Timm et al v. Goodyear Tire and Rubber Company et al

Filing 243

OPINION AND ORDER: The Court DENIES in part Plaintiffs' Motion to Compel Discovery and Extend Discovery Cutoff Date in Face of Defendants' Refusal to Produce Deponents (DE 223 ) to the extent that it seeks to compel additional depositi ons and DENIES as moot the request to extend the discovery deadlines. The Court ORDERS Harley-Davidson and GDTNA to FILE, on or before 7/22/2016, itemizations of their costs and fees, as outlined in Order, with Plaintiffs to FILE responses, as outlined in Order, on or before 8/1/2016. Signed by Magistrate Judge John E Martin on 7/8/2016. (lhc)(cc: Dft Paul Comeau)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DONALD N. TIMM and
MARY K. TIMM,
Plaintiff,

)
)
)
)
v.
) CAUSE NO.: 2:14-CV-232-PPS-JEM
)
GOODYEAR DUNLOP TIRES
)
NORTH AMERICAN, LTD., et al.,
)
Defendants,
)
____________________________________)
)
TEGOL, INC.,
)
Crossclaimant,
)
)
v.
)
)
PAUL COMEAU,
)
Crossclaim Defendant.
)
OPINION AND ORDER
This matter is before the Court on Plaintiffs’ Motion to Compel Discovery and Extend
Discovery Cutoff Date in Face of Defendants’ Refusal to Produce Deponents [DE 223], filed May
1, 2016. Plaintiffs seek an order compelling Defendants Goodyear Dunlop Tires North America,
LTD., (GDTNA) and Harley-DavidsonMotor Company, LLC to produce a number of individuals
for depositions, and for a corresponding extension of the discovery deadline.
I.

Background
On July 8, 2014, Plaintiffs filed a Complaint bringing claims of personal injury and products

liability against multiple defendants for injuries arising out of a motorcycle accident. Plaintiffs’
Amended Complaint was filed on May 22, 2015.
On February 26, 2015, a Rule 16 Preliminary Pretrial Conference was held at which the
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Court set a number of deadlines in the case. The fact discovery deadline was extended several times,
and on March 15, 2016, the date it was set to expire, Plaintiffs filed a motion requesting extension
of it and several other deadlines. After extensive briefing, on June 30, 2016, the Court generally
extended the fact and final discovery deadlines.
Plaintiffs filed the instant Motion on May 1, 2016. On May 16, 2015, Defendants GDTNA
and Harley-Davidson each filed a response to the Motion. None of the other defendants filed a
response within the time allotted to do so. Plaintiffs did not file a reply before the time to do so had
passed, but on May 20, 2016, Plaintiffs filed a supplement including more correspondence between
the parties about the disputed discovery issues.
II.

Analysis
Plaintiffs move to compel several depositions, including 30(b)(6) witnesses, and argue that

GDTNA and Harley-Davidson unreasonably objected to them.
Federal Rule of Civil Procedure 26(b)(1) permits discovery “regarding any nonprivileged
matter that is relevant to any party’s claim or defense and proportionate to the needs of the case.”
Fed. R. Civ. P. 26(b)(1). Discovery includes depositions, and Rule 30(b)(6) provides for depositions
of corporate representatives. It requires the organization to designate people “who consent to testify
on its behalf” and who “must testify about the information known or reasonably available to the
organization.” Fed. R. Civ. P. 30(b)(6). A party may seek an order to compel discovery when an
opposing party fails to respond to discovery requests or provides evasive or incomplete responses.
See Fed. R. Civ. P. 37(a). A party objecting to the discovery request bears the burden of showing
why the request is improper. See McGrath v. Everest Nat. Ins. Co., 625 F. Supp. 2d 660, 670 (N.D.
Ind. 2008). The Court has broad discretion when deciding whether to compel discovery. See

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Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002) (citing Packman v. Chi.
Tribune Co., 267 F.3d 628, 646-47 (7th Cir. 2001); Rennie v. Dalton, 3 F.3d 1100, 1110 (7th Cir.
1993)).
Federal Rule of Civil Procedure 37 provides that a motion “for an order compelling
disclosure or discovery . . . must include a certification that the movant has in good faith conferred
or attempted to confer with the person or party failing to make a disclosure or discover in an effort
to obtain it without court action.” Fed. R. Civ. P. 37(a)(1). Northern District of Indiana Local Rule
37-1 provides that a “party filing any discovery motion must file a separate certification that the
party has conferred in good faith or attempted to confer with other affected parties in an effort to
resolve the matter raised in the motion without court action.” N.D. Ind. L.R. 37-1. Plaintiffs did not
file a certification regarding the parties’ conference pursuant to Local Rule 37-1, although the
majority of the motion itself is reiteration of correspondence between the parties, much of which was
also attached. The Court will not deny the Motion for its technical failure to comply with the Rule
37 requirements.
Plaintiffs argue generally that GDTNA and Harley-Davidson are refusing to allow Plaintiffs
to depose witnesses with actual knowledge on certain subjects. Plaintiffs argue that they are seeking
depositions regarding particular documents produced by Defendants as well as information
regarding testing on the Dunlop 402 tire and the negotiation and execution of an agreement between
Harley-Davidson and GDTNA, but that the prior witnesses deposed by Plaintiffs did not have
sufficient personal knowledge about these topics. They argue that the information Harley-Davidson
and GDTNA are asking them to rely upon is inadmissible hearsay and are seeking deponents who
can provide admissible evidence relevant to their claims and defenses.

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Plaintiffs do not specify exactly whose depositions they would like the Court to compel.
Plaintiffs refer generally to “depositions” in their Motion, but attach a single undated Notice of
Deposition for a T. Wythe seeking information about “testing and evaluation of the Dunlop D402
tire and rim for control and debeading” in an April 5, 2016, deposition. GDTNA and HarleyDavidson explain that Plaintiffs initially noticed a fairly large number of depositions, but that the
list was later narrowed to four. In the discussions between the parties, GDTNA and HarleyDavidson objected to those four depositions as disproportionate to the ends of the case, since the
topics covered were within the scope of the Rule 30(b)(6) depositions. To the extent that Plaintiffs
are now only trying to compel the deposition of Wythe, GDTNA argues that he is no longer
employed by GDTNA or otherwise under its control.
Harley-Davidson argues that the instant Motion should be denied because Harley-Davidson
fulfilled its obligations to provide a 30(b)(6) witness who was prepared to testify about the topics
in the notices with both personal knowledge and information reasonably known or available to
Harley-Davidson. It argues that additional depositions on the same topics would be duplicative and
the burden of conducting them would outweigh any possible benefits, particularly since Plaintiffs
do not include any specific argument about how the requested depositions could lead to relevant
information that was not or could not have been discovered through previous depositions. GDTNA
likewise argues that much of the information sought by Plaintiffs is more discoverable from a
30(b)(6) deponent, such as why tests were conducted a particular way, but that Plaintiffs did not
complete the deposition of the person GDTNA designated as having knowledge about the testing.
Plaintiffs cite case law for the proposition that affidavits filed in support of summary
judgement must be based on non-hearsay evidence, and from that argue that Defendants should be

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required to produce deponents to answer questions about facts within their own personal experience.
Plaintiffs appear to either be ignoring or misunderstanding that the witnesses referred to by GDTNA
and Harley-Davidson are 30(b)(6) witnesses, designated to testify on behalf of the company. A
30(b)(6) designee is authorized “to testify not only to matters within his personal knowledge but also
to ‘matters known or reasonably available to the organization.’ Thus, [the designee] was free to
testify to matters outside his personal knowledge as long as they were within the corporate rubric.”
PPM Fin., Inc. v. Norandal USA, Inc., 392 F.3d 889, 894-95 (7th Cir. 2004) (quoting Fed. R. Civ.
P. 30(b)(6); citing Pugh v. City of Attica, Ind., 259 F.3d 619, 627 n. 7 (7th Cir. 2001)); see also
Aldridge v. Lake Cty. Sheriff's Office, No. 11 C 3041, 2012 WL 3023340, at *4 n.18 (N.D. Ill. July
24, 2012) (“the witness/designee need not have any personal knowledge”) (quoting QBE Ins. Corp.
v. Jorda Enterprises, Inc., 277 F.R.D. 676, 688 (S.D. Fla. 2012)); In re Peregrine Fin. Grp.
Customer Litig., No. 12 C 5546, 2015 WL 1344466, at *8 (N.D. Ill. Mar. 20, 2015) (“A designated
Rule 30(b)(6) witness is thus not limited to her personal knowledge. She also testifies vicariously
for the corporation, as to its knowledge and perceptions.”) (quotation omitted); Sara Lee Corp. v.
Kraft Foods Inc., 276 F.R.D. 500, 503 (N.D. Ill. 2011) (refusing to limit a 30(b)(6) deponent’s
“testimony strictly to matters within [his] personal knowledge” because “strictly imposing the
personal knowledge requirement would only recreate the problems that Rule 30(b)(6) was created
to solve”); Paul Harris Stores, Inc. v. PricewaterhouseCoopers, LLP, No. 102CV1014LJMVSS,
2006 WL 2644935, at *6 (S.D. Ind. Sept. 14, 2006) (denying motion to strike, for lack of personal
knowledge, testimony submitted in support of motion for summary judgment because witness “was
designated as a Rule 30(b)(6) witness for [the corporation], allowing him to testify not only from
his personal knowledge but also as to matters ‘known or reasonably available to the organization.’”)

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(quoting Fed. R. Civ. P. 30(b)(6)).
The designation of a 30(b)(6) deponent does not necessarily mean that no fact depositions
are needed. See, e.g., Sara Lee, 276 F.R.D. at 503 (“the purposes underlying Rule 30(b)(6) must be
balanced against the real dangers of admitting testimony based on hearsay”). If the 30(b)(6)
deponents could not provide sufficient information about the topics they were designated to address,
that would certainly be grounds for Plaintiffs to request to take additional depositions. See
Smithkline Beecham Corp. v. Apotex Corp., No. 98 C 3952, 2000 WL 116082, at *8 (N.D. Ill. Jan.
24, 2000). If Defendants refuse to provide discoverable information requested by Plaintiffs, that
likewise would be grounds for a motion to compel. See Fed. R. Civ. P. 37(a)(3). However, in the
instant Motion Plaintiffs do not describe exactly who they are seeking to depose or what information
they are seeking that Defendants refuse to provide. Although they argue generally that the
depositions they have taken so far involve inadmissible hearsay, Plaintiffs have not identified any
particular hearsay or area of testimony that requires personal knowledge and cannot be testified to
by a corporate designee. Plaintiffs do not address specifically why the 30(b)(6) depositions were
deficient, what questions or areas of testimony Plaintiffs sought that could not have been addressed
in one of the previous depositions, or what specific depositions they are now seeking to fill in the
gaps of information. Although the Court is sympathetic to Plaintiffs’ desire to obtain complete
discovery regarding their case, they have not provided enough information for the Court to
determine whether it needs to intervene in this discovery dispute. Without knowing whose
deposition(s) Plaintiffs would like to take, the topics of the deposition(s), and why previous
depositions were insufficient to explore those topics, the Court cannot determine whether it should
compel a response pursuant to Federal Rule of Civil Procedure 37(a)(3).

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Plaintiffs also seek an extension of the discovery deadline. In a previous Order, the Court
vacated the discovery deadlines and extended them, to be reset at an upcoming status conference that
will be set by a separate order. Because discovery is still open, the Court admonishes the parties to
continue working together to complete what discovery is needed.
III.

Conclusion
For the foregoing reasons, the Court hereby DENIES in part Plaintiffs’ Motion to Compel

Discovery and Extend Discovery Cutoff Date in Face of Defendants’ Refusal to Produce Deponents
[DE 223] to the extent that it seeks to compel additional depositions and DENIES as moot the
request to extend the discovery deadlines.
Because the motion to compel is denied, the Court “must, after giving the opportunity to be
heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who
opposed the motion its reasonable expenses incurred in opposing the motion, including attorney’s
fees” unless “the motion was substantially justified or other circumstances make an award of
expenses unjust.” Fed. R. Civ. P. 37(a)(5)(B). Accordingly, the Court hereby ORDERS HarleyDavidson and GDTNA to FILE, on or before July 22, 2016, itemizations of their costs and fees,
including attorney’s fees, incurred in opposing the Motion to Compel along with argument as to why
those expenses are reasonable in this situation, with Plaintiffs to FILE responses to the requests for
expenses and any argument as to the reasonableness of the fees or why payment of fees is unjust on
or before August 1, 2016.
SO ORDERED this 8th day of July, 2015.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:

All counsel of record
Defendant Paul Comeau, pro se