CitiMortgage, Inc. v. Chicago Bancorp, Inc.

Filing 167

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that Chicago Bancorp must produce a suitably prepared witness, or multiple witnesses, to testify to the topics permitted in my March 21, 2013 order. That witness must appear at the offices of CMI's counsel in St. Louis, Missouri. IT IS FURTHER ORDERED that CMI may file two supplemental briefs: one in opposition to Chicago Bancorp's motion for partial summary judgment and one in support of CMI's motion for summary judgment, after the rescheduled Rule 30(b)(6) deposition takes place. The parties must file a joint report no later than August 12, 2013 informing the court of the date and time of the deposition. IT IS FINALLY ORDERED that Chicago Bancorp must pay CMI's reasonable attorneys' fees and expenses associated with preparing for and taking the April 29, 2013 deposition (including travel expenses) and associated with pursuing the motion for sanctions. ( Status Report due by 8/12/2013.) Signed by District Judge Catherine D. Perry on 07/31/2013. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CITIMORTGAGE, INC.,
Plaintiff,
vs.
CHICAGO BANCORP, INC., et al.,
Defendants.

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Case No. 4:12-CV-00246 CDP

MEMORANDUM AND ORDER
This action is before me on plaintiff CitiMortgage, Inc.‟s motion for sanctions
under Rule 37(b)(2), Fed. R. Civ. P. CMI requests sanctions against defendant
Chicago Bancorp, Inc., for its failure to provide a suitably prepared Rule 30(b)(6)
deposition witness. I find that Chicago Bancorp willfully failed to obey my order
requiring it to produce a witness who could testify about certain topics. Therefore, I
will grant CMI‟s motion in part.
I.

Applicable Federal Rules
Federal Rule of Civil Procedure 30(b)(6)
Rule 30(b)(6) permits a party to notice a corporation or other entity as a

deponent. Such a notice must set forth “with reasonably particularity” the matters
on which the examination is requested. If a party chooses to send a Rule 30(b)(6)
notice, the named entity “must then designate one or more officers, directors, or

managing agents, or designate other persons who consent to testify on its behalf.”
Id. The person or people designated by the entity “must testify about information
known or reasonably available to the organization.” Id. (emphasis added).
As such, a Rule 30(b)(6) deponent “does not give his personal opinion.
Rather, he presents the corporation's position on the topic.” Sprint Comms. Co.,
L.P. v. Theglobe.com, Inc., 236 F.R.D. 524, 527 (D. Kan. 2006). The Rule 30(b)(6)
deposition thus serves a unique function: it is a “sworn corporate admission that is
binding on the corporation.” Buehrle v. City of O’Fallon, 4:11CV509 AGF, 2011
WL 529922, at *3 (E.D. Mo. Feb. 8, 2011) (quoting In re Vitamins Antitrust Litig.,
216 F.R.D. 168, 174 (D.D.C. 2003)); see also Sprint Comms. Co., 236 F.R.D. at
527. A named entity may not take the position that its documents, responses to
interrogatories, or other written discovery already produced is sufficient. See
Buehrle, 2011 WL 529922, at *3 (collecting cases); see also In re Vitamins, 216
F.R.D. at 174 (it “is not up to [a defendant] to determine what discovery [a plaintiff]
needs”).
In Alexander v. FBI, the District of Columbia district court describes four
duties that a designating entity must undertake once noticed of a Rule 30(b)(6)
deposition. 186 F.R.D. 137, 141 (D.D.C. 1998). First, the entity has a duty to
produce a knowledgeable witness. Second, if necessary to respond to the topics
described with reasonably particularity in the notice, the entity must designate more
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than one deponent. Third, the designating entity “has a duty to prepare the witness
to testify on matters not only known by the deponent, but those that should be
reasonably known by the designating party.” Fourth, “the designating party has a
duty to substitute an appropriate deponent when it becomes apparent that the
previous deponent is unable to respond to certain relevant areas of inquiry.” Id.;
FDIC v. Butcher, 116 F.R.D. 196, 199 (E.D. Tenn. 1986) (corporation has duty “to
make a conscientious good-faith endeavor” to choose knowledgeable deponent and
to prepare deponent to “answer fully, completely, unevasively”); see also Resolution
Trust Corp. v. S. Union Co. 985 F.2d 196, 197 (5th Cir. 1993) (appearance by
unknowledgeable deponent “is, for all practical purposes, no appearance at all”).
Federal Rule of Civil Procedure 37(b)(2)
Under Rule 37(b)(2), a court may impose “just” sanctions against a party for
failing to obey a discovery order. Rule 37 sanctions “are an invaluable penalty and
deterrent to be employed by district courts to thwart discovery abuse.” First Am.
State Bank v. Cont’l Ins. Co., 897 F.2d 319, 331 (8th Cir. 1990); see also Comiskey
v. JFTJ Corp., 989F.2d 1007 (8th Cir. 1993) (Rule 37 sanctions “must be applied
diligently” to penalize and deter). Failing to provide a knowledgeable witness in
response to a Rule 30(b)(6) notice is a sanctionable action under Rule 37(b)(2). See,
e.g., Cedar Hill Hardware & Constr. Supply, Inc. v. Ins. Corp. of Hannover, 563
F.3d 329, 345 (8th Cir. 2009).
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II.

Discussion
In this case, CMI sent to Chicago Bancorp a Rule 30(b)(6) resumption of

deposition notice. Chicago Bancorp objected and filed a motion for a protective
order. On March 21, 2013, I granted Chicago Bancorp‟s motion in part, but I also
ordered its 30(b)(6) representative to respond to the remaining contested topics.1
The following month, Chicago Bancorp designated as its Rule 30(b)(6) witness its
founder and president, Stephen Calk.2 CMI deposed Calk on April 29, 2013.
CMI has filed a copy of the deposition transcript, which makes clear that Calk
was utterly unprepared to give testimony on the contested topics. Though Chicago
Bancorp had a duty to designate a knowledgeable Rule 30(b)(6) representative and
to prepare that designee to testify, Calk stated that he had not reviewed the topics he
was required to testify about, had not prepared for the deposition, and did not know
he was supposed to testify on behalf of Chicago Bancorp; in fact, he testified, “I
don‟t know why I‟m here today.”
One of the contested topics involved Chicago Bancorp‟s dissolution. The
portion of Topic 23 that I ordered Chicago Bancorp to respond to was:
If Defendant is dissolved, the dissolution of Defendant, including the
date of dissolution, the reasons for dissolution, when, how, and why
Defendant made the decision to dissolve, . . . any notices of dissolution
given to creditors or potential creditors, and Defendant‟s articles of
dissolution.
1

For purposes of this order, the “contested topics” are Topic 24 and the portion of Topic 23 I
permitted in the March 21, 2013 order.
2
Calk is now also a defendant in this case.

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Though this topic encompasses questions related generally to Chicago Bancorp‟s
dissolution (“the dissolution of Defendant”), it also gives specific examples of the
types of questions Chicago Bancorp could expect. The deposition transcript shows
that Calk was apparently so unprepared to testify that he could not provide answers
to the most basic questions about Chicago Bancorp‟s dissolution, including the date
the corporation dissolved and where it published notices about its dissolution. (Tr.,
25:11–15; 40:12–13; 91:19–92:12; 93:22–94:1; 95:1–4; see also, e.g., Tr. 43:9–17;
66:20–67:9; 68:8–10; 199:12–200:1; 201:3–5.)
Chicago Bancorp argues that it has provided these facts in its written
responses to discovery, but this argument is unavailing. These facts are examples of
anticipated questions and do not limit the relevant information CMI attempted to
elicit and was entitled to obtain at Calk‟s deposition. Written discovery is not a
substitute for a Rule 30(b)(6) deposition, and a corporation cannot choose to submit
answers to a party‟s Rule 30(b)(6) deposition questions at some later date in a form
it prefers. See Buehrle, 2011 WL 529922, at *3; Buycks-Roberson v. Citibank Fed.
Savings Bank, 162 F.R.D. 338, 343 (N.D. Ill. 1995) (“The Federal Rules . . . do not
countenance self-selecting discovery by either party”).
Chicago Bancorp also argues that “lack of preparation or combativeness of a
[Rule 30(b)(6)] witness at a deposition are relevant to a sanctions motion if and only
if they result in the examining party being deprived of information to which that
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party is entitled.” (Def.‟s Resp., p. 6.) This statement betrays Chicago Bancorp‟s
misunderstanding of the purpose of Rule 30(b)(6) and its duty to prepare its
designated witness. The transcript is replete with testimony indicating that Calk had
no idea he was Chicago Bancorp‟s designated witness.3 When a Rule 30(b)(6)
witness is as unprepared as Calk, the deposing party cannot determine whether it has
been deprived of discovery to which it is entitled. See United States v. J.M. Taylor,
166 F.R.D. 356, 362 (M.D.N.C. 1996) (requiring designated party to prepare for
deposition is “necessary in order to make the deposition a meaningful one and to
prevent the „sandbagging‟ of an opponent by conducting a half-hearted inquiry
before the deposition but a thorough and vigorous one before the trial”); see also
Fed. R. Civ. P. 30(b)(6) advisory committee‟s note (rule “will curb the „bandying‟
by which officers or managing agents of a corporation are deposed in turn but each
disclaims knowledge of facts that are clearly known to persons in the organization
and thereby to it”).
CMI was prejudiced because it was deprived of information to which it was
entitled. Under the deposition notice and the Court‟s order, CMI was entitled to
obtain information generally about Chicago Bancorp‟s dissolution and transfer of its
assets. For example, Chicago Bancorp objects to a line of questioning about the
assets listed in its 2012 tax return, but those questions were within the scope of the
3

(E.g., Tr., 6:10–18; 7:10–12; 7:23–8:1; 8:11–15; 8:21–23; 39:23–40:11; 46:13–17; 77:18–78:7;
80:7–81:5; 154:15–155:5; 161:9–15; 162:7–13; 165:17–20; 166:3–5; 202:15–20).

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transfer of assets topic listed as Topic 24. If Calk was not knowledgeable about the
disposition of those assets, Chicago Bancorp had the duty to provide another
witness. See Alexander v. FBI, 248 F.R.D. at 317; Dravo Corp. v. Liberty Mut. Ins.
Co., 164 F.R.D. 70, 76 (D. Neb. 1995) (after designated witness proved to be
unknowledgeable, corporation must “produce a more knowledgeable designee” if
there was one). Calk‟s responses to CMI‟s proper questions were almost entirely
insufficient. And if that were not bad enough, Chicago Bancorp now says (in its
brief) that many of the answers he did give under oath were wrong.
Chicago Bancorp also contends that I should not consider the motion for
sanctions because CMI did not “meet and confer” with Chicago Bancorp before
filing it. See Local Rule 37-3.04. As CMI points out, Rule 37 does not require
counsel to meet and confer before seeking sanctions. Lindstedt v. City of Granby,
238 F.3d 933, 936 (8th Cir. 2000).
III.

Conclusion
Because I explicitly ordered Chicago Bancorp to produce a Rule 30(b)(6)

witness capable of testifying about the contested topics, it had “adequate notice of
what [was] required.” Avionic Co. v. Gen. Dynamics Corp., 957 F.2d 555, 558 (8th
Cir. 1992). Chicago Bancorp‟s failure to prepare Calk to testify – or to produce a
suitable substitute when Calk‟s lack of knowledge became apparent – amounts to a
willful failure to obey a court order. See id. Therefore, it is just to grant in part
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CMI‟s request for sanctions. See Fed. R. Civ. P. 37(b)(2). I will not hold Chicago
Bancorp in contempt or impose more extreme sanctions at this time, but I will
require it to pay the reasonable attorneys‟ fees and expenses that were unnecessarily
incurred by CMI.
Finally, because there will be more depositions in this case, I warn defense
counsel that behavior such as that demonstrated by the witness here is not
acceptable in a deposition. This witness refused to answer numerous questions
(some of them by saying “Asked and answered,” which is the same as refusing to
answer), many of the answers he did give were evasive or non-responsive, and he
attempted to engage the attorney taking the deposition in various inappropriate
arguments. Even if an attorney objects to a question, the attorney can only instruct
the witness not to answer “when necessary to preserve a privilege, to enforce a
limitation ordered by the court, or to present a motion” to terminate the deposition
because it is being conducted unreasonably. Rule 30(c)(2), Fed. R. Civ. P. Counsel
is warned that more serious sanctions may be imposed if this conduct persists.
Accordingly,
IT IS HEREBY ORDERED that Chicago Bancorp must produce a suitably
prepared witness, or multiple witnesses, to testify to the topics permitted in my
March 21, 2013 order. That witness must appear at the offices of CMI‟s counsel in
St. Louis, Missouri. Though I will not find Chicago Bancorp in contempt at this
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time, Chicago Bancorp is warned that I will consider striking its affirmative defense
alleging CMI‟s breach of the implied covenant of good faith and fair dealing if it
again fails to designate an appropriate witness.
IT IS FURTHER ORDERED that CMI may file two supplemental briefs:
one in opposition to Chicago Bancorp‟s motion for partial summary judgment and
one in support of CMI‟s motion for summary judgment, after the rescheduled Rule
30(b)(6) deposition takes place. The parties must file a joint report no later than
August 12, 2013 informing the court of the date and time of the deposition. Any
supplemental brief from CMI must be limited to 10 pages and must be filed no later
than 30 days following the date of the deposition.
IT IS FINALLY ORDERED that Chicago Bancorp must pay CMI‟s
reasonable attorneys‟ fees and expenses associated with preparing for and taking the
April 29, 2013 deposition (including travel expenses) and associated with pursuing
the motion for sanctions.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 31st day of July, 2013.

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