U.S. Tobacco Cooperative Inc. et al v. Big South Wholesale of Virginia, LLC d/b/a Big Sky International et al

Filing 577

ORDER denying 541 Motion to Compel. Signed by Senior Judge James C. Fox on 8/22/2016. (Grady, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-527-F

U.S. TOBACCO INC.,
U.S FLUE-CURED TOBACCO
GROWERS, INC., and
BIG SOUTH DISTRIBUTION, LLC,
Plaintiffs,
V.

BIG SOUTH WHOLESALE
OF VIRGINIA, LLC, d/b/a BIG SKY
INTERNATIONAL, BIG SOUTH
WHOLESALE,LLC,UNIVERSAL
SERVICES FIRST CONSULTING,
alk/a UNIVERSAL SERVICES
CONSULTING GROUP, JASON
CARPENTER, CHRISTOPHER SMALL,
EMORY STEPHEN DANIEL,
and other unnamed co-conspirators,
Defendants,
UNITED STATES OF AMERICA,
Intervenor.

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ORDER

This matter is before the court on Plaintiffs' Motion to Compel Testimony [DE-541].
Plaintiffs seek a court order compelling the government to produce a particular individual to
serve as the government's Rule 3 O(b)(6) witness at the evidentiary hearing scheduled for August
24, 2016. The government and Defendants have responded in opposition, and Plaintiffs have
replied. [DE-556, -561, -569].
At the outset, the court observes that Rule 30(b)(6) governs depositions of an
organization via a representative, and "[n]either the rules nor the advisory committee comments
make any reference to the use of live Rule 30(b)(6) testimony at trial." See Stephen J. O'Neil,

Rule 30(b)(6) Witnesses at Trial, Fed. Law., Sept. 2013, at 71, 71. Nonetheless, courts that have

considered the issue have held such live testimony "is permitted, and even encouraged." !d.
(citing Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 434 (5th Cir. 2006)).
Plaintiffs here may not dictate whom the government designates as its representative. The
plain language of the rule makes clear that an organization chooses its own Rule 30(b)(6)
representative. Fed. R. Civ. P. 30(b)(6) ("[T]he named organization must ... designate one or
more officers, directors, or managing agents, or designate other persons who consent to testify on
its behalf." (emphasis added)). Plaintiffs cite no authority for such a request, and the court has
found none. Accordingly, the instant motion is DENIED.
SO ORDERED.
This the 22nd day of August, 2016.

SC.FOX
Senior United States District Judge

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