United States of America v. Niagara County, New York

Filing 38

DECISION AND ORDER 32 Motion to Compel. Signed by Hon. H. Kenneth Schroeder, Jr. on October 29, 2015. (APG)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
13-CV-503S(Sr)
Plaintiff,
v.
NIAGARA COUNTY, NEW YORK,
Defendant.

DECISION AND ORDER
This case was referred to the undersigned by the Hon. William M. Skretny,
pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon
dispositive motions. Dkt. #7.

Plaintiff, United States of America, commenced this action on May 13,
2013, against Niagara County, alleging that Niagara County violated Title VII of the Civil
Rights Act of 1964, as amended, Title 42, U.S.C. § 2000e, et seq. (“Title VII”) when it
discriminated against Correction Officer Carisa Boddecker on the basis of her sex
and/or pregnancy. Dkt. #1. More specifically, the United States alleges that Niagara
County violated its own pregnancy policy when it revoked her restricted duty
assignment and forced her to take an extended leave of absence from her job with the
Niagara County Sheriff’s Office during her 2007-2008 pregnancy. Presently pending is
the United States’ motion to compel defendant Niagara County to designate Federal
Rule of Civil Procedure Rule 30(b)(6) witness(es) for nine of Niagara County’s

seventeen affirmative defenses raised in its Answer to the Complaint. Dkt. #32. For the
following reasons, plaintiff’s motion is denied without prejudice.

FACTUAL BACKGROUND
The procedural facts relevant to the instant motion are not in dispute. The
United States first served its Rule 30(b)(6) deposition notice on Niagara County on April
3, 2014. Dkt. #32-2. In that first notice, the United States enumerated seventeen areas
of inquiry for which they sought the designation of a Rule 30(b)(6) witness. Specifically,
request number 15 sought the designation of a witness or witnesses to testify
concerning “the factual basis for all affirmative defenses and defenses asserted by
Niagara County in its Answer to the Complaint.” Dkt. #32-2, p.9, ¶15. In a subsequent
Notice, request number 15 was re-numbered request number 11, and thereafter, the
United States has referred to the request at issue as “Topic 11.” On March 3, 2015,
Niagara County supplied the United States with its response to the 30(b)(6) Notice in
letter form. Dkt. #32-2, pp.19-23. The subsequent Notice referenced above contained
thirteen requests and in its March 3, 2015 letter response, Niagara County designated a
witness for eleven of the requests. Dkt. #32-2, pp.19-23. Indeed, Niagara County
designated Daniel Engert as its witness in response to requests 1, 2, 4, 5, 6, 7, 8 and 9;
David Watroba as its witness in response to request number 3 and Peter Lopes with
respect to requests 12 and 13. With respect to the United States’ request for the
identification of a witness concerning “[t]he factual basis for all denials to the assertions
made in the Complaint,” Niagara County objected to the request on the basis that it
seeks a witness to opine on a legal conclusion or assertion (request no. 10). However,

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Niagara County further stated, “to the extent that the denial in question falls under one
of the enumerated topics contained in the 30(b)(6) notice, the County designates the
witness (or witnesses) identified for that topic.” Dkt. #32-2, p.22. Finally, request no. 11
(also referred to as Topic 11) seeks the following 30(b)(6) designation, “[t]he factual
basis for all affirmative defenses and defenses asserted by Niagara County in its
Answer to the Complaint.” Id. In its response, Niagara County states “[t]he County
objects to this request as it seeks a witness to opine on a legal conclusion or assertion.
As such, the County will not designate a witness.” Id.

Insofar as request number 11 requests the identification of a witness or
witnesses to testify concerning the factual basis for all affirmative defenses and
defenses, subsumed within that one request are seventeen separate requests (each
relating to a single affirmative defense). According to the United States, “[i]n an effort to
compromise, on April 14, 2015, the United States offered to limit its questioning
regarding Topic 11 to just nine of Niagara County’s 17 affirmative defenses.” Dkt. #321, p.3.

On June 12, 2015, Niagara County supplied the United States with the
following response concerning the outstanding Rule 30(b)(6) demand. “With respect to
your request that we identify on behalf of the County pursuant to Fed. R. Civ. Pr.
30(b)(6) to testify concerning the basis for affirmative defenses set forth in the answer,
we object to this request as it requires disclosure of information that is confidential or
protected by privilege as an attorney-client communication, attorney work product

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and/or material prepared in anticipation of litigation. Furthermore, the request seeks
information not in possession of the County and/or which was already provided through
the numerous depositions already conducted.” Dkt. #32-2, pp.39-41. Thereafter, the
United States filed the instant motion to compel on June 19, 2015. Dkt. #32.

By its motion, the United States seeks an Order compelling Niagara
County to designate Rule 30(b)(6) witnesses with respect to the following affirmative
defenses asserted in its Answer:
Fifth Affirmative Defense: At all times herein, Defendant
maintained a policy prohibiting discrimination on the basis of
protected status. Boddecker unreasonably failed to file a
complaint or otherwise take advantage of the preventative
corrective opportunities provided pursuant to such policy.
Sixth Affirmative Defense: Plaintiff’s claims are barred in
whole or in part by the doctrines of waiver, estoppel or
laches.
Seventh Affirmative Defense: Plaintiff is not entitled to some
or all of the relief and/or damages sought in the Complaint.
Eighth Affirmative Defense: Plaintiff’s claims are barred in
whole [sic] in part by the doctrines of collateral estoppel or
res judicata.
Twelfth Affirmative Defense: Defendant exercised
reasonable care to prevent and promptly correct any alleged
discriminatory conduct and Boddecker unreasonably failed
to take advantage of any preventative or corrective
opportunities provided by Defendant or to otherwise avoid
harm.
Thirteenth Affirmative Defense: To the extent that the injuries
and losses alleged have been paid, replaced or indemnified,
in whole or in part, from collateral sources, or with
reasonable certainly will likely be paid, replaced, or
indemnified in the future from such collateral sources,
Plaintiff’s claims for damages should be offset or reduced.
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Fourteenth Affirmative Defense: Plaintiff’s claims are barred
or limited in that Boddecker has failed to mitigate any
damages which she may have suffered.
Fifteenth Affirmative Defense: The Complaint asserts
conduct which is outside the scope of the charge filed with
the EEOC.
Sixteenth Affirmative Defense: Plaintiff has failed to exhaust
administrative remedies.
Dkt. #5; Dkt. #32-2, pp.26-29. In its response, Niagara County maintains that the
information sought is protected by the attorney work product privilege insofar as the
affirmative defenses raised are legal arguments. Dkt. #35.

DISCUSSION AND ANALYSIS
Rule 30(b)(6) of the Federal Rules of Civil Procedure provides in pertinent
part:
In its notice or subpoena, a party may name as the deponent
a public or private corporation . . . a governmental agency, or
other entity and must describe with reasonable particularity
the matters for examination. The named organization must
then designate one or more officers, directors, or managing
agents, or designate others persons who consent to testify
on its behalf; . . .
Fed. R. Civ. P. 30(b)(6).
The testimony elicited at the Rule 30(b)(6) deposition
represents the knowledge of the corporation, not of the
individual deponents. The designated witness is speaking
for the corporation, and this testimony must be distinguished
from that of a mere corporate employee whose deposition is
not considered that of the corporation and whose presence
must be obtained by subpoena. . . . The Rule 30(b)(6)
designee does not give his [or her] personal opinions.
Rather he [or she] presents the corporation’s position on the
topic. Moreover, the designee must not only testify about
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facts within the corporation’s knowledge, but also its
subjective beliefs and opinions. The corporation must
provide its interpretation of documents and events. The
designee, in essence, represents the corporation just as an
individual represents him or herself at a deposition.
Krasney v. Nationwide Mutual Ins. Co., No. 3:06CV1164(JBA), 2007 WL 4365677, at *2
(D. Conn. Dec. 11, 2007).

Here, on March 3, 2015, Niagara County supplied plaintiff with its
response to plaintiff’s Rule 30(b)(6) Notice. Dkt. #32-2. In its response, Niagara County
responded to eleven of the United States’ thirteen requests and designated three
different witnesses to address the following areas of inquiry. With respect to matters
relating to Niagara County’s Initial Disclosures and Niagara County’s actions to
preserve, locate and produce documents, including ESI, Niagara County designated
Peter Lopes. Dkt. #32-2. With respect to matters concerning the financial
compensation and benefits provided to corrections officers with the Niagara County
Sheriff’s Office, Niagara County designated David Watroba. Finally, with respect to
matters of a human resources nature, such as: the organizational structure of the
Niagara County Sheriff’s Office; the job description for the position of correction officer;
all policies, practices, procedures, or other guidance relating to requests for
accommodations due to pregnancy, temporary medical conditions or disabilities by
correction officers; plaintiff’s employment history; plaintiff’s request for a restricted duty
assignment as an accommodation; and, requests for accommodations due to
pregnancy, temporary medical conditions or disabilities by other correction officers,
Niagara County designated Daniel Engert as its witness. Id.

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In its March 3, 2015 letter, Niagara County interposed its objections to two
of the United States’ requests for a 30(b)(6) designation. The first was in response to
the United States’ request for a 30(b)(6) witness concerning “the factual basis for all
denials to the assertions made in the Complaint.” In its response, Niagara County
stated, “the County objects to this request as it seeks a witness to opine on a legal
conclusion or assertion. To the extent that the denial in question falls under one of the
enumerated topics contained in the 30(b)(6) notice, the County designates the witness
(or witnesses) identified for that topic.” Dkt. #32-2. The second objection was to the
United States’ request for the designation of a 30(b)(6) witness or witnesses to testify as
to the factual basis for all affirmative defenses and defenses asserted by Niagara
County in its Answer to the Complaint. In its response, Niagara County states, “the
County objects to this request as it seeks a witness to opine on a legal conclusion or
assertion. As such, the County will not designate a witness.” Id. Niagara County’s
refusal to designate a witness in response to the foregoing 30(b)(6) notice concerning
its affirmative defenses and defenses is the basis on which the United States motion to
compel is based. The Court notes that an available remedy to Niagara County was to
seek a protective order from this Court, which it has elected not to do.

As set forth above, at issue in the instant motion are nine affirmative
defenses raised by Niagara County in its Answer to the Complaint and for which the
United States is seeking the designation of a 30(b)(6) witness. For purposes of the
issue presented by the instant motion, Niagara County’s nine affirmative defenses can

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be divided into two categories, those which raise purely legal issues and those which
are factual in nature and can be characterized as likely falling under the responsibility of
Niagara County’s human resources director or department. With respect to those
affirmative defenses which raise purely legal issues, the sixth, seventh, eighth,
thirteenth, fourteenth and sixteenth affirmative defenses, the United States’ attempt to
discover facts through a 30(b)(6) deposition is not only inappropriate but overbroad,
inefficient and unreasonable. As excerpted above, the referenced six affirmative
defenses raise purely legal doctrines as defenses to the allegations in the complaint,
such as waiver, estoppel, laches, collateral estoppel and res judicata and the
applicability of such doctrines are matters determined exclusively by the Court. This is
not to say that the United States is not entitled to develop facts to demonstrate the
inapplicability of such doctrines, but rather, it is this Court’s opinion that the use of a
30(b)(6) deposition is not the appropriate means to obtain otherwise discoverable
information relating to these doctrines. Accordingly, that portion of the United States’
motion to compel with respect to the sixth, seventh, eighth, thirteenth, fourteenth and
sixteenth affirmative defenses is denied without prejudice.

With respect to the remaining affirmative defenses at issue, the fifth,
twelfth, thirteenth and sixteenth affirmative defenses, which implicate Niagara County’s
policies prohibiting discrimination, the plaintiff’s failure to comply with preventative
corrective opportunities and plaintiff’s exhaustion of administrative remedies, those
affirmative defenses are inherently factual in nature and would appear to this Court to
fall squarely within the area of knowledge for which Niagara County previously

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designated Daniel Engert as its 30(b)(6) witness. Accordingly, the United States motion
to compel with respect to the fifth, twelfth, thirteenth and sixteenth affirmative defenses
is denied without prejudice.

SO ORDERED.

DATED:

Buffalo, New York
October 29, 2015

s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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