City of Las Cruces et al v. United States of America et al
Filing
304
ORDER by Magistrate Judge Gregory B. Wormuth granting 243 Motion for Protective Order, granting 246 Motion for Protective Order, and granting in part and denying in part 263 Motion to Compel and for Sanctions. (ceo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CITY OF LAS CRUCES and DOÑA ANA COUNTY,
Plaintiffs,
v.
Civ. No. 17-809 JCH/GBW
UNITED STATES OF AMERICA, et al.,
Defendants.
ORDER GRANTING DEFENDANT’S MOTION FOR PROTECTIVE ORDER AND
PLAINTIFFS’ MOTION FOR PROTECTIVE ORDER AND GRANTING IN PART
AND DENYING IN PART PLAINTIFFS’ MOTION TO COMPEL AND FOR
SANCTIONS
THIS MATTER comes before the Court on Defendant American Linen’s Motion
for Protective Order and to Quash Deposition Notice and Notice of Non-Appearance,
doc. 243, Plaintiffs’ Motion for Protective Order Quashing American Linen’s Notices to
Take Second Depositions of the Same Parties and Notice of Non-Appearance, doc. 246,
and Plaintiffs’ Motion to Compel Discovery and for Sanctions, doc. 263. Having
reviewed the Motions, docs. 243, 246, 263, and their attendant briefings and exhibits,
docs. 247, 256, 257, 258, 264, 269, 270, 271, 279, 288, and being fully advised in the
premises, the Court GRANTS Plaintiffs’ Motion for Protective Order and Defendant
American Linen’s Motion for Protective Order, and GRANTS in part and DENIES in
part Plaintiffs’ Motion to Compel Discovery and for Sanctions.
I.
BACKGROUND
Plaintiffs bring suit under the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. § 9601 et seq., seeking cost recovery and
contribution to costs incurred in removing perchloroethylene (“PCE”) and other
hazardous substances from the Griggs & Walnut Ground Water Plume Superfund Site.
See doc. 79. Initially, Plaintiffs raised claims against only Defendant United States of
America (“United States”) and various sub-entities, doc. 1, which subsequently
counterclaimed against them, doc. 20. Plaintiffs later amended their complaint to add
Defendant American Linen Supply of New Mexico, Inc. (“American Linen”) and other
dry-cleaning companies that allegedly contributed to the Site’s contamination. Doc. 55
at 2–3; doc. 79. A few months later, Defendant American Linen answered Plaintiffs’
First Amended Complaint, counterclaimed against them, and crossclaimed against all
other Defendants. Doc. 111.
A. RULE 30(b)(6) DEPOSITION OF PLAINTIFFS
On March 25, 2019, Defendant United States noticed depositions of Plaintiffs
pursuant to Rule 30(b)(6). Doc. 247-4 at 1, 6. On May 6, 2019, Defendant United States
advised Defendant American Linen and other Defendants that Plaintiffs and it had
scheduled the depositions for May 29, 2019 and May 30, 2019. Doc. 256-1 at 2. Later
that day, Defendant American Linen informed the parties that its attorneys of record
had scheduling conflicts on those dates. Id. at 1. It did not object to Plaintiffs sitting for
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depositions on these dates since another attorney from the same firm as its counsel of
record could attend the deposition telephonically on its behalf and it would depose
Plaintiffs on additional topics in separate Rule 30(b)(6) depositions on a future date. Id.
The following day, Plaintiffs advised Defendant American Linen that it
interpreted Rule 30(a)(2)(A)(ii) to limit all Defendants to one shared Rule 30(b)(6)
deposition for each Plaintiff absent leave of the Court. Doc. 247-5 at 2–3. They asked
Defendant American Linen to notice its deposition topics and coordinate with other
Defendants to find deposition dates amenable to all parties. Id. at 3.
On May 8, 2019, Defendant American Linen proposed alternative deposition
dates and pledged to notice its deposition topics by May 13, 2019. Id. at 2. Two days
later, Plaintiffs responded that they were available on some of the proposed dates and
that one or both of them “may, as a courtesy, agree to not move for a protective order
for one additional, albeit narrow, 30(b)(6) deposition.” Id. at 1. However, they
expressly withheld consent to such a deposition until they had received and evaluated
the topics that Defendant American Linen wished to cover in it. Id. They also reiterated
their request that Defendant American Linen coordinate with Defendant United States
to facilitate a single Rule 30(b)(6) deposition on all topics. Id. Sometime on or after May
16, 2020, Defendant American Linen circulated its deposition topics amongst the
parties. See doc. 256-2 at ¶¶ 4–5; doc. 271-1 at 2.
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The parties dispute what happened next. Jeffrey Wechsler, counsel for
Defendant American Linen, swears that the parties agreed that American Linen would
be allowed to depose Plaintiffs on these topics on a later date since these topics did not
overlap with those noticed by Defendant United States. Doc. 256-2 at ¶¶ 5–6. Plaintiffs
insist that no such agreement was reached. Doc. 270 at 5. The record before the Court
contains no statement in which Plaintiffs consent to another Rule 30(b)(6) deposition.
Regardless, on May 29, 2019 and May 30, 2019, Defendant United States deposed
Plaintiffs under Rule 30(b)(6). Docs. 247-6, 247-7. Each deposition lasted over eight
hours. Doc. 246 at 4. Matthew Zidovsky, an attorney from the same firm as Defendant
American Linen’s counsel of record, attended these depositions but asked no questions
since he had limited familiarity with the case.1 Doc. 247-6 at 116:19–117:3; doc. 247-7 at
135:9–14; doc. 256-2 at ¶ 7. Rather, when asked if American Linen had anything that it
wished to ask Plaintiffs, Mr. Zidovsky stated, as instructed by Mr. Wechsler, that it
“d[id] not have any questions at this time.” Doc. 247-6 at 116:19–117:3; doc. 247-7 at
135:9–14; doc. 256-2 at ¶ 7.
In August 2019, the parties revisited the issue of Plaintiffs sitting for additional
Rule 30(b)(6) depositions. See generally doc. 256-3. On August 5, 2019, Plaintiffs
included these depositions in a list of outstanding proposed depositions that needed to
On May 20, 2020, Mr. Zidovsky entered an appearance on behalf of Defendant American Linen. Doc.
215. At the time of the deposition, however, he was not among the attorneys identified to the Court as
Defendant’s counsel of record.
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be scheduled before the discovery deadline. Id. at 4. Three days later, another
Defendant expressed a desire to notice topics for these depositions in conjunction with
American Linen. Id. at 3. Later that day, Defendant American Linen asked Plaintiffs
whether they wished to receive notices of Defendants’ topics before or after setting the
dates for these depositions. Id. at 1–2. Any response from Plaintiffs is not in the record.
On August 21, 2019, the Court stayed the case at the parties’ request to facilitate
their exploration of a global settlement. Docs. 188, 189. After several extensions, the
stay expired on July 17, 2020 without this settlement being reached. See docs. 192, 204,
209, 214. Since then, Plaintiffs have resolved their claims against all named Defendants
except for American Linen.2
Plaintiffs and Defendant American Linen dismissed their claims and crossclaims respectively against
Defendants Jose and Yvonne Coronado pursuant to Rule 41(a)(1)(A)(ii) in December 2018. Doc. 134.
Between August 2019 and December 2019, Plaintiffs settled their claims with Defendants The Lofts of
Alameda, LLC and Chisholm’s Village Plaza LLC. Doc. 200 at ¶ 3. In January 2021, Plaintiffs and these
Defendants jointly moved the Court to dismiss these claims with prejudice. Doc. 299. Plaintiffs,
Defendant United States, and all other federal Defendants entered into a consent decree regarding their
claims and counterclaims in July 2020. Doc. 225. Defendant American Linen dismissed its crossclaims
against Defendant United States and the other federal Defendants in August 2020. Doc. 230. Plaintiffs
settled their claims with Defendant Rawson Leasing Limited Liability Co. in September 2020. Doc. 236.
In January 2021, Plaintiffs and Defendant Rawson Leasing Limited Liability Co. jointly moved the Court
to dismiss these claims with prejudice. Doc. 299. Based on the above, the only live claims are Plaintiffs’
claims against Defendant American Linen and Defendants Does 1–5, Defendant American Linen’s
counterclaims against Plaintiffs, and Defendant American Linen’s crossclaims against Defendants The
Lofts at Alameda, LLC, Chisholm’s Village Plaza LLC, Rawson Leasing Limited Liability Co., and
Defendants Does 1–5. Plaintiffs have obtained the Court’s leave to file a Second Amended Complaint
that, inter alia, drops their claims against Defendants Does 1–5 as well as their claims against Defendant
United States and the other federal entities in light of the consent decree. Doc. 303. Plaintiffs and
Defendants The Lofts at Alameda, LLC, Chisholm’s Village Plaza LLC, and Rawson Leasing Limited
Liability Co. have moved the Court to dismiss Defendant American Linen’s crossclaims against these
Defendants without prejudice. Doc. 299 (citations and internal quotations omitted). The Court does not
resolve that motion in this order. The Court notes that Defendants The Lofts at Alameda, LLC,
Chisholm’s-Village Plaza LLC, and Rawson Leasing Limited Liability Co. had not previously responded
to Defendant American Linen’s crossclaims and that the only action that Defendant American Linen has
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On September 25, 2020, the last day to notice depositions in compliance with the
Court’s October 9, 2020 discovery deadline, Defendant American Linen noticed Rule
30(b)(6) depositions for Plaintiffs on sixty-four topics without leave of the Court. Doc.
247-1 at 1–2, 7–8. Later that day, Plaintiffs advised American Linen of their intent to
move to quash and for a protective order from these notices because they had already
been deposed pursuant to Rule 30(b)(6) in this case. Doc. 271-6. On October 2, 2020,
Plaintiffs so moved. Doc. 246.
B. DISCOVERY REGARDING DEFENDANT AMERICAN LINEN’S DRYCLEANING OPERATIONS AND PCE USE
Starting on October 18, 2018 and continuing for just shy of two years, Defendant
American Linen repeatedly denied ever conducting dry-cleaning operations or using
PCE. Doc. 111 at ¶¶ 5, 32 (Answer to First Am. Compl.); Doc. 258-1 at 1–2 (Initial
Disclosures); doc. 233-4 at ¶¶ 3, 4 (Aff. of Michael Lutz, Def. American Linen’s President
and Chief Executive Officer (“2012 Affidavit”)); doc. 264-3 at 2, 10 (Def.’s Resps. to Pls.’
First Set of Interrogs. and Reqs. for Produc.). It also insisted that it had no documents
relating to any dry-cleaning operations or PCE use. See doc. 264-3 at 15–18. Defendant
knew that a former employee, Victor Jasso, had reported it to the New Mexico
Environment Department for releasing PCE into the environment. Doc. 258-2 at 125:5–
taking on these crossclaims since filing them on October 19, 2018 is to respond to the aforementioned
motion to dismiss. Doc. 302. Should the final resolution of the putative Second Amended Complaint not
moot the issue, the Court will address the prosecution of these cross claims in a future order.
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15. But the sole step that it took prior to denying categorically that it had ever operated
a dry-cleaning facility or used PCE was to review its corporate records, which only date
back ten years. Doc. 264-3 at 13; doc. 269-2 at ¶ 3; doc. 258-2 at 73:6–17, 124:14–125:4. It
made no effort to obtain relevant information about its alleged dry-cleaning operations
or PCE use from any current or former employees or documents that it did not possess
but had practical ability to obtain. See doc. 264-3 at 13; doc. 258-2 at 124:14–125:4.
On March 11, 2019, Plaintiffs noticed the deposition of Defendant American
Linen pursuant to Rule 30(b)(6). Doc. 243-1 at 1–2. They requested the company to
designate one or more individuals to testify on its behalf about ten topics and ten
subtopics, including its dry-cleaning operations and use and disposal of PCE. Id. at 4,
8–12. Defendant designated Mr. Lutz to testify on all topics. See doc. 243 at 2.
Mr. Lutz prepared for the deposition solely by reviewing Defendant’s corporate
records. See doc. 258-2 at 19:20–23, 73:2–17. He did not interview any current or former
employees. Doc. 258-2 at 19:20–23. Nor did he investigate Mr. Jasso’s allegations that
the company had used PCE and released it into the environment. See doc. 243-2 at
125:2–15. Rather, he discounted them as retaliation for firing Mr. Jasso for drinking on
the job. See id. at 125:21–24; doc. 235-4 at 121:4–122:10. He also did not investigate the
statements of Larry Hartman, a former employee, who testified before Mr. Lutz’s
deposition and in the presence of Defendant American Linen’s attorney that he had
witnessed the company engage in dry-cleaning operations when he was an employee
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and that it was still conducting these operations in 1981 when he left it. Doc. 233-6 at
19:4–13; doc. 258-2 at 125:16–20.
On April 1, 2019, Plaintiffs deposed Mr. Lutz. Doc. 243-2 at 1:17–18. During the
deposition, Mr. Lutz repeatedly answered questions about Defendant’s historical
operations from his personal knowledge, rather than Defendant’s corporate knowledge.
See doc. 258-2 at 73:2–5, 74:8–19, 96:2–4. He also could not answer several questions
about Defendant’s historical operations that predated his tenure with the company. Id.
at 21:2–10, 46:5–11, 73:2–5, 74:8–19, 96:2–4, 122:19–124:13.
Due to Defendant American Linen’s repeated representations that it never
conducted dry-cleaning operations using PCE and Mr. Lutz’s inability to comment on
corporate operations that predated his tenure, Plaintiffs conducted their own
investigation of the company’s historical operations. See doc. 264-1. The investigation
found evidence that American Linen, despite its insistence otherwise, had conducted
dry-cleaning with PCE prior to Mr. Lutz’s tenure with the company. See, e.g., doc. 20013 at 2, 4 (account payment authorization from August 22, 1972 stating that the
company had dry-cleaning equipment and PCE drums at its facility on 500 N. Main St.).
On September 24, 2020, Plaintiffs noticed another Rule 30(b)(6) deposition of
Defendant American Linen without seeking the Court’s leave. Doc. 243-3 at 1–2. They
ask it to designate one or more individuals to testify on its behalf about eight topics and
seven subtopics, including its historical dry-cleaning operations and PCE use. Id. at 8–
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11. On October 2, 2020, Defendant moved for a protective order from this deposition
and to quash its notice. Doc. 243.
On October 5, 2020, Defendant American Linen changed its tune about its
historical dry-cleaning operations and PCE use. Doc. 258-3 at 3. It admitted, in its
Answers and Responses to Plaintiff’s Second Interrogatories and Requests for
Production and First Requests for Admission, “that it conducted dry cleaning at 550
North Church beginning in approximately 1972” and “that any [d]ry [c]leaning
[o]perations it conducted at 550 North Church Street from approximately 1972 until
1982 would have used PCE.” Doc. 264-5 at 7–8. It denied engaging in dry-cleaning
operations at this facility after 1982. Id. at 8–9. It also asserted, with respect to its dry
cleaning operations at other facilities at other times, that, after making a reasonable
inquiry into Plaintiffs’ requested admissions that included interviewing its employees
and reviewing its records and the evidence adduced in discovery, it lacked sufficient
information to admit or deny the alleged operations. Id. at 7–9. On January 22, 2021,
Defendant American Linen supplemented its initial disclosures and discovery
responses to account for this admission. Doc. 279 at 8; doc. 300; doc. 301.
On October 23, 2020, Plaintiffs moved the Court to compel Defendant American
Linen to investigate its dry-cleaning operations and PCE use fully and completely and
to supplement its disclosures and its responses to Plaintiffs’ Interrogatories Nos. 5, 8,
and 9 and Plaintiffs’ Requests for Production Nos. 4, 7, and 8. Doc. 263 at 2, 8 n.12.
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They also ask the Court to sanction Defendant for its inadequate investigation and
document production, its false statements, its lack of supplementation of its discovery
responses, and its failure provide a Rule 30(b)(6) designee (or Rule 30(b)(6) designees)
who could testify to its corporate knowledge of its historical operations. Id. at 3–7.
II.
LEGAL STANDARDS
The discovery rules in the Federal Rules of Civil Procedure seek to make judicial
proceedings less a battle of wits and more a search for the truth wherein “basic issues
and facts are disclosed to the fullest practicable extent.” United States v. Procter &
Gamble Co., 356 U.S. 677, 682 (1958). They are to be construed liberally to achieve their
intended purposes of “avoid[ing] surprise and the possible miscarriage of justice, …
disclos[ing] fully the nature and scope of the controversy, … narrow[ing], simplify[ing],
and fram[ing] the issues involved, and … enabl[ing] a party to obtain the information
needed to prepare for trial.” 8 Richard L. Marcus, Federal Practice & Procedure Civil §
2001 (3d ed. 2020) (footnotes omitted).
The parties’ discovery disputes implicate Federal Rules of Civil Procedure
regarding interrogatory responses, document production, deposing and re-deposing a
corporate party, supplementation, compelling discovery, and sanctions. The Court will
review the standards of each in turn before turning to its analysis.
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A. DEPOSING A CORPORATION UNDER RULE 30(b)(6)
Rule 30(b)(6) allows a party to depose a corporation on topics noticed and
described with reasonable particularity. Fed. R. Civ. P. 30(b)(6). “The law is wellsettled that corporations have an ‘affirmative duty’ to make available as many persons
as necessary to give ‘complete, knowledgeable, and binding answers’ on the
corporation’s behalf” to questions on noticed topics. Ecclesiastes 9:10-11-12, Inc. v. LMC
Holding Co., 497 F.3d 1135, 1146 (10th Cir. 2007) (quoting Reilly v. NatWest Mkt. Grp.,
Inc., 181 F.3d 253, 268 (2d Cir. 1999)). “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.” Gulfstream Worldwide Realty, Inc. v. Philips Elecs.
N. Am. Corp., No. CIV 06-1165 JB/DJS, 2007 WL 5704041, at *4 (D.N.M. Oct. 24, 2007)
(unpublished) (internal quotation marks and citation omitted).
A Rule 30(b)(6) designee, therefore, must testify based not solely on his personal
knowledge of the noticed matters but also on “information known or reasonably
available to the organization” as a whole. Fed. R. Civ. P. 30(b)(6). See also United States
v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996). This requirement amounts to “an
affirmative obligation to educate himself as to the matters.” Peshlakai v. Ruiz, No. CIV
13-0752 JB/ACT, 2014 WL 459650, at *22 (D.N.M. Jan. 9, 2014) (unpublished) (quoting
Concerned Citizens of Belle Haven v. Belle Haven Club, 223 F.R.D. 39, 43 (D. Conn. 2004)).
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Consequently, it “requires a good faith effort … to find out the relevant facts—to collect
information, review documents, and interview employees with personal knowledge.”
United States v. Magnesium Corp. of Am., No. 2:01-CV-40 DB, 2006 WL 6924985, at *4 (D.
Utah. Nov. 27, 2006) (unpublished) (quoting Wilson v. Lakner, 228 F.R.D. 524, 528 (D.
Md. 2005)). It may, and often does, extend to interviewing past employees, especially
“where a corporation … no longer employs individuals who have memory of a distant
event.” Taylor, 166 F.R.D. at 361. See also Berwind Prop. Grp., Inc. v Env’t Mgmt. Grp., Inc,
233 F.R.D. 62, 65 (D. Mass. 2005); Gulfstream Worldwide Realty, Inc., 2007 WL 5704041, at
*4, 7; Magnesium Corp. of Am., 2006 WL 6924985, at *4. “[I]f it becomes obvious during
the course of a deposition that the designee is deficient, the corporation is obligated to
provide a substitute.” Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 70, 75 (D. Neb.
1995).
A Rule 30(b)(6) designee, however, “is not expected to perform with absolute
perfection.” Pogue v. Nw. Mut. Life Ins. Co., No. 3:14-CV-598-CRS, 2017 WL 3044763, at
*8 (W.D. Ky. July 18, 2017) (unpublished) (citing QBE Ins. Corp. v. Jorda Enterprises, Inc.,
277 F.R.D. 676, 691 (S.D. Fla. 2012)). “The mere fact that a designee could not answer
every question on a certain topic does not necessarily mean that the corporation failed
to comply with its obligation.” QBE Ins. Corp., F.R.D. at 691. Any expression of a lack
of knowledge, however, “is itself an answer which will bind the corporation at trial.”
Id. at 690 (citations omitted).
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B. APPLICABILITY OF RULE 30(a)(2)(A)(ii) TO RULE 30(b)(6) DEPOSITIONS
Rule 30(a)(2)(A)(ii) requires a party to obtain leave of the Court for a deposition
“if the parties have not stipulated to the deposition and … the deponent has already
been deposed in the case.” Fed. R. Civ. P. 30(a)(2)(A)(ii). However, “[d]istrict [c]ourts
are currently split on the issue of whether parties may take multiple 30(b)(6)
depositions of a [party] without leave from the court, and no Court of Appeals appears
to have directly addressed the issue.” McCarty v. Liberty Mut. Ins. Co., No. 15-cv-210KHR, 2016 WL 8290151, at *3 (D. Wyo. Sept. 27, 2016) (unpublished) (citations omitted).
See also Kimberly-Clark Corp. v. Tyco Healthcare Retail Grp., No. 05-C-985, 2007 WL 601837,
at *3 n.1 (E.D. Wis. Feb. 23, 2007) (unpublished) (noting that “there is some question
about whether leave of the court is even required” to conduct a second Rule 30(b)(6)
deposition).
The majority rule is that Rule 30(a)(2)(A)(ii) applies to Rule 30(b)(6) depositions
since “[t]here is nothing in the text of Rule 30 that supports the conclusion that Rule
30(b)(6) depositions should be treated differently from depositions of individuals.”
Foreclosure Mgmt. Co. v. Asset Mgmt. Holdings, LLC, No. 07-2388-DJW, 2008 WL 3895474,
at *3 (D. Kan. Aug. 21, 2008) (unpublished). See also Ameristar Jet Charter, Inc. v. Signal
Composites, Inc., 244 F.3d 189, 192 (1st Cir. 2001); Duran v. Sara Lee Corp., No. 1:11-CV313, 2013 WL 12308200, *1–4 (W.D. Mich. May 3, 2013) (unpublished) (gathering cases);
State Farm. Mut. Auto. Ins. Co. v. New Horizont, Inc., 254 F.R.D. 227, 234–35 (E.D. Pa.
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2008); In re Sulfuric Acid Antitrust Litig., No. 03 C 4576, 2005 WL 1994105, at *1–3 (N.D.
Ill. Aug. 19, 2005) (unpublished).
The minority view is that Rule 30(a)(2)(A)(ii) does not apply to Rule 30(b)(6)
depositions because they “are different from depositions of individuals.” Quality Aero
Tech., Inc. v. Telemetrie Elekronik GmbH, 212 F.R.D. 313, 319 (E.D.N.C. 2002); see also
Cornell Rsch. Found., Inc. v. Hewlett-Packard Co., No. 5:01-CV-1974 (NAM/DEP), 2006 WL
5097357, at *6 n.6 (N.D.N.Y. Nov. 13, 2006) (unpublished). This view enjoys
support from at least one scholar who believes that “the one-deposition provision could
be an obstacle to sensible handling of Rule 30(b)(6) organizational depositions.” 8A
Richard L. Marcus, Federal Practice & Procedure Civil § 2104 (3d ed. 2020). Mr. Marcus
posits that “the prime objective of the one-deposition provision in Rule 30(a) is to guard
against imposing burdens on an individual deponent.” Id. From there, he argues that
“the likelihood of the sort of imposition the rule guards against is quite small” in the
Rule 30(b)(6) context because these “depositions are limited to certain enumerated
topics, rather than covering all matters within the scope of discovery” and “an
organizational party subject to a Rule 30(b)(6) notice may designate whomever it
chooses—or several different people—to testify.” Id. He proposes, as a “sensible
method for applying the one-deposition provision to Rule 30(b)(6) depositions,” that
courts “focus initially on the listing of topics for examination in the deposition notice”
and only consider a Rule 30(b)(6) deposition a second deposition under Rule 30(a)
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where “the second notice lists the same topic as the first notice.” Id. But see 7 Moore's
Federal Practice, § 30.05[1][c] (3d ed. 2005) (arguing that Rule 30(a)(2)(ii) applies to Rule
30(b)(6) depositions).
The Court adopts the majority rule: Rule 30(a)(2)(A)(ii) applies to Rule 30(b)(6)
depositions. The Federal Rules of Civil Procedure should be construed like statutes and
accorded “their plain meaning.” Pavelic & LeFlore v. Marvel Ent. Grp., 493 U.S. 120, 123
(1989). “[W]hen [a court] find[s] the terms … unambiguous, judicial inquiry is
complete.” Id. (quoting Rubin v. United States, 449 U.S. 424, 430 (1981)). Rule
30(a)(2)(A)(ii) is neither vague nor unclear. It provides that “[a] party must obtain leave
of court … if the parties have not stipulated to the deposition and … the deponent has
already been deposed in the case.” Fed. R. Civ. P. 30(a)(2)(ii). Nothing in this plain
language renders Rule 30(a)(2)(A)(ii) inapplicable to Rule 30(b)(6) depositions. A
corporation is a deponent just as much as an individual.
The Court finds the analysis underpinning the minority rule unconvincing. In
Quality Aero Technology, Inc., the District Court for the Eastern District of North Carolina
held that “Rule 30(b)(6) depositions are different from depositions of individuals”
because a Rule 30(b)(6) deposition is counted as a single deposition for the purposes of
calculating the number of depositions in a case regardless of the number of witnesses
designated and “no aspect of the Rules … either restricts a party to a single 30(b)(6)
deposition or restricts the allotted time for taking a 30(b)(6) deposition.” 212 F.R.D. at
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319 (citing Fed. R. Civ. P. 30 advisory committee’s note to 1993 amendment). This
holding has at least two flaws.
First, this holding is inconsistent with the text of Rule 30. See, e.g., Foreclosure
Mgmt. Co., 2008 WL 3895474, at *3; In re Sulfuric Acid Antitrust Litig., 2005 WL 1994105,
at *3. The rule largely treats the depositions of corporations and individuals the same:
they are subject to the same reasonable notice requirements under Rule 30(b)(1); the
same advance notice requirement for the method of recording under Rule 30(b)(3)(A);
and the same document production rules under Rule 30(b)(2). See In re Sulfuric Acid
Antitrust Litig., 2005 WL 1994105, at *3; Fed. R. Civ. P. 30(b). Counting a Rule 30(b)(6)
deposition as a single deposition for the purposes of Rule 30(a)(2)(A)(i), regardless of
the number of designees deposed, is further evidence of equal treatment. It recognizes
that, regardless of how many witnesses a corporation designates to speak on noticed
topics, the corporation, not the individual designees, is the deponent. Cf. Harris v.
Koenig, 271 F.R.D. 356, 368 (D.D.C. 2010) (holding re-deposing a designee in her
personal, rather than corporate, capacity does not implicate Rule 30(a)(2)(A)(ii)).
The text of Rule 30 treats corporate and individual deponents differently in two
ways, both of which seek to accommodate the inherent differences between corporate
and individual knowledge. Rule 30(b)(6) requires the party noticing a corporate
deposition to “describe with reasonable particularity the matters for examination” in
the notice of deposition. Fed. R. Civ. P. 30(b)(6). This requirement recognizes that a
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corporation, whose knowledge is an amalgamation of many individuals’ knowledge
and is spread amongst these individuals rather than possessed by a single one of them,
cannot identify the right individual(s) to testify on its behalf without advance notice of
the topics of that testimony.
Rule 30(d)(1) limits the deposition of an individual to one day of seven hours but
does not so limit the deposition of a corporation (unless it only produces a single
designee). Fed. R. Civ. P. 30(d)(1); Fed. R. Civ. P. 30(d) advisory committee’s note to
2000 amendment. This rule strikes a balance between obtaining the knowledge
possessed by a deponent and protecting the deponent “from the unlimited right of
discovery given by Rule 26.” Fed. R. Civ. P. 30(d) advisory committee’s note. Where
corporate knowledge is held by more than one individual, the reasonable balance
requires granting one day of seven hours per Rule 30(b)(6) designee. See Fed. R. Civ. P.
30(d) advisory committee’s note to 2000 amendment.
Accommodating the inherent differences between corporate and individual
knowledge does not require exempting Rule 30(b)(6) from Rule 30(a)(2)(A)(ii). Even if it
did, the drafters would have included a provision in the rule, or at least a comment in
an Advisory Committee’s Note. They did not, so there is no basis for the Court to
ignore the plain text of Rule 30(a)(2)(A)(ii) and exempt Rule 30(b)(6) depositions from
its requirements.
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The holding of Quality Aero Technology, Inc. is also inconsistent with the purpose
of Rule 30(a)(2)(A)(ii). Depositions are expensive, burdensome endeavors, in addition
to critical fact-finding tools. Rule 30(a)(2)(A)(ii) balances these costs and benefits. It
gives parties an opportunity to obtain relevant information but limits the costs that
depositions impose on parties and other witnesses and constrains the ability of litigants
to weaponize depositions as mechanisms of harassment. The Court disagrees with Mr.
Marcus that the primary objective of Rule 30(a)(2)(A)(ii) is to protect only individuals
from the burdens of repeat depositions. See 8A Richard L. Marcus, Federal Practice &
Procedure Civil § 2104. “Taking serial depositions of a single corporation may be as
costly and burdensome, if not more so, as serial depositions of an individual.” New
Horizont, Inc., 254 F.R.D. at 235. Exempting Rule 30(b)(6) depositions from Rule
30(a)(2)(A)(ii) undermines its cost reduction and harassment-prevention purposes.
The Court also disagrees with Mr. Marcus’s proposal that it “focus initially on the
listing of topics for examination in the deposition notice” and only apply Rule
30(a)(2)(A)(ii) where “the second notice lists the same topic as the first notice.” See 8A
Richard L. Marcus, Federal Practice & Procedure Civil § 2104. This proposal clashes with
the text and purposes of Rule 30(a)(2)(A)(ii). It disincentivizes litigants to notice all of
their topics at once, opens the door for them to wield Rule 30(b)(6) depositions and their
concomitant expenses as vexatious cudgels against corporations, and removes courts as
the balancers of the costs, benefits, and fairness of additional Rule 30(b)(6) depositions.
18
The cumulative nature of the topics noticed for an additional Rule 30(b)(6) deposition is
relevant to the inquiry but is more properly considered when deciding whether to grant
leave for a party to conduct this deposition rather than whether a party must obtain a
court’s leave to do so in the first place. See Fed. R. Civ. P. 30(a)(2) (requiring a court to
grant leave to re-depose a deponent to the extent consistent with Rule 26(b)(2), which
inter alia, bars unreasonably cumulative or duplicative discovery).
C. RESPONDING TO INTERROGATORIES UNDER RULE 33(b)
Rule 33(b) requires that an officer or agent responding to an interrogatory on
behalf of an incorporated party answer based on “the information available to the
party.” Fed. R. Civ. P. 33(b)(1)(B). This information is not limited to that which is
maintained in the ordinary course of business or otherwise known and immediately
available. Oklahoma v. Tyson Foods, Inc., 262 F.R.D. 617, 629 (N.D. Okla. 2009); Miller v.
Doctor’s Gen. Hosp., 76 F.R.D. 136, 140 (W.D. Okla. 1977). Rather, it extends to
information that a party may obtain with reasonable effort, including that held by
assignors, agents, representatives, current employees, and former employees, even if
they are not personally known to the party. Nat’l Fire Ins. Co. of Hartford v. Jose Trucking
Corp., 264 F.R.D. 233, 238 (W.D.N.C. 2010); Essex Builders Grp., Inc. v. Amerisure Ins. Co.,
230 F.R.D. 682, 685 (M.D. Fla. 2005); Miller, 76 F.R.D. at 140.
Information is not obtainable with reasonable effort if it requires “undue labor
and expense” to obtain. Lynn v. Monarch Recovery Mgmt., Inc., 285 F.R.D. 350, 357 (D.
19
Md. 2012) (quoting 8B Charles Alan Wright et al., Federal Practice & Procedure Civil §§
2174, 2177 (3d ed. 2012)). A party responding to an interrogatory “is not required to
make an extensive investigation” or “do the interrogating party’s investigation for
him.” Samsung Elecs. Am., Inc. v. Yang Kun Chung, 321 F.R.D. 250, 282 (N.D. Tex. 2017);
Olmert v. Nelson, 60 F.R.D. 369, 370 (D.D.C. 1973).
A party’s answer to an interrogatory “must be complete, explicit, and responsive.”
Milner v. Nat’l Sch. of Health Tech., 73 F.R.D. 628, 632 (E.D. Pa. 1977). “Engaging in strained
constructions of reasonably-framed requests in order to avoid providing information …
is simply not permitted.” JPMorgan Chase Bank, N.A. v. Neovi, Inc., No. 2:06-CV-0095, 2006
WL 3803152, at *5 (S.D. Ohio. Nov. 14, 2006) (unpublished). If, after exerting a reasonable
effort, “the answering party lacks necessary information to make a full, fair and specific
answer to an interrogatory, it should so state under oath and should set forth in detail the
efforts made to obtain the information.” Miller, 76 F.R.D. at 140.
D. PRODUCING DOCUMENTS UNDER RULE 34
Rule 34(a) requires a party to produce designated documents that are “in [its]
possession, custody, or control.” Fed R. Civ. P. 34(a)(1). “’[C]ontrol’ does not require
that the party have legal ownership or actual physical possession of the documents at
issue; rather, documents are considered to be under a party’s control when that party
has the right, authority, or practical ability to obtain the documents from a non-party to
the action.” In re NTL, Inc. Secs. Litig., 244 F.R.D. 179, 195 (S.D.N.Y. 2007) (citations
20
omitted). “The documents and records that a corporation requires in the normal course
of its business are presumed to be in its control unless the corporation proves
otherwise.” Cooper Indus., Inc. v. British Aerospace, Inc., 102 F.R.D. 918, 920 n.2 (S.D.N.Y.
1984). “Simply put, if a person, corporation, or a person’s attorney or agent can pick up
a telephone and secure the document, that individual or entity controls it.” Landry v.
Swire Oilfield Servs., LLC, 323 F.R.D. 360, 382 (D.N.M. 2018). Control does not exist,
however, if a document no longer exists, Manning v. Gen. Motors, 247 F.R.D. 646, 652 (D.
Kan. 2007), or where the document is a public record that is equally accessible to all
parties. McKellips v. Kumho Tire Co., Inc., 305 F.R.D. 655, 681 (D. Kan. 2015).
E. SUPPLEMENTING DISCOVERY RESPONSES UNDER RULE 26(e)
Rule 26(e) requires a party who has made a disclosure under Rule 26(a) or
responded to an interrogatory or request for production under Rules 33 and 34 to
“supplement or correct its disclosure or response … in a timely manner if the party
learns that in some material respect the disclosure or response is incomplete or
incorrect, and if the additional or corrective information has not otherwise been made
known to the other parties during the discovery process or in writing.” Fed. R. Civ. P.
26(e)(1)(A).
Courts interpret the second conditional phrase “to require meaningful
disclosure.” FOX Factory, Inc. v. SRAM, LLC, No. 18-cv-00130-WJM-NYW, 2019 WL
1450622, at *3 (D. Colo. Apr. 2, 2019) (unpublished) (citing Poitra v. Sch. Dist. No. 1 in the
21
Cnty. of Denver, 311 F.R.D. 659, 666–67 (D. Colo. 2015)). Supplementation is not required
if a party has disclosed new information or a change in position “in such a form and of
such specificity as to be the functional equivalent of a supplementa[tion].” L-3
Commc’ns Corp. v. Jaxon Eng’g & Maint., Inc., 125 F. Supp. 3d 1155, 1169 (D. Colo. 2015).
See also U.S. Aviation Underwriters v. Pilatus Bus. Aircraft, Ltd., 582 F.3d 1131, 1145 (10th
Cir. 2009); 8A Richard L. Marcus, Federal Practice & Procedure Civil § 2049.1 (3d ed. 2020).
Functional equivalents to a supplementation include additional or corrective
information presented in a response to a request for admission. Sinclair Wyo. Refin. Co.
v. A&B Builders, Ltd., No. 15-CV-91-ABJ, 2018 WL 4698788, at *5 (D. Wyo. Aug. 31, 2018)
(unpublished). They do not include passing references to additional or corrective
information, such as those in a deposition, documents produced in discovery, or
correspondence between parties. Jama v. City & Cnty. of Denver, 304 F.R.D. 289, 296–99
(D. Colo. 2014); Poitra, 311 F.R.D. at 666–67.
“The timeliness of supplementation centers on when the disclosing-party
‘reasonably should know that its disclosures [and/or discovery responses] are
incomplete or incorrect.’” Carroll v. SAFECO Ins. Co. of Am., No. 20-cv-00219-REBNYW, 2020 WL 7664731, *2 (D. Colo. Dec. 24, 2020) (unpublished) (citing Jama, 304
F.R.D. at 299–300). “Supplementations need not be made immediately as each new item
of information is learned.” Advisory Committee Note to 1993 Amendments of Rule
26(e). But, they “must occur in a fashion that will allow the opposing party to conduct
22
meaningful discovery and avoid undue delay in the progress of the case.” Carroll, 2020
WL 7664731, *2 (internal quotations and citations omitted). There is no bright line for
assessing a supplementation’s timeliness. Silvangi v. Wal-Mart Stores, Inc., 320 F.R.D.
237, 241 (D. Nev. 2017). Instead, “the key inquiry is whether the timing of the
supplement[ion] is reasonable based on when the information was available to the
[supplementing party].” Id. Factors courts consider in assessing timeliness include the
supplementing party’s diligence in obtaining additional or corrective information and
the length of time that the party took to supplement after it obtained this information
Carroll, 2020 WL 7664731, at *2 (citing Jama, 304 F.R.D. at 299–300 and Harvey v. United
States, No. 04-cv-00188-WYD-CBS, 2005 WL 3164236, at *13 (D. Colo. Nov. 28, 2005)).
F. COMPELLING DISCOVERY UNDER RULE 37(a)
Rule 37(a) allows a party to “move for an order compelling disclosure or
discovery” after noticing other parties and all affected persons and making a good faith
effort to confer with the party or person who has failed to provide the disclosure or
discovery. Fed. R. Civ. P. 37(a)(1). Grounds to compel include failing to answer an
interrogatory posed under Rule 33 or produce a document requested under Rule 34.
Fed. R. Civ. P. 37(a)(3)(B)(iii), (iv).
Responses that are evasive or incomplete constitute a failure to answer or
respond. Fed. R. Civ. P. 37(a)(4). A response to an interrogatory is evasive or
incomplete where it does not furnish all information that was obtainable by the
23
responding party with reasonable effort. See Milner, 73 F.R.D. at 632; Miller, 76 F.R.D. at
140. A response to a request for production of documents is incomplete where it does
not include all documents that the responding party has the practical ability to obtain.
See Landry, 323 F.R.D. at 382; In re NTL, Inc. Secs. Litig., 244 F.R.D. at 195. “The party
moving to compel discovery has the burden of proving that the opposing party’s
answers [are] incomplete.” Duran v. Donaldson, No. 1:09-cv-758 BB/DJS, 2011 WL
13152655, at *2 (D.N.M. June 2, 2011) (unpublished) (citing Daiflon, Inc. v. Allied Chem.
Corp., 534 F.2d 221, 227 (10th Cir. 1976)).
G. IMPOSING SANCTIONS UNDER RULE 37
Rule 37 affords the Court broad discretion to sanction a party for unjustifiably
resisting discovery. Lee v. Max Int’l, LLC, 638 F.3d 1318, 1320 (10th Cir. 2011). “In
considering the imposition of sanctions, the [C]ourt must consider on a case-by-case
basis whether a party’s failure was substantially justified or whether other
circumstances make the imposition of sanctions inappropriate.” Starlight Int’l Inc. v.
Herlihy, 186 F.R.D. 626, 646 (D. Kan. 1999) (citations omitted). In determining the
appropriate sanction to impose, the Court must consider the purposes that sanctions
serve, which “include ‘(1) deterring future litigation abuse, (2) punishing present
litigation abuse, (3) compensating victims of litigation abuse, and (4) streamlining court
dockets and facilitating case management.’” Id. at 647 (quoting Resolution Trust Corp. v.
Williams, 162 F.R.D. 654, 660 (D. Kan. 1995)). “The sanction … imposed should be the
24
least severe of those available, which appears adequate to deter and punish the
wrongdoer.” Id. (citing White v. Gen. Motors Corp., 908 F.2d 675, 685 (10th Cir. 1990)).
The sanctions that a Court may levy under Rule 37 and the procedural
prerequisites for doing so depend on the nature of the discovery violation. On motion
and after giving an opportunity to be heard, the Court may sanction a party for (i)
omitting information or witnesses from its initial disclosures; (ii) not answering
properly served interrogatories or requests for production; (iii) not supplementing the
information that it has provided in its disclosures and discovery responses in a timely
manner; or (iv) failing to ensure that its Rule 30(b)(6) designee appears for a properly
noticed deposition. Fed. R. Civ. P. 37(c)(1), (d)(1)(A).
For the purposes of Rule 37(d), not answering properly served interrogatories
and requests for production does not mean “anything less than … wholly fail[ing] to
respond.” State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 250 F.R.D. 203, 220 (E.D.
Pa. 2008) (quoting 8A Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus,
Federal Practice & Procedure § 2291 (3d ed. 2007)). The Court may sanction a party for
incomplete or evasive responses to interrogatories or requests for production pursuant
to Rule 37(b) but only after it has first ordered the party to provide this discovery and
the party has failed to obey this order. Lillie v. United States, 40 F.3d 1105, 1109 (10th Cir.
1994); New Horizont, Inc., 250 F.R.D. at 220–21; Fed. R. Civ. P. 37(b)(2).
25
For the purposes of Rule 37(d), “[p]roducing an unprepared witness [for a Rule
30(b)(6) deposition] is tantamount to a failure to appear at [this] deposition.” Herlihy,
186 F.R.D. at 639 (quoting Taylor, 166 F.R.D. at 363). See also Black Horse Lane Assoc. v.
Dow Chem. Corp., 228 F.3d 275, 304 (3d Cir. 2000); Resolution Trust Corp. v. S. Union Co.,
Inc., 985 F.2d 196, 197 (5th Cir. 1993). Courts, however, only sanction this functional
nonappearance where it is done in bad faith, prejudices the opposing side, and disrupts
proceedings. See, e.g., Live Face on Web, LLC v. Integrity Sols. Grp., LLC, 421 F. Supp. 3d
1051, 1080 (D. Colo. 2019); Berwind Prop. Grp., 233 F.R.D. at 65; Herlihy, 186 F.R.D. at
639–40; Taylor, 166 F.R.D. at 363.
H. IMPOSING SANCTIONS UNDER THE COURT’S INHERENT AUTHORITY
Beyond the provisions of the Federal Rules of Civil of Procedure, the Court “may
impose sanctions on a party for misconduct in discovery under its inherent power to
manage its own affairs.” Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99,
106–07 (2d Cir. 2002). See also Garcia v. Berkshire Life Ins. Co. of Am., 569 F.3d 1174, 1179
(10th Cir. 2009). This implied power is “governed not by rule or statute but by the
control necessarily vested in courts to manage their own affairs so as to achieve the
orderly and expeditious disposition of cases.” Chambers v. NASCO, Inc., 501 U.S. 32, 43
(1991) (quoting Link v. Wabasah R.R. Co., 370 U.S. 626, 630–31 (1962)). It “can be invoked
even if procedural rules exist which sanction the same conduct.” Id. at 49.
26
The Court, however, must exercise its inherent power to sanction with restraint
as it is shielded from direct democratic controls. Roadway Express, Inc. v. Piper, 447 U.S.
752, 764 (1980). “[W]hen there is … conduct in the course of litigation that [can] be
adequately sanctioned under the Rules, the [C]ourt ordinarily should rely on the Rules
rather than the inherent power.” Chambers, 501 U.S. at 50.
III.
ANALYSIS
Having reviewed the relevant legal standards, the Court turns to the merits of
the parties’ motions and finds the following: (A) the parties may not take additional
depositions of each other at this time since the notices for these depositions violate Rule
30(a)(2)(A)(ii) and their requests for leave to conduct these depositions are belated
requests to extend the fact-discovery deadline that have not been shown to satisfy the
good cause standard of Rule 16(b)(4) and the good cause and excusable neglect
standards of Rule 6(b)(1)(B); (B) Defendant American Linen’s responses to Plaintiffs’
Requests for Production Nos. 4, 7, and 8 are incomplete because it has not sought, and
so cannot be said to have produced, all responsive documents that are within its
control; and (C) Defendant American Linen’s responses to Plaintiffs’ Interrogatories
Nos. 5, 8, and 9 are incomplete because they do not reflect all the information available
to Defendant or address the entire temporal scope of the questions.
The Court also sanctions Defendant American Linen for failing to produce a Rule
30(b)(6) designee who was prepared to testify based on all the information reasonably
27
available to the corporation and not supplementing its initial disclosures and discovery
responses in a timely manner. It does not sanction Defendant for the initial content of
its discovery responses.
A. RE-DEPOSING THE PARTIES UNDER RULE 30(b)(6)
Neither Defendant American Linen nor Plaintiffs may subject each other to
additional Rule 30(b)(6) depositions at this time. The notices for their depositions, docs.
247-1, 243-3, are invalid under Rule 30(a)(2)(A)(ii) because the parties did not obtain the
Court’s leave to take these depositions before noticing them, the parties have all already
been deposed pursuant to Rule 30(b)(6) in this case, and the parties have not stipulated
to any additional Rule 30(6) depositions. Insofar as the parties’ briefing contains post
hoc requests for leave to take these depositions, the Court denies them pursuant to Rules
16(b)(4) and 6(b)(1)(B) since they constitute belated requests to extend the discovery
deadline and have not been shown to satisfy these rules’ good cause and excusable
neglect standards.
1. The Parties’ Notices for Additional Rule 30(b)(6) Depositions Are Invalid
The parties’ notices to depose each other on October 9, 2020 pursuant to Rule
30(b)(6) are invalid under Rule 30(a)(2)(A)(ii). Rule 30(a)(2)(A)(ii) applies to Rule
30(b)(6) depositions and requires the parties to obtain the Court’s leave to depose each
other since they did not stipulate to these additional depositions and each has already
been deposed in the case. See supra at 15–19; Fed. R. Civ. P. 30(a)(2)(A)(ii).
28
Defendant American Linen argues that Rule 30(a)(2)(A)(ii) does not apply to the
additional depositions it noticed for Plaintiffs because the parties agreed in May 2019
that it “would be permitted to notice and take a second Rule 30(b)(6) deposition of
Plaintiffs on separate topics” due to the unavailability of its counsel of record on the
dates noticed by Defendant United States. Doc. 256 at 4. The record before the Court
reflects no such agreement. Rather, it contains several statements in which Defendant
declares its intent to conduct these depositions but no statements from Plaintiffs
agreeing to appear for them. See generally doc. 247-5. At most, Plaintiffs indicated in an
email in May 2019 that they may agree to additional, short Rule 30(b)(6) depositions
commensurate with any topics noticed if Defendants could not find a mutually
agreeable dates for their Rule 30(b)(6) depositions. Id. at 1. Elsewhere in that email,
however, Plaintiffs expressly declined to consent to the additional depositions until
they had a received and evaluated the topics of Defendant American Linen and the
other dry-cleaning Defendants. Id. Shortly before the Court stayed the case in August
2019, Plaintiffs also listed the proposed second Rule 30(b)(6) depositions in a list of
outstanding depositions that the parties may wish to schedule before the close of
discovery. Doc. 256-3 at 4. Neither expressing the possibility of consenting to second,
short Rule 30(b)(6) depositions nor reminding Defendant about them amounts to
stipulating to additional Rule 30(b)(6) depositions.
29
Defendant American Linen also argues that “Plaintiffs could have demanded
that [Defendant] United States notice its Rule 30(b)(6) [deposition] on a date when [its]
lead counsel was available to question the witnesses.” Doc. 256 at 6. This is not
Plaintiffs’ responsibility, however. Cf. Fed. R. Civ. P. 30(a) advisory committee’s note to
1993 amendment (“In multi-party cases, the parties on any side are expected to confer
and agree as to which depositions are most needed, given the presumptive limit on the
number of depositions they can take without leave of court.”).
It might be argued that Rule 30(a)(2)(A)(ii) does not apply to Defendant
American Linen’s additional Rule 30(b)(6) depositions of Plaintiffs because Defendant
has not yet taken Plaintiffs’ depositions in this case. Its counsel of record could not and
did not attend Plaintiffs’ depositions in May 2019 and the attorney who attended on its
behalf did not ask Plaintiffs’ designees any questions. Doc. 247-6 at 116:19–117:3; doc.
247-7 at 135:9–14. This argument, however, does violence to the text and purpose of
Rule 30(a)(2)(A)(ii).
Textually, Rule 30(a)(2)(A)(ii) attaches the leave-of-court requirement in Rule
30(a)(2) to the deponent who “has already been deposed in this case,” not the taker of
the deposition. See Fed. R. Civ. P. 30(a)(2)(A)(ii). The use of passive voice renders the
identities of the takers of the earlier deposition and/or the second deposition are
immaterial to the rule’s applicability. If the drafters had wanted Rule 30(a)(2)(A)(ii) to
30
apply only where the party has already deposed the deponent in the case, they could
have stated as such.
With respect to purpose, Rule 30(a)(2) seeks to protect deponents from the
burdens posed by discovery and to limit the potential for litigants to abuse the liberal
discovery process for vexatious ends. See New Horizont, Inc., 254 F.R.D. at 235.
Construing Rule 30(a)(2)(A)(ii) to not apply where a party not present for a deposition
seeks to re-depose that deposition’s deponent undermines these purposes. A party’s
presence or absence is better considered by courts when assessing whether to grant a
party leave to subject a deponent to an additional deposition rather than whether their
leave is required to do so. See Fed. R. Civ. P. 30(a)(2) (requiring a court to grant leave to
re-depose a deponent to the extent consistent with Rule 26(b)(2), which inter alia, bars
discovery that a party has had ample opportunity to obtain in the action).
2. The Court Denies the Parties Leave to Depose Each Other Since Their Requests Do
Not Satisfy Rules 16(b)(4) and 6(b)(1)(B)
The Court denies Plaintiffs and Defendant American Linen leave at this time to
subject each other to additional Rule 30(b)(6) depositions. Plaintiffs ask the Court to
treat their Response to Defendant American Linen’s Motion for Protective Order as a
request for leave and reiterate this request in their Motion to Compel and for Sanctions.
Doc. 257 at 4; doc. 263 at 2. Defendant has not filed a motion for the Court’s leave to take
additional Rule 30(b)6) depositions of Plaintiffs, but asks the Court in its Response to
Plaintiffs’ Motion for Protective Order to permit these depositions due to their
31
consistency with Rules 26(b)(1) and (2). See doc. 256 at 5. The Court construes this as a
request for leave to conduct these depositions. See, e.g., New Horizont, Inc., 254 F.R.D. at
235; Burdick v. Union Sec. Ins. Co., No. CV 07-4028 ABC(JCx), 2008 WL 5102851, at *3
(C.D. Cal. Dec. 3, 2008) (unpublished). The Court denies the parties’ requests for leave
because they do not satisfy the good cause standard of Rule 16(b)(4) and the good cause
and excusable neglect standards of Rule 6(b)(1)(B).
The parties’ request for leave to take additional Rule 30(b)(6) depositions of each
other are belated requests to extend the fact-discovery deadline to take these
depositions since the parties did not make them until that deadline passed. Granting
the parties’ requests, therefore, requires the Court to find the following for each
deposition: giving leave to conduct it is consistent with Rule 26(b)(1) and (2); (ii) good
cause exists under Rules 16(b)(4) and 6(b)(1) to extend the fact-discovery deadline for
the deposition; and (iii) the request for leave and extension of the fact-discovery
deadline was untimely due to excusable neglect. See Fed. R. Civ. P. 30(a)(2)(A)(ii); Fed.
R. Civ. P. 16(b)(4); Fed. R. Civ. P. 6(b)(1)(B).
The parties only briefed the first issue. See generally docs. 243, 246, 256, 257, 263,
269, 270, 279, 288. Insofar as Plaintiffs’ briefing touches on the latter two issues, they
attribute their belated request for leave to opposing counsel’s unavailability for the four
weeks leading up to the discovery deadline. Doc. 257 at 4. This explanation, however,
does not address why Plaintiffs did not move the Court on an earlier date for leave to
32
take an additional deposition of Defendant American Linen or notice this deposition on
an earlier date, either in the months immediately after the expiration of the stay or the
months between the first Rule 30(b)(6) deposition and the imposition of the stay. Based
on the record before it, therefore, the Court cannot find that Plaintiffs have shown good
cause under Rules 16(b)(4) and 6(b)(1) to extend the fact-discovery deadline for this
deposition or that excusable neglect is the reason for their belated requests for leave to
take this deposition and an extension of the discovery deadline to do so.
Plaintiffs also allege that Defendant American Linen has not served a single
discovery request in the more than two years that it has been a party to this case. See
doc. 246 at 3. This assertion casts doubt as to whether Defendant has exercised the
requisite diligence to show good cause for extending the fact-discovery deadline under
Rule 16(b)(4). See Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass'n, 771 F.3d 1230, 1240
(10th Cir. 2014) (holding that the Rule 16(b)(4) good cause “standard requires the
movant to show the scheduling deadlines [could not] be met despite the movant’s
diligent efforts” (citation and internal quotations omitted)).3 Defendant, for its part,
The Court does not reach the question as to whether Defendant American Linen has exercised the
requisite diligence to show good cause for an extension of the discovery deadline pursuant to Rule
16(b)(4). Accounting for the stay from August 21, 2019 until July 17, 2020, Defendant has had
approximately 390 days since filing its answer to conduct discovery on this case. Discovery in this
district routinely takes less than a year. To show good cause to extend the October 9, 2020 discovery
deadline to take Plaintiffs’ Rule 30(b)(6) depositions, Defendant must show that it could not meet this
deadline despite its diligent efforts during the ~390 days available to it to conduct discovery. See Gorsuch,
771 F.3d at 1240.
3
33
does not rebut Plaintiffs’ allegation or otherwise address the Rule 16(b)(4) and Rule
6(b)(1)(B) issues. See doc. 256.
The Court will not rule conclusively on the Rule 16(b)(4) and Rule 6(b)(1)(B)
issues on the record before it. Rather, it finds that, at this time, neither party has shown
that its request for leave satisfies Rule 16(b)(4) and Rule 6(b)(1)(B). Accordingly, it
denies their requests without prejudice to the parties reiterating them in subsequent
motions and without reaching the issue of whether granting leave for any of the desired
depositions is consistent with Rule 26(b)(1) and (2).
B. COMPELLING DEFENDANT AMERICAN LINEN TO PRODUCE ALL
DOCUMENTS IN ITS CONTROL
Defendant American Linen’s responses to Plaintiffs’ Requests for Production
Nos. 4, 7, and 8 are incomplete because it has not sought, and so cannot be found to
have produced, all applicable documents that are within its control. Documents that
Defendant controls include not only those that it possesses but also those that it has a
practical ability to obtain. Landry, 323 F.R.D. at 382; In re NTL, Inc. Secs. Litig., 244 F.R.D.
at 195. Defendant, however, only searched its own records for responsive documents
when responding to Plaintiffs’ requests. It made no attempt to obtain responsive
documents that it does not possess but has practical ability to obtain. Doc. 264-3 at 13.
Its responses, therefore, cannot be said to include all the documents that are within its
34
control.4 See Alexander v Fed. Bureau of Investigation, 194 F.R.D. 299, 301–02 (D.D.C. 2000)
(holding that a defendant had not produced all the documents that she controlled when
her responses stated that she had only produced documents that she possessed).
C. COMPELLING DEFENDANT AMERICAN LINEN TO ANSWER
INTERROGATORIES WITH ALL THE INFORMATION AVAILABLE TO IT
Turning to the matter of Defendant American Linen’s responses to Plaintiffs’
First Set of Interrogatories, the Court finds that its responses to Interrogatories Nos. 5, 8,
and 9 are incomplete. The responses neither reflect all the information that is available
to Defendant nor do they address the entire scope of the questions. Defendant makes
several arguments otherwise, but none is convincing.
1. Defendant American Linen’s Answers to Interrogatories Nos. 5, 8–9 Are Incomplete
Defendant’s responses to Interrogatories Nos. 5, 8, and 9 are deficient as they
neither reflect all information available to it about its operational history nor cover the
entire time period for which this information is sought. Information that is available to
Defendant includes not only that which Defendant possesses but also that which is
Defendant American Linen’s response to Plaintiffs’ Request for Production No. 8 exemplifies the
inadequacy of its efforts to obtain responsive documents to date. In this request, Plaintiffs ask Defendant
to provide “any [d]ocuments that identify any agreements, contracts, or arrangements that [Defendant]
ha[s] entered into with Laun-Dry Supply Company, Inc., LD Supply, and/or Linen Side Chemicals,
including any and all contracts, agreements, invoices, or receipts for materials or supplies ordered or
purchased that contained or may have contained PCE.” Doc. 264-3. at 18. In its response, Defendant does
not deny that responsive documents exist, only that it has them. Doc. 264-3 at 18. Under Cooper
Industries, Inc., Defendant is presumed to have control of responsive documents about its business
arrangements with these entities since it admitted in its Response to Plaintiffs’ Interrogatory No. 9 that it
is “a business customer” of them. 102 F.R.D. at 919–20 & n.2; doc. 264-3 at 10–11. As Defendant has made
no attempt to obtain responsive documents from these entities, see doc. 264-3 at 13, it has not rebutted this
presumption.
4
35
obtainable with reasonable effort, including information found in documents that
Defendant controls but does not possess and information held by current employees
and former employees whose identities are known or reasonably ascertainable. See
Nat’l Fire Ins. Co. of Hartford, 264 F.R.D. at 238; Essex Builders Grp., Inc., 230 F.R.D. at 685;
Miller, 76 F.R.D. at 140. It does not extend to information that is only obtainable
through extensive investigation. Yang Kun Chung, 321 F.R.D. at 282.
Plaintiffs’ Interrogatories Nos. 5, 8, and 9 seek information about Defendant’s
dry-cleaning operations and PCE use since January 1, 1938. Doc. 264-2 at 7; doc. 264-3 at
6–11. In Interrogatory No. 5, Plaintiffs request Defendant to describe, inter alia, its drycleaning operations during this time, the equipment, materials, and solvents used for
these operations, and practices pertaining to the use and disposal of these solvents.
Doc. 264-3 at 6. In its response, Defendant asserts, inter alia, that it “is a commercial
laundry service … and uniform supply company” and “at no point in time has [it]
operated a dry-cleaning facility or used PCE in any of its operations” Id. at 2, 7.
In Interrogatory No. 8, Plaintiffs ask Defendant to identify and describe any
contracts, agreements, or other arrangements with persons or entities related to, inter
alia, the collection and disposal of solvents that may have contained PCE since January
1, 1938. Doc. 264-2 at 7; doc. 264-3 at 10. In response, Defendant states that it has no
such contracts, agreements, or other arrangements “because, to the best of its
36
knowledge, [it] has no conducted dry-cleaning operations in its business at any time.”
Doc. 264-3 at 10.
In Interrogatory No. 9, Plaintiffs request Defendant to describe its relationship to
Laun-Dry Supply Company, Inc., LD Supply, and/or Linen Side Chemicals, including
any orders or purchases of materials that may have contained PCE. Doc. 264-2 at 7; doc.
264-3 at 10–11. In response, Defendant has explained that it is “a business customer” of
these entities and, “to the best of its knowledge, has not purchased materials or supplies
that contained or may have contained PCE.” Doc. 264-3 at 11.
Each of these three responses was incomplete at the time that Defendant gave it
and remains incomplete today for two reasons. First, they are not based on all the
information available to Defendant since they only contain information from its
corporate records. Doc. 264-3 at 13. When responding, Defendant made no attempt to
gather information available to it from current or former employees or any documents
that it controls but did not possess. See id. Second, the responses do not address the full
temporal scope of Plaintiffs’ questions. Plaintiffs have requested information about
Defendant’s dry-cleaning operations and PCE purchases since January 1, 1938, see doc.
264-2 at 7, but Defendant’s responses only cover operations since 2006 and purchases
since the 1990s, see doc. 258-2 at 122:19–124:13; doc. 264-3 at 6–11. If Defendant lacks
sufficient information to answer questions about operations that predate the 1990s, it
should clearly state as such, provide what information it has, and articulate the efforts
37
that it has taken to obtain more information. See Miller, 76 F.R.D. at 140; Milner, 73
F.R.D. at 632. Until these two defects are remedied, Defendant American Linen’s
answers to Interrogatories Nos. 5, 8, and 9 are neither complete nor based on all the
information that is available to it.
2. Defendant American Linen’s Explanations for Incomplete Answers are Inadequate
Defendant American Linen makes several unconvincing factual and legal
arguments about the completeness of its interrogatory responses. First, it contends that
its “investigation of its historical operations was comprehensive” and could not include
interviews of former employees because “all of the people who worked [for it] during
the relevant time period are deceased or unknown to current … management.” Doc.
279 at 5. The record does not support this contention. Defendant’s personnel files do
not have the names and contact information of individuals who worked for it during
the time of its alleged dry-cleaning operations. Doc. 279-1 at 43:3–17. However, in the
months preceding Defendant’s responses to Plaintiffs’ interrogatories, Mr. Lutz had a
conversation with a former employee who worked for Defendant at this time: Mr.
Watkins. Doc. 288-1 at 61:15–62:13. Plaintiffs’ initial disclosures also included the
address for Mr. Jasso, another former employee. Doc. 282-6 at 1. Moreover, even if the
record did show that identities of all of Defendant’s former employees from the relevant
time period are unknown to its current management, Defendant still has an obligation
38
to make a reasonable effort to obtain them. This effort requires more than a mere search
of corporate records.
Second, Defendant argues that caselaw does not obligate it “to undertake a
sweeping investigation for additional relevant information that it did not possess at the
time the case was filed or discovery was served.” Doc. 279 at 6. This argument is a
strawman. Defendant is correct that caselaw imposes no such obligation upon it. See
Yang Kun Chung, 321 F.R.D. at 282. However, caselaw does require Defendant to
answer Plaintiffs’ interrogatories based on the information available to it. This includes
not only information found in Defendant’s corporate records but also information
known by current and former employees or found in documents that Defendant
controls but does not possess. See Nat’l Fire Ins. Co. of Hartford, 264 F.R.D. at 238; Essex
Builders Grp., Inc., 230 F.R.D. at 685; Miller, 76 F.R.D. at 140.
Third, Defendant asserts that “‘parties should anticipate the unavailability of
certain information’ that relates to decades-old corporate activity and events.” Doc. 279
at 7 (quoting Barron v. Caterpillar, Inc., 168 F.R.D. 175, 177 (E.D. Pa. 1996)). This
argument misstates the issue. The issue is not that Defendant failed to respond to
Plaintiff’s interrogatories with information about “decades-old corporate activity and
events,” but rather that Defendant’s responses do not reflect all the information
available to it about its operational history or cover the entire temporal scope of
Plaintiffs’ questions. It might well be the case that, after gathering and reviewing all the
39
information available to it, Defendant will still not be able to provide information about
these activities in its responses. See Barron, 168 F.R.D. at 177. But, nobody knows until
Defendant has made a reasonable effort to gather and review this information.
Fourth, Defendant argues that changes to its discovery responses beyond those
relevant to its recent admission that it conducted dry-cleaning operations using PCE
from 1972 until late 1982 are unnecessary as “[i]t is well established that any knowledge
possessed by former employees—for example, with respect to alleged purchases or
releases of PCE—is not imputed to [it].” Doc. 279 at 8–9 (citing 3 Fletcher Cyc. Corp. §§
793, 807 (2020)). Defendant again misidentifies the issue. Sections 793 and 807 of the
Fletcher Cyclopedia of the Law of Corporations address when notice to or knowledge
held by a corporation’s agents, officers, and employees is chargeable to the corporation
itself. The issue under Rule 33(b), however, is not what information is known by a
corporation, but rather what information is available to it. See Pilling v. Gen. Motors
Corp., 45 F.R.D. 366, 369 (D. Utah 1968). Information available to a corporation includes
that possessed by former employees whose identities are known or reasonably available
to the corporation and who may be located and interviewed with reasonable effort.
Nat’l Fire Ins. Co. of Hartford, 264 F.R.D. at 238; Essex Builders Grp., Inc., 230 F.R.D. at 685;
Miller, 76 F.R.D. at 140.
40
D. SANCTIONING DEFENDANT AMERICAN LINEN FOR DISCOVERY
VIOLATIONS
The Court only sanctions Defendant American Linen for failing to produce a
Rule 30(b)(6) designee who was prepared to testify based on all the information
reasonably available to the corporation and failing to supplement, in a timely manner,
the blanket denials of dry-cleaning operations and PCE use in its initial disclosures and
discovery responses. Sanctioning Defendant for providing incomplete responses to
Plaintiffs’ interrogatories and requests for production is improper at this time because
Defendant has not violated a court order compelling it to provide complete responses.
Likewise, sanctioning Defendant for initially providing incorrect information in its
discovery responses is inappropriate since there is no evidence that it did so willfully or
in bad faith.
1. Sanctions for Mr. Lutz’s Unpreparedness at Defendant’s Rule 30(b)(6) Deposition
The Court sanctions Defendant American Linen for producing a Rule 30(b)(6)
designee who was not prepared to testify based on all information reasonably available
to the corporation. During his deposition, Mr. Lutz, Defendant’s designee, testified
repeatedly from his own personal knowledge, rather than from all information
reasonably available to the Defendant, because he did not make a good faith effort
before testifying to obtain information held by former employees or contained in
documents that Defendant does not possess but has practical ability to obtain. This
approach is tantamount to Defendant not appearing for its Rule 30(b)(6) deposition. See
41
Black Horse Lane Assoc., 228 F.3d at 304; Resolution Trust Corp., 985 F.2d at 197; Herlihy,
186 F.R.D. at 639; Taylor, 166 F.R.D. at 363. It is sanctionable as such since Defendant’s
functional nonappearance prejudiced Plaintiffs, disrupted proceedings, and reflects a
lack of good faith. See Live Face on Web, LLC, 421 F. Supp. 3d at 1080; Herlihy, 186 F.R.D.
at 640; Taylor, 166 F.R.D. at 363.
a. MR. LUTZ’S INADEQUATE PREPARATION
Mr. Lutz was inadequately prepared for Defendant American Linen’s Rule
30(b)(6) deposition because he did not make a good faith effort to educate himself on all
the information reasonably available to the corporation about its historical dry-cleaning
operations and PCE use. A good faith effort includes not only reviewing the documents
that Defendant possesses but also attempting to locate and review relevant documents
that it controls and trying to find and interview former employees who may also have
this knowledge. See Taylor, 166 F.R.D. at 361; Gulfstream Worldwide Realty, Inc., 2007 WL
5704041, at *4, 7; Magnesium Corp. of Am., 2006 WL 6924985, at *4.
Mr. Lutz did not make the requisite effort because he readied himself for the
Rule 30(b)(6) deposition solely by reviewing Defendant American Linen’s corporate
records, even though they only date back ten years and the noticed topics date back
well beyond that. See doc. 243-1 at 7–12; doc. 258-2 at 73:14–17; doc. 269-4 at 75:20–22. He
made no attempt to review any documents that Defendant does not possess but has
practical ability to obtain. See doc. 258-2 at 73:14–17; cf. doc. 264-3 at 13. He did not
42
discuss the noticed topics with a single employee, past or present, notwithstanding his
unfamiliarity with the operations side of American Linen’s historical business. Doc.
258-2 at 19:20–23, 74:11–23. See also doc. 243-2 at 42:3–6. Mr. Lutz knew that Mr. Jasso, a
former employee, “had alleged that American Linen used and released PCE [in]to the
environment,” but made no effort to learn more about these claims, despite their direct
relevance to Plaintiffs’ noticed topics.5 See doc. 243-2 at 125:5–24. Similarly, Defendant
American Linen knew, via its attorney, that Mr. Hartman, another former employee,
had testified to witnessing the company conduct cleaning operations using PCE while
he was an employee. See doc. 200-9 at 17:19–19:13, 28:12–29:8, 29:21–30:1, 32:13–17. Yet
Mr. Lutz made no attempt to contact Mr. Hartman or otherwise learn more about the
basis for his testimony. See doc. 258-2 at 19:20–23, 74:11–23. Finally, Mr. Lutz had talked
with Billy Watkins, a route service manager for Defendant at the time of its alleged drycleaning operations, months before his deposition, but did not make any attempt
during his preparation to find him and obtain any information he may have about
Defendant’s historical operations. See id. at 19:20–23; doc. 288-1 at 61:15–62:17.
As a result, during the Rule 30(b)(6) deposition, Mr. Lutz repeatedly testified
from his personal knowledge, rather than all the information reasonably available to
During his Rule 30(b)(6) deposition, Mr. Lutz reported that he “didn’t put a lot of weight in Mr. Jasso’s
allegations based on his departure with the company.” Doc. 243-2 at 125:21–24. Defendant does not raise
this assertion in its briefing for good reason: while any bias that Mr. Jasso may have against Defendant is
relevant to his credibility as a witness at trial, it is irrelevant as to whether any information he had about
Defendant’s historical dry-cleaning operations was reasonably available to it at the time of Mr. Lutz’s
deposition.
5
43
Defendant American Linen. See doc. 243-2 at 41:16–42:6 (disclaiming knowledge of the
Defendant’s non-delivery operations and employee training programs because he did
not experience them personally); doc. 258-2 at 73:2–5 (disclaiming personal knowledge
of Defendant’s dry-cleaning operations); id. at 74:8–19 (denying personal knowledge of
dry-cleaning operations because he had not worked on the company’s operations side);
id. at 96:2–4 (disavowing personal knowledge of any soil samples taken on Defendant’s
property). Mr. Lutz also could not answer several questions about Defendant’s
historical operations that predated his tenure with the company. Doc. 243-2 at 41:16–
42:2; Doc. 258-2 at 21:2–10, 46:5–11, 73:2–5, 74:8–19, 122:19–124:13.
b. DEFENDANT AMERICAN LINEN’S EXPLANATIONS FOR MR. LUTZ’S LACK OF
PREPARATION ARE INADEQUATE
None of the factual and legal arguments that Defendant American Linen raises
about Mr. Lutz’s inadequate preparation is convincing. First, Defendant justifies Mr.
Lutz’s paltry preparation, particularly him not interviewing any current or former
employees, on three grounds: (i) “there are no employees still working at [it] that
worked for the company between 1949 and late-1982 [sic], when the dry-cleaning
perhaps occurred”; (ii) “it does not have employment records, including contact
information, for employees that worked for the company between 1949 and late-1982
[sic]”; and (iii) “many employees that worked for the company during those years …
are dead.” Doc. 269 at 4 (citations and footnote omitted); see also id. at 6; doc. 279 at 5–6.
However, these assertions do not explain why Mr. Lutz failed to seek relevant
44
information from documents that Defendant controlled but did not possess. Nor do
they explain why Mr. Lutz made no attempt to obtain relevant information from Mr.
Jasso, Mr. Hartman, or Mr. Watkins, three living former employees whose identities
were known to him.
The Court acknowledges that Defendant American Linen, through its attorney,
did question Mr. Jasso and Mr. Hartman during their depositions, taken ten days and
three days respectively before the deposition of Mr. Lutz. See doc. 200-9 at 1; doc. 269-3
at 1:14, 4:10; doc. 269-4 at 1:18. However, there is no evidence in the record that Mr. Lutz
reviewed transcripts of these individuals’ depositions such that his testimony was
inclusive of their purported knowledge about Defendant’s historical dry-cleaning
operations and represented Defendant’s corporate position regarding their statements.
See doc. 258-2 at 73:9–17; doc. 288-1 at 19:11–20:14. A corporate designee must review the
deposition testimony of prior fact witnesses, especially if they are former employees, so
that he “can state [the] corporation’s position at the Rule 30(b)(6) deposition with regard
to the prior deposition testimony.” Taylor, 166 F.R.D. at 362. The Court does not
consider the tight scheduling of depositions an excuse. To the extent that it precluded
Mr. Lutz from familiarizing himself with and investigating the testimony of these exemployees, Defendant American Linen could have asked Plaintiffs to reschedule its
Rule 30(b)(6) testimony or sought a protective order from this Court.
Second, Defendant American Linen argues that,
45
[w]hile various cases … indicate that interviewing ‘past employees’ might
be part of a corporate defendant’s burden in preparing for a Rule 30(b)(6)
deposition, there is no case law holding that a corporation must engage in
a broad investigation into the identity and whereabouts of every former
employee from a given period of time in order to determine whether any
one of them has potentially relevant information.
Doc. 269 at 5 (citing Taylor, 166 F.R.D. at 361). See also doc. 279 at 6, 11. Like its
counterpart in the context of Defendant’s responses to Plaintiffs’ interrogatories, this
argument is a strawman. Nobody contends that Defendant must investigate and find
the whereabouts of every single former employee who may have information about its
purported dry-cleaning operations. It only has to make a good faith effort to locate
former employees who may have this information and talk to those whom it finds.
Magnesium Corp. of Am., 2006 WL 6924985, at *4; Gulfstream Worldwide Realty, Inc., 2007
WL 5704041, at *4; Taylor, 166 F.R.D. at 361.
Third, Defendant American Linen cites two cases where district courts allegedly
ruled that Rule 30(b)(6) designees were adequately prepared for their depositions
despite not seeking information from former employees. Doc. 269 at 5–6 (citing F.D.I.C.
v. 26 Flamingo, LLC, No. 2:11-cv-01936-JCM-NJK, 2013 WL 3975006, at *6 (D. Nev. Aug.
1, 2013) (unpublished), and Cupp v. Edward D. Jones & Co., No. 06-CV-145-GKF-SAJ,
2007 WL 982336, at *1 (N.D. Okla. 2007) (unpublished)); doc. 279 at 7–8 (same). None of
these cases, however, stands for the proposition that Defendant claims.
One case, in fact, stands for the opposite. See Cupp, 2007 WL 982336, at *1. In
Cupp, the District Court for the Northern District of Oklahoma held that the defendant’s
46
Rule 30(b)(6) designee “was not fully prepared to address all of the issues noticed by
the [p]laintiff” since it had not consulted with a former employee with applicable
knowledge. Id. at 2. The District Court declined to sanction the defendant for its
designee’s unpreparedness because there was no bad faith or willful obstruction of the
discovery process. Id. Instead, the District Court ordered the defendant “to make a
good faith effort to locate [the former employee] so that the [p]laintiff ha[d] an
opportunity to depose [him]” since the deficiencies in the Rule 30(b)(6) testimony
related to this employee’s mindset and thought process. Id.
The second case stands for the proposition that a party’s Rule 30(b)(6) designee
does not have to interview the former employees of a third party when noticed to testify
as to the information reasonably available to the party about what the third party
knows. See 26 Flamingo, LLC, 2013 WL 3975006, at *6. In 26 Flamingo, LLC, the plaintiff
sought a declaratory judgment after it was appointed as a bank’s receiver, acquired title
to property through a trustee sale subsequent to the property’s owner defaulting on its
loan payments to the bank, and received a demand letter from the defendant seeking
payment of an interest in the property that had been assigned to it by the entity that had
sold the property to the defaulting owner. Id. at *1. The District Court for the District of
Nevada held that the plaintiff’s Rule 30(b)(6) designee did not have to interview the
bank’s ex-employees when preparing to testify about what the bank knew about certain
pre-default transactions because the plaintiff “as receiver [was] in no better position
47
than [the defendant] was to ‘obtain the knowledge’ of any ex-employees regarding the
underlying transaction.” Id. at *6. 26 Flamingo, LLC is therefore irrelevant to the issue at
bar. When deposing Defendant American Linen, Plaintiffs did not seek information
about its knowledge of a third party’s operations. Rather, Plaintiffs sought information
about Defendant’s own operations, information that may be held by its own exemployees. Defendant American Linen, as these employees’ former employer, was, and
is, in a better position than Plaintiffs to obtain any relevant information that they may
possess.
Fourth, Defendant asserts that “parties should anticipate the unavailability of
certain information” if the topics of a Rule 30(b)(6) deposition “involve[] events or
operations that occurred no less than thirty-five years ago” since “it is not uncommon to
have a situation … where a corporation indicates that it no longer employs individuals
who have memory of a distant event or that such individuals are deceased.” Doc. 269 at
5 (quoting Barron, 168 F.R.D. at 177, and Taylor, 166 F.R.D. at 361). That may be true, but
it is not the issue. The issue is not that Mr. Lutz failed to testify on events and
operations that predate his tenure with the company. Rather, it is that he did not made
a good faith effort to prepare himself to do so. It might well be the case that, after
making the requisite effort to obtain all the information reasonably available to
Defendant American Linen about its historical operations, Mr. Lutz would have given
48
much of the same testimony about Defendant’s lack of knowledge as to its historical
operations. Nobody knows, however, as the effort was not made.
Finally, Defendant American Linen argues that additional investigation would
be fruitless given that it has no employment records for former employees, no contact
information for these individuals, and no institutional memory of who they may be.
Doc. 279 at 7–8. The Court disagrees since Defendant has made no effort to pursue at
least two leads for information about its historical dry-cleaning operations, its PCE use,
and the identities of former employees who may have information about these topics.
First, despite Mr. Lutz talking to Mr. Watkins some months ago, Defendant has made
no attempt to locate him and learn any information that he may have about its
operational history or the identities of other former employees who may have this
information. Second, Defendant has made no attempt to obtain and review any
documents that it does not possess but has practical ability to obtain, see doc. 264-3 at 13,
some of which may have relevant information about its historical dry-cleaning
operations and PCE use or identify other persons who do.
c. SANCTIONS IMPOSED
The Court sanctions Defendant American Linen for the reasonable costs and
attorney’s fees incurred by Plaintiffs to depose Mr. Lutz on April 1, 2019 and bring the
instant Motion to Compel and for Sanctions. Rule 37(d)(3) requires the Court, at
minimum, to order Defendant, its counsel, or both to pay the reasonable expenses,
49
including attorney’s fees, caused by Mr. Lutz’s unpreparedness unless it was
substantially justified or other circumstances make an award of expenses unjust. See
Black Horse Lane Assoc., 228 F.3d at 304, Resolution Trust Corp., 985 F.2d at 197; Herlihy,
186 F.R.D. at 639; Taylor, 166 F.R.D. at 363; Fed. R. Civ. P. 37(d)(3). The Court also has
the discretion to impose any of the following additional sanctions on Defendant:
(i) directing that the matters embraced in the order or other designated
facts be taken as established for the purposes of the action, as the
prevailing party claims;
(ii) prohibiting [Defendant] from supporting or opposing designated
claims or defenses or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed; … or
(vi) rendering a default judgment against [Defendant]….
Fed. R. Civ. P. 37(b)(2)(A); see Fed. R. Civ. P. 37(d)(3).
In the context of an inadequately prepared Rule 30(b)(6) designee, courts impose
sanctions where the functional non-appearance reflects a lack of good faith, prejudices
the opposing side, and disrupts proceedings.6 See Live Face on Web, LLC v. Integrity Sols.
Plaintiffs argue that the Tenth Circuit’s decision in Woodworker’s Supply, Inc. v. Principal Mutual Life
Insurance Co., 170 F.3d 985, 993 (10th Cir. 1999), identifies factors that the Court should consider when
deciding whether to impose sanctions for discovery malfeasance. Doc. 263 at 5 (citing Jama, 304 F.R.D. at
296, Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992), and Markham v. Nat’l States Ins. Co., No.
Civ.02-1606-F, 2004 WL 3019308, at *12 (W.D. Okla. 2004)). The standard Plaintiffs articulate, however, is
for sanctions pursuant to Rule 37(c) for failing to disclose or supplement, not Rule 37(d) for failing to
appear for a deposition. See Woodworker’s Supply, Inc., 170 F.3d at 993; Jama, 304 F.R.D. at 300. Two of the
cases Plaintiffs cite address the standard for sanctions under Rule 37(b) for failing to obey an order to
provide or permit discovery. See Ehrenhaus, 965 F.2d at 921; Markham, 2004 WL 3019308, at *12. The
Court does note, though, that the factors that the District Court for the Western District of Oklahoma
considered in Markham for imposing a non-dispositive sanction for evidence spoliation pursuant to Rule
37(b)(2)(A) and its inherent authority are substantively equivalent to those considered by courts
sanctioning under Rule 37(d). Compare id. (weighing the degree of actual prejudice to the complaining
party, the amount of interference with the judicial process, and the culpability of the offending party)
6
50
Grp., LLC, 421 F. Supp. 3d at1080; Herlihy, 186 F.R.D. at 640; Taylor, 166 F.R.D. at 363.
The sanctions imposed generally do not exceed the reasonable expenses caused by the
designee’s unpreparedness. See Black Horse Lane Assoc., 228 F.3d at 281, 305 (costs and
attorney’s fees associated with deposing the inadequately prepared designee and filing
the motion for sanctions); Resolution Trust Corp., 985 F.2d at 197 (these costs and fees
plus those associated with identifying an appropriate Rule 30(b)(6) designee for the
deponent); In re Application of Michael Wilson & Partners, No. 06-cv-02575-MSK-KMT,
2009 WL 1193874, at *5 (D. Colo. Apr. 30, 2009) (unpublished) (fees and costs of retaking
the Rule 30(b)(6) deposition); Live Face on Web, LLC, 421 F. Supp. 3d at 1080 (all
reasonable expenses incurred as a result of the designee’s unpreparedness); Herlihy, 186
F.R.D. at 650 (same).
Here, the Court sanctions Defendant American Linen for its failure to provide an
adequately prepared Rule 30(b)(6) designee since Mr. Lutz’s unpreparedness prejudiced
Plaintiffs, disrupted proceedings, and reflects a lack of good faith. Plaintiffs wasted
several hours deposing Mr. Lutz in March 2019 because he was unprepared and so
could not provide Defendant’s informed, corporate position on its dry-cleaning
activities and Mr. Hartman’s testimony about these activities.7 Due to Mr. Lutz’s lack of
with, e.g., Live Face on Web, LLC, 421 F. Supp. 3d at 1080 (weighing the prejudice to the party that noticed
the deposition, the disruption to proceedings, and good faith shown by the offending party).
7 Mr. Lutz did provide a position on Mr. Jasso’s testimony, implying that it is uncredible based on the
circumstances of his firing. See doc. 243-2 at 125:21–24.
51
preparedness, Plaintiffs also incurred additional costs to investigate Defendant’s
operational history. See doc. 263 at 10; doc. 264-1.
Mr. Lutz’s inadequate preparation disrupted proceedings. It prevented Plaintiffs
from obtaining Defendant’s informed corporate position on Mr. Hartman’s testimony
until October 5, 2020 when Defendant admitted to conducting dry-cleaning activities
using PCE from approximately 1972 to late 1982. It also has precluded Plaintiffs from
obtaining all the information reasonably available to Defendant about these activities to
date.
Mr. Lutz’s unpreparedness also reflects a lack of good faith. Plaintiffs’ notice for
the Rule 30(b)(6) deposition expressly advised Defendant that caselaw required its
designee to prepare for this deposition required its designee to make a good faith effort
to find out the relevant facts, including those held by former employees or found in
documents Defendant had practical ability to obtain. See doc. 243-1 at 4 (citations
omitted). Mr. Lutz did not make this effort. He knew that Plaintiffs were seeking
information about Defendant’s historical operations that predated his limited, personal
knowledge about the company’s operational history and the company’s ten years of
corporate records. See doc. 258-2 at 74:8–23; doc. 269-4 at 75:20–22; doc. 243-1 at 7, 9.
Nonetheless, he limited his preparation to a review of these records and made no
attempt to learn information held by former employees—three of whose identities he
knew—or contained in documents that Defendant, while not possessing, did control.
52
See doc. 243-2 at 43:3–10; doc. 258-2 at 19:20–23, 73:6–17; doc. 288-1 at 61:15–62:13; cf. doc.
264-3 at 13.
Accordingly, the Court sanctions Defendant American Linen for the reasonable
costs and attorney’s fees incurred by Plaintiffs to depose Mr. Lutz on April 1, 2019 and
bring their Motion to Compel and for Sanctions. Some of the costs and fees borne by
Plaintiffs in bringing the instant motion relate to compelling complete responses to
interrogatories and requests for production and an additional Rule 30(b)(6) deposition
of Defendant. Nonetheless, the Court finds it proper to assign the full costs of this
motion to Defendant for three reasons. First, Plaintiffs attempted in good faith to obtain
the discovery without the Court’s involvement. See Fed. R. Civ. P. 37(a)(5)(A)(i).
Second, Defendant’s opposition to the motion to compel with respect to its discovery
responses was not substantially justified since caselaw requires it to do more than
respond with just the information and documents from its corporate records. See Fed.
R. Civ. P. 37(a)(5)(A)(ii). Third, while Defendant’s opposition to the motion to compel
with respect to Plaintiffs’ request for leave to re-depose it under Rule 30(b)(6) was
substantially justified, this request composes a de minimis part of the costs and fees
borne by Plaintiffs to bring the motion. The sole argument that Plaintiffs make in
support of this request is a single sentence that incorporates by reference their
arguments from their response to Defendant’s Motion for Protective Order. See doc. 263
at 8.
53
Imposing additional sanctions, such as the costs of Plaintiffs’ research since the
first deposition or sanctions listed in Rule 37(b)(2)(A), gives Plaintiffs a windfall and is
inconsistent with the principle that this Court’s sanctions should be the least severe of
those available to deter and punish Defendant adequately. See Herlihy, 186 F.R.D. at
646. The Court has no doubt that Defendant’s failure to produce a prepared Rule
30(b)(6) designee caused Plaintiffs to incur additional costs in researching Defendant’s
operational history. See doc. 264-1. However, there is no way to distinguish research
that Plaintiffs would not have conducted but for Defendant’s functional nonappearance at its Rule 30(b)(6) deposition from research that they would have
conducted anyways. Plaintiffs have also had since April 1, 2019 to ask the Court to
compel Defendant to provide a prepared designee for a Rule 30(b)(6) and could have
avoided additional research costs by bringing their motion before they pursuing their
research. They chose not to do so. The Court will not impose on Defendant the
research costs that Plaintiffs have incurred as a result of this choice, even though it did
contribute to them.
2. Sanctions for Defendant’s Delayed Supplementation
The Court imposes additional sanctions on Defendant American Linen pursuant
to Rule 37(c) for not supplementing its initial disclosures and interrogatory responses in
a timely manner. Rule 26(e) required Defendant to supplement its these documents
without undue delay upon learning that they contained incorrect information unless
54
corrective information had been communicated to Plaintiffs elsewhere in discovery in
such a form and of such specificity as to be the functional equivalent of
supplementation. See U.S. Aviation Underwriters, 582 F.3d at 1145; L-3 Commc’ns Corp.,
125 F. Supp. 3d at 1168–69; 8A Richard L. Marcus, Federal Practice & Procedure Civil §
2049.1. A reasonable litigant would have learned that the blanket denials of drycleaning operations and PCE use in Defendant’s initial disclosures and discovery
responses were incorrect during the deposition of Mr. Hartman on March 29, 2019 and
taken steps to prove corrective information within a reasonable amount of time.
Defendant, however, did not supplement these documents accordingly or provide the
functional equivalent thereof until October 5, 2020, when it admitted it in response to
Plaintiff’s First Requests for Admission that it conducted had dry-cleaning operations
using PCE from approximately 1972 to late 1982.
a. DEFENDANT HAD REASONABLE KNOWLEDGE THAT ITS DISCLOSURES AND
DISCOVERY RESPONSES CONTAINED INCORRECT INFORMATION ON MARCH 29,
2019
Mr. Hartman’s testimony, in conjunction with that of Mr. Jasso, provided
Defendant American Linen with reasonable notice that its initial disclosures and
discovery responses contained incorrect information. Defendant’s initial disclosures
assert that “Mr. Lutz is able to testify that [Defendant] has never been a dry-cleaning
operation and has not used the substances alleged to have caused contamination in this
lawsuit.” Doc. 258-1 at 1–2. Similarly, Defendant’s responses to Plaintiffs’ First Set of
55
Interrogatories deny that it has ever “operated a dry-cleaning facility or used PCE in
any of its operations.” Doc. 264-3 at 2. See also id. at 10. On March 22, 2019, however,
Mr. Jasso testified that he conducted dry-cleaning using PCE during his employment
with Defendant. Doc. 200-10 at 21:22–23, 23:16–24. A week later, Mr. Hartman testified
that he personally observed Mr. Jasso dry clean with PCE at one of Defendant’s
facilities. Doc. 233 at 19:11–13, 19:16–20:20, 28:12–21. This consistent testimony was
sufficient to notice a reasonable litigant in Defendant’s position that the denials of drycleaning operations and PCE use in its initial discourses and discovery responses were
incorrect.
Defendant contends that it did not “beg[i]n to understand that its stated position
about its dry-cleaning activity was incorrect” until after the deposition of Raymundo
Castillo on August 21, 2020. Doc. 279 at 8, 9–10; doc. 233-12 at 1:16. In support of this
assertion, Defendant places great weight on its claim that “Mr. Jasso’s credibility is at
issue in this case because his report of the alleged [PCE] release came only after he was
terminated from his position by Mr. Lutz for being under the influence of alcohol on the
job.” Doc. 279 at 10. This defense against the obligation to supplement in March 2019
fails for several reasons.
Most importantly, the inquiry is not when Defendant subjectively reached this
understanding but rather when a reasonable litigant would have reached it. See Carroll,
2020 WL 7664731, *2; Jama, 304 F.R.D. at 299–300. In March 2019, Mr. Jasso’s testimony
56
was directly corroborated by Mr. Hartman’s testimony. Defendant gives no reason why
a reasonable litigant would not rethink its evaluation of Mr. Jasso based on this
corroboration. Especially in the context of this corroboration, a reasonable litigant
would have parsed its evaluation of Mr. Jasso’s evidence. Specifically, one could reject
his allegations of dumping as an attempt to retaliate against an ex-employer but credit
his statements about the use of PCE in dry-cleaning operations. It seems particularly
unlikely that Mr. Jasso would invent a story about dumping a substance that he did not
know his employer used. Moreover, Defendant fails to explain why it apparently
ignored Mr. Hartman’s testimony that dry-cleaning was conducted by Defendant.
Unlike Mr. Jasso, Defendant never attempts to impugn Mr. Hartman’s credibility.
Finally, even if the testimony of Mr. Jasso and Mr. Hartman alone was insufficient to
immediately require a supplement retracting the denials of dry-cleaning operations, it
absolutely demanded an urgent and intensive investigation into the veracity of the
earlier responses. Instead, Defendant remained passive on this point until the
deposition of Mr. Castillo.
Under these circumstances, a reasonable litigant would have supplemented its
discovery responses in which it denied dry-cleaning operations on or about the end of
March 2019. Defendant American Linen, though, failed to do so.
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b. DEFENDANT DID NOT SUPPLEMENT ITS DISCLOSURES OR DISCOVERY
RESPONSES IN A TIMELY MANNER
Defendant American Linen did not supplement its initial disclosures or
discovery responses in a timely manner after receiving reasonable notice that they
contained incorrect information. The Court measures timeliness based on Defendant’s
diligence in obtaining corrective information and the time that it took for it to
supplement thereafter. See Carroll, 2020 WL 7664731, at *3. It finds that Defendant,
exhibited passivity rather than diligence after Mr. Hartman’s deposition on March 29,
2019 provided it with reasonable notice of the need to provide corrective information
about its dry-cleaning activities and PCE use. Despite receiving additional evidence of
these activities from Plaintiffs on April 1, 2019 and December 26, 2019, doc. 258-2 at
73:2–5; doc. 200-12; doc. 200-13, Defendant made no effort to reassess the content of its
initial disclosures and discovery responses until Mr. Castillo corroborated Mr.
Hartman’s testimony almost seventeen months later during a deposition that Plaintiffs
organized. See doc. 279 at 9–10. Defendant then waited another month and a half to
provide Plaintiffs with corrective information about its dry-cleaning operations and
PCE use and even then, only did so four days before the close of fact discovery as a
response to Plaintiffs’ requests for admission. Eighteen months of passivity and delay
is unreasonable.
The Court acknowledges that the case was stayed for almost eleven of these
eighteen months. The stay, however, does not absolve Defendant of its dilatoriness.
58
The stay suspended Defendant’s obligation to supplement from August 21, 2019 until
July 20, 2020, but not its obligation to seek corrective information with diligence during
this time. Even if it did, seven months of passivity and delay, the balance that remains
if the Court excludes the months of the stay from its calculations, is still unreasonable.
See, e.g., Carroll, 2020 WL 7664731, at *3 (finding that a five-month delay in
supplementation unreasonable).
c. SANCTIONS IMPOSED
The Court sanctions Defendant American Linen for the reasonable costs Plaintiffs
incurred to investigate its dry-cleaning operations and PCE use from March 30, 2019 to
October 5, 2020. Federal Rule of Civil Procedure 37(c) empowers the Court to order
Defendant to pay the reasonable expenses, including attorney’s fees, caused by its
failure to supplement in a timely manner unless the failure was substantially justified or
harmless. Fed. R. Civ. P. 37(c)(1)(A). The Court also has the discretion to impose other
appropriate sanctions, such as those listed in Fed. R. Civ. P. 37(b)(2)(A) and enumerated
previously in this order. Fed. R. Civ. P. 37(c)(1)(C).
The determination of whether a failure to supplement “is justified or harmless is
entrusted to the broad discretion of the district court.” Woodworker’s Supply, Inc. v.
Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999) (internal quotations and
citation omitted). Factors that guide this discretion include (i) the prejudice to the party
entitled to receive the supplementation; (ii) the ability of that party to cure this
59
prejudice; (iii) the extent to which allowing the undisclosed evidence would disrupt the
trial; and (iv) the disclosing party’s bad faith or willfulness. Id.; Jama, 304 F.R.D. at 300.
Here, the balance of these factors favors sanctions.
Defendant American Linen’s failure to supplement its initial disclosures and
discovery responses in a timely manner prejudiced Plaintiffs in the forms of increased
researched expenditures and the opportunity cost of spending their time, energy, and
money to obtain evidence of activities that Defendant now concedes. As a result of
Defendant’s sworn statements that it never conducted dry cleaning operations or used
PCE, Plaintiffs were forced to conduct public records research, subpoena third parties,
interview dozens of potential witnesses and conduct additional depositions in order to
prove the contrary. See doc. 264 at 6; 264-1. This research not only cost Plaintiffs money
but prevented them from allocating more of their funds, time, and energy to obtaining
evidence of factual matters that remain disputed.
Plaintiffs have limited ability to cure this prejudice. To the extent that Plaintiffs
require additional time for fact discovery due to Defendant’s late supplementation, they
could move the Court to reopen discovery for specific purposes. However, they cannot
themselves cure the additional expenses they incurred due to Defendant’s dilatory
supplementation or recoup the time and energy that they spent obtaining evidence of
facts that Defendant now concedes.
60
Defendant American Linen’s failure to supplement its initial disclosures and
discovery responses in a timely manner did not disrupt trial. No trial date been set for
this matter. Nor does Defendant’s functional supplementation in its admission present
previously undisclosed evidence necessitating additional discovery and a concomitant
deferment of any trial date that could be set in the near future. Instead, the admission
amends Defendant’s long-held stance on its historical dry-cleaning operations and PCE
use based on testimony provided former employees during discovery. Finally, the
significant disruption and delay that the case has experienced is attributable to the
parties repeatedly extending the stay to facilitate a global settlement, rather than
Defendant’s delayed supplementation. The Court doubts that Defendant’s untimeliness
materially contributed to these delays as its admissions has not changed the parties’
settlement positions.
Defendant American Linen’s failure to supplement its initial disclosures and
discovery responses in a timely manner was willful. Defendant insists that it did not
begin to understand that its stated position about its dry-cleaning activity was incorrect
until after the deposition of Mr. Castillo on August 21, 2020. Doc. 279 at 8, 9–10; doc.
269-1 at 2. Given the evidence presented to Defendant about its dry-cleaning operations
and PCE prior to that date, the Court considers this position one of willful ignorance.
Mr. Hartman, whose testimony Defendant credits in is admission, see id. at 8, testified
on March 29, 2019 that Defendant engaged in dry-cleaning activities with PCE. His
61
testimony was consistent with that of Mr. Jasso, who testified to the same a week
earlier, and corroborated by documentary evidence on December 26, 2019. Defendant,
however, elected to ignore, rather than investigate, this evidence for eighteen months
until Plaintiffs’ First Request for Admission forced it to revisit the issue of its drycleaning activities. This inaction was Defendant’s deliberate, willful choice.8
As the Woodworker Supply factors favor sanctions, the Court sanctions Defendant
American Linen for the reasonable costs, including attorney’s fees, incurred by Plaintiffs
to research Defendant’s dry-cleaning operations and PCE use from March 30, 2019 until
October 5, 2020. The Court declines Plaintiffs’ request to “designat[e] the facts that
American Linen conducted PCE dry cleaning and released [PCE] into the environment
as established for purposes of this case.” Doc. 263 at 2. With respect to the first fact, the
parties no longer dispute that Defendant conducted dry-cleaning operations with PCE.
As for the second fact, such a draconian sanction would violate the principle that the
Court select the sanction that is the least severe of those available to deter and punish
Defendant adequately. See Herlihy, 186 F.R.D. at 646. Assigning Defendant the
reasonable costs caused by its failure to supplement its initial disclosures and discovery
In the alternative, the Court finds that Defendant American Linen’s failure to supplement its disclosures
and discovery responses in a timely manner was negligent because a reasonable litigant would have
learned that these documents contained incorrect information after Mr. Hartman’s deposition on March
29, 2019 and not taken until October 5, 2020 to obtain and disclose corrective information. Proceeding
under this finding would not bar the Court from sanctioning Defendant for its untimely
supplementation, nor change the Court’s conclusion as to the appropriateness of sanctions. See Jama, 304
F.R.D. at 302.
8
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responses in a timely manner is not only sufficient to deter it from future discovery
malfeasance, but also compensates Plaintiffs for the prejudice that they sustained but
cannot cure themselves.
3. No Sanctions for Defendant’s Incomplete Responses to Plaintiffs’ Interrogatories and
Requests for Production or Incorrect Statements about its Operational History
The Court does not sanction Defendant American Linen for responding to
Plaintiffs’ interrogatories and requests for production with incomplete and nowincorrect information. Defendant’s conduct is not sanctionable under Rule 37(d)
because Defendant has responded to Plaintiffs’ interrogatories and requests for
production, albeit inadequately. See New Horizont, 250 F.R.D. at 220–21. Nor are
Defendant’s inadequate responses sanctionable under Rule 37(b) since, before today,
the Court had not found them deficient and ordered Defendant to provide responses
based on all the information available to it and all the documents that it controls. See
Lillie, 40 F.3d at 1109; Fed R. Civ. P. 37(b)(2). This leaves the Court’s inherent authority,
which requires more explanation.
Defendant American Linen’s incorrect statements are not sanctionable under the
Court’s inherent power as there is insufficient evidence that they were made willfully or
in bad faith. Courts have the inherent authority to sanction a party for willfully
providing incorrect or misleading answers to interrogatories or during a deposition.
Chavez v. City of Albuquerque, 402 F.3d 1039, 1042–44 (10th Cir. 2005); Archibeque v.
Atchison, Topeka, & Santa Fe Ry. Co., 70 F.3d 1172, 1173–74 (10th Cir. 1995); LaJeunesse v.
63
BNSF Ry. Co., 333 F.R.D. 649, 653–73 (D.N.M. 2019). While Defendant has admitted that
its repeated, categorical denials of its dry-cleaning operations and PCE use were
incorrect, there is no evidence that it knew that its statements were incorrect when it
made them. Rather, the evidence shows that Defendant made the now-incorrect
statements in the 2012 Affidavit, its Answer to Plaintiffs’ First Amended Complaint, its
initial disclosures, and its responses to Plaintiffs’ First Set of Interrogatories and
Requests for Production based upon its incomplete information about its historical
operations since it did not fully investigate these operations before making the
statements. While a failure to investigate could be so complete as to constitute bad
faith, the Court does not find that the current record supports such a finding against
Defendant.9
The Court recognizes that, in addition to being incorrect, the information
provided by Defendant American Linen did not and does not reflect all information
available to it. However, it does not sanction Defendant pursuant to its inherent power
for providing incomplete information because the Federal Rules of Civil Procedure
provide an adequate mechanism for addressing this. See Chambers, 501 U.S. at 50. The
Plaintiffs contend that the Court does not have to find willfulness or intent in order to impose a nondispositive sanction on Defendant American Linen for its incorrect statements. Doc. 263 at 5–7; doc. 288 at
9–11. Plaintiffs, however, do not direct the Court to, nor has the Court found in its research, a single case
where a court used its inherent authority to sanction a party for providing statements that were
consistent with the party’s knowledge when it made them but turned out to be incorrect later. Markham,
the only case Plaintiffs cite for their contention, stands for the proposition that a court need not find
willfulness to impose a non–dispositive sanction pursuant to Rule 37(b) and its inherent authority for
violating a court order and withholding evidence. 2004 WL 3019308, at *12.
9
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Court has ordered Defendant to provide complete discovery responses based on all the
information reasonably available to it and all the documents that it controls. Should
Defendant fail to do so, Plaintiffs may seek sanctions under Rule 37(b).
IV.
CONCLUSION
For the foregoing reasons, the Court: (i) GRANTS Plaintiffs’ Motion for
Protective Order without prejudice to Defendant American Linen seeking the Court’s
leave to take Plaintiffs’ second Rule 30(b)(6) depositions in a subsequent motion; (ii)
GRANTS Defendant American Linen’s Motion for Protective Order without prejudice
to Plaintiffs seeking the Court’s leave to re-depose Defendant under Rule 30(b)(6) in a
subsequent motion; (iii) DENIES Plaintiffs’ Motion to Compel Discovery and for
Sanctions with respect to its request for the Court’s leave to re-depose Defendant
without prejudice to Plaintiffs’ seeking this leave in a subsequent motion; (iv) GRANTS
Plaintiffs’ Motion to Compel Discovery and for Sanctions with respect to compelling
complete responses to Interrogatories Nos. 5, 8, and 9 and Requests for Productions
Nos. 4, 7, and 8 and sanctioning Defendant American Linen for producing an
inadequately prepared Rule 30(b)(6) designee and failing to supplement its initial
disclosures and discovery responses in a timely manner; and (v) DENIES Plaintiffs’
Motion to Compel Discovery and for Sanctions with respect to sanctioning Defendant
American Linen for the initial content of its discovery responses.
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IT IS HEREBY ORDERED that (i) the parties’ notices for additional Rule 30(b)(6)
depositions are QUASHED; and (ii) any party wishing to re-depose a party move the
Court for leave to do so within fourteen (14) days of this order.
IT IS ALSO ORDERED that, within five (5) days of this order, Plaintiffs submit
an affidavit detailing the reasonable expenses that they incurred to depose Mr. Lutz on
April 1, 2019, investigate Defendant’s dry-cleaning operations and PCE use from March
30, 2019 to October 5, 2020, and bring the instant Motion to Compel and for Sanctions.
If Defendant American Linen wishes to contest the reasonableness of any expenses
claimed by Plaintiffs, it is ORDERED to submit its objections within five (5) days of
Plaintiffs filing their affidavit.
IT IS FURTHER ORDERED that Defendant American Linen do the following
within thirty (30) days of this order: (i) identify and produce all documents responsive
to Requests for Production Nos. 4, 7, and 8 that it has practical ability to obtain; (ii)
make a reasonable effort to obtain information about its historical dry-cleaning
operations and PCE use from all documents that it controls; (iii) make a reasonable
effort to obtain information about its historical dry-cleaning operations and PCE use
from former employees, like Mr. Watkins, whose identities are known or reasonably
available to it; (iv) provide answers to Interrogatories Nos. 5, 8, and 9 that are based on
all the information available to it and address the full temporal scope of the questions;
and (v) supplement its response to Interrogatory No. 13 accordingly.
66
In an effort to head off further dispute and motion practice on this matter, the
Court will comment briefly on what Defendant American Linen must do to comply
with this order to compel. Defendant American Linen must produce all documents
responsive to Plaintiffs’ Requests for Production Nos. 4, 7, and 8 that it has practical
ability to obtain and catalog the steps that it has taken do so. This catalog should, at
minimum, list the individuals and entities from which it has sought responsive
documents and describe the efforts that it has made to obtain responsive documents
from each individual and entity.
Defendant must respond to Plaintiffs’ Interrogatories Nos. 5, 8, and 9 based on
all the information reasonably available to it about its historical dry-cleaning operations
and PCE use. This includes any information Defendant learns from identifying and
reviewing relevant documents within its control and making a reasonable effort to
interview former employees, like Mr. Watkins, whose identities are known or
reasonably available to it.10 It also includes information that Defendant has gained from
its communications with its current employees, its own investigation of its historical
The identity of a former employee is reasonably available to Defendant American Linen if it is listed in
a document that Defendant controls, known by a current employee, or known by a former employee
whose identity is presently known to Defendant and who is capable of being interviewed with reasonable
effort. In addition to Mr. Watkins, Plaintiffs have identified Mr. Watkin’s father, Ross Hartman, Larry
Hartman, and Victor Jasso as former employees whose identities are known to Defendant via Mr. Lutz
and who may have information about Defendant’s dry-cleaning operations and use of PCE. Doc. 288 at 4.
Defendant, however, has already made a reasonable effort to obtain the information that the latter two
have about its historical operations by having its attorney attend their depositions and question them
about its historical operations at this time. See doc. 269-3 at 4:10; doc. 279-3 at 3:6–10. Defendant has not
questioned the former two about its historical operations because it believes them to be dead. See doc.
279-1 at 74:20–75:19. Plaintiffs offer no evidence to refute this belief.
10
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operations, the depositions of Mr. Jasso, Mr. Hartman, and Mr. Castillo, and any
relevant documents received from Plaintiffs.11
This obligation does not mean, as Plaintiffs allege, that Defendant American’s
responses are incomplete unless they contain the following: “historical purchase
volumes, throughput, and use of PCE; suppliers and supplies; spills or releases, and the
steps taken to clean or mitigate them; PCE dry cleaning machines, and equipment
used.” Doc. 263 at 8. Plaintiffs seek documents and information from decades ago.
Any document that did contain this information may no longer exist or be within
Defendant’s control. Similarly, persons who have this information may be deceased or
not identifiable and contactable with reasonable effort. It is therefore possible that
Defendant may produce all documents that it controls without producing documents
containing this information. Likewise, Defendant may exert a reasonable effort to
obtain all responsive information available to it and fail to find the detailed information
that Plaintiffs seek. See Barron, 168 F.R.D. at 177. If this happens, Defendant should
clearly state the aspects of Plaintiffs’ interrogatories to which it lacks the necessary
This documentation includes, but is not limited to, the following: (i) advertisements from the 1950s for
dry-cleaning services at the company’s facility on 525 N. Church Street (doc. 200-12 at 2–4); (ii) an entry in
a phonebook advertising dry-cleaning at the company’s facility on 500 N. Main St. (doc. 200-12 at 5); and
(iii) an account payment authorization from 1972 stating that the company had dry-cleaning equipment
and PCE drums at its facility on 500 N. Main St. (doc. 200-13 at 2, 4). The Court catalogs these documents
solely to identify sources available to Defendant that may have information about its historical drycleaning operations and PCE use. This catalog should not be construed to comment on these documents’
authenticity or whether they are sufficient to establish any facts about Defendant’s dry-cleaning
operations and PCE use.
11
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information to make a full, fair and specific answer and detail the efforts that it has
made to obtain the information. Miller, 76 F.R.D. at 140; Milner 73 F.R.D. at 632.
IT IS SO ORDERED.
_____________________________________
GREGORY B. WORMUTH
UNITED STATES MAGISTRATE JUDGE
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