2d 49 (1978) (“To recover damages, a party who bases his action on an express
contract must have performed all his obligations under the contract.”).
On December 21, 2014, Plaintiff moved for reconsideration of the Court’s
Order denying its Motion for Partial Summary Judgment. Plaintiff argues that
paragraph 31 of its Statement of Material Facts (“SMF”) was supported by
Martin’s testimony that Plaintiff provided the required deliverables under the
Agreement. Paragraph 31 of Plaintiff’s SMF provides that “Strategic Decisions
provided the deliverables listed in the Agreement.” See SMF ¶ 31. In support of
paragraph 31, Plaintiff relied on pages 73-78 of Martin’s deposition. When he was

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deposed, Martin reviewed the Agreement and testified that Plaintiff provided the
deliverables required by the Agreement, and that he was “tremendously satisfied”
with Plaintiff’s performance. See Martin Dep. at 73:15-24-78:16.
Plaintiff also argues that the Court should not have considered Terry Giles’
affidavit in denying its Motion for Partial Summary Judgment. Defendant
submitted Giles’ affidavit in support of its Motion for Summary Judgment. In
January or February 2012, Giles decided not to pay Plaintiff the amount owed
under the Agreement because, as the court-appointed custodian of Defendant, he
determined that Plaintiff “did not provide detail regarding what work was actually
performed pursuant to the Agreement or what benefit its services brought to the
King Center.” See Giles Aff. at ¶ 8. Plaintiff argues that Giles’ opinion is not
relevant because he did not serve as Defendant’s court-appointed custodian during
the term of the Agreement, and he decided not to pay the amount owed under the
Agreement after Plaintiff had performed the required work.
B.

Legal Standard

A district court has discretion to revise or reconsider interlocutory orders at
any time before final judgment has been entered. See Fed. R. Civ. P. 54(b); see
also Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1315 (11th Cir. 2000). The
Court does not reconsider its orders as a matter of routine practice. See LR 7.2 E,

8

NDGa. A motion for reconsideration is appropriate only where there is: (1) newly
discovered evidence; (2) an intervening development or change in controlling law;
or (3) a need to correct a clear error of law or fact. See Jersawitz v. People TV,
71 F. Supp. 2d 1330, 1344 (N.D. Ga. 1999); Pres. Endangered Areas of Cobb’s
History, Inc. v. U.S. Army Corps of Eng’rs, 916 F. Supp. 1557, 1560 (N.D. Ga.
1995), aff’d, 87 F.3d 1242 (11th Cir. 1996). A motion for reconsideration should
not be used to present the Court with arguments already heard and dismissed, or to
offer new legal theories or evidence that could have been presented in the
previously-filed motion. Bryan v. Murphy, 246 F. Supp. 2d 1256, 1259 (N.D. Ga.
2003); see also Pres. Endangered Areas, 916 F. Supp. at 1560 (“A motion for
reconsideration is not an opportunity for the moving party and their counsel to
instruct the court on how the court ‘could have done it better’ the first time.”).
C.

Analysis

Local Rule 7.1(A)(1), which sets requirements for the the filing of motions
in this Court, provides:
Every motion presented to the clerk for filing shall be accompanied by
a memorandum of law which cites supporting authority. If allegations
of fact are relied upon, supporting affidavits must be attached to the
memorandum of law.
N.D. Ga. R. 7.1(A)(1). Rule 7(b)(1)(B) of the Federal Rules of Civil Procedure
requires motions to “state with particularity the grounds for seeking” relief. See
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Fed. R. Civ. P. 7(b)(1)(B). Plaintiff’s conclusory claim that it “provided the
services” required by the Agreement was not supported with the particularity
demanded by the Federal Rules of Civil Procedure and the Court’s Local Rules.
See Pl.’s Resp. to Def.’s Mot. for Summ. J. at 14. Plaintiff’s Motion for Summary
Judgment on its breach of contract claim also is not supported by argument or
analysis. The Court denied Plaintiff’s Motion for Partial Summary Judgment
because Plaintiff failed to address, analyze and explain how it performed the
required obligations under the Agreement—a material element of its breach of
contract claim. See Jackson v. Brewton, 595 F. App’x 939, 942 (11th Cir. 2014)
(refusing to consider pro se plaintiff’s appeal because one sentence in support of
his First Amendment claim was not enough to place the issue before the court);
Handy v. Cook, 476 F. App’x 844, 844-45 (11th Cir. 2012) (holding that plaintiff
abandoned his appeal by failing to offer any corresponding argument in support of
the statement of issues); Nicholson v. Spring Sand & Clay LP, 229 F. App’x 304,
305 (5th Cir. 2007) (holding that the failure to include a legal argument or citation
in a brief in support of general conclusions constitutes abandonment of the issues);
Sioson v. Knights of Columbus, 303 F.3d 458, 460 (2d Cir. 2002) (refusing to “dig
up and scrutinize anew the memorandum in opposition to summary judgment” in
the absence of a properly raised argument that analyzes the claims at issue).

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Plaintiff’s belated reliance on its SMF and Martin’s deposition testimony
does not require the Court to reconsider its decision denying the Motion for Partial
Summary Judgment. Plaintiff did not cite the SMF in its Response in opposition to
Defendant’s Motion for Summary Judgment or in its Motion for Partial Summary
Judgment. The Court was not required to scour through the record for the evidence
upon which the Plaintiff now relies to support its Motion for Partial Summary
Judgment. See Magnum Towing & Recovery v. City of Toledo, 287 F. App’x 442,
449 (6th Cir. 2008) (holding that “it is not the district court’s . . . duty to search
through the record to develop a party’s claims; the litigant must direct the court to
evidence in support of its arguments before the court.”). Plaintiff’s failure to
properly analyze its breach of contract claim and explain the purported evidence
with specificity left this Court groping “‘unaided for factual needles in a
documentary haystack.’” Grant v. El Conquistador Partnership L.P.,
No. 06-1849(SEC), 2009 WL 1140261, at *2 (D.P.R. Apr. 27, 2009) (quoting
Sanchez–Figueroa v. Banco Popular de Puerto Rico, 527 F.3d 209, 213 (1st Cir.
2008)).
Plaintiff seeks to “unfairly shift the burdens of litigation to the court.” Id.
The mere submission of evidence without specifically articulating how that
evidence supports Plaintiff’s breach of contract claim does not entitle Plaintiff to

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relief. Plaintiff failed to explain the evidence with specificity, and the Court is not
required to wade through Plaintiff’s exhibits, including Martin’s deposition, and
divine Plaintiff’s arguments by examining the evidence in light of the claims
asserted in the Complaint. See Atlanta Gas Light Co. v. UGI Util., Inc., 463 F.3d
1201, 1208 n.11 (11th Cir. 2006) (“Neither the district court nor this court has an
obligation to parse a summary judgment record to search out facts or evidence not
brought to the court’s attention.”); see also Corley v. Rosewood Care Center, Inc.,
388 F.3d 990, 1001 (7th Cir. 2004) (requiring parallel citations to the record in
appellate briefs and noting that “Corley has failed miserably and we will not root
through the hundreds of documents and thousands of pages that make up the record
here to make his case for him.”); Carmen v. San Francisco Unified Sch. Dist., 237
F.3d 1026, 1031 (9th Cir. 2001) (noting that “requiring the district court to search
the entire record, even though the adverse party’s response does not set out the
specific facts or disclose where in the record the evidence for them can be found, is
unfair” to the movant, to the court, and to other litigants whose cases the court
could be addressing); Adler v. Wal–Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir.
1998) (holding that “where the burden to present such specific facts by reference to
exhibits and the existing record was not adequately met below, we will not reverse
a district court for failing to uncover them itself . . . If the rule were otherwise, the

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workload of the district courts would be insurmountable and summary judgment
would rarely be granted.”); Herman v. Chicago, 870 F.2d 400, 404 (7th Cir. 1989)
(“A district court need not scour the record to make the case of a party who does
nothing.”).
Plaintiff’s Motion for Reconsideration is denied.2
III.

MOTION FOR SANCTIONS
A.

Background

On April 18, 2014, Plaintiff noticed the 30(b)(6) deposition of Defendant’s
corporate representative for May 12, 2014. The notice identified eighteen (18)

2

Plaintiff’s Motion for Partial Summary Judgment on its breach of contract claim
was primarily denied because the general allegations of the claimed breach of the
Agreement did not provide a basis upon which the Court could find that Plaintiff
was entitled to summary judgment. In its December 5, 2014, Order, the Court
noted that Defendant had offered some evidence to support that Plaintiff performed
unsatisfactorily under the Agreement. The Court did not rely “on the notion that
Giles worked with Defendant in 2011 to find a fact issue exists.” Pl.’s Mot. for
Reconsideration at 12. Giles stated that, in January or February of 2012, he
determined that Plaintiff “did not provide detail regarding what work was actually
performed pursuant to the Agreement or what benefit its services brought to the
King Center.” See Giles Aff. at ¶ 8. This fact is relevant even if Giles served as a
court-appointed custodian after Plaintiff allegedly performed its obligations under
the Agreement. Giles stated that he made the decision not to pay Plaintiff, in part,
because Plaintiff did not “provide detail regarding what work was actually
performed pursuant to the Agreement.” Id. In its briefs, Plaintiff did not address,
analyze or explain how it performed the obligations required by the Agreement and
that is why the Motion for Partial Summary Judgment on Plaintiff’s breach of
contract claim was denied.

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topics of examination, including the services provided by Plaintiff, Defendant’s
efforts to identify the services provided by Plaintiff, the reasons Defendant decided
not to pay Plaintiff for the amount owed under the Agreement, and Defendant’s
efforts to obtain grants from JPMorgan Chase between 2010 and 2012. These
topics were all targeted to the issues central to this dispute. On May 2, 2014,
Defendant informed Plaintiff that it would not designate a 30(b)(6) representative
to testify on the topics listed in the April 18, 2014, Notice. According to
Defendant, Martin is the appropriate person to testify on these matters, but
Defendant was not in contact with him because of unrelated litigation between
Defendant and the Estate of Martin Luther King, Jr., Inc.3
On May 7, 2014, Plaintiff re-noticed the deposition of Defendant’s corporate
representative for May 15, 2014. The amended notice identified seventeen (17)
topics of examinations, including the following that are pertinent here:

3

On May 5, 2014, the parties submitted to the Court a Second Joint Submission on
Discovery Issues. In it, Defendant remarkably conceded that “it was unable to
designate someone with reliable knowledge of (1) services provided by the
Plaintiff, (2) the King Center’s efforts to identify services provided by Plaintiff, or
(3) the factual basis for the King Center’s decision not to pay Plaintiff.” Def.’s
Resp. to Mot. for Sanctions at 4. Despite this failing, Defendant designated
Bernice to testify on these matters knowing that she may be unable to provide the
testimony required.

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...
2. The services provided by Strategic Decisions.
...
6. Defendant’s use of the Investment Proposal and/or any parts of the
Investment Proposal between January 2011 and present.
7. Defendant’s efforts to identify the services provided by Strategic
Decisions; all persons involved in the efforts; and the results of the
efforts.
8. The factual basis for Defendant’s decision not to pay Strategic
Decisions; all persons involved in the decision; and all considerations
underlying the decision, including all facts, events, documents,
discussions and meetings relevant to the decision.
9. Defendant’s efforts to obtain grants from JPMorgan Chase
between 2010 and 2012; the results of these efforts; and the reasons
you believe the efforts were or were not successful.
10. The King Center Imaging Project, including the funding,
development and implementation of the Project; Defendant’s
partnership with JPMorgan Chase; and Strategic Decisions’
contributions to the project.
On May 13, 2014, Defendant designated Bernice, its current CEO, as its
30(b)(6) representative. On May 15, 2014, Bernice testified on Defendant’s
behalf.
On January 27, 2015, Plaintiff filed a Motion in Limine and/or for Sanctions
to preclude the Defendant from introducing evidence or taking a position at trial on
topics 2, 6, 7, 8, 9 and 10 of the Re-Notice (the “Rule 30(b)(6) Topics”). Plaintiff
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argues that Defendant should be sanctioned because Bernice was not prepared at
her deposition to testify on these Rule 30(b)(6) Topics.
B.

Legal Standard

Rule 30(b)(6) of the Federal Rules of Civil Procedure requires that a
deposition notice “must describe with reasonable particularity the matters for
examination.” See Fed. R. Civ. P. 30(b)(6). “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.
The organization’s “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 is personally involved. The [organization] 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) (internal quotation marks and citations omitted). An
organization has an affirmative duty to prepare its designees, “so that they may
give complete, knowledgeable and binding answers on behalf of the corporation.”
Marker v. Union Fid. Life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C. 1989). “If it

16

becomes obvious that the deposition representative designated by the corporation
is deficient, the corporation is obligated to provide a substitute.” Brazos River
Auth., 469 F.3d at 433.
A district court has broad discretion in selecting sanctions under Rule 37 of
the Federal Rules of Civil Procedure. See Coquina Investments v. TD Bank, N.A.,
760 F.3d 1300, 1319 (11th Cir. 2014) (“Our caselaw is clear that only in a case
where the court imposes the most severe sanction—default or dismissal—is a
finding of willfulness or bad faith failure to comply necessary.”) (quoting
BankAtlantic v. Blythe Eastman Paine Webber, Inc., 12 F.3d 1045, 1049 (11th Cir.
1994)). Rule 37(d)(1)(A)(i) allows the Court to impose sanctions if a 30(b)(6)
witness fails to appear for a deposition. See Fed. R. Civ. P. 37(d)(1)(A)(i). If a
30(b)(6) witness “is not knowledgeable about relevant facts, and the [organization]
has failed to designate an available, knowledgeable, and readily identifiable
witness, then the appearance is, for all practical purposes, no appearance at all.”
Resolution Trust Corp. v. S. Union Co., 985 F.2d 196, 197 (5th Cir. 1993); see also
Black Horse Lane Assoc., L.P. v. Dow Chem. Corp., 228 F.3d 275, 304
(3d Cir. 2000) (“When a witness is designated by a corporate party to speak on its
behalf pursuant to Rule 30(b)(6), producing an unprepared witness is tantamount to
a failure to appear that is sanctionable [as a nonappearance] under Rule 37(d)” of

17

the Federal Rules of Civil Procedure.); The Bank of New York v. Meridien BIAO
Bank Tanzania Ltd., 171 F.R.D. 135, 151 (S.D.N.Y. 1997) (“‘Producing an
unprepared witness is tantamount to a failure to appear.’”) (quoting United States
v. Taylor, 166 F.R.D. 356, 363 (M.D.N.C. 1996)).
Permissible sanctions for failing to designate a witness knowledgeable about
Rule 30(b)(6) categories include “prohibiting the disobedient party from
supporting or opposing designated claims or defenses, or from introducing
designated matters into evidence.” See Fed. R. Civ. P. 37(b)(2)(A)(ii). “When the
30(b)(6) representative claims ignorance of a subject during the deposition, courts
have precluded the corporation from later introducing evidence on that subject.”
Function Media, LLC. v. Google, Inc., No. 2:07–CV–279–CE, 2010 WL 276093,
*1 (E.D. Tex. Jan. 15, 2010); see also Wilson v. Lakner, 228 F.R.D. 524, 529-30
(D. Md. 2005) (“. . . depending on the nature and extent of the obfuscation, the
testimony given by the non-responsive deponent (e.g. ‘I don't know’) may be
deemed ‘binding on the corporation’ so as to prohibit it from offering contrary
evidence at trial.”) (citations omitted); Rainey v. Am. Forest & Paper Ass’n, Inc.,
26 F. Supp. 2d 82, 94 (D.D.C. 1998) (“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.”).

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C.

Analysis

The Court has reviewed the Rule 30(b)(6) Topics and finds that they
describe with particularity the matters upon which Defendant was to be deposed.
See Fed. R. Civ. P. 30(b)(6). The topics here were specific, simply stated and
straight-forward. They met the requirements of Rule 30(b)(6).
Bernice, however, was completely unprepared to testify about the Rule
30(b)(6) Topics. She did not review documents or interview witnesses in advance
of her deposition to prepare to be deposed except for certain documents sent to her
by Defendant’s counsel. Bernice Dep. at 17:1-19:5. She did not speak to Martin
or anyone else in Defendant’s previous management to determine whether Plaintiff
provided the services under the Agreement. Id. at 167:13-174:11; 249:24-250:14.
She did not read the Agreement “in detail” and she was unable to testify about the
terms of the Agreement. Id. at 16:6-24. She did not speak with anyone regarding
the terms of the Agreement prior to her deposition. Id.
On topic 2, Bernice testified that she did not know whether Plaintiff
performed “any of them—of the services.” Id. at 165:21-22. Under the
Agreement, Plaintiff agreed to provide Defendant with the following
organizational development “deliverables” to stabilize Defendant’s business and
achieve sustainable operations:

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 Develop and implement a reality-based plan of action to guide the
King Center over the next 12-18 months;
 Enhance the leadership and management acumen of the President
and CEO;
 Secure immediate and intermediate funding while positioning the
King Center for long-term support from a diverse base of funders
and donors;
 Recruit and support senior management;
 Develop and market a set of signature programs with donors,
foundations, and corporations that define the new King Center; and
 Affirm past relationships and build new relationships with key
individuals and organizations in the Civil Rights, Faith-Based,
Labor, Social Justice, Human Rights Communities, and
Socially-Responsible Corporations.
Consultative Serv. Agreement at 2-4. 4 At her deposition, Bernice was asked

4

Each of these specific deliverables in the Agreement included a discrete set of
tasks that Plaintiff agreed to perform for Defendant. For example, the tasks
required under the deliverable “recruit and support senior management” included
“assess[ing] the daily management needs of The King Center,
[design]ing a COO job description to address the operations needs of
the organization, identify[ing] prospective candidates for review by an
interview team and the President and CEO, design[ing] rigorous
orientation and onboarding process for the COO, facilitat[ing]
development and maintenance of the organizational culture at the
senior management level reflecting The King Center’s values, and
support[ing] the COO in designing and facilitating the weekly senior
staff team call.” Consultative Serv. Agreement at 4.

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whether Plaintiff completed the tasks required for each deliverable, and she
affirmatively stated that she did not know whether Plaintiff performed any of the
required tasks. Id. at 168:1-173:20. On topic 7, Bernice testified that her personal
assistant, Eric Tidwell, tried to identify the services provided by Plaintiff, but she
did not “know what else, you know, he did. Like, I don’t know if he went to look
here, or look there, look there.” Id. at 270:11-16. Bernice also did not know
whether Defendant’s former custodian, Terry Giles, reviewed materials to
determine whether Plaintiff provided the required deliverables. Id. at 271:2-12.
On topic 8, with respect to Giles’ decision not to pay Plaintiff the amount owed
under the Agreement, Bernice testified that “I don’t know all of the reasons. All I
know is we were told that they were not going to be paid. ‘We don’t have the
money.’ That’s it. So what other reasons, I have no idea.” Id. at 231:22-25.
On topic 6, Bernice testified that she “had no idea how [the investment
proposal] was used. I assume it was used to get some people to invest in The
Center, from what it says.” Id. at 208: 16-18. Bernice also “ha[d] no idea” if the
investment proposal was submitted to JPMorgan Chase. Id. at 210:8-11.
On topic 9, Bernice did not know and could not recall important details
about Defendant’s efforts to obtain a grant from the JPMorgan Chase Foundation
(“JCF”). Bernice did not know why Defendant failed to procure a grant from JCF,

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and, in preparation for her deposition, she did not ask Giles, or anyone at JCF, why
a grant could not be procured. Id. at 219:11-220:1.
On topic 10, Bernice did not know if Plaintiff contributed to the King Center
Imaging Project. Id. at 207: 22-25. She was unable to answer basic questions
about the Imaging Project, including who designed and determined the content of
the website, and how long it took to develop the website. Id. at 210: 8-23.5
Under Rule 30(b)(6), Defendant was obligated to prepare Bernice to be able
to testify on behalf of Defendant on each of the Rule 30(b)(6) Topics. Defendant
failed to prepare Bernice to do so. Defendant does not contend that the
information on these topics was not known or was inaccessible when Bernice
testified at the 30(b)(6) deposition. See Rainey, 26 F. Supp. 2d at 94. Defendant
also does not explain why it failed to meet this fundamental obligation to provide a
knowledgeable witness on the topics as required by Rule 30(b)(6) of the Federal
Rules of Civil Procedure. Defendant’s failure to adequately prepare Bernice for
her deposition on the Rule 30(b)(6) Topics is “tantamount to a failure to appear
that is sanctionable [as a nonappearance] under Rule 37(d)” of the Federal Rules of

5

Defendant contends that Bernice “provided relevant, meaningful testimony on
each category of examination set forth in Plaintiff’s deposition notice.” Def.’s
Resp. to Mot. for Sanctions at 2. This is an unsupported, self-serving
misrepresentation of Bernice’s testimony.

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Civil Procedure. See Black Horse, 228 F.3d at 304; see also Resolution Trust
Corp., 985 F.2d at 197. Defendant further failed in its obligation under Rule
30(b)(6) to designate a knowledgeable substitute representative to testify as
Defendant’s 30(b)(6) witness when Bernice was unable to provide the most basic
factual information required by the Rule 30(b)(6) Topics. See Myrdal v. D.C.,
248 F.R.D. 315, 317 (D.D.C. 2008) (noting that “the designating party has a duty
to substitute an appropriate deponent when it becomes apparent that the previous
deponent is unable to respond to certain relevant areas of inquiry.”).6
This is not a case of a 30(b)(6) deponent that did not go far enough to
testify. It is a case where a party did not fulfill its discovery obligation and then
made no effort to correct this discovery failure. “[T]he purpose behind Rule
30(b)(6) undoubtedly is frustrated in the situation in which a corporate party
produces a witness who is unable/unwilling to provide the necessary factual
information on the entity’s behalf.” Black Horse, 228 F.3d at 304 (quoting
Fed. R. Civ. P. 30 advisory committee’s notes stating that Rule 30(b)(6) is an

6

Defendant states that “Plaintiff never requested the King Center produce another
30(b)(6) witness on the categories it now alleges Ms. King failed to adequately
testify to, even after this Court extended the discovery period to allow Plaintiff to
do so.” Def.’s Resp. to Mot. for Sanctions at 2. It was Defendant’s responsibility
to substitute an appropriate deponent after Bernice failed to adequately prepare for
the deposition, and failed to respond to the relevant areas of inquiry.

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“added facility for discovery” that “curb[s] the ‘bandying’ by which officers and
managing agents of a corporation are deposed in turn but each disclaims
knowledge” of relevant facts).
The Court concludes that sanctions here are appropriate and required
because Defendant failed to provide a knowledgeable representative to testify
about the Rule 30(b)(6) Topics. Accordingly, Plaintiff’s Motion in Limine and/or
for Sanctions is granted. Defendant is precluded from introducing evidence at trial
on topics 2, 6, 7, 8, 9, and 10 of the Rule 30(b)(6) Re-Notice of Deposition that
contradicts, alters, supplements, amends or explains Bernice’s testimony on the
Rule 30(b)(6) Topics. See Function Media, 2010 WL 276093, at *1; Wilson, 228
F.R.D. at 529-30; Rainey, 26 F. Supp. 2d at 94.
IV.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Reopen Discovery

[89] is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Reconsideration
[92] is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion in Limine and/or for
Sanctions [97] is GRANTED. Defendant is precluded at trial from introducing

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evidence on topics 2, 6, 7, 8, 9, and 10 of the 30(b)(6) Re-Notice of Deposition that
contradicts, alters, supplements, amends or explains Bernice’s testimony on the
Rule 30(b)(6) Topics.

SO ORDERED this 5th day of May, 2015.

_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE

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