Alheid v. Target Corp. et al

Filing 19

OPINION AND ORDER: To the extent defendants suggest that they are entitled to take plaintiff's deposition before plaintiff deposes defendants, defendants' objection is frivolous. There is no priority of depositions in federal pract ice. Demarco v. Stony Brook Clinical Practice Mgm't Plan, CV-06-4305 (JG) (ARL), 2007 WL 1839823 at *1 (E.D.N.Y. June 26, 2007) (collecting authorities). Because it appears that plaintiff noticed defendants' deposition first, that depos ition should proceed first. Boxer v. Smith, Kline & French Labs., 43 F.R.D. 25, 27 & n.1 (S.D.N.Y. 1967) (Motley, D.J.). Accordingly, except with respect to over breadth and Topics 1, 20 and 21, defendants' objections to plaintiff& #039;s 30(b)(6) notice are overruled. Some of the topics in plaintiff's notice are plainly overly broad. For example, Topic 24 seeks a witness prepared with knowledge of "Defendant's Store Manager Training Policies for the five year period preceding Plaintiff's fall in the store." This topic appears to have little to do with determining whether there was an unreasonably dangerous condition in defendants' Mount Vernon store that was a proximate cause o f plaintiff's fall. Accordingly, the parties are directed to have a viva voce conversation, either in person or by telephone, in an effort to narrow the topics in dispute; an exchange of emails or other correspondence does not comp ly with this Order. If the parties are unable to resolve their disputes concerning the breadth of the topics, they are to report for a discovery conference on September 11, 2018 at 2:00 p.m. in Courtroom 18A, United States Courthouse, 500 Pearl Str eet, New York, New York. No later than 5:00 p.m. on September 8, 2017, counsel are directed to send a fax to my chambers ([phone]) either advising that they have resolved their remaining disputes or identifying the deposition topics that remain in dispute. (Signed by Magistrate Judge Henry B. Pitman on 8/29/2017) Copies Transmitted by Chambers. (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-----------------------------------x
FRANCINE ALHEID,
Plaintiff,
-against-

16 Civ. 6980

(PGG) (HBP)

OPINION
AND ORDER

TARGET CORP., et al.,
Defendants.

-----------------------------------x
PITMAN, United States Magistrate Judge:

I write to resolve the discovery dispute addressed in
Docket Items

("D.I.") 16-18.

This is a fairly straight forward personal injury
action in which plaintiff alleges that she slipped and fell in
defendants' store in Mount Vernon, New York.

Plaintiff claims

that her foot got caught in the base of shelving due to the
absence of what plaintiff's counsel describes as an "end cap"
which appears to be something that would, according to plaintiff,
ordinarily cover the opening in which plaintiff's foot got
caught.

Plaintiff claims that she fell as a result of her foot

getting caught, suffered a broken hip and required hip
replacement surgery.
The current dispute arises out of a deposition notice
plaintiff served seeking a 30(b) (6) deposition of Target

Corporation ("Target") .

The notice of deposition attaches a list

of 43 topics, at least one of which includes 22 sub-topics.
Defendants have served objections to the notice, claiming that it
is premature, that Target will produce the witness with the most
knowledge of the accident and that Target will consider producing
a 30(b) (6) witness after the most knowledgeable witness is
deposed.

In its letter in response to plaintiff's motion to

compel, Target also makes the conclusory assertion that the
notice is over broad, but does not cite any specific examples in
support of this contention.

Plaintiff seeks to compel Target to

produce a 30(b) (6) witness in response to her notice.
Among other things, Rule 30(b) (6) was intended to
address the problem that arises when the party seeking discovery
from an entity does not know which individuals within the entity
have knowledge of the relevant facts.

It addresses the problem

by permitting the party seeking discovery to identify the topics
with respect to which discovery is sought and then imposing an
obligation on the party from which discovery is sought to produce
a witness or witnesses prepared to testify with the knowledge of
the entity concerning the specified topics.

BA Charles Wright,

Arthur Miller, Richard Marcus, Federal Practice & Procedure

§

2103 at 452-53 (3rd ed. 2010); 2 Michael Silberberg, Edward M.
Spiro, Judith L. Mogul, Civil Practice in the Southern District
2

of New York 16:5 at 142-43 (2016-2017 ed.).
"Under Rule 30 (b) (6), when a party seeking to
depose a corporation announces the subject matter of
the proposed deposition, the corporation must produce
someone familiar with that subject." Reilly v. Natwest
Markets Grp. Inc., 181 F.3d 253, 268 (2d Cir. 1999).
"To satisfy Rule 30 (b) ( 6), the corporate deponent has
an affirmative duty to make available such number of
persons as will be able to give complete, knowledgeable
and binding answers on its behalf." Id. (internal
quotation marks omitted). After a deposing party
serves a "satisfactory notice," the responding party
must "make a conscientious good-faith endeavor to
designate the persons having knowledge of the matters
sought by the party noticing the deposition and to
prepare those persons in order that they can answer
fully, completely, unevasively, the questions posed as
to the relevant subject matters." Soroof Trading Dev.
Co. v. GE Fuel Cell Sys., LLC, No. 10-cv-1391 (LGS)
(JCF), 2013 WL 1286078 at *2 (S.D.N.Y. Mar. 28, 2013)
(internal quotation marks omitted).
It is well
settled, therefore, that "Rule 30 (b) ( 6) deponents need
not have personal knowledge concerning the matters set
out in the deposition notice," and "if they do not
possess such personal knowledge .
. the corporation
is obligated to prepare them so that they may give
knowledgeable answers." Spanski Enters., Inc. v.
Telewizja Polska, S.A., No. 07-CV-930 (GEL), 2009 WL
3270794, at *3 (S.D.N.Y. Oct. 13, 2009); see also
Rahman v. Smith & Wollensky Rest. Grp., Inc., No.
06-cv-6198 (LAK) (JCF), 2009 WL 773344, at *1 (S.D.N.Y.
Mar. 18, 2009) ("A corporation has an affirmative duty
to prepare the designee to the extent matters are
reasonably available, whether from documents, past
employees, or other sources."
(internal quotation
marks omitted)).
"Producing an unprepared witness is
tantamount to a failure to appear." Rahman, 2009 WL
773344 at *l.
Bush v. Element Fin. Corp., 16 Civ. 1007
at *2 (S.D.N.Y. Dec. 13, 2016)

(RJS), 2016 WL 8814347

(Sullivan, D.J.).

The testimony

of a 30(b) (6) witness with respect to the topics in the notice of
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deposition is binding on the entity, although the corporation may
offer the testimony of other witnesses to correct, explain or
supplement the testimony of the 30(b) (6) witness.
v. City of Milford, 807 F.3d 24, 34-35
30(b) (6) deposition seeks facts,

Keepers, Inc.

(2d Cir. 2015).

Where a

as opposed to contentions, there

is no requirement in the Federal Rules of Civil Procedure or the
case law that the party seeking discovery first resort to other
discovery vehicles.
In support of their contention that plaintiff must
pursue discovery through other means before seeking a Rule
30(b) (6) deposition, defendants cite the following language from
JPMorgan Chase Bank v. Liberty Mut. Ins. Co., 209 F.R.D. 361, 362
( S. D. N. Y.

2 0 0 2)

(Ra ko ff,

"In a nutshell, depositions,

D. J. ) :

including 30(b) (6) depositions, are designed to discover facts,
not contentions or legal theories, which, to the extent
discoverable at all prior to trial, must be discovered by other
means."
language.

Defendants are clearly misinterpreting the foregoing
The phrase "which, to the extent discoverable at all

prior to trial, must be discovered by other means" modifies
"contentions and legal theories" -- not "facts."

Judge Rakoff's

subsequent discussion of the 30(b) (6) notice at issue clearly
states that the deficiency with the notice was that it was

4

seeking work product and contentions, not facts.

1

1

He nowhere

Judge Rakoff explained his ruling as follows:
[P]laintiff sought, pursuant to Rule 30(b) (6), to
compel each defendant surety company to produce a
witness who would identify those facts each defendant
had learned after issuing the surety bonds that led
that defendant to now claim that the purported
performance contracts were actually disguised loans.
For example, plaintiff's first request sought:
"The
facts discovered or learned by defendant .
. on or
after September 29, 1998, which convert or otherwise
change the .
[f]orward [s]ale [c]ontract, dated
December 18, 1997,
. between [Enron Corporation and
Mahonia Limited] for which [the defendant] issued a[ ]
[s]urety [b]ond, dated September 29, 1998, from a
performance obligation to a loan .
" Plaintiff's
Letter Brief in Support of Motion to Compel, Ex. A at
1-2 (Notice of Deposition).
Even if viewed, superficially, as a request for
factual knowledge, plaintiff's request would have to be
denied as irrelevant to any material fact issue in this
case. Given the parties' respective claims, supra, what
each defendant knew at the time it issued its bonds is
highly relevant; but what it may have learned since
then is entirely irrelevant.
This is because the
parties' respective obligations and liabilities are a
function of what they knew, and what they disclosed or
failed to disclose, at the time they entered their
contractual relationships, not thereafter.
This is not to gainsay that it might be useful to
plaintiff in preparing its defense to know precisely
which allegedly undisclosed facts defendants now
contend would, if revealed, have placed defendants on
notice that the underlying performance contracts were,
as alleged, de facto loans -- though plaintiff never
sought permission of the Court to propound a contention
interrogatory in this regard.
But to the extent
plaintiff seeks such a particularization (beyond that
afforded by the pleadings), plaintiff is really seeking
(continued ... )
5

suggested that other discovery methods had to be exhausted before
a party sought a 30(b) (6) deposition.

See also Liveperson, Inc.

v. 24/7 Customer, Inc., 14 Civ. 1559 (RWS), 2015 WL 4597546 at *7
(S.D.N.Y. July 30, 2015)

(Sweet, D.J.)

(citing JPMorgan to

sustain objections to a 30(b) (6) notice seeking, among other
things, a witness to testify to "facts supporting contention of
patent infringement .

facts supporting contention of

violation of intellectual property .

. facts supporting

contention of spyware deployment and system disruption").
In contrast to the notices in JPMorgan and Liveperson,
with three exceptions, 2 the 30 (b) ( 6) notice does not seek
defendants' contentions or their work product.

The notice does

not seek to have defendants identify the facts that support their

1

( •••

continued)
defendants' protected work product.
This, indeed, is
the more fundamental objection to plaintiff's 30(b) (6)
request.
Under the guise of requesting "facts" that
defendants now contend changed their view of the
transactions, plaintiff is really requesting
defendants' mental impressions, conclusions, opinions,
and legal theory.
Such classic work product is
properly shielded from discovery, Fed.R.Civ.P.
26(b) (3), absent a much more compelling need than any
here shown by plaintiff.

JPMorgan Chase Bank v. Liberty Mut. Ins. Co., supra, 209 F.R.D.
at 363 (emphasis and alterations in original)
2

Topics 1, 20 and 21 seek contentions or work product, and
defendants need not produce a witness prepared with respect to
these topics.
6

contentions, rather it seeks only facts.
To the extent defendants suggest that they are entitled
to take plaintiff's deposition before plaintiff deposes
defendants, defendants' objection is frivolous.
priority of depositions in federal practice.

Demarco v. Stony

Brook Clinical Practice Mgm't Plan, CV-06-4305
1839823 at *l (E.D.N.Y. June 26, 2007)

There is no

(JG) (ARL), 2007 WL

(collecting authorities).

Because it appears that plaintiff noticed defendants' deposition
first,

that deposition should proceed first.

Kline & French Labs., 43 F.R.D. 25, 27 & n.1

Boxer v. Smith,
(S.D.N.Y. 1967)

(Motley, D.J.).
Accordingly, except with respect to over breadth and
Topics 1, 20 and 21, defendants' objections to plaintiff's
30 (b) ( 6) notice are overruled.
Some of the topics in plaintiff's notice are plainly
overly broad.

For example, Topic 24 seeks a witness prepared

with knowledge of "Defendant's Store Manager Training Policies
for the five year period preceding Plaintiff's fall in the
store."

This topic appears to have little to do with determining

whether there was an unreasonably dangerous condition in
defendants' Mount Vernon store that was a proximate cause of
plaintiff's fall.

Accordingly, the parties are directed to have

a viva voce conversation, either in person or by telephone, in an
7

effort to narrow the topics in dispute; an exchange of emails or
other correspondence does not comply with this Order.

If the

parties are unable to resolve their disputes concerning the
breadth of the topics, they are to report for a discovery
conference on September 11, 2018 at 2:00 p.m. in Courtroom 18A,
United States Courthouse, 500 Pearl Street, New York, New York.
No later than 5:00 p.m. on September 8, 2017, counsel are
directed to send a fax to my chambers ( (212)

805-6111) either

advising that they have resolved their remaining disputes or
identifying the deposition topics that remain in dispute.
Dated:

New York, New York
August 29, 2017
SO ORDERED

HENRY PITMAN
United States Magistrate Judge
Copies transmitted to:
All Counsel

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