Bremmer et al v. Appleton Electric, LLC et al

Filing 93

ORDER granting the defendants' 79 Motion to Compel. The plaintiff shall designate a knowledgeable and prepared corporate representative to offer testimony concerning the matters for examination at the defendants' convenience and bear th e costs and fees associated with the additional deposition. The defendants are also awarded reasonable costs and attorney's fees incurred in filing the motion to compel. Counsel for the parties shall confer on a reasonable amount to be awarded and, if there is agreement, shall file on or before April 11, 2014, a stipulation of the costs and fees to be awarded. In the event the parties fail to reach an agreement, the defendants may file on or before April 14, 2014, an application for th e award of the costs and fees accompanied by an affidavit of such costs and fees, pursuant to Civil Rules of the United States District Court for the District of Nebraska 54.3 and 54.4. The plaintiff shall have until on or before April 18, 2014, to respond to the defendants' application. Thereafter, the issue of costs and sanctions will be deemed submitted and a written order entered. Ordered by Magistrate Judge Thomas D. Thalken. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

WASTE CONNECTIONS, INC.,
Plaintiff,

8:12CV436

vs.
ORDER
APPLETON ELECTRIC, LLC and
EMERSON ELECTRIC, LLC,
Defendants.
This matter is before the court on the defendants’ Motion to Compel (Filing No.
79). The defendants filed a brief (Filing No. 80) and an index of evidence (Filing No. 81)
in support of the motion. The plaintiff filed a reply (Filing No. 84), a brief (Filing No. 85),
and index of evidence (Filing No. 86) in opposition.

BACKGROUND
The plaintiff’s action arises from an injury Rick Bremmer (Bremmer)1 sustained
on the defendant Appleton Electric, LLC’s (Appleton) premises. See Filing No. 1-1 p. 12 - Complaint. On May 25, 2011, Bremmer was on Appleton’s premises to deliver an
order for Waste Connections, Inc. (WCI) when Bremmer fell into an open pit
approximately twenty feet by twenty feet wide and five feet deep. Id. ¶¶ 9-13. Bremmer
alleged he sustained a torn rotator cuff and herniated disc, underwent medical care for
his injuries, and incurred medical expenses which will continue into the future. Id. ¶¶
18-19. Additionally, Bremmer alleged he suffered lost wages, pain, and suffering. Id.
¶¶ 20-21.

The plaintiff alleges it has paid and will continue to pay worker’s

compensation benefits to Bremmer. Id. ¶ 22. The plaintiff alleges the defendants’
negligence caused Bremmer’s injuries.

Id. ¶¶ 18-21.

The defendants deny the

plaintiff’s allegations and assert the affirmative defenses of comparative negligence,
contributory negligence, and assumption of the risk. See Filing No. 1-1 p. 8 - Answer ¶¶
3-4.
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The court granted Bremmer leave to voluntarily dismiss his action against the defendants. See
Filing No. 73 - Order. However, Bremmer is currently seeking to intervene, which the court will resolve in
due course. See Filing No. 82 - Motion to Intervene.

On January 14, 2014, the defendants issued a notice of deposition under Fed. R.
Civ. P. 30(b)(6) to plaintiff’s counsel.

See Filing No. 81-2 Ex. 1 - Notice.

The

defendants identified thirty topics for discussion. See id. Defense counsel did not
receive any objections to the topics identified in the notice.

See Filing No. 81-1

Newman Aff. ¶ 4. The plaintiff designated Ty Bowman (Mr. Bowman) as its corporate
representative. See Filing No. 80 - Brief p. 2. Mr. Bowman’s deposition was held on
January 27, 2014, in Fremont, Nebraska. Id.

During the deposition, Mr. Bowman

indicated he prepared for the deposition by reading the notice and he was only prepared
to testify about seven of the thirty identified topics. Id. (citing Filing No. 81-3 Ex. 2 Bowman Depo. p. 5:14-23, 6:7-15:6, 15:13-16:3).

At the end of the deposition,

defendants’ counsel asked plaintiff’s counsel whether the plaintiff would designate
another representative to discuss the remaining twenty-three topics. Id. (citing Filing
No. 81-3 Ex. 2 - Bowman Depo. p. 83:11-18). Plaintiff’s counsel responded “I’ll take a
look at that. Like I said, or as he testified, the person who was there before him is no
longer with the company. So that would be a sticking point, but we’ll see what we can
do.” Id. On January 28, 2014, the defendants requested the plaintiff to designate a
corporate representative to provide testimony on the remaining twenty-three topics.
See Filing No. 81-4 Ex. 3 - January 28, 2014, Letter. The defendants did not receive a
response. See Filing No. 81-1 Newman Aff. ¶ 7. On February 10, 2014, the parties
discussed this matter during a telephone call and defendants’ counsel stated the
defendants would file a motion to compel if the plaintiff did not designate another
corporate representative. Id. ¶ 8. As of the date of the instant motion, the defendants
have not received an additional designation from the plaintiff. See Filing No. 80 - Brief
p. 3.
The defendants argue the plaintiff failed to properly designate a corporate
representative to testify to the vast majority of the identified topics.

Id. at 4. The

defendants contend the plaintiff effectively failed to appear for a properly noticed
deposition due to Mr. Bowman’s lack of knowledge about the topics.

Id.

The

defendants also assert the plaintiff failed to satisfy its obligation to prepare a designated
representative prior to a deposition. Id. at 4-6. The defendants contend although Mr.
Bowman indicated he was knowledgeable about seven topics, Mr. Bowman only
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provided cursory answers. Id. For example, Mr. Bowman testified the plaintiff sought
“workers’ comp expenses” but could not provide additional detail beyond that general
statement.

Id. (citing Filing No. 81-3 Ex. 2 - Bowman Depo. p. 40:6-18).

The

defendants seek the costs and fees associated with filing this motion and for an
additional deposition. Id. at 6.
The plaintiff argues Mr. Bowman was able to testify to questions within his scope
as corporate representative.

See Filing No. 85 - Response p. 1-3.

The plaintiff

contends the “wish list” of topics identified for discussion with Mr. Bowman were
addressed when the defendants deposed the plaintiff’s employees Al Sawtelle and
Ryon Palmer or will be addressed during Bremmer’s deposition.

Id.

The plaintiff

argues Mr. Bowman was only incidentally familiar with Bremmer because the plaintiff’s
company was sold between Bremmer’s injury and Mr. Bowman’s deposition. Id. The
plaintiff represents at no point has any employee for the plaintiff refused to be available
for the defendants’ depositions. Id. at 2. The plaintiff notes the defendants have not
made a corporate representative available for deposition. Id. at 2-4. Lastly, the plaintiff
argues the purpose of the defendants’ extensive “wish list” and this motion is to
increase litigation costs. Id. at 3-4. For this reason, the plaintiff requests costs for
having to respond to this motion. Id.

ANALYSIS
“Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). “Broad discovery is an
important tool for the litigant, and so ‘[r]elevant information need not be admissible at
the trial if the discovery appears reasonably calculated to lead to the discovery of
admissible evidence.’” WWP, Inc. v. Wounded Warriors Family Support, Inc., 628
F.3d 1032, 1039 (8th Cir. 2011) (alteration in original) (quoting Fed. R. Civ. P.
26(b)(1)). Accordingly, relevant information includes “any matter that bears on, or that
reasonably could lead to other matter that could bear on, any issue that is or may be in
the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). The
“broad scope of discovery applies to depositions[.]” Pucket v. Hot Springs Sch. Dist.
No. 23-2, 239 F.R.D. 572, 579 (D.S.D. 2006); see also Credit Lyonnais, S.A. v. SGC
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Int’l, Inc., 160 F.3d 428, 430 (8th Cir. 1998) (“The rules for depositions and discovery
‘are to be accorded a broad and liberal treatment.’”) (citing Hickman v. Taylor, 329
U.S. 495, 507 (1947)).
Federal Rule of Civil Procedure 30(b)(6) “Notice or Subpoena Directed to an
Organization” provides, in pertinent part:
In its notice or subpoena, a party may name as the deponent
a public or private corporation . . . and must describe with
reasonable particularity the matters for examination. The
named organization must then designate one or more
officers, directors, or managing agents, or designate other
persons who consent to testify on its behalf; and it may set
out the matters on which each person designated will
testify. . . . The persons designated must testify about
information known or reasonably available to the
organization.
Fed. R. Civ. P. 30(b)(6) (emphasis added). “The testimony of a Rule 30(b)(6) witness
represents the collective knowledge of the corporation, not of the specific individual
deponents.” QBE Ins. Corp. v. Jorda Enter., Inc., 277 F.R.D. 676, 688 (S.D. Fla.
2012). “The duty to prepare a Rule 30(b)(6) witness goes beyond matters personally
known to the designee or to matters in which the designated witness was personally
involved.” QBE Ins., 277 F.R.D. at 689. “If the rule is to promote effective discovery
regarding corporations the spokesperson must be informed.” Protective Nat’l. Ins. Co.
of Omaha v. Commonwealth Ins. Co., 137 F.R.D. 267, 278 (D. Neb. 1989). “[[T]he
corporation] must make a conscientious good-faith endeavor to designate the persons
having knowledge of the matters sought by [the interrogator] and to prepare those
persons in order that they can answer fully, completely, unevasively, the questions
posed by [the interrogator] as to the relevant subject matters.” Dravo Corp. v. Liberty
Mut. Ins. Co., 164 F.R.D. 70, 75 (D. Neb. 1995) (citations omitted).
The defendants properly served the plaintiff with a Rule 30(b)(6) deposition
notice describing the matters for examination with reasonable particularity. See Filing
No. 81-2 Ex. 1 - Notice. The plaintiff did not object to the deposition notice outlining
thirty subjects of examination. See Filing No. 81-1 Newman Aff. ¶ 4. Nevertheless,
unbeknownst to the defendants, the defendants arrived at a deposition where the
corporate representative was only somewhat familiar about seven of the thirty identified
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topics. See Filing No. 81-3 Ex. 2 - Bowman Depo. p. 5:14-23, 6:7-15:6. Mr. Bowman
was unable to provide complete and knowledgeable answers to the matters of
examination described in the Rule 30(b)(6) deposition notice.
After reviewing the transcript of Mr. Bowman’s deposition, the court finds the
plaintiff failed to satisfy its obligation to make a good faith effort to designate a
knowledgeable witness to testify about the noticed deposition topics.

The plaintiff

designated an individual who had limited knowledge of the matters set forth in the
deposition notice and completely failed to prepare Mr. Bowman so that he may provide
knowledgeable and binding answers on behalf of the plaintiff. See Reilly v. Natwest
Mkts. Grp. Inc., 181 F.3d 253, 268 (2d Cir. 1999) (“To satisfy Rule 30(b)(6), the
corporate deponent has an affirmative duty to make available such number of persons
as will be able to give complete, knowledgeable and binding answers on its behalf.”)
(citation omitted). Mr. Bowman even admitted he had not prepared for the deposition
other than reading the deposition notice. See Filing No. 81-3 Ex. 2 - Bowman Depo. p.
15:13-16:12. Furthermore, Mr. Bowman’s testimony on the seven topics demonstrated
a lack of knowledge and preparation for the deposition. See, e.g., Filing No. 81-3 Ex. 2
- Bowman Depo. p. 40:19-24 (“So is it fair to say as you sit here today as a
representative of Waste Connections you know that Waste Connections is seeking to
recover expenses in this lawsuit, but you don’t know how much those expenses are;
correct? A. Exactly, no, I do not.”).
The plaintiff’s objections to the scope of the matters for examination should have
been made prior to Mr. Bowman’s deposition. Additionally, the plaintiff should have, as
obligated under the rules, filed objections with the court or requested a protective order
if the parties were unable to reach a resolution. If the plaintiff had objected, the parties
could have avoided a potentially unnecessary deposition and this motion; however, the
plaintiff chose to wait to reveal its objections until after the defendants filed a motion to
compel. The plaintiff does not provide an adequate explanation for failing to designate
a representative who was prepared and knowledgeable. The fact the plaintiff was sold
between the time of the injury and Mr. Bowman’s deposition or may no longer employ a
person with personal knowledge of Mr. Bremmer’s injuries does not relieve the plaintiff
of its duty to prepare a knowledgeable Rule 30(b)(6) witness. Therefore, the court finds
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the defendants’ motion has merit and the plaintiff shall designate a knowledgeable and
prepared corporate representative to offer testimony concerning the matters for
examination.
Because the court finds the defendants’ motion should be granted, an award of
expenses and attorney’s fees is required under Fed. R. Civ. P. 37. See Fed. R. Civ. P.
37(a)(5)(A). Generally, the court would require additional briefing, however, the parties
used the briefing of this motion to address the appropriateness of sanctions, thus
additional briefing is unnecessary.

The defendants seek reasonable expenses and

attorney’s fees incurred for filing the instant motion and costs and fees associated with
an additional deposition. See Filing No. 79 - Motion, Filing No. 80 - Brief.
Federal Rule of Civil Procedure 37(a)(5)(A) provides:
If the motion [to compel] is granted--or if the disclosure or
requested discovery is provided after the motion was filed-the court must, after giving an opportunity to be heard,
require the party or deponent whose conduct necessitated
the motion, the party or attorney advising that conduct, or
both to pay the movant’s reasonable expenses incurred in
making the motion, including attorney’s fees. But the court
must not order this payment if:
(i) the movant filed the motion before attempting in
good faith to obtain the disclosure or discovery
without court action;
(ii) the opposing party’s nondisclosure, response, or
objection was substantially justified; or
(iii) other circumstances make an award of expenses
unjust.
Fed. R. Civ. P. 37(a)(5)(A).
As explained above, the plaintiff failed to designate a prepared and
knowledgeable corporate representative for a properly noticed 30(b)(6) deposition. The
plaintiff’s assertion this motion is frivolous and designed to harass the plaintiff and
increase expenses is unfounded. The plaintiff had ample opportunity to address its
objections with the defendants prior to both the deposition and the filing of this motion.
Therefore, the court finds an award of reasonable expenses and attorney’s fees
incurred by the defendants is an appropriate sanction in this instance. The plaintiff shall
pay the attorney’s fees the defendants incurred in filing this motion. Moreover, the

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plaintiff shall pay the costs and fees associated with an additional deposition of a
designated corporate representative.

IT IS ORDERED:
1.

The defendants’ Motion to Compel (Filing No. 79) is granted.

2.

The plaintiff shall designate a knowledgeable and prepared corporate

representative to offer testimony concerning the matters for examination at the
defendants’ convenience and bear the costs and fees associated with the additional
deposition. The defendants are also awarded reasonable costs and attorney’s fees
incurred in filing the motion to compel.
3.

Counsel for the parties shall confer on a reasonable amount to be

awarded and, if there is agreement, shall file on or before April 11, 2014, a stipulation
of the costs and fees to be awarded.

In the event the parties fail to reach an

agreement, the defendants may file on or before April 14, 2014, an application for the
award of the costs and fees accompanied by an affidavit of such costs and fees,
pursuant to Civil Rules of the United States District Court for the District of Nebraska
54.3 and 54.4. The plaintiff shall have until on or before April 18, 2014, to respond to
the defendants’ application.

Thereafter, the issue of costs and sanctions will be

deemed submitted and a written order entered.

Dated this 27th day of March, 2014.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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