Jo Ann Howard and Associates, P.C. et al v. Cassity et al
Filing
1916
MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that Plaintiff's Motion to Re-Depose American Stock Transfer and Trust Company, LLC's Rule 30(b)(6) Witness [ECF No. 1827 ] is GRANTED. Signed by District Judge E. Richard Webber on 11/14/2014. (CBL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JO ANN HOWARD &
ASSOCIATES, P.C., et al.,
Plaintiffs,
vs.
J. DOUGLAS CASSITY, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
Case No. 4:09CV01252 ERW
MEMORANDUM AND ORDER
This matter comes before the court upon “Plaintiff’s Motion to Re-Depose American
Stock Transfer and Trust Company, LLC’s Rule 30(b)(6) Witness” [ECF No. 1827].
In their Motion, Plaintiffs seek to re-depose AST’s Rule 30(b)(6) witness because the
witness provided was unable to answer questions regarding topics identified in the deposition
notice [ECF No. 1827]. Plaintiffs stated the witness, Herbert Lemmer, admitted he did not
contact or obtain information from former key employees who had knowledge of the topics in
preparation for his deposition, nor did he review key documents as required of a 30(b)(6)
witness. Additionally, Plaintiffs claim Mr. Lemmer stated he was not speaking on behalf of
AST. Plaintiffs state they have attempted to schedule a second deposition with a different
individual to no avail.
In their Response, American Stock Transfer and Trust Company state Plaintiffs’ Motion
should be denied because Plaintiffs failed to comply with the case management order by filing its
Motion four months after the discovery deadline [ECF No. 1879]. AST argues Plaintiffs have
not made a showing of exceptional circumstances for the delay. AST asserts the delay prejudices
AST and disregards the case management order. AST contends another deposition would be
futile because their first 30(b)(6) witness, Herbert Lemmer, educated himself on all information
reasonably available to AST and Plaintiffs have failed to explain how another deposition would
provide meaningful information. AST states the additional topics on which Plaintiffs are
requesting testimony are based on groundless theories of liability and are a fishing expedition.
Lastly, if the Court orders a second deposition, AST requests it take place in New York, the
location of AST and the second possible witness, and be for no more than one hour.
In their Reply, Plaintiffs state the topics listed in their 30(b)(6) deposition notice were
proper and listed with reasonable particularity. Additionally, Plaintiffs assert the witness
produced was unprepared. Plaintiffs contend their motion was timely brought because they have
worked for months with AST to resolve the issues and waited until after mediation to file a
motion, upon agreement of defense counsel.
At the hearing, Plaintiffs played several video clips and highlighted various sections of
the deposition of the 30(b)(6) witness showing the severity of the witness’ unpreparedness.
AST’s witness was unable to answer even general questions about the topics listed by Plaintiffs
in their notice. The witness also claimed to not be speaking on behalf of AST. The purpose of a
30(b)(6) witness is for them to testify on behalf of the corporation. Fed. R. Civ. Pro. 30(b)(6).
This is not the first time the Court has been involved in this dispute. The issue first arose
on April 22, 2014, when a telephone conference was held because AST had not named a witness
[ECF No. 1508]. The Court granted AST until April 29, 2014, to designate a witness. A second
telephone conference was held on May 19, 2014, because the witness was unable to be deposed
on the date or at the location listed by Plaintiff in the deposition notice [ECF No. 1550]. The
Court ordered AST’s counsel to encourage the witness to stop in Denver for the deposition. The
third telephone conference was held on May 20, 2014, when AST’s counsel informed the Court
the witness was unable to attend the deposition. The Court ordered Herbert Lemmer to be
deposed on June 5, 2014, in Denver, Colorado.
The Court agrees with Plaintiffs that the first deposition was woefully inadequate. The
Court also finds AST’s arguments there is no witness to be found that can remember the events
to be disingenuous. The Court finds sanctions are appropriate for AST’s failure to comply with
discovery pursuant to FRCP 37(b)(2)(A). AST is prohibited from producing evidence on the
topics the witness was unprepared to answer, and an instruction will be given to the jury that
AST was unable to produce an adequate witness and the jury can assume any testimony that
would have been provided by the witness would have been adverse to AST. The Court may also
require AST to pay all of Plaintiffs’ attorney fees for the first unsuccessful 30(b)(6) deposition
and for attorney fees incurred in bringing this motion. The Court will hold these sanctions in
abeyance for twenty days and orders AST to produce a 30(b)(6) witness for deposition within
those twenty days, or to show cause as to why a witness cannot be produced.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff's Motion to Re-Depose American Stock
Transfer and Trust Company, LLC’s Rule 30(b)(6) Witness [ECF No. 1827] is GRANTED.
So Ordered this 14th Day of November, 2014.
E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?