Mayberry v. Wal-Mart Stores Inc et al

Filing 44

MEMORANDUM RULING and ORDER: For the reasons recited herein, the plaintiff's 26 Motion to Compel Additional 30(b)(6) Testimony of Wal-Mart Stores Inc and Wal-Mart Louisiana L L C is GRANTED. The defendants' related 29 Motion for Protec tive Order is DENIED, to the extent it is inconsistent with this Ruling. Based on the foregoing, IT IS HEREBY ORDERED Defendants' shall notify the plaintiff and the Court within 5 days whether the supplemental 30(b)(6) deposition will take place in Bentonville, Arkansas, or whether Defendants representative(s) will appear in Louisiana. While this court cannot order that the supplemental deposition take place in Opelousas, Louisiana, any travel costs incurred by plaintiff's counsel for completion of the deposition will be borne by defendant. Upon agreement regarding the location, the deposition should be completed without further delay. Signed by Magistrate Judge Patrick J Hanna on 1/29/2015. (crt,Putch, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
NEDA MAYBERRY

CIVIL ACTION NO. 14-CV-478

VERSUS

JUDGE HAIK

WAL-MART LOUISIANA, LLC
WAL-MART STORES, INC.

MAGISTRATE JUDGE HANNA

Memorandum Ruling and Order
Before the Court is the plaintiff’s motion to compel additional 30(b)(6)
testimony of Wal-Mart Stores, Inc. and Wal-Mart Louisiana, LLC [Rec. Doc. 26],
and the defendant’s motion for protective order [Rec. Doc. 29]. Both motions are
opposed. Oral argument was heard on the motions on January 27, 2015. For the
following reasons, the motion to compel is granted, and the motion for protective
order is denied to the extent it is inconsistent with the instant ruling on the motion
to compel.
Factual Background and Procedural History:
Plaintiff Nedra Mayberry has alleged she was seriously injured when she
slipped in a liquid substance on the floor of the Opelousas Wal-Mart store on
August 10, 2013. The incident was captured on Wal-Mart surveillance video in
the store. The parties have had ongoing disputes regarding discovery issues,
including whether the plaintiff could discover the contents of the defendant’s post-

accident claim file and Rule 37(e) issues related to surveillance video of
Plaintiff’s fall and the conclusions drawn by the parties from review of same.
Spoilation claims have been articulated by the plaintiff. At the request of the
parties, a Rule 16 conference was held on July 10, 2014, and the parties presented
some of those issues for consideration by the undersigned, although no formal
discovery motion was before the court at the time. It was agreed during the
conference that Defendants would provide a privilege log compliant with the
federal rules, from which the parties could resolve, or at least narrow their dispute
as to what is considered properly privileged by the defendants. Also at issue was
the adequacy of production by Defendants of surveillance video in the area of the
incident for the time period beyond one hour before and after the alleged fall, with
Defendants asserting that video beyond that time window had been overridden as
part of a policy of the defendants. During the conference, the undersigned noted
that “[g]iven the potential for spoliation, the plaintiff is entitled to discovery
whether the loss of the surveillance evidence was part of the ‘routine good-faith
operation of an electronic information system’ as set forth in Rule 37(e). [Rec.
Doc. 19, p. 2]. A final issue discussed led to the court’s instruction that the
plaintiff is entitled to know the factual basis for Defendants’ representation that

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the substance on the floor was placed there by an unidentified Wal-Mart customer,
which disclosure had been the subject of objection by Wal-Mart.
As of the Rule 16 conference date, the parties continued to work on
confection of a Rule 30(b)(6) deposition notice to complete appropriate discovery
from the corporate defendant. On June 18, 2014, a proposed 30(b)(6) deposition
notice was sent by Plaintiff to Defendants; after some negotiations between the
parties, a final revised notice was sent on August 27, 2014. The 30(b)(6)
corporate deposition was set for October 7, 2014.
Appearing at the deposition as the corporate representative of the
defendants was Joshua Anderson, an assistant store manager at the Opelousas
Wal-Mart store. In the course of his deposition, Anderson confirmed his
understanding that he was appearing as a corporate representative and that his
answers would bind the corporation. He confirmed that he had read the deposition
notice and could testify on the issues presented in the notice, including company
policies and procedures. Later in the course of the deposition, Anderson qualified
his earlier responses to say that he did not know the answers to half of the
questions asked of him, and on the instruction of his attorney, Anderson refused to
respond to questions described by the attorney in objections to be beyond the
scope of the deposition notice. Despite the parties’ efforts to resolve their
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discovery issues in a Rule 37.1 conference, they have been unable to agree on a
resolution to the plaintiff-perceived deficiencies in Anderson’s testimony as a
corporate representative. This motion to compel followed, wherein Plaintiff has
asserted that Anderson was ill-prepared to serve as a corporate representative in
response to the negotiated 30(b)(6)deposition notice, and he unreasonably could
not or would not respond to questions asked of him within the scope of the
deposition notice, either because he did not know the answers to the questions
asked, or on instructions from his attorney that he not provide answers for reasons
unrelated to the assertion of privilege.
In the motion, Plaintiff identified eighteen categories of information about
which Defendants’ discovery responses, including Anderson’s 30(b)(6) testimony
were considered to be deficient, and Plaintiff now seeks the opportunity to
complete and supplement the 30(b)(6) deposition of Defendants. Essentially the
plaintiff complains that Wal-Mart’s corporate representative designee Anderson
limited his deposition answers to his own personal knowledge, which was itself
minimal, and he was not properly prepared for the deposition as required by the
Federal Rules. Plaintiff seeks relief under Rule 37(a), including requiring WalMart to re-designate its corporate representative witness and mandating that the
witness be properly prepared for re-deposition within a reasonable time. Finally,
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Plaintiff seeks to have the supplemental deposition take place in Opelousas,
Louisiana at the office of Plaintiff’s counsel.
In response to the motion to compel, and in a related Motion for Protective
Order [Rec. Doc. 29] Wal-Mart has asserted that the information sought by
Plaintiff is privileged or attorney work-product, was already previously produced
in discovery, and/or is available to Plaintiff through depositions of the individuals
involved in the investigation of the accident at issue. Wal-Mart also objects to
production of recorded statements other than Plaintiff’s taken during the
investigation. Additionally, Wal-Mart has argued that it cannot produce a witness
to testify regarding the claims investigation conducted by the third party Claims
Management Inc.(CMI). Finally, per Wal-Mart, only personnel at Wal-Mart’s
Bentonville, Arkansas location would have knowledge of Wal-Mart’s video
preservation policies and how they came to be promulgated.
Applicable Law and Discussion:
The Court begins by noting that “[p]arties may obtain discovery regarding
any nonprivileged matter that is relevant to any party’s claim or defense–including
the existence, description, nature, custody, condition, and location of any
documents or other tangible things and the identity and location of persons who
know of any discoverable matter.” Fed. R. Civ. P. 26(b)(1). On careful review of
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the deposition notice at issue in this matter, it is the finding of the undersigned that
the information requested in the 30(b)(6) deposition notice-both the listing of
topics for discussion and the documents requested for production in connection
with the deposition-are reasonably calculated to lead to discovery of admissible
evidence as is required by Fed. R. Civ. P. 26(b)(1).
Fed. R. Civ. P. 30(b)(6) allows a party to notice the deposition of a
corporation, partnership, association, governmental agency, or other entity and to
specify with reasonably particularity the areas of inquiry to be pursued. The
named organization must then designate one or more representatives to testify as
to the areas of inquiry. The person designated as a corporation’s representative at
a 30(b)(6) deposition must “testify about information known or reasonably
available to the organization.” Fed. R. Civ. P. 30(b)(6). The company has a duty
to make a conscientious, good-faith effort to designate a knowledgeable
representative. See Brazos River Authority v. GE Ionics, Inc., 469 F.3d 416, 433
(5th Cir. 2006) (emphasis added). Regardless who is selected to serve as
corporate representative, his testimony will be admissible against the organization,
and the organization must prepare the representative to testify as to the
corporation’s collective knowledge and information. This may necessitate some
gathering and review of documents and interviews of witnesses to prepare the
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representative to give testimony for the organization. The testimony by a
corporate representative is not limited to facts, but can include subjective beliefs
and opinions held by the entity. Brazos River Authority v. GE Ionics, Inc., 469
F.3d 416, 433(5th Cir. 2006). See also Resolution Trust Corp. v. S. Union, 985
F.2d 196, 197(5th Cir. 1993)(“When a corporation or association designates a
person to testify on its behalf, the corporation appears vicariously through that
agent.”).
The information sought by Plaintiff and at issue in the motion includes
requests for (1) any and all information about the subject incident; (2) information
as to the identity of individuals who worked at the Opelousas Wal-Mart store on
the accident date and/or were assigned to work in the vicinity of the accident, and
the managers on duty at the time of the accident; (3) information regarding WalMart’s investigation of the accident and the outcome of the investigation; (4) WalMart’s surveillance system, the location of cameras, maintenance and
policies/procedures regarding retention of surveillance footage and incident
documentation. Plaintiff has asserted that spoilation issues presented in the case
make discovery of the Wal-Mart surveillance retention policy a critical and
relevant inquiry.

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Having reviewed the detailed corporate deposition notice at issue as well as
the complete transcript of the 30(b)(6) deposition of Wal-Mart corporate
representative Joshua Anderson, it is clear to this court that Mr. Anderson was illprepared for the 30(b)(6) deposition at which he appeared and gave testimony. He
did not witness or investigate the accident at issue; he had not spoken to witnesses
to the incident, and he had not viewed the surveillance video of the accident nor
did he know which Wal-Mart personnel had viewed the video. He could not say
who was working at the store on the accident date, or even whether he was on
duty. For those reasons he could not respond to questions about Wal-Mart’s
position that an unidentified third person caused the spill alleged to have caused
Plaintiff’s injury. In response to other questions, Anderson was instructed not to
answer questions about security sweeps done in the accident area.
On numerous occasions during the deposition, Anderson refused to respond
to questions asked of him on the instruction from defense counsel that the
questions went beyond the scope of the deposition notice. Those objections were
improper. It is well-settled that the only proper grounds for an attorney instruction
to a witness that he should not respond to a deposition question is when necessary
to preserve a privilege, to enforce a limitation ordered by the court, or to present a
motion under Rule 30(d)(3) to terminate or limit the deposition. Fed. R. Civ. P.
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30(c)(2). The only ground for the motion to limit or terminate the deposition is
that it is being conducted in bad faith or in a manner that unreasonably annoys,
embarrasses, or oppresses the deponent or party. Fed. R. Civ. P. 30(d)(3). No such
motion has been presented in the instant case, and on review of the entire
deposition, the court finds no basis for such a motion. At oral argument, WalMart argued that some of the inquiries made at the deposition and documents
sought for production had already be produced in written discovery
answers/responses. That argument is particularly unavailing in this case, since
Wal-Mart has not properly verified its written discovery responses as required by
Rule 331 , and the plaintiff is not required to accept an unverified discovery
response. She has a right to ‘bind’ the company to its representative’s answers to
legitimate questions.
For the reasons recited herein, the plaintiff’s Motion to Compel Additional
30(b)(6) Testimony of Wal-Mart Stores, Inc. and Wal-Mart Louisiana, LLC [Rec.
Doc. 26] is GRANTED. The defendants’ related Motion for Protective Order
[Rec. Doc. 29] is DENIED, to the extent it is inconsistent with this Ruling. Based
on the foregoing,

1

Fed. R. Civ. P. 33(b) provides that each interrogatory must, to the extent it is not objected
to, be answered separately and fully in writng under oath. ...The person who makes the answers must
sign them, and the attorney who objects must sign any objections.
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IT IS HEREBY ORDERED that Defendants’ shall notify the plaintiff and
the Court within five days whether the supplemental 30(b)(6) deposition will take
place in Bentonville, Arkansas, or whether Defendants’ representative(s) will
appear in Louisiana. While this court cannot order that the supplemental
deposition take place in Opelousas, Louisiana as requested by the plaintiff, any
travel costs incurred by plaintiff’s counsel for completion of the 30(b)(6)
deposition of Wal-Mart will be borne by the defendant. Upon agreement regarding
the location of the supplemental 30(b)(6) deposition, the deposition should be
completed without further delay.
Signed at Lafayette, Louisiana this 29th day of January, 2015.

___________________________________
Patrick J. Hanna
United States Magistrate Judge.

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