Fernandez v. Tamko Building Products Incorporated et al

Filing 63

RULING denying 31 Motion to Compel Defendants 30(b)(6) Corporate Deposition and for Sanctions, Attorney Fees, and Costs is denied. Signed by Magistrate Judge Stephen C. Riedlinger on 9/16/2013. Modified on 9/16/2013to edit text (LLH).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

JORGE FERNANDEZ, ET AL.
CIVIL ACTION
VERSUS
NUMBER 12-518-SDD-SCR
TAMKO BUILDING PRODUCTS INC.
RULING ON PLAINTIFFS’ MOTION TO COMPEL CORPORATE DEPOSITION
Before
Defendant’s

the

court

30(b)(6)

is

the

Corporate

Attorney Fees, and Costs.

Plaintiffs’
Deposition

Motion
and

to

Compel

for

Sanctions,

Record document number 31.

The motion

is opposed.1
On April 11, 2013 the plaintiffs took the corporate deposition
of defendant TAMKO Building Products pursuant to Rule 30(b)(6),
Fed.R.Civ.P., through its representative, Gerry Ross.
motion,

the

plaintiffs

seek

leave

to

re-depose

a

In their
corporate

representative and an order for sanctions based on Ross’s alleged
failure to provide sufficient information regarding some topics
listed in the deposition notice.2

Plaintiffs argued that the

defendant knowingly and intentionally refused to comply with its
obligation to designate an appropriate corporate representative
with knowledge of the identified deposition subjects, and failed to

1

Record document numbers 35 and 36. Plaintiffs filed a reply
brief. Record document number 40. Defendant filed a sur-reply.
Record document number 45.
2

Record document number 31, Plaintiff’s Exhibit A.

timely

file

a

protective

deposition subjects.
attorney

order

regarding

any

objectionable

Plaintiffs asserted that the defendant’s

frustrated

the

deposition

by

instructing

the

representative not to answer certain questions and subsequently
failing to provide available dates for a continued deposition.
Specifically, the plaintiffs noted the defendant’s representative
refused to answer any questions concerning item numbers 5 and 8 of
the Notice, which sought information concerning the defendant’s
investigation into the plaintiffs’ claims and the total gross
annual

revenues

from

the

sales

of

15

underlayment/felt paper for the past 10 years.

pound

roofing

Plaintiffs’ also

argued that the defendant could not answer, and its attorney
improperly objected to, questions related to item number 9, which
involved the cost of adding a warning or caution label to the
product at issue.

Plaintiffs added that throughout the deposition

the defendant’s attorney made unwarranted objections to questions
that were within the scope of the deposition subjects and that the
defendant’s representative lacked sufficient knowledge to answer
some questions involving the deposition subjects.
Defendant first argued that the plaintiffs failed to comply
with Rule 37's requirement that a party must certify that it made
a good faith attempt to confer in an effort to resolve the
discovery issues prior to taking court action.
The

record

shows

that

prior

2

to

filing

this

motion

the

plaintiffs requested, via email, dates to depose another corporate
representative.3

Although the plaintiffs did not file a separate

Rule 37 certificate with their motion, the available information
sufficiently demonstrates that the plaintiffs attempted to resolve
the dispute prior to filing their motion, thereby satisfying the
Rule 37 requirement.
With respect to the merits of the plaintiffs’ motion, the
defendant argued that its objections to item numbers 5 and 8 were
warranted and made in good faith.

Defendant argued that the

information requested in item number 5, involving its investigation
into the plaintiffs’ claims, was protected work product and subject
to the attorney client privileges, and should be addressed though
an expert report.

Defendant argued that the information requested

in item number 8, which concerned the gross revenues from its sales
of its 15 pound roofing paper, was not relevant to the issues
presented

in

this

case.

Defendant

also

asserted

that

its

representative substantially and substantively responded to the
areas of inquiry.

As to those subjects for he was allegedly not

prepared, including information concerning warning labels on the 15
pound roofing paper and the related costs, the defendant offered to
produce another representative to respond those questions.
A review of the deposition transcript shows that the corporate

3

Record document number 40, Exhibit 1, email dated April 19,

2013.
3

representative

was

sufficiently

knowledgeable

on

the

subject

matters identified in the notice and that defense counsel did not
obstruct the deposition.

Defendant’s objections to questions

involving item numbers 5 and 8 were warranted.

Plaintiffs failed

to demonstrate, either at the time of the deposition or in their
motion, how the defendants’s revenues from the roofing paper sales
are relevant to the issues presented in this case.

Plaintiffs did

not address the defendant’s privilege challenges to the questions
concerning item number 5.
With respect to the line of questioning which involved the
defendant’s concerns about the risk of its roofing paper failing to
support a person walking on it over a steep pitched roof, the
questions

were

answered

to

defendant’s representative.4

the

best

of

the

ability

of

the

The compound nature of the questions

made them ambiguous and confusing, and some were premised on
assumptions which had the effect of requiring the representative to
give speculative responses rather than provide factual information.
The testimony obtained on this subject was sufficient and no
further response is required.
To the extent the plaintiffs seek to re-depose a corporate
representative regarding item numbers 9 and 10 of the deposition
notice, the defendant admitted that its representative could not

4

Record document number 31-5, Exhibit E, p. 112-113, 124-126.
See also record document number 35-1, Exhibit 1 (identifying
specific deposition pages).
4

provide the such information. Defendant offered to produce another
corporate representative to answer questions limited to these
subjects.
Nonetheless, the defendant’s willingness to provide additional
information does not create an obligation under Rule 30(b)(6) to
create such information for the plaintiffs’ benefit. To the extent
the defendant had, prior to the accident, investigated changing the
packaging of its 15 pound roofing paper and developed a plan to do
so, that information should have been produced.

But the import of

the representative’s answers is that the defendant has no such
information for the simple reason that it had no plans to change
the packaging.5

Defendant was not required by Rule 30(b)(6) to

determine the hypothetical cost to redesign the packaging just to
provide that information to the plaintiffs.

Rather, both the

plaintiffs and the defendant could, if they chose to do so, engage
an expert to come up with a cost to redesign the defendant’s
packaging.

That would be the subject of expert discovery, not a

corporate deposition under Rule 30(b((6).
All of the other issues raised and the arguments made in the
plaintiffs’

reply

memorandum

and

memorandum have been considered.

the

defendant’s

sur-reply

None warrant a response from the

court or discussion in this ruling.

5

See record document number 31-5, deposition transcript pp.
151-52.
5

Plaintiffs sought an award for attorney’s fees incurred in
connection with its motion.

Under Rule 37(a)(5)(B), if a motion

for discovery is denied, the court must, after affording an
opportunity to be heard, require the moving party or the attorney
filing the motion to pay the opposing party’s reasonable expenses
incurred in opposing the motion unless the motion was substantially
justified or other circumstances make an award of expenses unjust.
Plaintiff’s

motion

was

not

substantially

justified

circumstances make an award of expenses unjust.

and

no

Defendant did not

submit anything to support an award of a particular amount of
expenses.

Consideration of the defendant’s memoranda support

finding that the amount of $450 is reasonable.
Accordingly, the Plaintiffs’ Motion to Compel Defendant’s
30(b)(6) Corporate Deposition and for Sanctions, Attorney Fees, and
Costs is denied. Pursuant to Rule 37(a)(5)(B), the plaintiff shall
pay to the defendant within 14 days its reasonable expenses in the
amount of $450.
Baton Rouge, Louisiana, September 16, 2013.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

6