Jemme J. Jenkins, Individually, and Administrator of the Estate of Jimmie Lee Alexander, Sr. v. Corizon Health Inc. et al

Filing 345

ORDER granting in part and denying in part Plaintiffs' 288 Motion to Read Corporate Representative Depositions at Trial. Signed by Judge William T. Moore, Jr on 2/3/2022. (ca)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

JEMME J. JENKINS, Individually,
and JULIANNE GLISSON,
Administrator of the Estate of

Jimmie L. Alexander, Sr.,
Plaintiffs,
CASE NO. CV418-099

V.

CORIZON HEALTH INC., a Delaware

Corporation; GUY AUGUSTIN,
M.D.; VICTORIA NEILSER, LPN;
and MARK DAMBACH, LPN;
Defendants.

ORDER

Before

the

Court is

Plaintiffs'

Motion

to

Read

Corporate

Representative Depositions at Trial. (Doc. 288.) In their motion.
Plaintiffs ask the Court to allow the depositions of Ronald Tyran,

Rebecca Pinney, Virginia O'Neill, and Jane Lachner to be read at
trial pursuant to Federal Rule of Civil Procedure 32(a)(3). (Id.
at 1-3.) Defendants oppose the use of Ms. O'Neill's deposition at
trial and ask the Court to limit the use of Ms. Pinney's testimony

to topics she was designated to speak about on behalf of Corzion
Health,

Inc.^

(Doc.

312

at

2.)

For

the

following

reasons.

Plaintiffs' motion is GRANTED IN PART and DENIED IN PART.

^ Defendants also oppose Plaintiffs' subpoena of Ms. O'Neill. (Doc.
312 at 2, 4.) Defendants' argument on this issue is unrelated to
whether Plaintiffs may read these witnesses' depositions at trial,
which is the only relief requested in Plaintiffs' motion. If

ANALYSIS

Federal Rule of Civil Procedure 32(a)(1) permits the use of
depositions against a party at trial if:

(A)

the party was present or represented at the taking
of the deposition or had reasonable notice of it;

(B)

it is used to the extent it would be admissible
under the Federal Rules of Evidence if the deponent
were present and testifying; and

(C)

the use is allowed by Rule 32(a)(2) through (8).

Fed. R. Civ. P. 32(a)(1). Relevant to this motion. Rule 32(a)(3)
provides:

An adverse party may use for any purpose the deposition
of a party or anyone who, when deposed, was the party's
officer, director, managing agent, or designee under
Rule 30(b)(6) or 31(a)(4).

Fed. R. Civ. P. 32(a)(3) (emphasis added). Courts in this circuit
have held that Rule 32(a)(3) permits use of a corporate designee's

deposition testimony "regardless of the adversary's availability
to testify at trial." Mt. Hawley Ins. Co. v. Tactic Sec. Enf't,
Inc., No. 6:16-cv-1425-Orl-40TBS, 2018 WL 10690250, at *1 (M.D.

Fla. Apr. 5, 2018) (emphasis omitted) (quoting Coughlin v. Capitol
Cement Co., 571 F.2d 290, 308 (5th Cir. 1978)2); see also In re 3M

Defendants desire to have the Court quash a subpoena, they must

explicitly request such action through an appropriate motion. Fed.
R. Civ. P. 45(d)(3) (explaining circumstances in which a court may
quash or modify a subpoena "[o]n a timely motion").
2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.

1981), the

Eleventh

Circuit adopted

as

binding

precedent all

decisions of the former Fifth Circuit handed down prior to October
1, 1981.

Combat Arms Earplug Prods. Liab. Litiq., 338 F.R.D. 167, 170 (N.D.
Fla. 2021). However, Rule 32(a)(3) does not apply to non-party

deponents. In re 3M, 338 F.R.D. at 170 (^'[I]f the Deponent is a
non-party, he must be unavailable in order for the deposition to
be used for any purpose other than for impeachment or another
purpose allowed by the Federal Rules of Evidence." (citing Fed. R.
Civ. P. 32(a)(4))). The Court will now consider Rule 32(a)(3)'s

applicability to each of the depositions that Plaintiffs seek to
use at trial.
I.

RONALD TYRAN

As an initial matter. Rule 32(a)(3) has no application to the

use of Ronald Tyran's deposition at trial. Plaintiffs contend that
they should be allowed to use Mr. Tyran's deposition because he
was the Rule 30(b)(6) designee for the Sheriff's Office. (Doc. 288
at 1.) The

Court

notes that Mr. Tyran

was actually the

Rule

30(b)(6) designee for Chatham County. (Doc. 49 at 2.) In any event.

Plaintiffs'
Office

claims

employees

against
have

been

both

Chatham

resolved

County

either

and

through

Sheriff's
summary

judgment or settlement. (Docs. 233, 239, 343.) Therefore, the Court
finds Plaintiffs and Chatham County are no longer ^"adverse" parties
within the meaning of Rule 32(a)(3). See Powertrain, Inc. v. Ma,

88 F. Supp. 3d 679, 691 (N.D. Miss. 2015) (finding deposition
testimony not admissible because designating party ^'was dismissed
on default judgment earlier in this proceeding and thus was not a

party to this action at the time of trial"), aff^d, 640 F. App'x
263 {5th Cir. 2016) (per curiam); Est. of Thompson v. Kawasaki
Heavy

Indus.,

(plaintiffs

Ltd.,

could

not

32(a)(3)[] because
'adverse'

to

291

F.R.D.

use

they,

Ohlins,

297,

witness's

as

where

the

311-12

deposition

offering

Ohlins

(N.D.

[had]

Iowa

2013)

under

'''Rule

parties, [were]
been

not

dismissed").

Accordingly, Plaintiffs' motion (Doc. 288) is DENIED IN PART to

the extent they seek to use Mr. Tyran's deposition for any purpose
pursuant to Rule 32(a)(3).
II.

JANE LACHNER

Likewise, the Court finds Jane Lachner's deposition falls

outside the scope of Rule 32(a)(3). Although Plaintiffs claim that
Ms. Lachner is a Rule 30(b)(6) designee of Corizon Health, Inc.

(Doc. 288 at 2), the record suggests otherwise. Ms. Lachner's

deposition transcript refers to her as a "Non-Party Witness[.]"
(Doc. 93 at 1.)

Furthermore,

Corizon

Health's

June 22, 2018,

communication to Plaintiffs identifies only Rebecca Pinney and

'Virginia O'Neill as its Rule 30(b)(6) designees. (Doc. 312, Attach.
2 at 7.) Lacking any evidence to the contrary, the Court must
conclude that Ms. Lachner is not a Rule 30(b)(6) designee. As a

result. Plaintiffs' motion (Doc. 288) is DENIED IN PART to the
extent they seek to use Ms. Lachner's deposition for any purpose
pursuant to Rule 32(a)(3).

III. REBECCA PINNEY AND VIRGINIA O^NEILL

In contrast to Ms. Lachner, Ms. Pinney and Ms. O'Neill were

clearly designated as Corizon Health's Rule 30(b)(6) designees.
(Doc.

312,

Plaintiffs'

Attach.
use

of

2

at

their

7.)

Thus,

Rule

depositions

at

32(a)(3)
trial.

sanctions

Nevertheless,

Defendants argue that the portion of Ms. O'Neill's deposition that
Plaintiffs wish to use is inadmissible because Ms. O'Neill was not

designated

to

testify

about

the

use

of

NETs,

a

type

of

documentation form. (Id. at 3.) Defendants also argue that Ms.

Pinney's testimony should be limited to the matters on which
Corzion Health designated her to speak. (Id. at 2.) The Court has
identified

no

rule

that

confines

the

use

of

Rule

30(b)(6)

depositions to matters specifically authorized by the responding
organization.3 in fact, courts in the Eleventh Circuit have held
that ^'Rule 30(b)(6) cannot be used to limit what is asked of a

designated witness at a deposition." King v. Pratt & Whitney, 161
F.R.D. 475, 476 (S.D. Fla. 1995)

30(b)(6)

3

The

C'The reason for adopting Rule

was not to provide greater

two

cases

that

Defendants

notice or

cite

stand

protections to

for

unrelated

propositions. (Doc. 312 at 4.) In Dopson-Troutt v. Novartis Pharm.
Corp., 295 F.R.D. 536 (M.D. Fla. 2013), a district court held that
Rule 30(b)(6), by itself, does not permit subpoenaing a witness
for trial. Id. at 539-40. In Jiminez-Carillo v. Autopart Int'l,

Inc., 285 F.R.D. 668 (S.D. Fla. 2012), the district court found
that a corporate defendant was not required to produce officers
for depositions who lacked relevant personal knowledge and would
not be called to testify at trial. Id. at 670. However, neither
Dopson-Troutt nor Jiminez-Carillo addresses using a Rule 30(b)(6)
deposition at trial pursuant to Rule 32(a)(3).

corporate deponents, but rather to have the right person present
at deposition."). Therefore, the Court will not limit the use of
Ms.

Pinney

specifically

and

Ms.

O'Neill's

identified

in

depositions

Corizon

to

Health's

those
Rule

matters
30(b)(6)

designation.^ Accordingly, Plaintiffs' motion is GRANTED IN PART
to the extent they seek to use the depositions of Ms. Pinney and
Ms. O'Neill pursuant to Rule 32(a)(3).
CONCLUSION

Based on the foregoing, Plaintiffs' motion is GRANTED IN PART
and DENIED IN PART. At trial. Plaintiffs may use the depositions
of Rebecca Pinney and Virginia O'Neill pursuant to Rule 32(a)(3),

subject to the limitations of the

Federal Rules of Evidence.

Plaintiffs are not permitted to use the depositions of Ronald Tyran
and Jane Lachner barring a showing that either are unavailable for
trial.

^ day of February 2022.

WILLIAM T. MOORE,
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

^ To the extent Defendants argue that the content of Ms. O'Neill's
testimony is irrelevant (Doc. 312 at 4), such an objection is best
raised after the facts and testimony have developed at trial.