Coltrane v. Crawford County Board of County Commissioners et al

Filing 59

MEMORANDUM AND ORDER finding as moot 47 Motion to Amend Scheduling Order; granting 53 Motion to Compel while denying the request for sanctions. Signed by Magistrate Judge Kenneth G. Gale on 7/23/15. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JACKIE COLTRANE

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Plaintiff,

vs.
CRAWFORD COUNTY BOARD OF
COUNTY COMMISSIONERS, et al.,
Defendants.

Case No. 14-2164-JWL-KGG

MEMORANDUM &ORDER
GRANTING PLAINTIFF’S MOTION TO COMPEL
Before the Court is Plaintiff’s “Motion to Compel” (Doc. 53) a deposition
under Federal Rule of Civil Procedure 30(b)(6). In addition, Plaintiff seeks costs
and expenses, including attorneys’ fees, incurred in attempting to resolve this
discovery dispute. For the reasons set forth below, Plaintiff’s “Motion to Compel”
is GRANTED while its request for sanctions is DENIED.1
BACKGROUND
The present action was filed on April 8, 2014, alleging wrongful
termination, violation of Title VII, and violating the Equal Pay Act. (Doc. 1.) The

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Plaintiff also filed a “Motion to Amend the Scheduling Order or, in the Alternative Leave to
Complete Designated Discovery” (Doc. 47), which is now moot because deadlines/hearings will
be reset (Doc. 51) after a ruling on Plaintiff’s “Motion to Compel.”
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Emergency Department of Crawford County Director, Mr. Joey Adams, was
previously deposed by Plaintiff under Federal Rule of Civil Procedure 30(b)(1).
(Doc. 57, at 3.) Further, Mr. Adams has also completed interrogatories under Rule
33. (Id.) Plaintiff seeks another deposition under Rule 30(b)(6). (Doc. 53.)
Defendants assert, however, that Mr. Adams is the only employee who they could
designate to testify on their behalf and request that Mr. Adams not be required to
be deposed a second time. (See Doc. 57, at 9.)
DISCUSSION
A.

30(b)(6) Deposition
Plaintiff argues that holding a previous deposition with Mr. Adams under

Rule 30(b)(1) does not prohibit them from deposing Mr. Adams under Rule
30(b)(6). (Doc. 54, at 7-8.) Defendants’ argue that another deposition should not
be allowed because it would be duplicative and redundant, and Mr. Adams
previous testimony (interrogatories and 30(b)(1) deposition) is already binding on
their organization. (Doc. 57, at 2.)
Rule 30(b)(6) states:
In its notice or subpoena, a party may name as the deponent a public
or private corporation, a partnership, an association, a governmental
agency, or other entity and must describe with reasonable particularity
the matters for examination. 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.
A subpoena must advise a nonparty organization of its duty to make
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this designation. The persons designated must testify about
information known or reasonably available to the organization. This
paragraph (6) does not preclude a deposition by any other procedure
allowed by these rules.
Fed.R.Civ.P. 30(b)(6). In Miller v. Union Pac. R. Co., the Court explained:
With respect to a Rule 30(b)(6) deposition, no distinction exists
between the designated corporate representative and the corporation.
During the Rule 30(b)(6) deposition, the designated corporate
representative does not give his or her personal opinion like an
individual does, but rather presents the corporation's position on the
topic. In other words, the designee testifies on behalf of the
corporation and thus holds it accountable. Most importantly, the
designated representative's testimony is binding on the corporation. In
contrast, the testimony of a corporation's employee, when taken in his
or her individual capacity, does not bind the corporation.
2008 WL 4724471, at *2 (D. Kan. Oct. 24, 2008).
During a Rule 30(b)(1) deposition the deposed speaks on behalf of himself
and not the company. Sprint Commc'ns Co., L.P. v. Comcast Cable Commc'ns,
LLC, 2015 WL 3742929, at *8 (D. Kan. June 15, 2015). Thus, the testimony of a
Rule 30(b)(1) deposition is not binding on the corporation. See id. A Rule
30(b)(6) deposition, however, is binding on the corporation and requires the
deposed to be prepped and informed on matters relating to relevant questions of the
corporation. See Cherrington Asia Ltd. v. A & L Underground, Inc., 263 F.R.D.
653, 661-62 (D. Kan. 2010).
Furthermore, Courts of this District have consistently held that the same
individual may be deposed under Rule 30(b)(1) and again under Rule 30(b)(6)
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even on repetitive topics to learn the corporations official position. See Sprint
Commc'ns Co., L.P., 2015 WL 3742929, at *8; see also In re Motor Fuel
Temperature Sales Practices Litig., 2009 WL 5064441, at *2 (D. Kan. Dec. 16,
2009) (stating that “the fact that [the two employees] addressed the noticed topics
when testifying in their individual capacities is of no consequence”). Federal Rule
of Civil Procedure 26(b)(2)(C)(i), however, disfavors cumulative or duplicative
discovery that would unreasonably impose an unduly burden or unreasonably
increase the cost of discovery. See Sprint Commc'ns Co., L.P., 2015 WL
3742929, at *3. This is a balancing question between the benefit of the Rule
30(b)(6) deposition to Plaintiff with the burden another deposition imposes on
Defendants. See id.
Here, the Court finds this balancing question to be extremely close.
Although Mr. Adams has completed interrogatories and been deposed under Rule
30(b)(1) on similar topics, the benefit to Plaintiff to bind Defendants to the Rule
30(b)(6) testimony outweighs the burden. In Sprint, the Court specifically found
the benefit of a Rule 30(b)(6) deposition outweighed the burden of deposing an
employee who previously testified in a Rule 30(b)(1) deposition on the same
topics. Id., at 8-9. There is currently no binding testimony regarding Defendants’
corporate positon on the proposed topics. Therefore, the Court orders Defendants
to designate an individual for a Rule 30(b)(6) deposition regardless of whether this
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would require Mr. Adams to be deposed again. The Rule 30(b)(6) deposition shall
occur within thirty (30) days of the date of this Order.
B.

Sanctions
The memorandum in support of Plaintiff’s motion includes a passing

reference to a request for an award of “costs and expenses, including attorneys’
fees . . . .” (Doc. 54, at 1, 8.) Fed.R.Civ.P. 37(a)(5) states that if a motion to
compel is granted, “the court must . . . require the party . . . whose conduct
necessitated the motion, the party or attorney advising that conduct, or both to pay
the movant's reasonable expenses incurred in making the motion, including
attorney's fees.” The rule continues, however, that “the court must not order
payment” when the nonmovant's conduct was “substantially justified . . . .” The
Court finds that the issue between the parties was extremely close as discussed
earlier. Further, each side presented valid arguments for their positions.
Therefore, sanctions are inappropriate. This portion of Plaintiff’s motion is
DENIED.

IT IS THEREFORE ORDERED that Plaintiff’s “Motion to Compel” a
Federal Rule of Civil Procedure 30(b)(6) deposition (Doc. 53), is GRANTED
while its request for sanctions is DENIED as more fully set forth above. The Rule
30(b)(6) deposition shall occur within thirty (30) days of the date of this Order.

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IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 23rd day of July, 2015.

S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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