Lewis v. Gautreaux et al

Filing 161

ORDER : Plaintiffs 114 Second Motion to Compel Against The City of Baton Rouge/ Parish of East Baton Rouge is GRANTED IN PART and DENIED IN PART. Plaintiff is entitled to an award of the reasonable attorneys fees and costs incurred by attending Dar ryl Gissels deposition and that the City-Parish shall be responsible for such payment. ORDERED that the City-Parish must prepare and present John Price, or another appropriate representative, for a third Rule 30(b)(6) deposition on all four topics described in the body of this order. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 08/09/2018. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

ADRIENNE LEWIS

CIVIL ACTION

VERSUS

NO. 16-352-JWD-RLB

EAST BATON ROUGE PARISH, ET AL.

ORDER
Before the Court is Plaintiff’s Second Motion to Compel Against The City of Baton
Rouge/ Parish of East Baton Rouge (R. Doc. 114) filed on June 5, 2018. The motion is opposed.
(R. Doc. 150). Plaintiff filed a Reply. (R. Doc. 156).
I.

Background
Adrienne Lewis, by and on behalf of the minor child L.A.J. (“Plaintiff”), filed this civil

rights action regarding the arrest, incarceration, and death of Lamar Johnson while held at the
East Baton Rouge Parish Prison (“EBRPP”). (R. Doc. 1; R. Doc. 27).
On February 28, 2018, Plaintiff noticed the Rule 30(b)(6) deposition of the City-Parish to
cover six topics. (R. Doc. 114-2). On March 21, 2018, the City-Parish designated Darryl Gissel
as its Rule 30(b)(6) representative to testify on Topics 4, 5, and 6 on the Notice. (R. Doc. 114-3).
At the commencement of the deposition, defense counsel stated that Mr. Gissel was “brand new
[to the] administration, and he is probably not going to know much of anything.” (R. Doc. 114-3
at 4). As predicted by his own counsel, Mr. Gissel was unable to meaningfully answer any
questions on Topics 4, 5, and 6 of the Notice. (R. Doc. 114-3 at 6-10). There is no dispute that
Mr. Gissel’s testimony was insufficient.1

In its opposition, the City-Parish stated that it was “as surprised and disappointed as plaintiff in Mr. Gissel’s
testimony.” (R. Doc. 150 at 11). Given that defense counsel opened the deposition by stating that Mr. Gissel would
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On March 26, 2018, Plaintiff noticed a second Rule 30(b)(6) deposition of the CityParish to cover an additional topic. (R. Doc. 114-4). On April 25 2018, the City-Parish
designated Rintha Simpson, the interim Prison Health Care Manager from September 2015
through April 2016, as its Rule 30(b)(6) representative to testify on this topic. (R. Doc. 114-5; R.
Doc. 114-6; R. Doc. 114-7; R. Doc. 114-8; R. Doc. 114-9; R. Doc. 114-10). At the
commencement of the deposition, defense counsel stated that Linda Ottesen, the Prison Health
Care Manager from November 2008 through August 2015, was retired and unable to be located,
acknowledging that “to a certain extent, whatever [Ms. Simpson] says is going to be speculative
or may not be the true gospel. . . .” (R. Doc. 114-5 at 5-6). Plaintiff argues that Ms. Simpson’s
testimony was also insufficient, and that she did not review certain materials and interview
certain individuals prior to the deposition. (R. Doc. 114-1 at 3-4). The City-Parish disputes that
Ms. Simpson’s testimony was inadequate. (R. Doc. 114-1 at 11-12).
On April 27, 2018, Plaintiff’s counsel sent an email to defense counsel stating that the
Rule 30(b)(6) depositions were insufficient, and requested the City-Parish to provide substitute
representatives to avoid the need for Plaintiff to seek relief from the Court. (R. Doc. 114-12 at 2).
On May 16, 2018, defense counsel stated that he was prepared to have John Price appear
as a supplemental Rule 30(b)(6) representative to testify on the matters for which Mr. Gissel was
originally designated. (R. Doc. 114-12 at 16).
On May 31, 2018, Plaintiff’s counsel responded by proposing that the City-Parish
designate Ms. Ottesen, Mr. Price, and William Daniel as its Rule 30(b)(6) designees. (R. Doc.
114-12 at 15). The same day, defense counsel indicated that he would consider Mr. Daniel, that

probably not “know much of anything” on the topics for which he was designated to testify as a Rule 30(b)(6)
representative, it is unclear how the City-Parish or defense counsel would have been surprised by Mr. Gissel’s
performance.

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he was unable to contact Ms. Ottesen as he was unaware of her physical location, and that Mr.
Price would have “[a]ccess to the council minutes that will help him get ready” for a Rule
30(b)(6) deposition. (R. Doc. 114-12 at 15).
On June 5, 2018, Plaintiff filed the instant Motion. (R. Doc. 114). Plaintiff seeks
sanctions on the basis that the City-Parish has failed to designate and prepare proper Rule
30(b)(6) representatives to testify on the following four topics:
1. For the periods of 2015, 2014, 2013, and 2012: Provision of health care services,
including mental health care, at the East Baton Rouge Parish Prison (“EBRPP”),
including but not limited to, funding, recruiting, hiring, and supervision of health care
staff at EBRPP, and the process and who is responsible for negotiating contracts,
interagency agreements, or other formal and informal agreements to provide health
care services at EBRPP. Please be prepared to discuss any changes implemented
since 2015.
2. For the periods of 2015, 2014, and 2013: Loop Capitol, Health Management
Associates (HMA): what was the decision-making process to hire them, what factors
were considered, who participated in the studies, what actions were taken in response
to their reports, and what documents were created or reviewed by individuals
associated with the City/Parish.
3. For the periods of 2015, 2014, and 2013: Grand jury inspections of EBRPP:
Whether and when any have been done, who decides whether they are done, and what
happens after an inspection;
4. For the periods of 2015, 2014, and 2013: New jail: Efforts made by city/parish
officials to pass tax/bond measures to construct a new jail.

(R. Doc. 114-1 at 1-2). Among other things, Plaintiff argues that the City-Parish abdicated its
Rule 30(b)(6) responsibilities by not preparing the deponents with readily accessible materials or
by interviewing former city officials, and that sanctions should be awarded up to and including
an order precluding the City-Parish from defending the action on the foregoing topics. (R. Doc.
114-1 at 9-17).
In opposition, the City-Parish represents that various individuals deposed in their
individual capacities have offered testimony on the foregoing topics, and provided certain

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representations regarding “the collective knowledge” of the City-Parish. (R. Doc. 150 at 2-10).
The City-Parish “admits that Mr. Gissel’s deposition was wanting” and suggests that “John Price
is available” to be deposed as stated in defense counsel’s e-mails. (R. Doc. 150 at 11-12). The
City-Parish further argues that Plaintiff has not complied with Rule 37(a)(1) by failing to meet
and confer prior to filing the instant motion. (R. Doc. 150 at 13). Finally, the City-Parish
represents that it is unable to locate Ms. Ottesen and that Ms. Simpson’s deposition was mostly
adequate. (R. Doc. 150 at 14-15).
On August 1, 2018, the Court held oral argument on the instant motion, as well as other
related discovery motions, and suspended all discovery deadlines in this action. (R. Doc. 157).
At oral argument, defense counsel represented that Mr. Price would be prepared to provide
testimony as a Rule 30(b)(6) representative on all four topics at issue in this motion.
II.

Law and Analysis
Rule 30(b)(6) governs deposition notices directed to organizations. In the deposition

notice, the party “must describe with reasonable particularity the matters for examination.” Fed.
R. Civ. P. 30(b)(6). In response, the organization must designate an agent or other person to
testify on its behalf “about information known or reasonably available to the organization.” Id.
“The duty to present and prepare a Rule 30(b)(6) designee goes beyond matters personally
known to that designee or to matters in which that designee was personally involved. The
deponent must prepare the designee to the extent matters are reasonably available, whether from
documents, past employees, or other sources.” Brazos River Auth. v. GE Ionics, Inc., 469 F.3d
416, 433 (5th Cir. 2006).
Rule 37(d) provides that the Court may “order sanctions if . . . a person designated under
Rule 30(b)(6) . . . fails, after being served with proper notice, to appear for that person’s

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deposition.” Fed. R. Civ. P. 37(d)(1)(A)(i). “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.” Fed. R. Civ. P. 37(d)(3). The Fifth
Circuit has held Rule 37(d) sanctions are available where a designated Rule 30(b)(6)
representative “is not knowledgeable about relevant facts, and the principal has failed to
designate an available, knowledgeable, and readily identifiable witness,” because under such
circumstances, “the appearance is, for all practical purposes, no appearance at all.’” Resolution
Tr. Corp. v. S. Union Co., 985 F.2d 196, 197 (5th Cir. 1993) (district court did not abuse its
discretion in awarding fees and costs under Rule 37(d)).
Rule 30(g) similarly provides that “[a] party who, expecting a deposition to be taken,
attends in person or by an attorney may recover reasonable expenses for attending, including
attorney's fees, if the noticing party failed to . . . attend and proceed with the deposition.” Fed. R.
Civ. P. 30(g)(1); see also Fed. R. Civ. P. 30(d)(2) (“The court may impose an appropriate
sanction—including the reasonable expenses and attorney’s fees incurred by any party—on a
person who impedes, delays, or frustrates the fair examination of the deponent.”). An award of
fees and expenses under Rule 30(g) may be appropriate even where the deponent was physically
present at a deposition. See Greenwood v. Dittmer, 776 F.2d 785, 790 (8th Cir. 1985).
Given the record, there is no dispute that Mr. Gissel was unprepared and/or unable to
provide competent testimony on the three topics on which he was designated to testify as a Rule
30(b)(6) representative of the City-Parish. Accordingly, the Court will award sanctions pursuant
to Rule 37(d), as recognized as permissible by the Fifth Circuit, but will limit those sanctions to

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the sanctions delineated in Rule 30(g), namely Plaintiff’s reasonable expenses, including
attorney’s fees, incurred by attending Mr. Gissel’s deposition. The Court will leave it to the
parties to determine the amount of appropriate expenses, unless court intervention is required to
fix such expenses. See, e.g., Liberty Mut. Fire Ins. Co. v. Ford Motor Co., No. 15-5987, 2017
WL 67524, at *1 (E.D. La. Jan. 6, 2017) (granting motion to fix attorney’s fees and costs
awarded pursuant to Rule 30(g)(1)).
The Court will not, however, award any sanctions related to the deposition of Ms.
Simpson. Plaintiff has not established that Ms. Simpson’s testimony was so wholly insufficient
as to establish that her deposition should be treated as a non-appearance for the purposes of
awarding sanctions. Furthermore, defense counsel represented at oral argument that Mr. Price
would be prepared to provide testimony as a Rule 30(b)(6) representative on all four topics at
issue in this motion. Accordingly, any insufficiencies with regard to Ms. Simpson’s testimony
on any of the four topics remaining at issue can be addressed at the third Rule 30(b)(6)
deposition involving Mr. Price.
The parties are encouraged to discuss appropriate materials and interviews with former
and current employees (such as those identified in the City-Parish’s opposition) in preparation
for this third Rule 30(b)(6) deposition.
III.

Conclusion
For the foregoing reasons,
IT IS ORDERED that Plaintiff’s Second Motion to Compel Against The City of Baton

Rouge/ Parish of East Baton Rouge (R. Doc. 114) is GRANTED IN PART and DENIED IN
PART.

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IT IS FURTHER ORDERED that Plaintiff is entitled to an award of the reasonable
attorney’s fees and costs incurred by attending Darryl Gissel’s deposition and that the CityParish shall be responsible for such payment. In connection with this award, the parties are to do
the following:
(1) If the parties are able to resolve this among themselves or otherwise agree to a
reasonable amount of attorney’s fees and costs,2 the City-Parish shall pay that
amount;
(2) If the parties do not agree to a resolution, Plaintiff shall, within 14 days of the
docketing of this Order, file a Motion for Fees and Costs pursuant to Rule 37, setting
forth the reasonable amount of costs and attorney’s fees (including evidentiary
support) incurred in obtaining this Order; and
(3) Defendant shall, within 7 days of the filing of Plaintiff’s Motion, file any opposition
pertaining to the imposition of the amounts requested by Plaintiff.
IT IS FURTHER ORDERED that the City-Parish must prepare and present John Price,
or another appropriate representative, for a third Rule 30(b)(6) deposition on all four topics
described in the body of this order. The deposition must take place at a time and place agreed
upon by the parties prior to the close of discovery.
Signed in Baton Rouge, Louisiana, on August 9, 2018.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

2

The Court recognizes that a reasonable award under Rule 37 may be less than the actual fees incurred.

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