Robroy Industries-Texas LLC et al v. Thomas & Betts Corporation

Filing 52

MEMORANDUM AND ORDER. Signed by Judge William C. Bryson on 01/27/2016. (nkl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION

ROBROY INDUSTRIES – TEXAS, LLC, a
Texas corporation, and ROBROY
INDUSTRIES, INC., a Pennsylvania
corporation
Plaintiffs,
v.
THOMAS & BETTS CORPORATION, a
Tennessee corporation,
Defendant.

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Case No. 2:15-CV-512-WCB

MEMORANDUM AND ORDER
Before the Court are the parties’ Joint Motion for an Enlarged Schedule and Status
Conference, Dkt. No. 36, and the Plaintiffs’ Opposed Motion to Compel, For a Status
Conference, and to Hold the Schedule in Abeyance, Dkt. No. 39. The joint motion for an
enlarged schedule and status conference has already been GRANTED. Plaintiffs’ motion to
compel, for a status conference, and to hold the schedule in abeyance is GRANTED IN PART
and DENIED IN PART.
BACKGROUND
The plaintiffs in this case are two related entities, Robroy Industries—Texas, LLC, and
Robroy Industries, Inc., (collectively, “Robroy”). The defendant, Thomas & Betts Corporation
(“T&B”), is a competitor of Robroy. Both manufacture PVC-coated steel tubing that is used as
conduits for electrical wires. Robroy’s suit alleges a violation of section 43(a) of the Lanham
Act, 15 U.S.C. § 1125(a), as well as trade defamation and unfair competition.

In October, the parties filed their joint motion for an enlarged schedule and a status
conference, contending that discovery disputes between the parties had consumed much of the
time allotted for fact discovery in this case. Although they stated that they were working to
resolve their disputes, they requested that the court modify the schedule for discovery and later
proceedings in this case because of the time consumed by the discovery disputes and because of
other scheduling difficulties.
Before the court had acted on that motion, the plaintiffs, on December 7, 2015, filed their
opposed motion to compel, for a status conference, and to hold the schedule in abeyance.
Briefing of that motion was completed on December 30, 2015. A telephonic hearing was held on
January 8, 2016, on those two outstanding motions as well as other pending motions in this case.
In the course of the hearing, the Court ruled on the defendant’s Motion to Transfer Venue
Under 28 U.S.C. § 1404 or to Stay, Dkt. No. 8, as well as the parties’ motions for leave to file
certain materials under seal, Dkt. Nos. 44 and 45. The Court previously entered an order setting
forth in more detail the reasoning behind its ruling on the motion to transfer or stay, Dkt. No. 48.
Along with the present order, the Court is entering orders addressing in more detail the reasons
for the Court’s oral ruling on the motions to seal.
As to the October motion for an enlarged schedule and a status conference, the Court has
granted that motion by conducting the January 8, 2016, telephonic status conference and
hearing, and by entering an Amended Docket Control Order on January 13, 2016. Dkt. No. 49
During the conference, the Court denied the plaintiffs’ request to hold the schedule in abeyance,
but indicated that it would issue a new Docket Control Order with later deadlines for the
completion of discovery and other steps in the proceeding. Because all other pending matters are

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therefore disposed of, this Memorandum and Order addresses only the plaintiffs’ motion to
compel discovery.
In the December 7, 2015, motion, Robroy sought a number of forms of relief: It sought
an order compelling the production of documents in the control of alleged agents of T&B (“agent
documents”); it requested that the Court appoint a forensic document collector to conduct the
document production for T&B; it sought compensation for two depositions that were kept open
because of the late production of documents; and it sought compensation for the extra costs
associated with two unprepared witnesses that T&B designated to testify pursuant to Fed. R. Civ.
P. 30(b)(6).
During the January 8, 2016, hearing, the Court denied Robroy’s requests for relief in
several respects. First, the Court denied Robroy’s request for an order directing alleged agents of
T&B to produce documents. The Court ruled that Robroy had not made a satisfactory showing,
based on the status of the alleged agents, that the documents were in T&B’s possession, custody,
or control. Second, the Court also denied Robroy’s request for the appointment of a forensic
document collector at T&B’s expense. Again, the Court found that a sufficient showing had not
been made to justify that form of relief. Third, the Court denied Robroy’s request for an order
directing the payment of compensation to Robroy for the delay in the production of documents.
The Court was not persuaded that the allegedly belated production was a violation of T&B’s
discovery obligations sufficient to justify a monetary award. The Court takes note that, during
the hearing, the parties agreed on the general outlines for document production going forward.
The Court is of the view that, at least for the future, that agreement will resolve the portion of the
motion to compel that complains of the production of documents on the eve of deposition.

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The sole remaining issue is Robroy’s request for compensation for the costs associated
with the lack of preparation of witnesses who were designated to testify for T&B pursuant to
Fed. R. Civ. P. 30(b)(6).
DISCUSSION
Because a corporation or other organization is unable to give testimony in its own right, it
must designate others to provide testimony on its behalf. After an organization designates
persons to testify on its behalf, “[t]he persons designated must testify about information known
or reasonably available to the organization.” Fed. R. Civ. P. 30(b)(6). “[T]he deponent ‘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, and unevasively, the questions posed . . . as to the relevant
subject matters.’” Brazos River Authority v. GE Ionics, Inc., 469 F.3d 416, 433 (5th Cir. 2006)
(quoting Bank of New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 151
(S.D.N.Y. 1997) (alterations in Fifth Circuit opinion)). The duty to prepare “goes beyond
matters personally known to that designee or to matters in which that designee was personally
involved.” Id. (quoting United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996)).
If a corporation fails to designate a witness with sufficient knowledge of the relevant
facts, “then the appearance is, for all practical purposes, no appearance at all.” Resolution Trust
Corp. v. S. Union Co., 985 F.2d 196, 197 (5th Cir. 1993). A district court faced with an
unprepared 30(b)(6) designee is empowered to use any of the remedies available under Rule Fed.
R. Civ. P. 37(d) for a party’s failure to attend its own deposition. Id. at 198.
Robroy contends that one of T&B’s Rule 30(b)(6) designees, Bogdan Diaconescu, was
unprepared to give knowledgeable testimony on all of the topics that he was designated for. Mr.
Diaconescu was designated to testify on 29 topics. See Dkt. No. 39. The parties provided a joint
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submission of the topics on which Mr. Diaconsecu was designated to provide testimony. Dkt.
No. 50. After reviewing the parties’ submissions in light of the topics on which Mr. Diaconescu
was designated to testify, the Court finds that his testimony was insufficient on the first two
topics on the list of topics for which he was designated. The first topic was “[t]he administration
and maintenance of Thomas & Betts’ computer systems between January 1, 2007, and the
present.” The second topic was:
Thomas & Betts’ efforts to preserve, identify, retain, search,
collect, and produce Documents in connection with this litigation,
including, but not limited to, the following:
a. processes and methods employed and the timeframe of
all such efforts;
b. persons involved, and for each such person, the nature
and timeframe of his or her involvement;
c. indices, logs, databases, servers, workstations, networks,
devices, computers, records, backup systems and other file
storage locations identified or searched;
d. the development, administration, interpretation, and
enforcement of Thomas & Betts’ record retention policy;
e. policies and practices relating to the usage of home
computers or personal electronic devices (including but not
limited to personal cell phones, iPads, tablets, or laptops)
for business purposes, and all persons responsible and/or
authorized to administer, interpret, and enforce such
policies;
f. methods and process used in backing up electronically
stored Documents between January 1, 2007, and the
present;
g. Communications with employees regarding their
obligation to preserve and collect Documents in connection
with this litigation, and all persons involved in such
Communications;
h. Communications with third-party Ocal distributors
regarding the preservation and collection of Documents in
connection with this litigation, and all persons involved in
such Communications;

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i. Documents that were (or may have been) destroyed upon
Thomas & Betts’ reasonable anticipation of this litigation;
and
j. Documents that were (or may have been) deleted in
violation of Thomas & Betts’ records retention policy or
Thomas & Betts’ general legal duty to preserve evidence in
connection with this litigation.
Reviewing Mr. Diaconescu’s testimony in light of those topics, deficiencies are apparent.
Mr. Diaconescu was asked questions that fell within the first topic or the individual sub-topics of
the second. In each case, he failed to provide any a response that could reasonably be considered
to represent “information known or reasonably available to” T&B. Fed. R. Civ. P. 30(b)(6). The
following four excerpts are examples of his lack of knowledge on the designated topics. When
asked about the company e-mail system, Mr. Diaconescu testified as follows:
Q. Was there a different e-mail program that was used prior to the
acquisition by ABB?
A. I believe it was.
Q. And what program was that?
A. I think we were using Google Drive at that time. So Google
Mail may have been what we were using at the time.
Q. And were e-mails that had been Google Mail, were they moved
over to the current platform?
A. I don’t think so. I don’t think so. The—if I recall correctly,
when the migration took place, there was a transition period after
which, basically we started from scratch.
Q. I understand, sir, that you’re testifying here on the basis of your
personal belief. Is there someone who would have been able to tell
me, definitively, what happened?
A. Certainly someone in the IT department, sure.
Q. You can’t tell me—
A. No. No.
When asked about how the company intranet site works, he testified as follows:
Q. Do you know whether the intranet site preserves prior versions
of content that was posted?

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A. I do not know that. I don’t think so, but I do not know that.
Q. Or whether the IT department keeps a record of modifications
to the intranet site?
A. You’ll have to ask them that.
Q. Do you know which systems within the company are backed
up?
A. I do not know.
Q. And so would it be fair to say you also don’t know what
programs might be used to back up any systems?
A. That’s a fair statement. I don’t know.
Q. And I should direct those questions to the IT department?
A. Correct.
On the question of how the company stored and backed up e-mails, he testified:
Q. Are users’ e-mail files stored on a central server, or would they
be stored locally on individual’s computer?
A. Can you repeat the first part of the question?
Q. Would e-mail files, would that be stored centrally, such as on a
server, or stored in some other manner, such as locally on an
individual’s computer?
A. Well, obviously, everybody would have storage of their own emails, and I assume—or I presume, rather, that they are backed up
to a central location also for the company’s records. I presume.
Q. But if I wanted a definitive answer to that question, would you
talk to the IT department?
A. Absolutely, yes.
He was also asked about how the company used and stored instant messages sent between
employees:
Q. Does the company maintain or use an instant messaging
program?
A. We do have one, yeah. I believe it’s LinkedIn—not LinkedIn,
the site, but LinkedIn in terms of instant messaging, yes.
Q. Is that something that’s used in connection with the Ocal
business?
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A. It would not be specific to that.
Q. Does—do all employees have access to this instant messaging
program?
A. To my knowledge, yes.
Q. Do you know if any logs are maintained they relate to the
instant messaging?
A. I do not know that.
Q. And whether records of instant messages are maintained, is that
best directed to the IT department?
A. Yes. Absolutely.
These excerpts are merely exemplary. Based on the quoted excerpts as well as other
similar instances in the course of Mr. Diaconescu’s testimony, the Court concludes that he was
unprepared to serve as a Rule 30(b)(6) designee on the first and second topics. T&B argued at
the hearing that Mr. Diaconescu’s lack of knowledge regarding several of the areas of inquiry
was explained by the fact that the questioning was more “granular” than had been expected. The
problem with that argument is that the topics for which Mr. Diaconescu was designated—and the
second topic in particular—were quite detailed, and Mr. Diaconescu’s protestations of ignorance
were, in several instances, in response to questions that were based directly on the designated
topics.
With that said, it must be noted that the prejudice to Robroy has been mitigated by
T&B’s actions following Mr. Diaconescu’s deposition. T&B agreed to produce three additional
witnesses to cover topics for which Mr. Diaconescu was originally designated: an employee from
T&B’s IT department to testify on topic 1, a document custodian to testify to topic 2, and a
knowledgeable individual, Gretchen Boyer, to testify on topic 30 (dealing with T&B’s efforts to
recall certain marketing materials after the filing of the present lawsuit). The Court also notes
that Mr. Diaconescu was able to testify sufficiently on 27 of the 29 topics that he was designated
for, and that this is the first time that the Court has had to intervene in a discovery dispute in this

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case. Finally, the Court’s criticism of Mr. Diaconescu’s testimony is tempered to some extent by
the fact that he appears to have been very cautious about overstating his knowledge on particular
matters. While such caution is normally an admirable trait for a witness who is called upon to
testify as to his personal knowledge of a matter, it is not helpful when the witness is called upon
to testify as to the corporation’s knowledge of matters for which there are clearly facts within the
corporation’s collective knowledge. 1
In sum, the Court concludes that Mr. Diaconescu was not adequately prepared to testify
as a Rule 30(b)(6) witness on two of the topics for which he was designated. In light of all the
circumstances, the Court is not persuaded that a monetary award of the sort requested by Robroy
would be appropriate relief. Nonetheless, Mr. Diaconescu’s lack of preparation has required
Robroy to undergo the additional time and expense of deposing two additional witnesses to cover
the topics on which Mr. Diaconsecu could not testify knowledgably. Because of the added
inconvenience to Robroy, the Court is persuaded that Robroy is entitled to some measure of
relief due to Mr. Diaconescu’s lack of preparation. In the Court’s view, the most appropriate
remedy is to provide that the depositions of the Information Technology and document custodian
30(b)(6) designees be held at a location of Robroy’s choosing rather than requiring Robroy to
absorb the additional cost of travel to a location inconvenient to Robroy to conduct those
depositions. A similar remedy has been employed previously in analogous circumstances, and it
appears to be the most appropriate remedy here. See Nester v. Textron, No. A-13-CA-920-LY,
2015 WL 1020673, at *13-14 (W.D. Tex. Mar. 9, 2015). 2

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Robroy argued in its motion that one other T&B’s designee was unprepared to testify
as a Rule 30(b)(6) witness. After reviewing the parties’ submissions, however, the Court
concludes that only Mr. Diaconsecu was unprepared for his designated topics.
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The remedy ordered by the Court does not apply to the deposition of Gretchen Boyer.

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Therefore, the Court ORDERS the 30(b)(6) depositions of the Information Technology
witness and the document custodian be held at a reasonable location convenient to the plaintiffs
and/or their counsel.
IT IS SO ORDERED.
SIGNED this 27th day of January, 2016.

_____________________________
WILLIAM C. BRYSON
UNITED STATES CIRCUIT JUDGE

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