Lead GHR Enterprises Inc v. American States Insurance Company

Filing 7

MEMORANDUM OPINION AND ORDER: The Court GRANTS IN PART and DENIES IN PART Non-Party Haag Engineering Co.'s Motion to Quash Deposition Subpoena [Dkt. No. 1 ]; QUASHES the Subpoena served on Non-Party Haag Engineering Co. by Plaintiff Lead GHR Enterprises, Inc. only as to Topics 1, 2, and 3(a) (where Topics 3(b) and 4 have been withdrawn); and MODIFIES the Subpoena as explained, as to Topics 5, 6, and 7. (Ordered by Magistrate Judge David L. Horan on 12/14/2017) (mcrd)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
LEAD GHR ENTERPRISES, INC.
formerly d/b/a GOLDEN HILLS
RESORT,
Plaintiff,
V.
AMERICAN STATES INSURANCE
COMPANY,
Defendant.

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No. 3:17-mc-91-M-BN

MEMORANDUM OPINION AND ORDER
Non-Party Haag Engineering Co. (“Haag”) has filed a Motion to Quash
Deposition Subpoena [Dkt. No. 1] (the “Motion to Quash”) under Federal Rule of Civil
Procedure 45, seeking to quash or modify a subpoena (the “Subpoena”) issued by
Plaintiff Lead GHR Enterprises, Inc. (“Lead GHR”) in connection with the case Lead
GHR Enterprises, Inc., formerly d/b/a Golden Hills Resort v. American States
Insurance Company, Civil Action No. 16-5026, pending in the United States District
Court for the District of South Dakota, Western Division (the “South Dakota Lawsuit”).
The Subpoena commands the deposition of a corporate representative of Haag under
Federal Rule of Civil Procedure 30(b)(6). See Dkt. No. 1-1 at 12-17. Haag “requests the
Court enter an order quashing Lead GHR’s subpoena or, alternatively, modifying the
subpoena to permit discovery of information relevant to the underlying dispute.” Dkt.
No. 1 at 1.
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Chief Judge Barbara M. G. Lynn has referred the Motion to Quash to the
undersigned United States magistrate judge for hearing, if necessary, and
determination under 28 U.S.C. § 636(b). See Dkt. No. 2.
Lead GHR filed a response, see Dkt. No. 5, and Haag filed a reply, see Dkt. No.
6.
Background
The Subpoena was properly issued by the United States District Court for the
District of South Dakota, Western Division under Federal Rule of Civil Procedure
45(a), as the court where the South Dakota Lawsuit is pending. See FED. R. CIV. P.
45(a)(2) (“Issuing Court. A subpoena must issue from the court where the action is
pending.”).
The Subpoena commands Haag “that pursuant to Rule 45 and Rule 30(b)(6) of
the Federal Rules of Civil Procedure, Plaintiff Lead GHR Enterprises Inc., will take the
deposition of Haag Engineering Co., upon oral examination before an officer authorized
to administer oath on December 4, 2017 at 9:00 a.m. in the offices of STEVEN C.
LAIRD, 1119 Pennsylvania Ave, Fort Worth, TX 76104, or at another time and place
that is agreeable to all parties.” Dkt. No. 1-1 at 12.
Because the Subpoena requires compliance in Fort Worth, Haag properly filed
its Motion to Quash in this Court, which, as required by Rule 45(d)(3), is the court in
the district where compliance with the Subpoena is required. See FED. R. CIV. P.
45(d)(3)(A); accord CSS, Inc. v. Herrington, No. 3:17-mc-71-N-BN, 2017 WL 4750707
(N.D. Tex. Oct. 20, 2017).
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The Subpoena further advises that “[t]he topics upon which inquiry will be made
are set forth in Exhibit A of this subpoena,” which provides:
1.

2.
3.
4.
5.
6.
7.
8.

1.

2.

DEFINITIONS:
As used herein, the tem’. “Lead GHR” refers to Plaintiff Lead GHR
Enterprises, as well as its agents, employees, representatives,
principals and managers. “Lead GHR” shall also refer to any
parent, subsidiary, or related corporation.
As used herein the tem]. “Defendant” or “American States” shall
mean Defendant American States Insurance Company, and any
parent, subsidiary, or affiliate entity.
As used herein, the term “You” and “Your” shall mean Haag
Engineering Co. (hereinafter “Haag”).
As used herein, the term “Damage(s)” shall mean the damages
claimed by Plaintiff as a result of the Event, as defined herein.
As used herein the term “Event” shall mean the wall collapse that
occurred on October 10, 2010.
As used herein, the term “Retaining Wall” shall mean the
collapsed wall that is the subject of this
lawsuit.
As used herein, the term “Building” and/or “Hotel” shall mean the
building formerly known as the Golden Hills Resort.
As used herein, the term “Document” includes all information in
written, recorded, graphic, or electronic form, including writings,
drawings, graphs, charts, photographs, tapes, recordings, e-mails,
computer records, computer, computer diaries, motion picture or
videotapes.
DEPOSITION TOPICS
With respect to the Retaining Wall and Building:
a.
The Haag employee or employees who inspected the
Retaining Wall and Building after the October 10, 2010
collapse;
b.
All information communicated to Haag about Lead GHR or
the Retaining Wall and Building prior to the inspection done
on October 29, 2010;
c.
All information communicated to Haag about Lead GHR or
the Retaining Wall and Building after the inspection done
on October 29, 2010;
d.
All information communicated by Haag about Lead GHR or
the Retaining Wall and Building at any time.
With respect to the Event:
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a.

3.

4.
5.

6.

7.

Any measurements, notes, memoranda, reports, drafts,
emails, correspondence, calculations, photographs, videos,
or graphs prepared or created by Haag employees in
conjunction with the inspection done on October 29, 2010.
b.
Any conclusions drawn by Haag employees about the Event,
and the basis for each such conclusion.
Haag employees, David Teasdale and Tim Strasser.
a.
Any continuing education required by Haag for David
Teasdale and Tim Strasser.
b.
Any information related to performance reviews or
promotions/reprimands for David Teasdale and Tim
Strasser from 2008 to 2012.
The documentation retention policies and practices of Haag.
Your relationship with Defendant and Liberty Mutual Insurance
Company (“Liberty”), and its subsidiaries, in the State of South
Dakota.
a.
Number of claims in which Defendant or Liberty retained
Haag in South Dakota since 2009.
b.
The percentage of claims in South Dakota since 2009 in
which, on behalf of Defendant or Liberty, Haag issued an
engineering report.
c.
Your knowledge or understanding of South Dakota state
licensing requirements for Engineers.
Your professional relationship with Defendant and Liberty
generally.
a.
Any workshops, training materials, speeches, or advertising
provided by you directly to Defendant or Liberty from 2008
to 2011.
b.
Any solicitations or discounts offered by Haag to Defendant
or Liberty from 2008 to 2012.
c.
Any instances, since 2008, in which a moratorium was
placed on Haag from performing engineering services on
behalf of Defendant or Liberty, and the circumstances
surrounding such moratorium.
d.
Any instances, since 2008, in which Defendant or Liberty
has alleged that Haag or its employees have committed
fraud, negligence, or professional malpractice.
Your professional relationship with other insurance carriers, such
as State Farm Insurance Company and All State Insurance
Company.
a.
Any instances, from 2005 to 2010, in which a moratorium
was placed on Haag from performing engineering services
on behalf of any insurance company, and the circumstances
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b.

surrounding such moratorium.
Any instances, from 2005 to 2010, in which any insurance
company which has retained Haag’s professional services
has alleged that Haag or its employees have committed
fraud, negligence, or professional malpractice.

Dkt. No. 1-1 at 15-17. Lead GHR has since withdrawn Topics 3(b) and 4. See Dkt. No.
5 at 9-10.
Haag explains that its Motion to Quash “relates to Lead GHR’s subpoena served
on Haag in connection with an insurance dispute currently pending before the United
States District Court for the District of South Dakota,” in which “Lead GHR has
asserted several first-party claims against Defendant American States Insurance
Company (‘American States’) based on American States’ alleged failure to pay full
policy benefits under a property insurance policy” and “Lead GHR contends American
States did not pay for all damage caused by a defective retaining wall located near a
hotel it owns.” Dkt. No. 1 at 1-2 (footnote omitted). Haag further explains that it
is a forensic engineering and consulting firm which provides failure,
extent of damage, and repair analysis to a wide variety of clients. While
Haag consults on projects located throughout the country, its principal
office is in Irving, Texas.
On or about October 10, 2010, a retaining wall located near Lead
GHR’s Golden Hills Resort (the “Hotel”) collapsed. As alleged by Lead
GHR, the collapse “damaged the [retaining w]all, the adjacent parking
lot, and other portions of the Hotel’s exterior.” Lead GHR purchased a
casualty insurance policy issued by American States that was alleged to
cover the Hotel at all times relevant to the Underlying Cause (the
“Policy”). In assessing Lead GHR’s claim under the Policy, American
States retained Haag to determine the cause of the failure. On or about
October 29, 2010, Haag engineers Dave Teasdale and Tim Strasser
inspected the retaining wall and prepared a forensic engineering report.
After reviewing Haag’s final report, American States allegedly “refused
to pay for any damage or loss caused by the [retaining wall’s] collapse,
including damage to the Hotel exterior.”
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On April 26, 2016, Lead GHR instituted the [South Dakota
Lawsuit] in which it asserted several first-party claims related to
American States’ failure to pay full policy benefits, including: (1) breach
of the Policy; (2) bad faith insurance practices; and (3) conversion of
Policy premiums.
Id. at 2-3 (footnotes omitted).
Haag explains that, while it “is not a party to the [South Dakota Lawsuit],
American States has designated David Teasdale – a Haag engineer – as a testifying
expert” and that “American States has offered Lead GHR the opportunity to depose
Mr. Teasdale, as is required by Rule 26 of the Federal Rules of Civil Procedure.” Id. at
2 (footnote omitted). More specifically, according to Haag, “[o]n May 5, 2017, American
States designated Mr. Teasdale as a testifying expert and offered Lead GHR the
opportunity to depose him, as is required by Rule 26 of the Federal Rules of Civil
Procedure,” but “Lead GHR did not exercise its right to depose Mr. Teasdale under
Rule 26(b)(4)(A).” Id. at 3 (footnotes omitted).
Instead, Haag explains, “Lead GHR served Haag with a Rule 30(b)(6) Subpoena
and requested that Haag appoint a corporate representative qualified to testify as to
the subject matter of Mr. Teasdale’s report and expected testimony.” Id. (footnote
omitted). That is, according to Haag, “in a clear attempt to circumvent its obligation
to compensate Haag ‘a reasonable fee for time spent in responding to discovery’ under
[Federal Rule of Civil Procedure] 26(b)(4)(E), Lead GHR served Haag with a Rule
30(b)(6) subpoena (the ‘Subpoena’) for a deposition on topics addressed in Mr.
Teasdale’s report,” and “Lead GHR’s evident efforts to circumvent the proper
application of the discovery rules alone merit an order quashing its Subpoena.” Id. at
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2 (footnote omitted).
Haag further contends that the “[t]he Subpoena also sought to elicit testimony
regarding Haag’s: (1) relationship with insurance carriers generally and (2) internal
policies and personnel files – neither of which have any bearing on the” South Dakota
Lawsuit – and thereby “seeks to elicit testimony on multiple topics that are unduly
burdensome because they call for testimony that is irrelevant to the claims and/or
defenses raised in the Underlying Cause. That is, the Subpoena seeks testimony about
Haag’s work on assignments unrelated to the retaining wall at issue and irrelevant
information regarding Haag’s relationships with other insurance carriers.” Id. at 2, 3-4
(footnote omitted).
Haag argues that, for these reasons, “the Subpoena should be quashed.” Id. at
2.
Lead GHR responds that Haag
has moved to quash the 30(b)(6) subpoena from [Lead GHR] to Haag.
Haag’s basis for their objection is twofold: (1) Lead GHR is attempting to
circumvent the discovery process under Federal Rule of Civil Procedure
Rule 26 by serving a 30(b)(6) subpoena on Haag instead of deposing the
designated expert, David Teasdale; and (2) the subject matter of some of
the testimony that has been requested is irrelevant to the underlying
claim. Because Haag’s positions are without merit, the subpoena should
be enforced, and Haag should be compelled to comply with the deposition
notice.
Dkt. No. 5 at 1. Lead GHR asserts that it “wholly complied with both [Federal Rules
of Civil Procedure 30(b)(6) and 45] when it issued its subpoena upon Haag”; that it does
not intend to circumvent Rule 26(b)(4)(A); and that Haag cannot meet its burden of
demonstrating that the Subpoena is unduly burdensome. Id. at 2-10.
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Haag replies that,
[b]y its response, [Lead GHR] argues that it is entitled to enforce a
burdensome and intrusive subpoena that it issued against nonparty
[Haag]. However, Lead GHR’s proposed application of the Federal Rules
of Civil Procedure is not only unreasonable but also ignores Rule 45's
clear intent to avoid imposing undue burdens on nonparties.
To support its unique application of the Rules, Lead GHR’s
response digresses from the realities of the claims and issues that are
relevant to its ongoing dispute with American States Insurance Company
(the “South Dakota Lawsuit”). In the South Dakota Lawsuit, Lead GHR
asserted several first-party claims against American States based on its
alleged failure to pay full policy benefits on a property-damage claim
related to the failure of retaining wall owned by a hotel located in Lead,
South Dakota. Haag is not a party to the South Dakota Lawsuit. Indeed,
save for a conclusory one-sentence statement that former Haag engineer
Tim Strasser was a “preferred vendor” of American States, Haag is not
even mentioned in Lead GHR’s complaint. This singular and conclusory
reference, however, fails to provide any justification for Lead GHR’s
burdensome subpoena that seeks the discovery of irrelevant information
from Haag. Accordingly, Lead GHR’s demands are not supported by
established law governing nonparty discovery or the facts which underlie
its claims pending in the South Dakota lawsuit.
Dkt. No. 6 at 1-2 (footnotes omitted).
Legal Standards
Under Federal Rule of Civil Procedure 45, a party may serve a subpoena
commanding a nonparty “to whom it is directed to attend and testify.” FED. R. CIV. P.
45(a)(1)(A)(iii). Under Rule 45(c), “[a] subpoena may command a person to attend a
trial, hearing, or deposition only as follows: (A) within 100 miles of where the person
resides, is employed, or regularly transacts business in person.” FED. R. CIV. P.
45(c)(1)(A).
Federal Rule of Civil Procedure 30(b)(6) provides that,
[i]n its notice or subpoena, a party may name as the deponent a public or
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private corporation, a partnership, an association, 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 other persons who consent to testify on its behalf; and it may
set out the matters on which each person designated will testify. A
subpoena must advise a nonparty organization of its duty to make this
designation. The persons designated must testify about information
known or reasonably available to the organization. This paragraph (6)
does not preclude a deposition by any other procedure allowed by these
rules.”
FED. R. CIV. P. 30(b)(6).
The United States Court of Appeals for the Fifth Circuit has explained in this
context of a Rule 30(b)(6) deposition of a corporate representative:
Rule 30(b)(6) is designed “to avoid the possibility that several
officers and managing agents might be deposed in turn, with each
disclaiming personal knowledge of facts that are clearly known to persons
within the organization and thus to the organization itself.” Therefore,
the 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, unevasively, the questions posed ... as
to the relevant subject matters.’” “[T]he duty to present and prepare a
Rule 30(b)(6) designee goes beyond matters personally known to that
designee or to matters in which that designee was personally involved.”
The deponent must prepare the designee to the extent matters are
reasonably available, whether from documents, past employees, or other
sources.
“Obviously it is not literally possible to take the deposition of a
corporation; instead, ... the information sought must be obtained from
natural persons who can speak for the corporation.” Thus, a rule 30(b)(6)
designee does not give his personal opinions, but presents the
corporation’s “position” on the topic. When a corporation produces an
employee pursuant to a rule 30(b)(6) notice, it represents that the
employee has the authority to speak on behalf of the corporation with
respect to the areas within the notice of deposition. This extends not only
to facts, but also to subjective beliefs and opinions. If it becomes obvious
that the deposition representative designated by the corporation is
deficient, the corporation is obligated to provide a substitute.
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We agree with BRA that Cajun violated rule 30(b)(6) by failing to
prepare Grigsby with respect to issues that although not within his
personal knowledge, were within the corporate knowledge of the
organization, such as whether BRA had presented a warranty claim to
Cajun. At the very least, Cajun could have designated another witness
with personal or corporate knowledge of the questions asked.
If the designated “agent is not knowledgeable about relevant facts,
and the principal has failed to designate an available, knowledgeable, and
readily identifiable witness, then the appearance is, for all practical
purposes, no appearance at all.” Resolution Trust [Corp. v. S. Union Co.,
Inc., 985 F.2d 196, 187 (5th Cir. 1993).] In Resolution Trust we affirmed
sanctions against a party that possessed documents that plainly
identified a witness as having personal knowledge of the subject of the
deposition but did not furnish those documents or designate the witness
until after it had designated two other witnesses with no personal
knowledge.
Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 432-34 (5th Cir. 2006) (footnotes
and citations omitted).
“For Rule 30(b)(6) to effectively function, the requesting party must take care
to designate, with painstaking specificity, the particular subject areas that are
intended to be questioned, and that are relevant to the issues in dispute. Otherwise,
an overly broad Rule 30(b)(6) notice may subject the noticed party to an impossible
task. If the noticed organization cannot identify the outer limits of the areas of inquiry
noticed, compliant designation is not feasible.” Hartford Fire Ins. Co. V. P & H Cattle
Co., No. 05-cv-2001, 2009 WL 2951120, at *10 (D. Kan. Sept. 10, 2009).
Under Federal Rule of Civil Procedure 45(d)(3)(A), “[o]n timely motion, the court
for the district where compliance is required must quash or modify a subpoena that (i)
fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the
geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other
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protected matter, if no exception or waiver applies; or (iv) subjects a person to undue
burden.” FED. R. CIV. P. 45(d)(3)(A).
The moving party has the burden of proof. See Wiwa v. Royal Dutch Petroleum
Co., 392 F.3d 812, 818 (5th Cir. 2004); Williams v. City of Dallas, 178 F.R.D. 103, 109
(N.D. Tex. 1998). “Generally, modification of a subpoena is preferable to quashing it
outright.” Wiwa, 392 F.3d at 818.
On a motion asserting undue burden, “[t]he moving party has the burden of
proof to demonstrate ‘that compliance with the subpoena would be unreasonable and
oppressive.’” Wiwa, 392 F.3d at 818 (quoting Williams, 178 F.R.D. at 109 (internal
quotation marks omitted)). “The moving party opposing discovery must show how the
requested discovery was overly broad, burdensome, or oppressive by submitting
affidavits or offering evidence revealing the nature of the burden.” Andra Group, LP
v. JDA Software Group, Inc., 312 F.R.D. 444, 449 (N.D. Tex. 2015).
“Whether a burdensome subpoena is reasonable must be determined according
to the facts of the case, such as the party’s need for the documents and the nature and
importance of the litigation.” Wiwa, 392 F.3d at 818 (internal quotation marks and
footnote omitted). “To determine whether the subpoena presents an undue burden, [the
Court] consider[s] the following factors: (1) relevance of the information requested; (2)
the need of the party for the documents; (3) the breadth of the document request; (4)
the time period covered by the request; (5) the particularity with which the party
describes the requested documents; and (6) the burden imposed.” Id. (footnote omitted).
“Further, if the person to whom the document request is made is a non-party, the court
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may also consider the expense and inconvenience to the non-party.” Id. (footnote
omitted).
“When a subpoena is issued as a discovery device, relevance for purposes of the
undue burden test is measured according to the standard of [Federal Rule of Civil
Procedure] 26(b)(1).” Williams, 178 F.R.D. at 110. Rule 26(b)(1) has been amended,
effective December 1, 2015, to provide that, “[u]nless otherwise limited by court order,
the scope of discovery is as follows: Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense and proportional
to the needs of the case, considering the importance of the issues at stake in the action,
the amount in controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the issues, and whether
the burden or expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible in evidence to be
discoverable.” FED. R. CIV. P. 26(b)(1).
The Court also “may find that a subpoena presents an undue burden when the
subpoena is facially overbroad.” Wiwa, 392 F.3d at 818 (footnote omitted). “Courts have
found that a subpoena for documents from a non-party is facially overbroad where the
subpoena’s document requests seek all documents concerning the parties to [the
underlying] action, regardless of whether those documents relate to that action and
regardless of date; [t]he requests are not particularized; and [t]he period covered by the
requests is unlimited.” Am. Fed’n of Musicians of the U.S. & Canada v. SKODAM
Films, LLC, 313 F.R.D. 39, 45 (N.D. Tex. 2015) (internal quotation marks omitted).
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Federal Rule of Civil Procedure 26(b)(4) addresses discovery from expert
witnesses:
(A)

(B)

(C)

(D)

(E)

Deposition of an Expert Who May Testify. A party may depose any
person who has been identified as an expert whose opinions may
be presented at trial. If Rule 26(a)(2)(B) requires a report from the
expert, the deposition may be conducted only after the report is
provided.
Trial-Preparation Protection for Draft Reports or Disclosures.
Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure
required under Rule 26(a)(2), regardless of the form in which the
draft is recorded.
Trial-Preparation Protection for Communications Between a
Party’s Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B)
protect communications between the party’s attorney and any
witness required to provide a report under Rule 26(a)(2)(B),
regardless of the form of the communications, except to the extent
that the communications:
(i)
relate to compensation for the expert’s study or testimony;
(ii)
identify facts or data that the party’s attorney provided and
that the expert considered in forming the opinions to be
expressed; or
(iii) i dentify assumptions that the party’s attorney provided and
that the expert relied on in forming the opinions to be
expressed.
Expert Employed Only for Trial Preparation. Ordinarily, a party
may not, by interrogatories or deposition, discover facts known or
opinions held by an expert who has been retained or specially
employed by another party in anticipation of litigation or to
prepare for trial and who is not expected to be called as a witness
at trial. But a party may do so only:
(i)
as provided in Rule 35(b); or
(ii)
on showing exceptional circumstances under which it is
impracticable for the party to obtain facts or opinions on the
same subject by other means.
Payment. Unless manifest injustice would result, the court must
require that the party seeking discovery:
(i)
pay the expert a reasonable fee for time spent in responding
to discovery under Rule 26(b)(4)(A) or (D); and
(ii)
for discovery under (D), also pay the other party a fair
portion of the fees and expenses it reasonably incurred in
obtaining the expert’s facts and opinions.
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FED. R. CIV. P. 26(b)(4).
Discussion
Haag argues that the Subpoena should be quashed (1) because Lead GHR seeks
a deposition under Rule 30(b)(6) to circumvent the customary application of discovery
rules and (2) because the Subpoena is unduly burdensome because it calls for
testimony that is irrelevant to any claim or defense raised in the South Dakota
Lawsuit.
I.
As to the first issue, Haag contends that “Lead GHR seeks to improperly depose
a testifying expert under a Rule 30(b)(6) subpoena – rather than utilizing Rule
26(b)(4)(A) – to avoid reimbursing Haag for certain fees associated with deposing an
expert.” Dkt. No. 1 at 5. Haag notes that “Lead GHR’s topics for examination one, two,
and three relate exclusively to matters included in Mr. Teasdale’s report and that
would be addressed in his deposition under Rule 26, including: Information
communicated to Haag about Lead GHR, the retaining wall, and/or the Hotel; Any
measurements, notes, memoranda,

reports, drafts, emails, correspondence,

calculations, photographs, videos, or graphs prepared or created by Haag employees
in conjunction with the inspection....; Any conclusions drawn by Haag employees
regarding the failure of the retaining wall; and Information regarding Mr. Teasdale’s
qualifications.” Id. at 5-6 (footnotes omitted).
According to Haag, “[e]ven though these topics clearly encompass matters that
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should be raised in a Rule 26 deposition of the designated expert, Lead GHR issued a
Subpoena under Rule 30(b)(6),” and, “[u]nder such circumstances, the Subpoena not
only imposes an undue expense and burden on Haag in violation of Rule 45(d)(1), but
it clearly reflects an effort to avoid coordinating with South Dakota opposing counsel
and paying for Mr. Teasdale’s expert deposition testimony.” Id. at 6.
And Haag asserts that “Lead GHR also seeks to elicit testimony on several
matters related to Haag’s relationship with American States and Liberty Insurance
Company (‘Liberty’), including: Haag’s relationship with American States and/or
Liberty, generally; The number of claims on which American States and/or Liberty has
retained Haag in South Dakota since 2009; The percentage of claims in which Haag
has tendered a report on behalf of American States and/or Liberty in South Dakota
since 2009; Any solicitations or discounts offered by Haag to American States and/or
Liberty from 2008 to 2012; Any instances in which American States and/or Liberty
placed a moratorium on Haag’s performing engineering services on behalf of American
States since 2008; and Any instance in which American States and/or Liberty has
accused Haag of committing fraud, negligence, or professional, malpractice.” Id. at 6-7
(footnotes omitted).
According to Haag, “[t]hese topics seek testimony that is a natural extension of
what Lead GHR would develop in a proper Rule 26 deposition of Haag engineer David
Teasdale,” and “[r]equiring Haag to designate and produce a corporate representative
for a deposition on these topics would impose an undue burden and expense on Haag
in violation of Rule 45(d)(1),” where, “[i]nstead, Haag suggests these areas of inquiry
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be directed to Mr. Teasdale during his Rule 26 deposition” and “Mr. Teasdale is
prepared to respond to those questions.” Id. at 7.
Lead GHR responds that “[t]he supposition by Haag that Lead GHR does not
intend to depose David Teasdale is wrong”; that “Lead GHR fully intends to take Mr.
Teasdale’s deposition, as well as Haag’s”; that, “[i]In fact, for months, Mr. Teasdale’s
deposition has been tentatively set for the week of December 13 to 15" but has been
postponed pending the Court’s ruling on this Motion [to Quash], in order to attempt to
take both depositions in one trip, rather than two”; and that “Lead GHR has no
intention of circumventing its Rule 26(b)(4)(A) duties.” Dkt. No. 5 at 2.
And Lead GHR asserts,
although Mr. Teasdale may be able to testify to matters which might
overlap with the testimony of Haag, such testimony would not be binding
on Haag. Lead GHR has alleged that Haag is a “preferred vender” of
Defendant American States Insurance Company. See Document 1-1, Ex.
A Complaint, Paragraph 10. It is Lead GHR’s burden to meet its burden
of proof on this allegation. It is appropriate to seek such information from
the fact witness, Haag. Without the testimony of Haag, Mr. Teasdale’s
affirmation in his deposition can be easily sidestepped by his company
through an affidavit. A Rule 30(b)(6) deposition prevents such
sidestepping.
Even accepting Haag’s argument that Mr. Teasdale is better suited
to provide testimony on the topics identified in the subpoena, courts have
permitted 30(b)(6) depositions even though the information sought could
and should be obtained by other, more-efficient means. See, e.g., New
Jersey v. Sprint Corp., No. 03-2071-JWL, 2010 WL 610671, at *2-3 (D.
Kan. Feb. 19, 2010). The Sprint court also rejected the argument that the
30(b)(6) deposition would duplicate discovery already obtained by other
means. Id. It explained that the rule is designed to bind the corporation
or agency, exactly as Lead GHR is intending here. Id. “[J]ust because the
topics proposed are similar to those contained in documents provided or
interrogatory questions answered” does not prohibit the taking of a
30(b)(6) deposition. Dongguk Univ. v. Yale Univ., 270 F.R.D. 70, 74 (D.
Conn. 2010). Such is the case here.
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Lead GHR is not disputing that the Defendant American States
has properly designated David Teasdale as a testifying expert under Rule
26 of the Federal Rules of Civil Procedure. Nor does it dispute he is the
proper person for it to depose as an expert. As set out above, Lead GHR
has every intention of deposing Mr. Teasdale as an expert in the coming
weeks. Lead GHR also has every intention of compensating him for his
time under Rule 26(b)(4)(E). The 30(b)(6) subpoena in question is in no
way an effort to “circumvent the proper application of the discovery
rules...” Motion ¶1. Instead, it is to obtain discovery from a relevant fact
witness. The necessity for the deposition of Haag under 30(b)(6) is clear:
to gather all information available to Haag through its employees Mr.
Teasdale and Mr. Strasser, including information about the longstanding
relationship between Haag and American States Insurance Company.
The latter is a subject about which Mr. Teasdale would not be able to
testify. Sprint recognizes that a party may have an interest in getting the
corporation’s testimony on an issue, rather than just that of an
individual. Sprint, 2010 WL 610671, at *2. Here, that interest is clearly
necessary given Lead GHR’s allegation that Haag is a “preferred vender”
of Defendant American States Insurance Company.
In cases much like the present case, “courts have allowed 30(b)(6)
depositions in order to obtain testimony binding on the corporation even
though that testimony was likely to essentially duplicate information
which had already been stated in an individual deposition.” Id. In other
words, the possibility that the subject matter of Haag’s testimony and Mr.
Teasdale’s testimony may overlap is not a reason to quash Lead GHR’s
subpoena. The subject matter of the Haag report will obviously be a
portion of the subject matter of Mr. Teasdale’s expert deposition.
However, what Haag may know about its report is not necessarily the
same as what Mr. Teasdale may know about it – particularly, when he
was not the only Haag employee assigned to Lead GHR’s claim. Both
Haag and Mr. Teasdale are fact witnesses in their own right. Fact
witness testimony often covers the same or similar subject matter.
However, that is not a reason to exclude such testimony. Haag’s
argument that the expert testimony of Mr. Teasdale is sufficient for Lead
GHR’s litigation purposes is without merit. For these reasons, Lead GHR
asks this Court to enforce the subpoena as modified herein, and allow the
30(b)(6) deposition of Haag to occur.
Id. at 3-7 (emphasis omitted).
Haag replies that
Lead GHR contends that the Federal Rules of Civil Procedure not only
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permit but anticipate its issuing Haag a purported Rule 30(b)(6)
subpoena to indirectly elicit testimony from testifying expert David
Teasdale. Lead GHR even goes so far as to admit that it seeks the same
testimony from Haag as it would seek from Mr. Teasdale under Rule 26.
Despite Lead GHR’s claims to the contrary, such an application of the
Rules is contrary to established jurisprudence.
....
Haag fully supports Lead GHR’s apparent position that it “could
and should” seek Mr. Teasdale’s testimony under Rule 26. However, Lead
GHR seeks to compel Haag to designate a corporate representative for the
same testimony that Mr. Teasdale would provide as a testifying expert in
the South Dakota Lawsuit. It is nonsensical to force Haag to designate
Mr. Teasdale as its corporate representative only so he may provide the
same testimony that he would provide under Rule 26(b)(4)(A).
In Perry v. United States, the Honorable Jane Boyle, then serving
as a United State Magistrate Judge for the Northern District of Texas,
rejected similar efforts made by a party to use a nonparty subpoena to
indirectly engage in expert discovery. See Perry v. United States, No.
3:96-CV-2038-T, 1997 WL 53136, at *1 (N.D. Tex. Feb. 4, 1997). There, a
party issued a subpoena under Rule 45 in an effort to elicit testimony
from a nonparty expert. Id. at *1-2. Judge Boyle refused to permit such
an obvious effort to circumvent the customary application of the discovery
rules: “[R]ule 26(b)(4) governs a party’s access to the opposing party’s
experts. A party may not circumvent the limitations of Rule 26 and gain
access to opposing expert evidence via a bare subpoena duces tecum.” Id.
at *1 (internal citation omitted).
Courts throughout the country have adopted a similar position by
finding that a party may not use a nonparty subpoena to bypass expert
discovery parameters of Rule 26. See In re Fuller, No. 2:13-MC-140-JHR,
2013 WL 5305317, at *2 (D. Me. Sept. 18, 2013) (collecting cases in which
courts found that a party may not use a nonparty subpoena to bypass the
proper application of Rule 26); see also Westchester Surplus Lines Ins. Co.
v. Interstate Underground Warehouse & Storage, Inc., No.
16-00136-CV-W-HFS, 2017 WL 2313288, at *2 (W.D. Mo. May 18, 2017)
(refusing to permit a party to use a nonparty subpoena to discover Rule
26 information because “Rules 26 and 30 operate as a control, or brake if
you will, on the potential runaway use of the subpoena duces tecum to
compel the production of the evidence of experts retained by a party to
testify at trial.”); Marsh v. Jackson, 141 F.R.D. 431, 432 (W.D. Va. 1992)
(same).
Here, despite Lead GHR’s arguments to the contrary, the
Subpoena seeks to elicit expert testimony from Haag under the guise of
a Rule 30(b)(6) deposition. As discussed in Haag’s Motion to Quash
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Deposition Subpoena and Supporting Brief (“Motion”), topics for
examination one, two, three, five, six, and seven are examples of what an
expert may be compelled to provide testimony on under Rule 26(b)(4)A.
Notably, Lead GHR seeks testimony from a Haag corporate
representative regarding “[a]ny measurements, notes, memoranda,
reports, drafts, emails, correspondence, calculations, photographs, videos,
or graphs prepared or created by Haag employees in conjunction with the
inspection....” These are precisely the topics Teasdale will testify about as
a designated testifying expert. Lead GHR also seeks to elicit testimony
on numerous topics related to the preparation of Mr. Teasdale’s
previously tendered report, including: (1) Mr. Teasdale’s qualifications;
(2) external information Mr. Teasdale may have received or relied on in
preparing his report; and (3) any conclusions drawn by Mr. Teasdale or
Mr. Strasser regarding the failure of the retaining wall. To seek this
information from Haag (Mr. Teasdale’s employer) is facially burdensome,
is an end run around Rule 26(b)(4)A, and is an attempt to avoid paying
Mr. Teasdale compensation under Rule 26(b)(4)(E).
Further, the Subpoena seeks to elicit testimony on no fewer than
twelve separate topics (inclusive of sub-topics) that are designed to
investigate any biases Mr. Teasdale may hold. These topics address
Haag’s relationship (not Teasdale’s personally) with numerous insurance
carriers, including Defendant American States and Liberty Insurance
Company (“Liberty”):
•
Haag’s relationship with American States and/or Liberty,
generally;
•
The number of claims on which American States and/or
Liberty has retained Haag in South Dakota since 2009;
•
The percentage of claims in which Haag has tendered a
report on behalf of American States and/or Liberty in South
Dakota since 2009;
•
Any solicitations or discounts offered by Haag to American
States and/or Liberty from 2008 to 2012;
•
Any instances in which American States and/or Liberty
placed a moratorium on Haag’s performing engineering
services on behalf of American States since 2008;
•
Any instance in which American States and/or Liberty has
accused Haag of committing fraud, negligence, or
professional, malpractice.
•
“[Haag’s] professional relationship with [any] insurance
carriers”;
•
“Any instances, from 2005 to 2010, in which a moratorium
was placed on Haag from performing engineering services
on behalf of any insurance company, and the circumstance
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surrounding such moratorium”; and
•
“Any instances from 2005 to 2010, in which any insurance
company which has retained Haag’s professional services
has alleged that Haag or its employees have committed
fraud, negligence, or professional malpractice.”
Each of the topics described above represent common (albeit
impermissibly broad) examples of matters that should be raised in a Rule
26 deposition of Mr. Teasdale. Lead GHR may not, however, seek to elicit
testimony on these topics under the guise of a Rule 30(b)(6) deposition.
See Perry, No. 3:96-CV-2038-T, 1997 WL 53136, at *1; see also
Westchester Surplus Lines Ins. Co., No. 16-00136-CV-W-HFS, 2017 WL
2313288, at *2. As explained in its Motion to Quash, Mr. Teasdale, as the
designated expert, will testify regarding his personal knowledge of these
topics. Mr. Teasdale will also speak to his assignments with American
States. It is Mr. Teasdale’s testimony as the designated expert that is
relevant to the South Dakota Lawsuit, not Haag’s as Mr. Teasdale’s
employer.
Id. at 2-6.
Haag also notes that “Lead GHR also seemingly concedes that it hopes to use
Haag’s testimony to attack the credibility of Mr. Teasdale’s expert opinions” and that,
“[b]ased on its own stated intentions, Lead GHR’s purported Rule 30(b)(6) subpoena
should be quashed, and Lead GHR should direct its question to Mr. Teasdale via Rule
26.” Id. at 3 n.8. And Haag explains that “Mr. Strasser is no longer employed by Haag
nor is he subject to Haag’s control. Accordingly, Haag is not a proper party to provide
any testimony regarding Mr. Strasser’s mental impressions or findings.” Id. at 4 n.13.
Rule 26(b)(4) does govern discovery from a testifying expert witness, but Lead
GHR has shown that it seeks Haag’s Rule 30(b)(6) deposition testimony not merely as
Mr. Teasdale’s employer. Haag was involved in the relevant factual background of
Lead GHR’s claims before suit was filed and Mr. Teasdale was later designated as a
testifying expert witness. This is not the same situation as in, for example, Perry –
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here, Haag is the testifying expert witness’s employer but was also involved in the
underlying events giving rise to the South Dakota Lawsuit through its relationship
with the defendant American States and the involvement of another employee.
Lead GHR first asserts that Haag’s Rule 30(b)(6) testimony is needed to support
its allegation in its complaint in the South Dakota Lawsuit that, “[a]fter completing its
inspection through preferred venders Chris Shopshear of Eagle Adjusting and Tim
Strasser of Haag Engineering, Defendant failed to pay any portion of the purported
loss.” Dkt. No. 1-1 at 3. Lead GHR appears to assert that it needs Haag’s binding
affirmation that Haag was one of American States Insurance Company’s preferred
vendors and to explore what that means and that Mr. Teasdale’s Rule 26(b)(4)(A)
deposition testimony cannot provide that. Under these circumstances, Lead GHR is not
improperly circumventing Rule 26(b)(4) by invoking Rule 30(b)(6) through a Rule 45
subpoena to obtain Haag’s testimony as to Topics 5, 6, and 7 in the Subpoena. Put
another way, Lead GHR would have a basis to seek this testimony from Haag even if
American States had not designated Mr. Teasdale or another Haag employee as an
expert witness. That American States did so does not limit any discovery as to Haag’s
relationship with American States (or Liberty, of which it is an affiliate) that is
relevant to Lead GHR’s claims as pleaded because Mr. Teasdale, as the designated
testifying expert witness, will testify regarding his personal knowledge of the matters
made relevant by his expert testimony under Federal Rules of Civil Procedure 26(a)(2)
and 26(b)(4) and will be compensated for doing so under Rule 26(b)(4)(E).
As to those matters, however, which are covered by Topics 1, 2, and 3(a), the
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Court agrees with the analysis of other courts that obtaining the binding Rule 30(b)(6)
testimony of an expert witness’s non-party employer is not relevant and proportional
to the needs of the case under Rule 26(b)(1) or appropriate where Mr. Teasdale, as the
testifying expert, has personal knowledge of those matters that are the basis for his
reports and has access to Haag’s files and is prepared to testify to those matters as
addressed in the report. See Dkt. No. 1-1 at 19-20; Sunwood Condominium Ass’n v.
Travelers Cas. Ins. Co. of Am., Case No. C16-1012-JCC, 2017 WL 1652965, at *2 (W.D.
Wash. May 2, 2017); cf. Marsh v. Jackson, 141 F.R.D. 431 (W.D. Va. 1992). Unlike the
matters on which Haag’s knowledge and testimony are independently relevant,
binding, corporate representative testimony from Haag – a non-party – on these topics
has no independent relevance to Lead GHR’s claims and could only be useful to Lead
GHR to evaluate the bases Mr. Teasdale’s expert witness testimony. But that is what
the Rule 26(b)(4)(A) deposition will be for, and Haag has shown that requiring Rule
30(b)(6) testimony by subpoena is therefore unreasonable and unduly burdensome
II.
As to Haag’s second argument, it argues that “[t]he Court should also quash the
Subpoena [as to Topics 5, 6, and 7] because it seeks a deposition on several topics that
are wholly unrelated to any claim or defense raised in the [South Dakota Lawsuit]” and
“Rule 45 may not be used as a mechanism to obtain discovery of matters that are
irrelevant to the underlying dispute; such an application of the Rules would serve to
impose an undue burden on nonparty deponents.” Dkt. No. 1 at 7. Haag explains that
South Dakota substantive law governs Lead GHR’s claims in the [South
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Dakota Lawsuit]. First-party insurance claims under South Dakota law
challenge an insurer’s decision to deny coverage and “must be reviewed
at the time [the insurer] made the decision.” Dakota, Minn. & E. R.R.
Corp. v. Acuity, 771 N.W.2d 623, 629-30 (S.D. 2009) (citing Walz v.
Fireman’s Fund. Ins. Co., 556 N.W.2d 68, 70 (S.D. 1996)) (internal
quotation omitted). The relevant inquiry for these claims is narrowly
focused on “the facts and law available to [the i]nsurer at the time it
made the decision to deny coverage.” Id. at 629.
The [South Dakota Lawsuit] is a straightforward matter that seeks
only to evaluate American States’ decision to deny coverage under the
Policy. Nonetheless, Lead GHR seeks to elicit testimony on an
exceedingly broad swath of information which is wholly irrelevant to any
claim or defense raised by the parties. In particular, Lead GHR seeks
testimony regarding Haag’s: (1) relationship with insurance carriers at
large ..., which [does not] have any bearing on the [South Dakota
Lawsuit].
Id. at 8 (footnotes omitted).
According to Haag,
Lead GHR has no cognizable argument that Haag¡|s relationship with
any number of nonparty and unnamed insurance carriers is relevant to
the [South Dakota Lawsuit]. Nonetheless, Lead GHR seeks to elicit
testimony on a number of topics which address Haag’s “professional
relationship” with insurance carriers, generally. Such deposition topics
include:
•
[Haag’s] professional relationship32 with [any] insurance carriers”;
•
“Any instances, from 2005 to 2010, in which a moratorium was
placed on Haag from performing engineering services on behalf of
any insurance company, and the circumstance surrounding such
moratorium”; and
•
“Any instances from 2005 to 2010, in which any insurance
company which has retained Haag’s professional services has
alleged that Haag or its employees have committed fraud,
negligence, or professional malpractice.”
None of these topics have any bearing on the claims or defenses
raised in the [South Dakota Lawsuit]. Indeed, any nonparty discovery
from Haag should be narrowly tailored to include only that information
that was considered by American States at the time it decided to deny
Lead GHR’s claim. See Dakota, Minn. & E. R.R. Corp., 771 N.W.2d at
629¡V30. Further, such topics are not implicated by any defense raised by
American States. Therefore, deposition topics seven, 7(a), and 7(b) seek
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to impose an undue burden on Haag and should be dismissed.
Moreover, Lead GHR’s topics are overly broad in that they seek
information that spans an unreasonable time period, i.e., from five to
twelve years prior to Lead GHR’s loss and even (in some instances) seven
years after Lead GHR’s loss.
Based on the foregoing, deposition topics five and six seek to
impose an undue burden on Haag and should be dismissed or amended.
Id. at 8-10 (footnotes omitted). And, according to Haag, “[t]he term ‘professional
relationship’ included in deposition topic seven is exceedingly broad and subject to
countless interpretations,” and “attempting to comply with the multiple potential
interpretations of ‘professional relationship’ would subject [Haag] to undue burden and
expense in violation of Rule 45(d)(1).” Id. at 9 n.32.
Lead GHR responds that, “in looking at South Dakota law, a Plaintiff in a Bad
Faith action must demonstrate an absence of a reasonable basis for denial by
examining ‘the facts and law available to [the i]nsurer at the time it made the decision
to deny coverage,’” and “[o]ne such fact that bears considerably on this case is the
reasonableness of Defendant American State’s Insurance Company’s decision to rely
on Haag to investigate this claim.” Dkt. No. 5 at 8 (quoting Dakota, Minn. & E. R.R.
Corp., 771 N.W.2d at 629). Lead GHR asserts that “Haag’s reputation in the insurance
industry and the reasonableness of the insurer’s decision to retain Haag to investigate
Lead GHR’s claim are important issues for the jury to consider, and precisely the type
of ‘countervailing evidence’ against which the Haag report should be measured.” Id.
According to GHR,
[a]t a minimum, each of these topics is reasonably calculated to lead to
admissible evidence regarding Haag’s status as a preferred vender, and
Haag’s reputation in the insurance industry. The insurance expert for
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American States Insurance Company has testified that it is generally
incumbent on the insurance carrier to “scope” the venders it retains to
investigate its claims. See Oviatt Dec., Ex. 2, Deposition of Peter
Hildebrandt (excerpt), 45:15 to 45:18. Thus, Haag’s reputation in the
insurance community is of critical importance to Lead GHR’s allegation
that Haag is a preferred vender of Defendant American States Insurance
Company, and bears on the reasonableness of the insurer to retain Haag
to investigate this claim.
For example, Haag’s relationship with State Farm was the subject
of a qui tam action in the Southern District of Mississippi, where Haag
was accused of fraud and conspiracy against the Federal Government. See
U.S. ex rel. Rigsby v. State Farm Ins. Co., et al., 2009 WL 2461733 (S.D.
Miss. 2009). Sometime after these allegations, reports surfaced that
Haag’s work with State Farm Insurance Company would be reviewed,
and potentially halted. See Oviatt Dec., Ex. 3. Given this, Lead GHR
should be permitted to inquire into this history, and any corrective
actions taken by Haag since these allegations. This is appropriate in
order to determine the reasonableness of American States Insurance
Company’s retentions of Haag for Lead GHR’s claim. It is for these
reasons that the Subpoena identified these topics of inquiry, and they
should be enforced.
Id.
Haag replies that
Lead GHR claims that these topics are relevant because it bears the
burden to prove that Haag is a “preferred vendor.” However, this
self-imposed burden bears no relationship to Lead GHR’s actual burden
to demonstrate “the facts and law available to [American States] at the
time it made the decision to deny coverage.” Acuity, 771 N.W.2d at 62930. To the extent that Lead GHR does have questions regarding Haag’s
relationship with American States or Liberty, it should direct them to
American States (as a party) and should not be permitted to engage in
invasive discovery based on this self-imposed obligation.
Even assuming Lead GHR did bear a burden to demonstrate that
Haag was a “preferred vendor” of American States, the deposition topics
included in the Subpoena are not limited to information related to Haag’s
alleged status as a “preferred vendor.” In fact, the phrase “preferred
vendor” does not appear in the Subpoena. Even accepting Lead GHR’s
misplaced arguments as fact, the Subpoena remain facially over broad
because it encompasses a wide swath of information that is wholly
irrelevant to this determination. Moreover, since it is American States
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that allegedly determined Haag is a “preferred vendor”, Lead GHR should
instead inquire with American States why it did so.
Dkt. No. 6 at 8-9.
And Haag notes that “Lead GHR also wholly fails to address Haag’s position
that topics for examination five, six, and seven are overbroad” based on their time
frame. Id. at 9. That is so, and the Court will modify Topics 5, 6, and 7 to an end date
of the date on which American States made the decision to deny coverage for each subtopic, where any relationship or reputational concerns thereafter are not relevant to
Lead GHR’s claims. But the Court does not find that the start dates even as early as
2005 in Topic 7 are facially overbroad.
The Court is otherwise unpersuaded that, in light of Lead GHR’s explanations
of the relevance of the information sought by Topics 5, 6, and 7, those topics are facially
overbroad and should be quashed as unduly burdensome or because Lead GHR can
also ask American States about Haag’s “preferred vendor status.” And, as for Haag’s
concern about the scope and meaning of “professional relationship,” Haag can and
should confer with American States’s counsel to ascertain the meaning of that term.
See Samsung Electronics Am., Inc. v. Chung, 321 F.R.D. 250, 289 (N.D. Tex. 2017)
(citing Heller v. City of Dallas, 303 F.R.D. 466, 491-92 (N.D. Tex. 2014)).
Conclusion
For the reasons and to the extent explained above, the Court GRANTS IN PART
and DENIES IN PART Non-Party Haag Engineering Co.’s Motion to Quash Deposition
Subpoena [Dkt. No. 1]; QUASHES the Subpoena served on Non-Party Haag

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Engineering Co. by Plaintiff Lead GHR Enterprises, Inc. only as to Topics 1, 2, and 3(a)
(where Topics 3(b) and 4 have been withdrawn); and MODIFIES the Subpoena as
explained above as to Topics 5, 6, and 7.
SO ORDERED.
DATED: December 14, 2017

_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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