Allison et al v. CRC Insurance Services, Inc.

Filing 172

WRITTEN Opinion entered by the Honorable James B. Zagel on 11/15/2011:Plaintiffs "Motion to Compel a Properly Prepared Rule 30(b)(6) Witness for Deposition and to Preclude Craig Elson from Testifying as a Rule 30(b)(6) Corporate Representative" 146 is GRANTED as to the 30(b)(6) witness Charles Wood. As to Craig Elson, the motion is DENIED. (For further details see attached order)Mailed notice(tlp, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Judge Zagel

Sitting Judge if Other
than Assigned Judge

CASE NUMBER

10 CV 3313

DATE

CASE
TITLE

November 15, 2011

ALLISON v. CRC INS. SERVS. INC.

DOCKET ENTRY TEXT:

Plaintiff’s “Motion to Compel a Properly Prepared Rule 30(b)(6) Witness for Deposition and to Preclude
Craig Elson from Testifying as a Rule 30(b)(6) Corporate Representative” [146] is GRANTED as to the
30(b)(6) witness Charles Wood. As to Craig Elson, the motion is DENIED.

STATEMENT
Before me is a motion concerning two aspects of a 30(b)(6) deposition. The first concerns deponent
Charles Wood, whom Plaintiffs claim was unprepared to answer certain questions despite proper notice on
specific subject matter. The second concerns Craig Elson, whom Plaintiffs claim is disqualified from serving
as a 30(b)(6) at all.
Charles Wood
Plaintiffs argue that Charles Wood, who was proffered as CRC’s witness for certain damages-related
topics, was unprepared and did not meaningfully respond to a host of questions. Further, they claim that
Wood was unable to answer questions concerning documents which CRC produced just shortly before the
deposition. CRC argues simply that Mr. Wood’s testimony was sufficient and, to the extent he was
unresponsive, it was on topics that were not adequately described in the 30(b)(6) deposition notice.
Rule 30(b)(6) allows for a party to depose a corporation on its collective corporate knowledge
through an appointed representative. Fed. R. Civ. P. 30(b)(6). Assuming proper notice that includes
“reasonable particularity” of the topics for discussion, the designee must then provide “complete,
knowledgeable and binding answers” on the corporation’s behalf. Reilly v. Natwest Mkts. Group Inc., 181
F.3d 253, 268 (2nd Cir. 1999). In this case, CRC offered Charles Wood as 30(b)(6) designee on the following
topics:
i. The types, categories, and nature of the damages CRC claims to have suffered.
ii. CRC’s claims that Former CRC Employees bound policies on behalf of CRC for no
commission.
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STATEMENT
iii. For CRC’s Chicago office:
– Any actual or alleged effect on CRC or the office of the resignations and departure of
Former CRC Employees.
– Any actual or alleged injury or damage to CRC or the office of the resignations and
departure of Former CRC Employees.
– The current size of the office, including current number and identity of customers and
insured accounts and current revenues and profits, and how the current size of the
office compares with its size as of December 31, 2006, 2007, 2008, and 2009,
including the current number and identity of customers and insured accounts and
revenues and profits.
Notwithstanding his designation on these topics, Mr. Wood answered “I don’t know” to questions
which I deem fairly related to these topics. The questions include subjects such as how many retail agents
CRC’s Chicago office has lost as clients since the departure of the brokers in Spring 2010 and how much
revenue was historically associated with accounts that CRC allegedly lost due to solicitation of clients by
RTS. RTS showcases ten other similar examples. CRC counters that at least for a few of the questions,
answers were provided later in the deposition. Even if true, that leaves several questions unanswered which
appear to concern relevant and properly noticed subject matter (among these, the examples highlighted
above).
Assuming proper notice of the subject matter, “I don’t know” is generally not a proper response from a
30(b)(6) designee, nor is any answer suggesting that the designee is responding to the best of his personal
knowledge. Reilly, 181 F.3d at 268. A 30(b)(6) designee is to be prepared based on facts known to the
corporation at large, not his or her personal knowledge.
RTS’s motion as to Wood is GRANTED. RTS is allowed 3.5 additional hours of deposition time with
a fully prepared 30(b)(6) witness. The witness may be Charles Wood himself or some other, new witness.
RTS will, however, provide a new notice to that witness indicating - with heightened specificity - what
questions and subjects it deems unanswered or uncovered from the previous deposition.
Craig Elson
The motion as to Craig Elson is denied. Craig Elson was a paid damages consultant of CRC for this
case. He was named as Rule 30(b)(6) deponent by CRC as the person most knowledgeable about certain
aspects of CRC’s damages claim. Plaintiffs claim this is inappropriate because Mr. Elson has been privy to
certain of RTS’s attorneys-eyes only (“AEO”) documents. Therefore, argue Plaintiffs, Elson’s testimony
would not be based on what CRC as a corporation knows, but on additional information known only to RTS.
CRC counters that they specifically designated Elson because he was the person most knowledgeable about
the basis for damages calculations.
The parties are actually in an odd sort of agreement as to Elson himself. That is, neither party
actually wants to see Elson be deposed. The movant, RTS, does not want Elson deposed because he has
allegedly been tainted by his exposure to the AEO documents. CRC, in contrast, thinks the entire subject of
his testimony (damages calculations), is properly the subject of expert discovery as opposed to a lay fact
deposition. So CRC thinks that not only Elson, but nobody, should be deposed on the subject.
I am persuaded by CRC on this point. Taking them at their word that Elson’s purview is the
calculations, that is properly the subject of expert discovery, not a 30(b)(6) deposition. Therefore, the
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STATEMENT
motion as to Elson is DENIED, and no fact witness need be deposed on the subjects for which CRC offered
him.

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