Malone v. Eden et al
MEMORANDUM OPINION AND ORDER by Chief Magistrate Judge Karen B. Molzen granting in part 84 Opposed MOTION for Sanctions Against CRST Expedited, Inc. (KBM)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
TONYA MICHELLE MALONE, as
Personal Representative of the Estate of
GERARD WATSON, Deceased,
CIV 15-1009 MV/KBM
GARY EDEN, JACQUELINE R. FLETCHER,
CRST EXPEDITED, INC. and XYZ CORP.,
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff’s Motion for Discovery Sanctions
Against Defendant, CRST Expedited, Inc., filed on June 23, 2017. Doc. 84. Having
considered the record, submissions of counsel, and relevant law, the Court finds the
motion will be granted in part.
This case arises from a fatal single-vehicle collision. On June 22, 2013, Mr. Gary
Eden lost control of the tractor-trailer he was driving, crashing into a guardrail. Doc. 1-A
(Compl.) ¶ 22; Doc. 84 at 1. Tragically, Plaintiff Tonya Malone’s 25-year-old son, Mr.
Gerard Watson, was asleep in the tractor-trailer at the time of the collision and died as a
result of his injuries from the accident. Compl. ¶¶ 21, 23-24. Ms. Malone has brought
suit against Mr. Eden, Jacqueline Fletcher (the owner/operator of the tractor-trailer), and
CRST Expedited, Inc. (CRST) (the company with operating authority over Ms. Fletcher
and the tractor-trailer).1 See Compl.
Ms. Malone’s attorney, Mr. Mark Caruso, emailed counsel for CRST on June 17,
2016, regarding scheduling the deposition of CRST’s Rule 30(b)(6) corporate
representative(s). Doc. 89 at 1; see also Doc. 89-1. Mr. Caruso stated that “[w]e will
specify the areas of inquiry in the deposition notice, . . . [h]owever, generally the areas
of inquiry may include but are not limited to those listed below.” Doc. 89-1 at 1. Mr.
Caruso then listed 29 topics of inquiry. Id. at 1-2.
Plaintiff’s attorney mailed the official Notice of Rule 30(B)(6) Video Deposition of
CRST Expedited, Inc. on January 13, 2017, scheduling the deposition for February 9,
2017. See Docs. 72; 84-A. The Notice requests that CRST designate “one or more
person(s) who have knowledge to testify with respect to the following matters[,]” and
lists 29 topics, all substantively identical to the June 2016 list. Doc. 84-A.
CRST designated Mr. Charles Haffenden, vice president of safety, as its
corporate representative. Doc. 85 at 3. Mr. Haffenden prepared by speaking with
CRST’s attorney, reviewing the Notice, refreshing his memory of the facts of the case,
speaking with CRST employees, and reviewing documents. Id. (citing Doc. 85-2 at
13:23-14:7, 95:2-12, 106:11-107:15, 121:15-25). Mr. Haffenden testified that he spent
approximately an hour and a half preparing for the deposition. Doc. 84-B at 14:3-7.
Plaintiff now contends that Mr. Haffenden “came to the deposition with virtually
no preparation[,]” as evidenced by the fact that he allegedly “said ‘I don’t know’ or ‘I
don’t remember’ or similar answers to  questions during” his three- to five-hour long
Ms. Malone also named “XYZ Corporation,” “an unknown entity [that] . . . was the employer of”
either Mr. Watson, Mr. Eden, and/or Ms. Fletcher. Compl. ¶ 9.
deposition. Docs. 84 at 3, 9; 85 at 4. Plaintiff asserts that Mr. Haffenden was
unprepared to respond to deposition questions about three broad topic areas (training,
facts surrounding the accident, and DOT application) and four more discrete topic areas
(other vehicle accidents, affirmative defenses, business operations/organizations,
payments and compensation to or from CRST/Fletcher). Doc. 84 at 4-9.
Specifically, Plaintiff complains that Mr. Haffenden was unable to respond to
the specific training Ms. Fletcher received (Doc. 84 at 4 (citing Doc. 84-B at 29:316, 31:2-24));
facts surrounding the accident, “including CRSTs position as to how and why the
crash occurred, the details of the trip, and the” relationships between Fletcher,
Eden, and Watson (id. at 5-7 (citing Doc. 84-B at 70:10-72:4, 78:8-15) (quotation
the details regarding CRST’s application process for DOT numbers or certificates
of authority (id. at 7-8 (citing Doc. 84-B at 100:10-102:13));
other accidents (id. at 8 (citing Doc. 84-B at 96:14-25, 106:9-107:16));
the “facts and documents upon which” CRST bases its “contentions and set forth
in affirmative defenses” (id. (citing Doc. 84-B at 70:10-72:21, 114:17-24)); and
CRST’s “business operations and organizations” or “payments and
compensation to or from CRST and Fletcher” (id. (citing Doc. 84-B at 56:1057:11, 66:6-14, 67:3-9)).
Plaintiff requests a variety of sanctions. See Doc. 84.
CRST counters that Mr. Haffenden “made a good-faith effort to prepare to
answer questions about the noticed topics[,]” but Plaintiff did not describe the list of 29
topics with the requisite reasonable particularity. Doc. 85 at 1. CRST also argues that
Plaintiff is not entitled to sanctions. Id. at 4-11.
Rule 30(b)(6) provides:
In its notice or subpoena, a party may name as the deponent a public or
private corporation, a partnership, an association, a governmental agency,
or other entity 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. A subpoena must advise a
nonparty organization of its duty to make this designation. The persons
designated must testify about information known or reasonably available
to the organization. This paragraph (6) does not preclude a deposition by
any other procedure allowed by these rules.
Fed. R. Civ. P. 30(b)(6). “Under Rule 30(b)(6), when a party seeking to depose a
corporation announces the subject matter of the proposed deposition, the corporation
must produce someone familiar with that subject.” Peshlakai v. Ruiz, No. CIV 13-0752
JB/ACT, 2014 WL 459650, at *22 (D.N.M. Jan. 9, 2014) (quoting Reilly v. Natwest Mkts.
Grp. Inc., 181 F.3d 253, 268 (2d Cir. 1999) (internal citations omitted)). “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.” Id. (quoting Reilly, 181 F.3d at 268 (internal citations omitted);
citing Gulfstream Worldwide Realty, Inc. v. Phillips Elec. N. Am. Corp., No. 06-1165,
2007 WL 5704041, at *5 (D.N.M. Oct. 24, 2007) (“A corporation must prepare its
designated representative to provide complete, knowledgeable, and binding answers on
the corporation’s behalf.”) (quotation omitted)). “The purpose behind designating a
witness to represent the corporation is to prevent bandying, which is the practice of
presenting employees for their depositions who disclaim knowledge of the facts known
by other individuals within the organization.” Id. (quoting Gulfstream Worldwide Realty,
Inc., 2007 WL 5704041, at *5 (internal quotation and quotation marks omitted)).
“A deponent under Rule 30(b)(6) has an affirmative obligation to educate himself
as to the matters regarding the corporation.” Id. (citing Concerned Citizens v. Belle
Haven Club, 223 F.R.D. 39, 43 (D. Conn. 2004) (internal quotation and quotation marks
omitted)). “This includes all matters that are known or reasonably available to the
corporation. Even if the documents are voluminous and the review of the documents
would be burdensome, the deponents are still required to review them in order to
prepare themselves to be deposed.” Id. (citing Concerned Citizens, 223 F.R.D. at 43
(internal citation omitted)).
The United States District Court for the District of Columbia has stated:
Although there is not an abundance of case law on the topic of Rule
30(b)(6), and nearly no case law in this circuit, certain principles are
consistent in every court opinion to address these issues so far. First, the
deponent has the duty of being knowledgeable on the subject matter
identified as the area of inquiry. Clearly, a deponent that does not know
about the subject matter to be inquired about is useless as a deponent at
all. Second, the designating party is under the duty to designate more than
one deponent if it would be necessary to do so in order to respond to the
relevant areas of inquiry that are specified with reasonable particularity by
the plaintiffs. Third, the designating party 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. Obviously, the
purpose of a Rule 30(b)(6) deposition is to get answers on the subject
matter described with reasonable particularity by the noticing party, not to
simply get answers limited to what the deponent happens to know. 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. (quoting Alexander v. FBI, 186 F.R.D. 137, 141 (D.D.C. 1998) (internal and
subsequent citations omitted)).
The corporate designee “has a duty ‘to prepare those persons in order that they
can answer fully, completely, unevasively the questions posed . . . as to the relevant
subject matters.’” Id. (quoting United States v. Magnesium Corp. of Am., No. 2:01-CV40DB, 2006 WL 6924985, at *4 (D. Utah, Nov. 27, 2006) (internal quotation omitted)).
“Such preparation requires a good faith effort [by] the designate to find out the relevant
facts—to collect information, review documents, and interview employees with personal
knowledge.” Id. (quoting Magnesium Corp. of Am., 2006 WL 6924985, at *4 (internal
quotation and quotation marks omitted)).
The Court will grant Plaintiff’s motion in part. As Judge Browning noted in
Peshlakai, the proper mechanism “to address . . . Plaintiff’s dissatisfaction with the yield
from [CRST’s] first rule 30(b)(6) deposition” is not sanctions, but “a motion to compel
under rule 37.” 2014 WL 459650, at *25. Therefore, Plaintiff may notice a second Rule
30(b)(6) deposition, describing with the requisite particularity the topics the
representative will be expected to testify about. Plaintiff shall refrain from asking “the
same questions [she] asked in the prior deposition, and to which [she] received
substantive answers, in the mere hope that [CRST] will give a different answer.” See id.
Plaintiff’s Notice was broad enough to give CRST the requisite notice in several
areas on which Mr. Haffenden failed to competently testify. For example, item 20 asked
for “details of the relationships between the defendant CRST Expedited,[ ]Inc. and
Jacqueline Fletcher, including the driver’s qualifications, training, supervision, and any
disciplinary actions.” Doc. 84-A ¶ 20 (emphasis added). Yet, when asked about what
type of training Ms. Fletcher received, Mr. Haffenden admitted that he had not reviewed
her file to prepare for the deposition. Doc. 84-B at 29:3-16. Similarly, Mr. Haffenden was
unable to recall any information about other vehicle accidents, despite the fact that item
number 10 requested general information about other accidents in the three years
before the accident in this Complaint. See Docs. 84-A ¶ 10; 84-B at 96:14-25, 106:9107:16. The Court notes, however, that item number 10 is overly broad, and Plaintiff
should take care to be more specific on what information the corporate representative
can expect questions.
If Plaintiff chooses to notice a second Rule 30(b)(6) deposition and the number of
topics is too broad for Mr. Haffenden (or another corporate representative) to recall,
then CRST must take steps to ensure that it fulfills its obligations under the Rule, such
as designating more than one corporate representative.
A good rule 30(b)(6) deposition – from both parties’ standpoints – requires
cooperation. There is little room for hiding the ball at this stage. The rules
of engagement are relatively demanding. The corporation must produce
fully prepared and knowledgeable witnesses on the topics designated, but
the questioning party must be specific in what it wants to know – before
the deposition day. If the questioning party wants a prepared witness, the
questioning party must help the witness prepare.
Peshlakai, 2014 WL 459650, at *25. “If the designated deponent cannot answer [the]
questions” that have been described with the requisite particularity, “then the
corporation has failed to comply with its Rule 30(b)(6) obligations and may be subject to
sanctions, etc.” Starlight Int’l Inc. v. Herlihy, 186 F.R.D. 626, 638 (D. Kan. 1999)
(quoting King v. Pratt & Whitney, 161 F.R.D. 475, 476 (S.D. Fla. 1995)). “The
corporation has an affirmative duty to produce a representative who can answer
questions that are both within the scope of the matters described in the notice and are
‘known or reasonably available’ to the corporation.” Id. (quoting King, 186 F.R.D. at
The Court declines to grant sanctions, because it agrees that Plaintiff failed to
describe with particularity some of the 29 topics in her notice. See Doc. 85 at 3. It is
telling that in June 2016, Mr. Caruso said the deposition would “generally [cover] the
areas of inquiry . . . listed below” and promised to later “specify the areas of inquiry in
the deposition notice . . . .” Doc. 89-1 at 1 (emphasis added). Yet the official Notice did
nothing to more particularly describe some of the broad topics of inquiry Plaintiff
planned to make. Compare Doc. 84-1, with Doc. 89-1. For example, item number 17
sought “CRST Expedited, Inc.’s application for or acquisition of U.S. DOT numbers or
certificates of authority.” Doc. 84-A ¶ 17. Mr. Haffenden was able to answer general
questions about this process, which took place in 1955, but could not answer more
specific questions. See Doc. 84-B at 11:2-9, 100:10-102:13. If Plaintiff wanted more
details about how exactly that process happened 62 years ago, Plaintiff should have
made a document request or more specifically identified the areas of inquiry in her
Plaintiff describes the “facts leading up to and surrounding the crash described in
the Complaint” as a “major point of inquiry” (Doc. 84 at 5), but only generally asked for
“the facts leading up to and surrounding the incident described in the complaint” and
“[t]he details of the trip which involved the crash that is the subject of this litigation.”
Doc. 84-A ¶¶ 6, 19. In her Motion, Plaintiff explains that the facts “important to
plaintiff[’]s case include the origin of the shipments, the route taken, the point at which
Eden became a passenger, as well as stops along the route including those in the hour
leading up to the fatal crash.” Doc. 84 at 5-6. It would have been a simple matter to
specify those discrete areas with particularity in the Notice. See Doc. 84-A.
Plaintiff also complains that Mr. Haffenden “was unable to answer basic
questions about [CRST’s] business operations and organizations and could not answer
questions about payments and compensation to or from CRST and Fletcher.” Doc. 84 at
8 (citing Doc. 84-B at 56:10-57:11, 66:6-14, 67:3-9). In this portion of the deposition,
Plaintiff asked Mr. Haffenden about very specific legal terms and relationships, such as
leasing and subleasing, from documents evidently in Plaintiff’s possession. The Court is
unconvinced these were legitimate questions for a deposition, but they were certainly
not sufficiently described in the Notice.
Finally, Plaintiff objects to defense counsel’s “reptile” objection. Doc. 84 at 9. The
Court found information on this objection through a quick Google search. See, i.e., John
Wilinski & Christina Marinaks, The Reptile Brain Strategy: Why Lawyers Use it and How
to Counter it, Litigation Insights (Mar. 3, 2016), http://litigationinsights.com/casestrategies/reptile-brain-strategy-lawyers-how-to-counter/. The Court encourages
defense counsel to simply explain the reference in future depositions, rather than to
confuse opposing counsel with an ambiguous objection.
Plaintiff may Notice a second Rule 30(b)(6) deposition. Plaintiff shall send any
revised Notice no later than October 20, 2017, and conduct the deposition no later than
Tuesday, November 10, 2017. Plaintiff’s motion is denied with respect to any other
sanctions, including costs and fees. Finally, in granting leave to conduct a second Rule
30(b)(6) deposition, the Court is not approving the extension of any other deadline in
IT IS SO ORDERED.
UNITED STATES CHIEF MAGISTRATE JUDGE
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