North Alabama Fabricating Company, Inc. v. Bedeschi Mid-West Conveyor Company, LLC et al

Filing 104

MEMORANDUM AND ORDER granting in part and denying in part 78 Plaintiff's Motion for Sanctions. Defendant Bedeschi shall produce an additional corporate representative, or produce Jones for a second deposition, within thirty (30) days of the date of this Memorandum and Order. This corporate representative shall be fully prepared, as required by Rule 30(b)(6), to testify regarding Topics 8, 9, 11, 12, and 13 set forth in Plaintiff's Notice, including the alleged "delays and defects in the products shipped by Plaintiff," the nonconformance reports, and the Inspection Report subsequently produced on August 23, 2017. Bedeschi shall pay Plaintiff's reasonable costs and expenses incurred in conducting this deposition, and the cost of the transcript from the deposition. Signed by Magistrate Judge Teresa J. James on 1/3/2018. (byk)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
NORTH ALABAMA FABRICATING
COMPANY, INC.,
Plaintiff,
v.
BEDESCHI MID-WEST CONVEYOR
COMPANY, LLC; DEARBORN
MID-WEST CONVEYOR COMPANY;
LARRY HARP; and BRAXTON JONES,
Defendants.

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Case No. 16-cv-2740-DDC-TJJ

MEMORANDUM AND ORDER
Plaintiff has filed a Motion for Sanctions (ECF No. 78) requesting the Court impose
sanctions, in the form of default judgment and monetary sanctions, upon all Defendants. Plaintiff
bases its request for sanctions upon Defendants’ allegedly false and misleading interrogatory
answers and objections, which stated assembly of Plaintiff’s fabricated steel goods was required in
order for Defendants to determine whether the goods were defective, and upon Defendant
Bedeschi’s alleged failure to properly prepare its Rule 30(b)(6) corporate representatives by
having them inspect the allegedly defective goods prior to their depositions. Finally, Plaintiff
claims sanctions are warranted for Defendant Bedeschi filing its counterclaim based on alleged
defects in Plaintiff’s delivered goods without any supporting evidence.
As explained below, the motion is granted in part and denied in part. Defendant Bedeschi
will be sanctioned for its failure to produce prepared Rule 30(b)(6) witnesses for deposition. But
the sanctions imposed are limited to allowing another deposition, at Bedeschi’s expense, regarding
Topics 8, 9, 11, 12, and 13 set forth in Plaintiff’s Notice, including the alleged “delays and defects
in the products shipped by Plaintiff,” the nonconformance reports, and the Inspection Report

subsequently produced on August 23, 2017.
I.

Relevant Facts
Plaintiff North Alabama Fabricating Company, Inc., a structural steel fabricating company,

brings claims for breach of contract and fraud against four Defendants: Bedeschi Mid-West
Conveyor Company, LLC (“Bedeschi”); Dearborn Mid-West Conveyor Company (“Dearborn”),
Bedeschi’s president, Larry Harp (“Harp”); and Bedeschi’s project manager, Braxton Jones
(“Jones”). Plaintiff and Bedeschi entered into written contracts pursuant to which Plaintiff would
manufacture fabricated steel equipment and support structures to be assembled into an iron ore
conveyor system for Bedeschi’s customer, Essar Steel Minnesota, LLC (the “Essar Project”). In
this action, Plaintiff seeks payment for fabricated steel it manufactured under its contracts with
Bedeschi. Plaintiff alleges Bedeschi took possession of the fabricated steel goods between
December 2015 and July 2016 and shipped them to Essar’s facility in Minnesota.
Defendants’ Answers1 allege that the fabricated steel delivered by Plaintiff was defective
and/or failed to comply with the contracts. Bedeschi also asserts a counterclaim alleging, inter
alia, that Plaintiff “has delivered goods and materials which failed to conform to the requirements
and specifications identified in the [contracts] by, among other things, delivering parts, goods and
components in a disassembled or otherwise unfinished condition.”2
Defendants served their Rule 26(a) initial disclosures on February 20, 2017, identifying
Defendant Jones as an individual with knowledge of the “delays and defects in the products
shipped by Plaintiff.” Defendants also identified Bedeschi employee Skip Moore (“Moore”) as

1

ECF Nos. 38–41.

2

Bedeschi Counterclaim at 16, ECF No. 41.

2

having knowledge of “the timing and defects in Plaintiff’s fabricated materials supplied to
Bedeschi.”3
On April 27, 2017, Plaintiff served interrogatories on Defendants Bedeschi, Harp, and
Jones inquiring about the alleged defects in the goods Plaintiff delivered under the contracts.
Plaintiff’s First Set of Interrogatories asked Defendants to identify the following:


all non-conforming goods, if any, supplied by [Plaintiff] pursuant to the
Contract Documents (Interrogatory No. 5);



all breaches of warranty, if any, committed by [Plaintiff] under the Contract
Documents (Interrogatory No. 6);



the factual basis for Bedeschi’s ‘potential claims’ against [Plaintiff], as that
phrase is used in Defendants’ Initial Disclosures (Interrogatory No. 12); and



all delays and defects in the products shipped by Plaintiff (Interrogatory No.
13).

Defendants Bedeschi, Harp, and Jones served their interrogatory answers and objections
on June 7, 2017.4 In each of their answers to Interrogatory No. 5, they objected that answering the
interrogatory required them “to speculate, in that there is no way to know whether [Plaintiff]
supplied nonconforming goods until the goods supplied by [Plaintiff] are assembled into the final
product at the project site.”5 Defendants’ other interrogatory answers likewise objected that it
would be “impossible” to know if there was any breach of warranty or if the materials were
properly detailed or fabricated until the goods supplied by Plaintiffs are assembled into the final
product at the project site.

3

Defs.’ Initial Rule 26(c) Disclosures, ECF No. 78-10.

4

See Defs.’ Certificate of Service, ECF No. 48.

5

Bedeschi’s Ans. & Objections at 8, ECF No. 78-3. Harp’s Ans. & Objections at 8, ECF NO. 78-6.

3

Plaintiff also served its first requests for production upon Bedeschi and Harp seeking
“documents related to any ‘defects in Plaintiff’s fabricated materials supplied to Bedeschi’”
(Request 14) and “documents related to any latent defects Defendants have discovered in product
supplied by [Plaintiff] pursuant to the Contract Documents” (Request 15).6 Bedeschi and Harp
responded “[s]ee objections and responses to Interrogatories 5, 6, 12 and 13,”7 and did not
produce any responsive documents.
On May 8, 2017, Plaintiff served a Rule 30(b)(6) deposition notice on Bedeschi, which
included the following topics related to Bedeschi’s counterclaim and allegation that the goods
supplied by Plaintiff are defective:


The conformance of goods supplied by [Plaintiff] pursuant to the Contract
Documents (Topic 8);



The “delays and defects in the products shipped by Plaintiff,” as that phrase
is used in Defendants’ Initial Disclosures (Topic 9);



Issues related to testing and quality control of goods shipped by [Plaintiff]
pursuant to the Contract Documents (Topic 11);



Any breaches of the Contract Documents alleged[ly] committed by
[Plaintiff] (Topic 12); and



The factual basis for Bedeschi’s “potential claims” against [Plaintiff], as
that phrase is used in Defendants’ Initial Disclosures (Topic 13).

Plaintiff deposed Bedeschi’s corporate representatives, Jones and Harp, on August 2, 2017,
and deposed fact witness Moore on August 3, 2017. Jones testified that Bedeschi had not inspected
the goods delivered by Plaintiff to the Essar project to confirm whether any of the goods were

6

Bedeschi June 7, 2017 Responses & Objs. to First. Req. for Produc. at 10, ECF No. 78-18. Harp
Responses, ECF No. 78-19.
7

Id.

4

defective.8 Harp also testified that, at the time of this deposition, Bedeschi had not taken any
measures to inspect Plaintiff’s goods delivered to the Essar project.9
On August 10, 2017, the week after their depositions, Jones, Harp, and Moore traveled
from Missouri to Minnesota to inspect the unassembled goods. On August 23, 2017, Defendants
produced the Daily Paint Inspection Report (“Inspection Report”) prepared by Moore with the
findings from the August 10 inspection. The comments section of the Inspection Report states:
Visual observation and DFT verification of conveyor steel in outdoor storage at
Essar site. Observations: Rust bloom on horizontal and vertical surfaces, mostly on
stringer deck plates, legs, inside bolt holes and on edges.10
On September 19, 2017, Plaintiff’s counsel sent a letter to Defendants’ counsel informing
of Plaintiff’s intent to file a motion for sanctions based upon Defendants’ discovery and litigation
abuse. Defense counsel responded by letter dated September 27, 2017, disputing that Defendants
committed any discovery violations. Counsel participated in a conference call on October 5, 2017
to discuss the issues raised, but failed to reach a resolution.
Plaintiff filed its Motion for Sanctions on October 11, 2017. The motion includes a
separate certification that details its counsel’s letters, emails, in-person meeting, and telephone
conferences attempting to resolve the issues raised in its motion as required by Fed. R. Civ. P.
37(d)(1)(B) and D. Kan. Rule 37.2.
II.

Plaintiff’s Request for Sanctions Based upon Defendants’ Interrogatory Responses
Plaintiff requests the Court enter an order sanctioning Defendants based on their answers

8

Jones Dep. 497:8–13, ECF No. 78-11.

9

Harp Dep. 87:17–21, ECF No. 78-13.

10

Inspection Report, ECF No. 78-2.

5

and objections to Plaintiff’s interrogatories, which inquired regarding Bedeschi’s defense and
counterclaim that the contracted goods delivered by Plaintiff were defective. Plaintiff contends
that Defendants’ interrogatory responses, stating that it was “impossible” for Defendants to
determine whether Plaintiff’s goods were defective until assembled into the final product at the
project site, are false and misleading. Plaintiff argues these interrogatory responses are misleading
because it was possible for Bedeschi to inspect the unassembled goods and determine whether they
were defective. Bedeschi’s corporate representatives were able to inspect the goods in their
unassembled state only seven days after their Rule 30(b)(6) depositions and conclude from that
inspection whether the goods were defective. Defendants and Essar had not assembled Plaintiff’s
goods into a final product at the time Defendants served its interrogatory responses, nor have they
ever assembled the goods to date.
Defendants argue that Plaintiff’s motion for sanctions should be denied because Plaintiff
never requested or obtained a court order compelling discovery under Fed. R. Civ. P. 37(a).
Defendants further argue the motion is untimely under D. Kan. Rule 37.1(b), which requires a
motion to compel discovery be filed within 30 days of the default or service of the objectionable
discovery responses. Defendants maintain that they truthfully responded to Plaintiff’s
interrogatories with the information they had at the time they served their discovery responses.
Defendants also point out that the goods at issue were delivered directly to their customer Essar in
northern Minnesota, and thus were not in their possession.
Plaintiff acknowledges in its reply that sanctions under Rule 37(b) are available when a
party fails to comply with a court order and therefore Rule 37(b) does not apply here, but argues
Rule 37(c) authorizes sanctions when a party fails to “provide information or identify a witness.”

6

Plaintiff is correct that Rule 37(c) sanctions do not require it to file a motion to compel as a
prerequisite, but Plaintiff offers no authority and does not expand upon its one-sentence reference
to Rule 37(c). Plaintiff’s argument that Rule 37(c) applies here is not persuasive. Defendants made
their initial disclosures as required by Rule 26(a)(1). Although Defendants had a duty to
supplement under Rule 26(e) in a timely manner if/when they learned their interrogatory responses
were incomplete or incorrect, the Court finds any duty for Defendants to supplement did not arise
until their August 10, 2017 inspection of the goods. At that time, Defendants were required under
Rule 26(e) to timely serve supplemental interrogatory answers with the new information learned
from the inspection or otherwise make the additional or corrective information known to
Defendants.11 Bedeschi did this by producing nonconformance reports and, more significantly
their Inspection Report, shortly after the inspection and a month before the discovery deadline.12
Once Defendants served Plaintiff with the Inspection Report, Plaintiff could have conducted
additional discovery and/or requested an extension of the discovery deadline to conduct any
additional discovery needed.
Although Plaintiff asserts Defendants also violated Rules 11, 26, and 33 by giving false
interrogatory answers, it makes no specific argument that sanctions should be awarded for these
particular Rule violations. Rule 11 does not apply to discovery responses13 Rule 33, which

11

See Fed. R. Civ. P. 26(e)(1)(A)(“ A party . . . must supplement or correct its disclosure or
response . . . in a timely manner if the party learns that in some material respect the disclosure or response is
incomplete or incorrect, and if the additional or corrective information has not otherwise been made known
to the other parties during the discovery process or in writing.”).
12

The Court also notes that Defendant Bedeschi served its First Amended Answers and Objections
to Plaintiff’s First Set of Interrogatories on August 23, 2017. ECF No. 68.
13

See Fed. R. Civ. P. 11(d) (Rule 11 “does not apply to disclosures and discovery requests,
responses, objections, and motions under Rules 26 through 37.”).

7

governs interrogatories, does not provide for sanctions itself. A party must seek sanctions for
improper interrogatory answers under Rule 37. However, as discussed above, the Court has
rejected Plaintiff’s Rule 37 arguments.
Rule 26(g), although not expressly raised by Plaintiff, applies to incomplete and incorrect
disclosures but not to discovery responses.14 Plaintiff’s motion for sanctions is based upon
allegedly incomplete and incorrect interrogatory responses and objections rather than disclosures.
Therefore, Rule 26(g)(1)(A) does not appear applicable. Moreover, there is no evidence
Defendants knew the answers and objections they served to Plaintiff’s First Interrogatories Nos.
7–9, 11–13 and First Requests 14–15 were incomplete or incorrect when signed. It could be that
Defendants believed assembly of the goods was necessary to determine whether the goods were
defective or nonconforming, until they actually inspected the goods unassembled. To the extent
the interrogatory answers or responses to requests for production were inaccurate regarding
Defendants’ inability to determine nonconformance until assembly of the goods, Defendants’
production of the Inspection Report corrected their earlier inaccurate answers a month before the
discovery deadline. Thus, under Rule 26(e)(1)(A), the Inspection Report constituted “additional or
corrective information” otherwise made known to Plaintiff during the discovery process.
With respect to Defendants’ argument that Plaintiff’s motion is untimely under D. Kan.
Rule 37.1(b), the Court finds that Rule inapplicable to Plaintiff’s Motion for Sanctions. Unlike D.
Kan. Rule 37.2, which applies to “any motion to resolve a discovery dispute pursuant to Fed. R.
14

Fed. R. Civ. P. 26(g)(1) provides:

By signing, an attorney or party certifies that to the best of the person’s knowledge, information, or
belief formed after reasonable inquiry:
(A) with respect to a disclosure, it is complete and correct as of the time it is made; and
(B) with respect to a discovery request, response, or objection, it is:
(i) consistent with these rules and warranted by existing law . . . ,
(ii) not interposed for an improper purpose . . . . (emphasis added).

8

Civ. P. 26 through 37,” D. Kan. Rule 37.1(b)’s 30-day deadline only applies to the filing of a
“motion to compel discovery.” Plaintiff concedes in its reply that it is not seeking to compel any
discovery from Defendants.15 As Plaintiff’s Motion for Sanctions does not seek to compel any
discovery from Defendants, only to sanction them, Plaintiff was not required to file its Motion for
Sanctions within 30 days of service of Defendants’ allegedly false discovery responses.
Turning to the merits of Plaintiff’s motion, the Court denies the request for sanctions based
upon Defendants’ allegedly false and misleading interrogatory responses. There is no evidence
that at the time of signing Defendants knew their answers and objections to Plaintiff’s First
Interrogatories Nos. 7–9, 11–13 and First Requests 14–15 were inaccurate. In addition,
Defendants’ production of the Inspection Report corrected their earlier inaccurate answers a month
before the discovery deadline and allowed Plaintiff the opportunity to conduct discovery on this
new information.
With respect to Plaintiff’s argument that Defendants should have inspected the goods
earlier, the Court agrees with Plaintiff that Defendants should have made arrangements with Essar
to inspect the goods they were claiming defective long before they did so here. Bedeschi asserted a
counterclaim in May 2017 asserting the goods contractually supplied by Plaintiff were defective
and responded to interrogatories in June 2017 inquiring about the alleged defects. But it waited
until August 10, 2017, nearly six weeks before the September 22, 2017 discovery deadline to make
arrangements to inspect the goods. Nonetheless, Bedeschi ultimately did inspect the goods and
15

Presumably, this is because Plaintiff’s motion, if it sought to compel discovery, would have been
untimely under D. Kan. Rule 37.1(b). More than 30 days have passed from the time Defendants served their
discovery responses and Inspection Report until Plaintiff filed its motion. The Court is aware that Plaintiff
did not know that Defendants’ discovery responses (i.e., that the goods had to be assembled to determine
defects) were inaccurate until Defendants produced the Inspection Report on August 23, 2017. But
Plaintiff’s motion was not filed until October 11, 2017, more than 30 days after receipt of the Inspection
Report.

9

produce the Inspection Report on August 23, 2017, which was a month before the discovery
deadline. Bedeschi also offered to allow another Rule 30(b)(6) deposition concerning the Report’s
findings and to pay the cost of the deposition transcript. Thus, despite Bedeschi’s belated
inspection and production of documents supporting its counterclaims, the Court finds Plaintiff will
not be prejudiced by Defendants’ delay, given the additional deposition the Court will allow as
discussed below. Additionally, the Court finds, as discussed at length above, that Defendants’
interrogatory responses did not violate any discovery rules that would authorize the imposition of
sanctions.
III.

Plaintiff’s Request for Sanctions Based Upon Defendant Bedeschi’s Alleged Failure
to Provide Properly Prepared Rule 30(b)(6) Corporate Representatives for
Deposition
Plaintiff also requests sanctions based upon Defendant’s alleged intentional failure to

provide properly prepared Rule 30(b)(6) corporate representatives for deposition. It alleges
Bedeschi deliberately chose not to prepare its corporate representatives so that Bedeschi could
substantiate its counterclaims after its corporate representatives could be cross examined on the
issue. According to Plaintiff, prior to producing the nonconformance reports and Inspection
Report, Defendants never once made a single mention in any disclosure, discovery response or
deposition of any evidence that would support its claim Plaintiff’s goods were defective. Instead,
Defendants repeatedly told Plaintiff that it would be “impossible” for them to determine whether
the goods were defective until after assembly and, therefore, they had no reason to inspect them.
Bedeschi argues that Rule 30(b)(6) only requires them to produce a corporate designee to
testify about information known or “reasonably available” to it. Bedeschi submits that information
about the condition of the goods delivered by Plaintiff, which are located in northern Minnesota in

10

the possession of its customer Essar, would not constitute information “reasonably available” to it.
They also argue that they are not required to travel to an out-of-state location and conduct an
inspection of the goods to properly prepare their Rule 30(b)(6) witnesses. They cite cases finding a
corporate party’s obligation to prepare a 30(b)(6) designee to testify as to matters “reasonably
known” to the defendant does not require it to conduct a separate investigation to answer the
noticed topics.
Federal Rule of Civil Procedure 30(b)(6) requires that persons designated to testify on
behalf of an entity “must testify about information known or reasonably available to the
organization.” “For a Rule 30(b)(6) deposition to operate effectively, the deposing party must
designate the areas of inquiry with reasonable particularity, and the corporation must designate
and adequately prepare witnesses to address these matters.”16 Thus, the Rule implicitly requires a
designated representative to review “all matters known or reasonably available to the
organization” in preparation for the Rule 30(b)(6) deposition.17 This is necessary to prevent a
party from sandbagging its opponent by conducting a minimal inquiry before the deposition but a
thorough inquiry in preparation for trial, which would defeat the purpose of discovery.18
A notice of deposition made pursuant to Rule 30(b)(6) requires the corporation to
produce one or more officers to testify with respect to matters set out in the
deposition notice or subpoena. A party need only designate, with reasonable
particularity, the topics for examination. The corporation, then must not only
produce such number of persons as will satisfy the request, but more importantly,
prepare them so that they may give complete, knowledgeable and binding answers
on behalf of the corporation.19

16

Starlight Int'l Inc. v. Herlihy, 186 F.R.D. 626, 638 (D. Kan. 1999).

17

Id.

18

Id.

19

Audiotext Commc’ns Network, Inc. v. US Telecom, Inc., No. 94-2395-GTV, 1995 WL 625962, at

11

Foremost among the purposes of Rule 30(b)(6) is to “curb the ‘bandying’ by which officers
or managing agents of a corporation are deposed in turn but each disclaims knowledge of facts that
are clearly known to persons in the organization and thereby to it.”20 A party does not fulfill its
obligations at the Rule 30(b)(6) deposition by stating it has no knowledge or position with respect
to a set of facts or area of inquiry within its knowledge or reasonably available.21
Producing an unprepared witness for a Rule 30(b)(6) deposition “is tantamount to a failure
to appear at a deposition” and therefore constitutes sanctionable conduct under Fed. R. Civ. P.
37(d)(1)(A).22 In determining the appropriate sanction to be imposed, the court must consider the
purposes to be served by the imposition of sanctions.”23 Such purposes include “(1) deterring
future litigation abuse, (2) punishing present litigation abuse, (3) compensating victims of
litigation abuse, and (4) streamlining court dockets and facilitating case management.”24
Plaintiff’s Rule 30(b)(6) notice listed 22 topics for Bedeschi’s designated witnesses.
Topics 8 and 9 sought testimony from Bedeschi regarding the conformance of goods supplied by
Plaintiff, and “delays and defects in the products shipped by Plaintiff.” Topics 11 through 13
sought testimony on issues related to testing and quality control of goods shipped by Plaintiff
pursuant to the contract, any breaches of the contract Defendants allege Plaintiff committed, and
*13 (D. Kan. Oct. 5, 1995) (quoting Marker v. Union Fid. Life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C.
1989)) (emphasis added).
20

Fed. R. Civ. P. 30(b)(6) advisory committee’s note to 1970 amendment.

21

Starlight, 186 F.R.D. at 638 (citation omitted).

22

Cherrington Asia Ltd. v. A & L Underground, Inc., 263 F.R.D. 653, 658 (D. Kan. 2010) (quoting
Starlight, 186 F.R.D. at 639).
23

RTC v. Williams, 162 F.R.D. 654, 660 (D. Kan. 1995).

24

Starlight, 186 F.R.D. at 647.

12

the factual basis for Bedeschi’s “potential claims” against Plaintiff. Defendant Bedeschi did not
object to any of the topics and designated Jones and Harp as its 30(b)(6) corporate representative
witnesses. Defendants had also previously identified Jones in their Rule 26(a) disclosures as
having knowledge regarding defects.
Bedeschi produced Jones and Harp for deposition as its Rule 30(b)(6) corporate
representatives on August 2, 2017. Jones, who is Bedeschi’s president, testified that Bedeschi had
not inspected the goods delivered by Plaintiff to the Essar project to confirm whether any of the
goods were defective.25 He further testified that Bedeschi had conducted three inspections at
Plaintiff’s facility, but had not gone to the Essar site to inspect the goods after delivery.26 Harp
similarly testified that, at the time of his deposition, Bedeschi had not taken any measures to
inspect Plaintiff’s goods delivered to the Essar project.27 Plaintiff also deposed fact witness
Moore, Bedeschi’s Director of Safety and Quality, who also testified he did not have any evidence
of nonconforming product delivered by Plaintiff to the Essar project,28 and he had not sent an
inspector to review the painting and fabrication on the delivered goods.29
The Court has reviewed the Jones and Harp deposition testimony and finds that Bedeschi
inadequately prepared these witnesses to testify as its Rule 30(b)(6) representatives regarding
Bedeschi’s knowledge on the designated topics. Specifically, Bedeschi failed to make even
minimal inquiry to prepare its designated witnesses to testify on deposition topics regarding
25

Jones Dep. 497:8–13, ECF No. 78-11.

26

Jones Dep. 498:6–22.

27

Harp Dep. 87:17–21, ECF No. 78-13.

28

Moore Dep. 59:14–23, ECF No. 78-12.

29

Moore Dep. 60:3–13.

13

Bedeschi’s allegation the goods delivered by Plaintiff pursuant to their contracts were defective or
otherwise nonconforming, which is the basis for Defendants’ counterclaim. Given the importance
of this issue in the case and in light of its former discovery responses indicating inspection of the
goods was impossible due to their unassembled state, Bedeschi should have made reasonable
efforts to prepare its Rule 30(b)(6) to testify on this topic. Reasonable efforts here would have
entailed having its representatives actually inspect the goods at issue so that it could advise
Plaintiff how they were defective and/or non-conforming. And, contrary to Bedeschi’s argument,
the Court finds the goods at issue were reasonably available to Bedeschi well before the deposition
date. Although the goods were delivered to Essar, and thus were not located on Bedeschi’s
premises, Bedeschi could have easily made arrangements with its client Essar to inspect the goods.
The fact that Bedeschi was able to quickly arrange for the trip to inspect the goods on August 10,
2017, a week after the depositions, is evidence that the goods were reasonably available to it for
inspection. Bedeschi’s argument that it would have to travel to another state to inspect the goods is
unpersuasive. These are not horse and buggy days. Additionally, Bedeschi never offers any
credible explanation for why it did not inspect the goods earlier. All testimony and discovery
responses suggest Bedeschi asserted its counterclaim without any support for its nonconformance
claim until it actually inspected the goods. Bedeschi should have inspected the goods before it
produced its Rule 30(b)(6) representatives to testify regarding deposition topics inquiring about
the alleged “delays and defects in the products shipped by Plaintiff,” if Bedeschi intended to
pursue its counterclaim. Bedeschi’s actions of conducting only minimal inquiry before producing
its designated Rule 30(b)(6) witness for deposition on these topics smacks of the very sort of
sandbagging courts have explicitly spoken against.30
30

Starlight, 186 F.R.D. at 638.

14

The Court finds Bedeschi’s designation and production of Jones and Harp as its Rule
30(b)(6) witnesses, when neither of them had inspected the goods and were not prepared to answer
questions on these topics, “is tantamount to a failure to appear at a deposition,” and therefore
constitutes sanctionable conduct under Fed. R. Civ. P. 37(d)(1)(A). The Court finds, however, that
Plaintiff’s requested sanction of entry of default judgment is not warranted, but will instead grant
in part the alternative relief requested by Plaintiff. Accordingly, Defendant Bedeschi shall produce
an additional corporate representative, or produce Jones for a second deposition. This corporate
representative shall be fully prepared, as required by Rule 30(b)(6), to testify regarding Topics 8,
9, 11, 12, and 13 set forth in the Notice, including the alleged “delays and defects in the products
shipped by Plaintiff,” the nonconformance reports, and the Inspection Report subsequently
produced on August 23, 2017. This deposition shall take place within 30 days of the date of this
order. The Court will also require Bedeschi to pay Plaintiff’s reasonable costs and expenses
incurred in conducting this deposition, and the cost of the transcript from the deposition.31
The Court finds that the appropriate sanction for failing to properly prepare its Rule
30(b)(6) is to allow a deposition regarding the Inspection Report and alleged defective and
nonconforming goods, at Bedeschi’s expense. This sanction should punish Bedeschi for its
production of an unprepared Rule 30(b)(6) witness on topics underlying its counterclaims, as well
as fairly compensate Plaintiff for the violation and prevent injustice. As for Plaintiff’s request that
default judgment be entered, the Court finds that this severe sanction should only be used as a

31

See Fed. R. Civ. P. 37(d)(3) (“Sanctions may include any of the orders listed in Rule
37(b)(2)(A)(i)-(vi). Instead of or in addition to these sanctions, the court must require the party failing to
act, the attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees,
caused by the failure, unless the failure was substantially justified or other circumstances make an award of
expenses unjust.”).

15

weapon of last resort and only when a lesser sanction wo
o
t,
w
r
ould not serv the intere of justice 32
ve
ests
e.
Here, the lesser sanct
e
tion of requi
iring Bedesc is to prod
chi
duce a corpor represen
rate
ntative on th
he
topics at issue will eli
iminate any prejudice to Plaintiff. Al influenci the Cour decision is the
lso
ing
rt’s
fact Plain could ha sought relief before the discover deadline e
ntiff
ave
r
ry
expired and the fact Bed
deschi
offered to produce Jo
o
ones for anot
ther depositi and pay for the trans
ion
script.
IT IS THER
T
REFORE OR
RDERED th Plaintiff’ s Motion for Sanctions (
hat
r
(ECF No. 78 is
8)
granted in part and denied in part Defendant Bedeschi sh produce an addition corporate
t.
t
hall
e
nal
e
tative, or pro
oduce Jones for a second deposition, within thir (30) days of the date of
d
,
rty
e
represent
this Mem
morandum and Order. This corpor represen
a
rate
ntative shall b fully prep
be
pared, as req
quired
by Rule 30(b)(6), to testify regarding Topics 8, 9, 11, 12, and 13 set forth in Plai
3
t
,
intiff’s Notic
ce,
including the alleged “delays and defects in the products shipped by Plaintiff,” th
g
d
d
t
he
nonconfo
ormance repo and the Inspection Report subs equently pro
orts,
e
oduced on A
August 23, 20
017.
Bedeschi shall pay Plaintiff’s rea
i
asonable costs and expen
nses incurred in conduct
d
ting this
depositio and the cost of the tra
on,
anscript from the deposit
m
tion.
Dated this 3rd day of Janu
D
d
uary 2018, at Kansas Ci Kansas.
a
ity,

Teresa J. James
U. S. Mag
gistrate Judg
ge

32
2

Starlight, 18 F.R.D. at 648.
86
6

16