Green et al v. Wing Enterprises, Inc. et al

Filing 41

MEMORANDUM OPINION. Signed by Magistrate Judge J. Mark Coulson on 2/5/2015. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CHRISTOPHER GREEN, et ux.,
Plaintiffs,

:
:

v.

:

WING ENTERPRISES, INC., et al.

:

Defendants.

Case No. 1:14-CV-01913- RDB

:
MEMORANDUM OPINION

This is a products liability case alleging that Wing Enterprises, Inc. (“the Company”),
manufactured the Little Giant ladder in a way that rendered it a defective and unreasonably
dangerous product which amputated Plaintiff Christopher Green’s (“Mr. Green”) thumb as he
was properly using it in a reasonably foreseeable way. (ECF No. 1 at 2). Judge Bennett referred
the case to me for resolution of all discovery1 disputes. (ECF No. 17). This Memorandum
Opinion addresses Plaintiffs’ Motion to Strike Defendant Wing’s Purported Changes to His
Deposition Testimony (ECF No. 26), Defendants’ Opposition and Cross-Motion to Strike
Questions (ECF No. 33), Plaintiffs’ Reply and Opposition (ECF No. 34) and Defendants’ Reply
(ECF No. 35). Pursuant to Local Rule 105.6 (D. Md. 2014), I find that no hearing is necessary.
For the following reasons Plaintiffs’ Motion to Strike is GRANTED IN PART and Defendants’
Cross-Motion to Strike Questions is DENIED to the extent that it seeks to strike deposition
testimony in its entirety but GRANTED IN PART as to finding certain testimony non-binding on
the Company.

1

In their Reply, Defendants suggest that the pending Motions are not “discovery motions” and thus the “Rules
relating to discovery motions are not applicable.” (ECF No. 35 at 1). Presumably this refers to our Local Rules
governing discovery disputes. In any event, given that the instant motions address the deposition process, it is my
belief that the nature of the motions and the relief sought do fall within the scope of disputes referred to me. See e.g.
Wyeth v. Lupin Ltd., 252 F.R.D. 295 (2008). Of course, should the parties object to my findings they will have an
opportunity to seek review of this Memorandum Opinion pursuant to Local Rule 301.5 (D. Md. 2014).

I.

FACTUAL AND PROCEDURAL HISTORY
As stated above, this is a product liability case involving an alleged defect in the

Company’s Little Giant ladder. Specifically, Plaintiffs claim that while Mr. Green was standing
on the ladder, “it suddenly and unexpectedly wobbled, causing him to lose his balance and start
to fall” and that while he was not injured by the fall itself, “as he fell his left thumb became
lodged in a designed, unguarded pinch point between the rails of the Ladder, and was forcibly
ripped from his hand.” (ECF No. 1 at 3). On September 30, 2014, pursuant to a notice issued
under Federal Rule of Civil Procedure 30(b)(6), Plaintiffs took the videotaped deposition of the
Company’s corporate designee, Mr. Harold Arthur Wing (“Mr. Wing”). At the conclusion of the
deposition, Mr. Wing elected to read and sign. On November 10, 2014 2, Mr. Wing submitted an
errata sheet that purported to correct, clarify or simply change his answers to 38 different
questions. Upon review of the errata sheet, Plaintiffs advised defense counsel that, in their view,
seven of the changes “dramatically changes his sworn testimony to that which he and his might
wish he had said” and thus would not be accepted. (ECF No. 26-1). Despite efforts to resolve
this dispute among themselves, the Parties were unable to do so. Accordingly, Plaintiffs filed the
instant Motion to Strike Defendant Wing’s Purported Changes to His Deposition Testimony
(ECF NO. 26-1) and requested that the seven identified changes be stricken. In their opposition,
Defendants cross-motioned for an order striking “all questions and answers outside the scope of
the [topics identified in the Notice to take Mr. Wing’s deposition].” (ECF No. 33 at 15).
Interestingly, this request sought to strike the seven answers that are the subject of Plaintiffs’
Motion in addition to nine additional questions and answers to which Mr. Wing had already
submitted changes via his errata sheet that have not been objected to by Plaintiffs.

2

While Plaintiffs initially objected to the timeliness of the submission of Mr. Wing’s errata sheet, they have since
withdrawn that objection. (ECF No. 34 at 4).

2

II.

LEGAL ANALYSIS
A.

Changes that materially alter and/or contradict Mr. Wing’s deposition
testimony will be stricken.

Federal Rule of Civil Procedure 30 permits a deponent to review his or her deposition
transcript and “if there are changes in form or substance, to sign a statement listing the changes
and the reasons for making them.” Fed.R.Civ.P. 30(e)(1). While it is clear that courts are split
as to the meaning and scope of substantive changes contemplated by the Rule, the growing
minority (which has been recognized and applied in this Court) do impose some limitations on
the extent to which a deponent can substantively change his or her testimony. See Wyeth v.
Lupin Ltd., 252 F.R.D. 295 (2008); see also Harden v. Wicomico County, 263 F.R.D. 304 (2009).
This line of reasoning interprets the rule as foreclosing changes that materially alter the
testimony or contradict the testimony. Wyeth, 252 F.R.D. at 296. In this regard, where the
proposed changes do not correct misstatements or clarify existing answers but instead materially
change the answers or fully supplant them, such changes will be stricken and the deponent will
be barred from utilizing the revised testimony at trial. See id. at 297. Specifically with respect to
this case, in this Court’s opinion, proposed changes that substitute lengthy general discussions
reasserting the purported safety of the product or misuse by Mr. Green for the previous concise
responses by Mr. Wing require particular scrutiny.
Other considerations relevant to determining whether to strike a deponent’s proposed
changes include the adequacy of the reason provided and the prejudice of striking the correction.
See Harden, 263 F.R.D. at 307. Specifically with respect to the reason provided for the changes
it is well established that they cannot be conclusory.

Rather, the reason must provide a

substantive explanation of specifically what led him to change his answer. Id. Finally, it is
important to consider the prejudice caused by denying a deponents attempt to modify his answer.
3

Id. at 309. In this regard, where a timely objection was noted to the question itself (which would
permit the deponent to move to exclude his answer if it is shown to be substantively
inadmissible) or where the opportunity exists for the deponent to offer an explanation at trial to
mitigate the effects of his answer, there is arguably little to no prejudice in striking the proposed
change. See id.
Based on this reasoning I will examine each of the seven purported changes Plaintiffs
seek to strike and weigh the factors to determine if such relief is appropriate:
Disputed Change No. 1: Page 32 Lines 9-17
Original Testimony
Q. Do you know whether there was a
confidentiality clause in the settlement
agreement?
A. I don’t know for certain, but I would be
disappointed if there wasn’t.
Q. Why would you be disappointed if there
weren’t a confidentiality clause in the
settlement agreement?
A. Because in most good legal work that’s
part of what’s done.

Purported Changes
Q. Do you know whether there was a
confidentiality clause in the settlement
agreement?
A. I don’t know, but I would be
disappointed if there wasn’t.
Q. Why would you be disappointed if there
weren’t a confidentiality clause in the
settlement agreement?
A. Because in most good legal work that’s
part of what’s done. Before we began
working with Risk Retention Services, our
attorneys recommended always using a
confidentiality clause. Since that time, we
rarely use that clause. As it was explained
to me, the settlement agreement with a
confidentiality clause is rarely effective, and
while almost all settlements are made by
insurers (without regard to the fact that the
product was not defective), good
investigation by plaintiff lawyers will find
out that there was a settlement. A
confidentiality clause can therefore cause
more harm than good and is rarely
employed. I do not know if the Opshinsky
release had a confidentiality clause.
Reason Provided
Settlements are unusual, and I was recalling the period of time from 2003. The issue was not
included in the topics to be discussed by the witness appearing on behalf of the corporation. We
had limited, without objection, the responses to discovery to the summons, complaint, or first
4

written notice from any claimant alleging that any body part got stuck between the inner and
outer of the rung, but I did not pull and look at each file in more depth.
Preliminarily, there is an inherent logical problem with the proposed changes. Mr. Wing seeks to
strike his testimony that he “would be disappointed if there wasn’t [a confidentiality clause in the
settlement agreement].” However, without that response, the follow up question as to why he
would be disappointed cannot logically flow.

As to the additional testimony—to replace Mr.

Wing’s explanation “[b]ecause in most good legal work that’s part of what’s done”—that
language obviously contradicts or materially changes the testimony. Specifically, the proposed
testimony changes the answer from suggesting that Mr. Wing assumes that if the settlement
agreement was a product of “good legal work” it would have contained a confidentiality clause
to the exact opposite position (i.e. that since working with Risk Retention Services the Company
no longer implements confidentiality clauses because of the belief that they do more harm than
good). The justification for the change, in essence, is that Mr. Wing was incorrect, at least as to
what terms were included in more recent settlement agreements brokered by the Company’s
third-party administrator, Risk Retention Services.

The proposed change completely rewrites

his answer from what it was to what it should have been at least as to more recent settlements.
But correcting this error after the fact as to more recent settlements is insufficient justification for
the detailed substantive change offered here, and Mr. Wing can certainly explain his error on the
stand at trial with a minimum of prejudice. Accordingly, this purported change will be stricken
and the original testimony will remain.
Disputed Change No. 2: Page 68 Lines 9-14
Original Testimony
Q. So basically, if I understand what your line
of thinking is, if it doesn’t happen to enough
people, it’s not an accident hazard?
MR. SLY: Objection to form. You can

Purported Changes
Q. So basically, if I understand what your line
of thinking is, if it doesn’t happen to enough
people, it’s not an accident hazard?
…
5

answer.
A. No. There’s lots of things that can happen
with common products that we live with every
day. I mean, I could slam my hand in a car
door, but we all continue to have car doors on
our doors – on our cars every day. So I’m still
waiting for the hand-proof door to exist.

A. No. There’s lots of things that can happen
with common products that we live with every
day. I mean, I could slam my hand in a car
door, but we all continue to have car doors on
our doors – on our cars every day. So I’m still
waiting for the hand-proof door to exist. In
the case of these ladders, they are designed
to minimize the risk of a person falling.
They have an extra wide base, to add
stability on the top and bottom of the
ladder. One of the biggest causes of ladder
accidents is using the wrong tool. For the
job, and this ladder addresses that issue by
being both a stepladder and a straight
ladder, and by the fact that it goes to
various heights, so the ladder is neither too
short, nor too tall, which can also be a
problem. Our focus is on preventing
injuries. And when used according to
instructions, we believe that it is the safest
ladder on the market. This does not prevent
a person from falling from the ladder, in a
hurricane or otherwise, and if they fall they
can be hurt. Sometimes seriously. But the
ladder is intended as a climbing device, a
fall prevention device. It is not designed or
intended as a fall protection device.
Reason Provided

The answer, as given, was incomplete.
The Court concedes that the additional language proposed by the change does not contradict Mr.
Wing’s testimony, but it does significantly supplement it in a way that materially alters it.
Moreover, neither the reason provided nor the text of the change provides an explanation for the
change. The question sought to determine whether Defendants took the position that a particular
number of injuries needed to be seen before considering whether an accident hazard existed. In
this regard, the new answer is not any more responsive than the original analogy that Mr. Wing
provided; general assertions regarding the overall safety of the ladder and the intention of the
design are not relevant to the question which asks whether there is a minimum number of

6

incidents that Defendants consider necessary before considering whether a hazard exists.
Additionally, Defendants are not prejudiced if the change is disallowed as the original answer
does not foreclose or contradict a question on direct at trial aimed at extolling the overall safety
of the ladder. Accordingly, this purported change will be stricken and the original testimony will
remain.
Disputed Change No. 3: Page 72 Lines 13-14
Original Testimony
Purported Changes
Q. Mr. Wing, is there some number of people, Q. Mr. Wing, is there some number of people,
from your perspective, who would have to lose from your perspective, who would have to lose
a digit in that V-shaped area before Wing
a digit in that V-shaped area before Wing
would recognize that as a hazard that needs to
would recognize that as a hazard that needs to
be addressed?
be addressed?
A. We do not have a mathematical equation A. No.
or an algorithm that says when X happens,
we do this.
Reason Provided
From the answer (begged by the question), it appears as if there may be some consideration as to
the number of people who would need to be hurt in order to be sufficient to result in a design
change. Defendant is always improving its product, to make it more user friendly, safer, and
more functional. It is not a question of how many injuries is too many. It is an issue of
addressing the safety and functionality of the climbing tool.
The Court concedes that the proposed change does not contradict or materially alter Mr. Wing’s
testimony. Further, the Court is satisfied with the reason provided as it explains precisely that
Mr. Wing is concerned that his answer could be misconstrued and why such an interpretation
would be wrong. The Court understands Plaintiffs’ position that if Mr. Wing’s testimony did
indeed suggest that there may be some consideration as to the number of people who would need
to be hurt in order to be sufficient to result in a design change, then “it would constitute a
significant admission that Wing cannot simply withdraw.” (ECF No. 26-1 at 10). However, it is
precisely this type of confusion that Defendants are seeking to prevent with the proposed change.

7

In light of the fact that the change doesn’t contradict or materially alter the testimony and instead
clarifies it, the change will be permitted.
Disputed Change No. 4: Page 74 Line 9-16
Original Testimony
Q. So how many people, in your view,
speaking as Wing’s representative, do have to
lose digits in this area before Wing would
consider what would be involved in guarding
that area so it doesn’t happen to someone else?
MR. SLY: Objection to the form. Foundation.
A. I don’t know.

Purported Changes
Q. So how many people, in your view,
speaking as Wing’s representative, do have to
lose digits in this area before Wing would
consider what would be involved in guarding
that area so it doesn’t happen to someone else?
...
A. I don’t know. I cannot answer that
question as phrased. On every ladder, there
are places you can catch yourself when you
fall. And if you do not catch yourself, you
fall all the way to the ground, which can be
at least as bad as getting a body part stuck.
There are spaces between the front and
back section of any extension ladder,
including ours, there are cross braces and
angle braces. These are all necessary for the
strength and stability required for a safe
ladder. The product is reasonably safe,
extraordinarily safe, because it prefects
accidents. It does not make it safe to fall
from a ladder, which by definition, is a bad
thing. Falling from ladders is dangerous,
hazardous, and can lead to serious injuries
or death, whether you get caught in a part
of the ladder or fall all the way to the
ground. Therefore, our focus is on
preventing injuries.
Reason Provided

None.
Preliminarily, Mr. Wing has not provided any explanation for his change, but presumably is
similar to the one offered for the previous change—that the question and the answer as phrased
implies that that Defendants may have a minimum injury threshold. Modifying the answer from
“I don’t know” to, in effect, “I don’t know how to answer that as phrased,” does not wholly
contradict the original answer and does prevent the same confusion that was a concern above.
8

Therefore, the Court will allow the change from “I don’t know” to “I cannot answer that question
as phrased.”

As to the remainder of the proposed new answer however, Defendants offer no

reason why the Court should allow the addition of general discussion touting the ladder’s safety
and the Company’s focus on preventing injuries. Accordingly, this portion of the purported
change will be stricken and the original testimony will remain.
Disputed Change No. 5: Page 96 Lines 3-6
Original Testimony
Q. So you’re telling us you don’t agree that in
order to comply with ANSI standards, ladders
must be designed without accident hazards?
You don’t agree with that?
A. I would say you’d have to drill down and
specifically – we’d have to talk about what
that compromises.

Purported Changes
Q. So you’re telling us you don’t agree that in
order to comply with ANSI standards, ladders
must be designed without accident hazards?
You don’t agree with that?
A. I would say you’d have to drill down and
specifically – we’d have to talk about what
that compromises. The question is loaded.
ANSI has identified the fact that most
ladder accidents occur as a result of user
misuse. Thus, to the extent possible, those
are addressed. Our ladders go further than
ANSI requires, but, for example, a major
cause of ladder accidents is a person overreaching while on a ladder. This can cause
the user to fall. In order to address this,
ANSI has instituted stability requirements
for ladders. The design of the base sections
of our ladders go further. They are even
wider than required, to make them more
stable. However, a user can overcome this
design by reaching even further outside the
ladder rails, and fall. ANSI requires that
the ladder user use the correct sized ladder.
Otherwise he will often, for example, stand
on the top cap of a stepladder, which is very
dangerous indeed. Our ladders are
adjustable in height, so that this danger is
minimized. But at some point, he will still
reach the highest point on the ladder. If he
stands on the top cap, he risks severe injury.
There is always a risk when climbing above
the ground level that the user will lose his
9

balance and fall. What ANSI does, and
what we do above ANSI requirements, is to
try to minimize the risk of such injuries.
Neither ANSI nor Wing Enterprises, Inc.
nor any other ladder manufacturer, can
ever do, is guaranty that the user will not
ever have an accident. Climbing always, in
every instance, involves the risk of falling.
But without ladders, users will use chairs, or
boxes, or something else to reach heights.
What we do, what ANSI does, is try to
minimize the risk of falling. This includes
warnings. This includes instructions. And
this includes making the design such that
the risk of injury is minimize.
Reason Provided
It was clear from the follow-up questions that the plaintiff’s attorney mis-understood previous
responses, and my response to this question, and therefore, I now provide a complete response to
the question.
While Mr. Wing’s proposed change does not contradict his testimony, it does materially change
it. Specifically, the original response merely suggests that Mr. Wing cannot say—without
drilling down on what compromises may result (presumably in product performance)—that to
comply with ANSI standards, ladders must be designed without accident hazards. The proposed
change deletes that answer and replaces it with a long general discussion of misuse, inherent
risks and minimization of risks without relating it directly to the question and original answer.
The answer also does not foreclose or contradict trial testimony encompassing the general
discussion Defendants assert in their modified answer such that there is no prejudice to denying
the change. Accordingly, this purported change will be stricken and the original testimony will
remain.
Disputed Change No. 6: Page 140 Line 20
Original Testimony
Q. Okay. Well, I’m trying to just explore the
factual basis of your assertion about your 40
years of history –

Purported Changes
Q. Okay. Well, I’m trying to just explore the
factual basis of your assertion about your 40
years of history –
10

A. Right
Q. – allows you to come to the assumption or
leads you to the assumption that Mr. Green
was doing something wrong. So you said –
you indicated two issues that apparently arise
from your 40-year history. One is the digit.
That is to say, I guess you’re talking about Mr.
Green’s thumb –
A. Yes.
Q. – that became entrapped in that V-shaped
area?
A. Yes.

A. Right
Q. – allows you to come to the assumption or
leads you to the assumption that Mr. Green
was doing something wrong. So you said –
you indicated two issues that apparently arise
from your 40-year history. One is the digit.
That is to say, I guess you’re talking about Mr.
Green’s thumb –
A. Yes.
Q. – that became entrapped in that V-shaped
area?
A. Yes. Well, you asked two questions, so let
me answer the first one first. The ladder in
question was not defective. As far as I know
the ladder was built to specifications, and
the design is reasonably safe, indeed, safer
than most ladders built. In fact, as I recall
your complaint in this case, you do not
allege a defect that caused the plaintiff to
fall. But your client did fall. Well, if the
ladder did not cause your client to fall, and
your client did fall, then either it was simply
an accident, or he did something wrong. I
was not there, but it is simple logic.

Now, about the thumb, I have not been able
to figure out how the plaintiff got his thumb
stuck. When you lose your grip on the
ladder, my thinking is that you would have
your hands either vertically finger tips up,
trying to grab the ladder (in which case
your thumbs do not come close to entering
the space, or horizontally, in which case the
thumbs are furthest from the space. It is
simply a strange scenario that I have not
figured out. However, I am not saying it did
not happen, it is clear that the accident did
occur. Defendant does not know how it
happened, I do not know how it happened.
Reason Provided
The question was a multiple question, which I was not permitted to answer. Further, trying to
explain that plaintiff’s accident was not one of the topics listed for interrogation of the corporate
representative.

11

Again, while Mr. Wing’s proposed change does not contradict his testimony, it does materially
change it to the extent it inserts a general discussion of the ladder’s safety and lack of defect. A
review of the deposition testimony from pages 138 through 141 reveals that only one question
was asked and that question related to Mr. Wing’s assumption that Mr. Green improperly used
the ladder because it was his thumb that was injured in the fall.

(ECF No. 26-3 at 36).

Therefore, the first paragraph of Mr. Wing’s change (relating to whether the ladder was
defective) is a material change not supported by the reason provided.

As to the second

paragraph, that change does not contradict the original response of “yes” but does offer further
clarification as to why Mr. Wing may assume that Mr. Green did something wrong because his
thumb was injured. While this reason was not stated by Mr. Wing it is evident in the text of the
change and will be permitted for that purpose.
Disputed Change No. 7: Page 146 Line 12
Original Testimony
Q. Okay. So based upon your review of Mr.
Green’s deposition, Mrs. Green’s deposition,
did you seen anything that led you to believe
that Mr. Green was using the ladder in some
improper way?
MR. SLY: Same objection. Asked and
answered multiple times.
A. Other than my opinions, no.

Purported Changes
Q. Okay. So based upon your review of Mr.
Green’s deposition, Mrs. Green’s deposition,
did you seen anything that led you to believe
that Mr. Green was using the ladder in some
improper way?
….
A. Other than my opinions, no. As I think I
said in response to a previous question, the
ladder was set up in the dark. The ladder
was not inspected. The claimant did not say
he dried his feet. More importantly, there is
no defect alleged or testimony of any defect
by either of them, that any defect in the
ladder caused the fall. That is, Mr. Green
did not feel movement in the ladder, or
break in the ladder, causing him to fall. He
just fell.
As I have explained previously, we therefore
know that the ladder did not cause him to
fall. That leaves two logical alternatives.
12

One, Mr. Green did something that caused
him to fall; or two, it was simply an accident
that can occur any time you are above the
ground.
I was not present, I do not know what
happened. And I cannot explain what did
happen – there is not a defect in the product
that caused the plaintiff’s injuries, and there
were no misrepresentations in any QVC
program about the safety of the product.
When used properly, it is the safest ladder
available.
Reason Provided
The question posed was outside the list of topics for interrogation at this deposition.
While Mr. Wing’s proposed change does not contradict his testimony, it does materially change
it by replacing a simple statement that none other than his (previously offered) opinions lead him
to believe that Plaintiff was using the ladder in an improper way with a full description of the
basis for his opinions—which the answer concedes has been explained elsewhere in the
deposition. Further, the reason stated does not provide any explanation for the changes and the
text of the change itself merely suggests that Mr. Wing wanted to provide more support for his
answer. There is also nothing in the original answer that forecloses or contradicts trial testimony
along the lines offered in the revised answer if, as suggested in Defense counsel’s objection,
these reasons were offered previously in the deposition such that no prejudice will result from
denying the change.

Accordingly, this purported change will be stricken and the original

testimony will remain.
B.

There is no basis to strike any of Mr. Wing’s testimony, however to the
extent that the questioning was outside the scope of the Rule 30(b)(6) Notice
testimony arising therefrom will not bind the Company.

Defendants seek to strike certain questions and answers—that they initially revised via
the errata sheet and some of which Plaintiffs have chosen not to object to—on the ground that
13

the questions went beyond the scope of the deposition notice. 3

(ECF No. 33 at 15). As a

preliminary matter, Defendants have failed to cite and this Court is not aware of any legal
precedent authorizing Defendants to strike the testimony of Mr. Wing. Further, the scope of a
Rule 30(b)(6) deposition has not been directly addressed in the Fourth Circuit. See E.E.O.C. v.
Freeman, 288 F.R.D. 92, 98-99 (2012). It has however been established that a “deponent’s
answers to questions outside the scope of the notice will not bind the organization.” Id. at 99. In
this regard, the proper course to take when a deponent is asked a question outside the scope of
the notice is to “object that the question [is] outside the scope of the 30(b)(6) notice, and state on
the records that the answer would not bind the [organization].” Id. In light of this precedent this
Court takes the position that the scope of the questioning at a Rule 30(b)(6) deposition is
governed by relevancy under Rule 26(b)(1) and not limited to the notice; but to the extent the
questioning is beyond the scope of the notice the testimony will constitute that of the deponent in
an individual capacity and not on behalf of his organization. 4 See e.g. K.S. ex rel. Isserlis v.
Ambassador Programs, Inc., No. CV–08–243–RMP, 2010 WL 1568391, at *2 (E.D.Wash. Apr.
14, 2010) (“[D]istricts in the Ninth Circuit have concluded that once the witness satisfies the
minimum standard for serving as a designated witness, the scope of the deposition is determined
solely by relevance under Rule 26.”) (internal quotation marks omitted); Crawford v. Franklin
Credit Mgmt. Corp., 261 F.R.D. 34, 38 (S.D.N.Y.2009) (“[A] notice of deposition ... constitutes
the minimum, not the maximum, about which a deponent must be prepared to speak.”) (internal
quotations omitted); Cabot Corp. v. Yamulla Enterprises, Inc., 194 F.R.D. 499, 500
(M.D.Pa.2000) (“I do not read Rule 30(b)(6) as carving out a special limitation on the scope of
3

The Court recognizes Plaintiffs’ argument that Defendants’ Motion should be denied for failure to follow the rules
relating to resolving discovery disputes, however, because Defendants’ Motion is collateral to Plaintiffs’ Motion the
Court will not deny it on that basis.
4
The Court recognizes that in this case the distinction may not make much of a difference as Mr. Wing is the
President and majority shareholder of the corporation.

14

discovery defined in Rule 26(b)(1)”); King v. Pratt & Whitney, 161 F.R.D. 475, 476
(S.D.Fla.1995) (“Rule 30(b)(6) does not limit what can be asked at deposition.”).
Defendants filed a Motion to Strike certain questions and respective answers—all of
which Mr. Wing has already changed (or attempted to change) via his errata sheet—which they
believe are beyond the scope of the notice. As stated above, there is no basis to strike the
deposition testimony on the grounds that it was beyond the scope of the notice. Accordingly, the
only issue to be resolved is whether the testimony went so far beyond the scope of the notice that
it should not bind the Company. In this regard it is important to emphasize that the scope of a
Rule 30(b)(6) notice should not be read so narrowly as to prevent the deposing party from
probing and scrutinizing a deponent’s answers. E.E.O.C. v. Freeman, 288 at 99. Upon review of
the disputed testimony this Court makes the following findings:
1.

Page 32 Lines 9-17 asks “[d]o you know whether there was a

confidentiality clause in the settlement agreement?” and “[w]hy would you be disappointed if
there wasn’t?” (ECF No. 26-3 at 9). No objection as to scope was made to the question during
Mr. Wing’s deposition and Mr. Wing did not cite such an objection as a reason for his proposed
change in his errata sheet. (ECF No. 26-5 at 2). Regardless of whether an objection as to scope
was preserved, however, this inquiry falls within the scope of Topic 6, “[c]laims that have been
asserted against Wing Enterprises arising from injuries allegedly arising from use of the type of
ladder or similar ladder… and the disposition of the claim.” (ECF No. 26-2 at 4) (emphasis
added). Accordingly, the deposition testimony will stand and be binding on the Company.
2.

Page 68 Lines 3-14 asks “[s]o basically, if I understand what your line of

thinking is, if it doesn’t happen to enough people, it’s not an accident hazard” (ECF No. 26-3 at
18); Page 72 Lines 8-14 asks “Mr. Wing, is there some number of people, from your

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perspective, who would have to lose a digit in that V-shaped area before Wing would recognize
that as a hazard that needs to be addressed?” (ECF No. 26-3 at 19); and Page 74 Lines 9-16 asks
“[s]o how many people, in your view, speaking as Wing’s representative, do have to lose digits
in this area before Wing would consider what would be involved in guarding that area so it
doesn’t happen to someone else” (ECF No. 26-3 at 20). No objection as to scope was made to
the question during Mr. Wing’s deposition and the reason for the proposed change in his errata
sheet does not refer to the inquiry as being outside the scope of the notice. (ECF No. 26-5 at 78). Regardless of whether an objection as to scope was preserved, however, these inquiries fall
within the scope of Topic 1, “[t]he design of the type of ladder at issue in this case, including all
decisions with respect to alternative designs, and including consideration of the existence and
mitigation of any risks inherent in the design” (ECF No. 26-2 at 3) and Topic 8, “[e]ngineering
consideration given to any alternative design or mitigation of the risk of injury inherent in the
design of the type of ladder, or similar ladder” (ECF No. 26-2 at 4). Moreover, as to the latter
two questions, to the extent Mr. Wing was not prepared to answer them, any prejudice was
corrected by the changes made via Mr. Wing’s errata sheet that this Court permitted above.
Accordingly, the deposition testimony will stand and be binding on the Company.
3.

Page 96 Lines 3-6 asks “[s]o you’re telling us you don’t agree that in

order to comply with ANSI standards, ladders must be designed without accident hazards? You
don’t agree with that?” (ECF No. 26-3 at 25). No objection as to scope was made to the question
during Mr. Wing’s deposition and the reason for the proposed change in his errata sheet does not
refer to inquiry as being outside the scope of the notice. (ECF No. 26-5 at 10). Similarly, Page
63 Lines 4-6 asks “[w]hat are the applicable ANSI tests?” (ECF No. 26-3 at 17). Again no
objection as to scope was made at the deposition, but was the basis for the proposed change to

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Mr. Green’s answer via his errata sheet. (ECF No. 26-5 at 6). Regardless of whether an
objection as to scope was preserved, however, these inquiries fall within the scope of Topics 1
and 8, as cited above. Further, as to the latter questioning, that testimony naturally flowed as a
follow up to previous testimony and to the extent Mr. Wing was not prepared to answer that
question, any prejudice was corrected by the changes Mr. Wing to made to his testimony via the
errata sheet which Plaintiffs have not objected to. Accordingly, the deposition testimony will
stand and be binding on the Company.
4.

Page 140 Lines 9-20 asks “[o]kay. Well, I’m trying to just explore the

factual basis of your assertion that something about your 40 years of history…allows you to
come to the assumption that Mr. Green was doing something wrong…” (ECF No. 26-3 at 36);
and Page 146 Lines 5-12 ask “[o]kay. So based upon your review of Mr. Green’s deposition,
Mrs. Green’s deposition, did you see anything that led you to believe that Mr. Green was using
the ladder in some improper way?” (ECF No. 26-3 at 38). When the line of questioning began
counsel for Mr. Wing objected and explained that he did not believe misuse was within the
topics listed in the notice, but did permit Mr. Wing to respond.

(ECF No 26-3 at 34).

Additionally, the reason stated by Mr. Wing for his proposed change to his testimony in this
regard (some of which is being partially permitted by this Court) included a statement that the
questioning was not within the topics. (ECF No. 26-5 at 15-16). The Court agrees that the
questions were not within the scope of the topics listed and that Mr. Wing’s counsel properly
objected on the record and re-asserted his objection via the errata sheet. Therefore, the testimony
will not be binding on the Company, but rather will be the testimony of Mr. Wing in his personal
capacity.

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5.

Page 14 Lines 6-7 asks “[a]nd how long has Wing been working with

Risk Retention Services?” (ECF No. 26-3 at 5); Page 18 Lines 19-22 through Page 19 Line 1
asks “[s]o when I, as a plaintiff’s lawyer, ask Wing Enterprises for a claims history, you’re
telling me that Wing Enterprises has to ask Risk Retention Services to provide that history?”
(ECF No. 26-3 at 6); and Page 44 Line 22 though Page 45 Lines 1-19 asks “[a]nd Risk
Retention Services would have that deposition…[t]he one in the prior case in Utah…[w]ell,
[Risk Retention Services] came into your office and took everything you had, right?...And they
had no authority to destroy that stuff, did they?... So that would include destroying your
records?” (ECF No. 26-3 at 13). No objection as to scope was made at the deposition, but was
the basis for the proposed changes to Mr. Green’s answer via his errata sheet. (ECF No. 26-5 at
1-3). Regardless of whether an objection as to scope was preserved, however, this inquiry falls
within the scope of Topic 6, “[c]laims that have been asserted against Wing Enterprises arising
from injuries allegedly arising from use of the type of ladder or similar ladder, regardless of
whether the claim resulted in a lawsuit, in which it was alleged that a person was injured as a
result of a problem or defect in the type of ladder or similar ladder, including the date the claim
was asserted, the person asserting the claim, the injury alleged and how it was alleged to have
occurred, whether a lawsuit was filed and if so the full caption of the case and the identity of
plaintiff’s counsel, and the disposition of the claim.” (ECF No. 26-2 at 4). Moreover, to the
extent Mr. Wing was not prepared to answer those questions, any prejudice was corrected by the
changes Mr. Wing made via his errata sheet which Plaintiffs have no objected to. Accordingly,
the deposition testimony will stand and be binding on the Company.
6.

Page 49 Lines 11-17 ask “and someone makes a note of that call [from

Mr. Mielecke making Defendant Green aware that he had lost a digit while using its ladder],

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right?” (ECF No. 26-3 at 14); Page 105 Line 14 asks “[S]o who is Mr. Brent Anderson?” (ECF
No. 26-3 at 28); Page 106 Lines 18-20 ask “[d]o you know that this case was produced by your
counsel?” (ECF No. 26-3 at 28); and Page 107 Lines 4-13 asks “[p]age 2, Paragraph 12 [of Mr.
Anderson’s Complaint alleges] that on October 16, 2007, he was attempting to descend the
ladder when he caught the last two fingers of his left hand in the space between the stabilizing
bar and the ladder step, and the process of trying to remove his fingers, slipped and fell and
amputated his left fourth finger and lacerated other fingers on his left hand. You didn’t know
about this case?” (ECF No. 26-3 at 28). No objection as to scope was made at the deposition,
but was the basis for the proposed changes to Mr. Green’s answer via his errata sheet for all but
the first question. (ECF No. 26-5 at 4, 11-12). Regardless of whether an objection as to scope
was preserved, however, the Court finds that these questions fall within the scope of Topic 6 as
quoted above and to some extent, Topic 5, “[i]njuries of which Wing Enterprises received or
obtained notice, allegedly resulting from a user becoming caught or entangled in the v-shaped
area between the ladder’s rails in the type of ladder at issue in this case, or similar ladders” (ECF
No. 26-2 at 3). Further, to the extent that Mr. Wing was not prepared to answer those questions,
any prejudice has been resolved by the changes Mr. Wing made to his testimony via his errata
sheet which Plaintiffs have not objected to. Accordingly, the deposition testimony will stand and
be binding on the Company.
7.

Page 114 Lines 2-5 asks “[a]s I understand it, Wing sold this ladder to

QVC for about $129 a unit is that right?... Do you know that?” (ECF No. 26-3 at 30). No
objection as to scope was made at the deposition, but was the basis for the proposed change to
Mr. Green’s answer via his errata sheet. (ECF No. 26-5 at 13). Regardless of whether an
objection as to scope was preserved, however, the Court finds that this question falls within

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Topic 19, “[a]ll documents related to the sale of the particular ladder at issue in this case.” (ECF
No. 26-2 at 5). Further, to the extent that Mr. Wing was not prepared to answer that question,
any prejudice has been resolved by the changes Mr. Wing made to his testimony via his errata
sheet which Plaintiffs have not objected to. Accordingly, the deposition testimony will stand and
be binding on the Company.
III.

CONCLUSION
For the foregoing reasons Plaintiffs’ Motion to Strike Defendant Wing’s Purported

Changes to His Deposition Testimony is GRANTED as to Disputed Changes Nos. 1, 2, 5, and 7;
GRANTED IN PART as to Disputed Change Nos. 4 and 6 and DENIED as to Disputed Change
No. 3. It is further held that Defendants’ Cross-Motion to Strike Questions is DENIED with the
exception that Mr. Wing’s testimony at Page 140, Line 20 (partly as modified by the errata sheet)
and Page 146, Line 12 will not be binding on the Company.

February 5, 2015
Date

/s/
J. Mark Coulson
United States Magistrate Judge

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