Latson v. Clarke et al

Filing 230

OPINION and ORDER granting in part and denying in part 176 Motion to Compel. Signed by Judge James P. Jones on 5/14/18. (flc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
REGINALD CORNELIUS LATSON,
Plaintiff,
v.
HAROLD W. CLARKE, ET AL.,
Defendants.

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Case No. 1:16CV00039
OPINION AND ORDER
By: James P. Jones
United States District Judge

Caitlin Marie Kasmar, Katherine Katz, John B. Williams III, and Timothy J.
Coley, BuckleySandler LLP, Washington, D.C., and Elliot M. Mincberg,
Washington Lawyers’ Committee for Civil Rights and Urban Affairs, Washington,
D.C., for Plaintiff; Laura Maughan, Office of the Attorney General, Richmond,
Virginia, and Jeff W. Rosen, Pender & Coward, PC, Virginia Beach, Virginia, for
Defendants.
The plaintiff in this civil rights case has moved to compel additional
testimony pursuant to Federal Rule of Civil Procedure 30(b)(6), asserting that the
designated organizational witnesses were unprepared for their depositions and did
not give adequate testimony on the topics for which they were designated. For the
reasons that follow, I will grant the motion in part and will permit the plaintiff to
serve additional interrogatories and requests for admission on defendant Virginia
Department of Corrections (“VDOC”).

I.
The allegations in this case were set forth in great detail in my earlier
opinion disposing of the defendants’ Motion to Dismiss. Latson v. Clarke, 249 F.
Supp. 3d 838, 844-50 (W.D. Va. 2017). Because I write only for the parties, I will
not repeat them here.
The plaintiff’s Motion to Compel Additional 30(b)(6) Testimony focuses on
six witnesses who were designated to testify on behalf of VDOC. The plaintiff
contends that these six witnesses undertook little or no preparation for their
depositions and did not give adequate responses to questions on certain topics on
which they had been designated to testify.
The Notice of Deposition that the plaintiff issued to VDOC pursuant to Rule
30(b)(6) originally sought testimony on 18 topics, two of which specified a number
of subtopics. The parties met and conferred about the notice several times, and the
plaintiff ultimately agreed to narrow some of the topics at VDOC’s request.
VDOC designated witnesses for all of the topics.

However, it later notified

plaintiff’s counsel that some of these witnesses would not be able to testify about
topics on which they had been designated.

In some cases, VDOC’s counsel

communicated these limitations less than 24 hours before the depositions were
scheduled to begin, and in one case, VDOC’s counsel withdrew a designation with
only about one hour’s notice.
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Harold Clarke, the Director of VDOC, is a named defendant in this case and
was deposed both in his individual capacity and as a representative of VDOC. He
was designated to testify on behalf of VDOC as to, among other things,
“[c]ommunications between VDOC and Rappahannock Regional Jail regarding
Mr. Latson’s treatment and placement.” Mem. Supp. Pl.’s Mot. Compel, Williams
Decl. Ex. D, App. A ¶ 14, ECF No. 177-5. During his Rule 30(b)(6) deposition,
Clarke testified that his only preparation for the deposition was a brief meeting
with counsel on the morning of the deposition. Clarke was asked about the nature
of

communications

between

VDOC

and

Rappahannock

Regional

Jail

(“Rappahannock”) regarding the decision to move Latson to Marion Correctional
Treatment Center (“MCTC”). He was unable to testify about the subject and stated
that Keith Dawkins, Manager of Central Classification Services, would have been
the person who had those discussions with Rappahannock personnel. VDOC
argues that the plaintiff has not been prejudiced by any inadequacies in Clarke’s
testimony because the plaintiff obtained the information sought from other
witnesses, including Dawkins, and from emails produced in discovery.
Ann Horst, M.D., is the attending psychiatrist at MCTC. She was deposed
as an individual fact witness and also testified on behalf of VDOC. However, she
stated that she was not comfortable answering questions on behalf of VDOC.

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Horst testified that her only preparation for the Rule 30(b)(6) deposition had been a
short meeting with counsel on the morning of the deposition.
In her capacity as a representative of VDOC, Horst was designated to testify
about “[t]he frequency with which Mr. Latson’s medications were reviewed and
assessed” and “[c]ommunications between VDOC and any other person or entity
regarding Mr. Latson’s treatment and placement.” Id. at ¶¶ 6, 15. VDOC counsel
limited Horst’s testimony on the former topic to administration of psychological
medications.

Horst could not say how frequently Latson’s medications were

reviewed and stated that she was unable to discuss his medications without looking
at the records.

Regarding the latter topic, she testified only to her own

communications regarding Latson. VDOC argues that plaintiff’s counsel should
have introduced Latson’s medical records as exhibits during the deposition so that
Horst could testify about them. VDOC also argues that the information sought is
irrelevant to the plaintiff’s claims.
Amanda McGrady is the Psychologist Supervisor at MCTC. She, too, was
deposed as both an individual fact witness and a Rule 30(b)(6) witness. On behalf
of VDOC, she was designated to testify about “[t]he mental and physical health
care treatment administered to Reginald Cornelius Latson during his incarceration
at MCTC, including communications among Mr. Latson’s treatment team, the
selection of individuals for Mr. Latson’s treatment team, and oversight over
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treatment decisions.” Id. at ¶ 3. At the beginning of her deposition, VDOC’s
counsel limited McGrady’s testimony on this topic to mental health treatment only
and indicated that McGrady would not be testifying about physical health care.
Despite this limitation, McGrady testified that she had never seen Latson’s
treatment plan and could not answer questions about it.

McGrady was also

designated to testify on the topic of “[t]raining provided to . . . mental health care
treatment team members at MCTC, including but not limited to those responsible
for the care of Reginald Cornelius Latson.” Id. at ¶ 2. She was unable to answer
questions regarding what training VDOC or MCTC provided that covered Autism
Spectrum Disorder and how that training was tracked. The defendants argue that
there was no prejudice to the plaintiff because both of these topics are irrelevant to
the plaintiff’s claims.
Terry Richards is Chief of Security at MCTC. He was deposed only as a
representative of VDOC. He testified that his sole preparation for the deposition
was a ten-minute meeting with counsel and that he did not review any documents.
Richards was designated to testify about “[t]raining provided to guards . . . at
MCTC, including but not limited to those responsible for the care of Reginald
Cornelius Latson.” Id. at ¶ 2. He was unfamiliar with training documents shown
to him during the deposition and could not answer questions about training
provided to correctional officers. He indicated that VDOC’s Academy of Staff
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Development or the MCTC training department would be able to answer those
questions. VDOC contends that Richards’s responses were appropriate because he
was only designated to testify about training at MCTC, not within VDOC more
generally. Additionally, VDOC argues that training provided to staff not named as
individual defendants is irrelevant to the plaintiff’s claims.
Sarah Angliker is the Clinical Social Work Supervisor at MCTC. She was
deposed as an individual fact witness and also as a representative of VDOC. Her
sole preparation for her Rule 30(b)(6) deposition was a 15-minute meeting with
counsel.

She was designated to testify about “Mr. Latson’s access to the

commissary, library, recreation, phone, TV, radio, books, and magazines while at
MCTC.” Id. at ¶ 8. She could not testify to the types of stimulus that were in
Latson’s cell. She did not review library logs and could not say whether Latson
had accessed the library. She could not say whether or how often Latson had
accessed the commissary.
Angliker was also designated to testify on the topic of “MCTC’s provision
of hygiene items to Mr. Latson, including toilet paper, toothbrush and toothpaste.”
Id. at ¶ 9. She could not say how long Latson went without these items, nor did
she know whether MCTC personnel helped Latson order items. VDOC argues that
Angliker provided adequate testimony on these topics and that she could not be
expected to provide information for which no records are kept. VDOC further
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contends that the plaintiff ultimately obtained this information from two other
witnesses, and that the plaintiff himself should know the answers to questions on
these topics. VDOC again argues that this information is irrelevant because neither
a lack of stimulus nor a lack of hygiene items can create a viable constitutional
claim regarding conditions of confinement.
Dara Robichaux Watson, currently the Warden at MCTC, was the Assistant
Warden during the events in question and is a named defendant in this case. She
was deposed in her individual capacity and as a representative of VDOC. She was
designated to give testimony on most of the Rule 30(b)(6) deposition topics. One
of those topics covered “[p]olicies, procedures and practices of VDOC . . .
applicable to MCTC regarding . . . [t]he intake process [and] [t]he use of
administrative segregation, solitary confinement, restricted housing and/or crisis
cells.” Id. at ¶ 1b-c. She did not review any documents in preparation for her
deposition. She met with counsel for about an hour more than a month before her
deposition. She was unable to testify about certain policies related to intake and
segregation. VDOC argues that the plaintiff’s focus on policies is irrelevant to the
issues in this case because adherence to or derivation from policies cannot form the
basis of the claims asserted. Therefore, VDOC contends that the plaintiff was not
prejudiced by any deficiencies in Watson’s testimony.

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II.
Rule 30(b)(6) states that organization representatives in a deposition “must
testify about information known or reasonably available to the organization.” An
organization “must make a good-faith effort to designate people with knowledge of
the matter sought by the opposing party and to adequately prepare its
representatives so that they may give complete, knowledgeable, and nonevasive
answers in deposition.” Spicer v. Universal Forest Prods., E. Div., Inc., No.
7:07cv462, 2008 WL 4455854, at *3 (W.D. Va. Oct. 1, 2008).
“The court may impose an appropriate sanction — including the reasonable
expenses and attorney’s fees incurred by any party — on a person who impedes,
delays, or frustrates the fair examination of the deponent.”

Fed. R. Civ. P.

30(d)(2). Upon granting a motion to compel, I must “require the party or deponent
whose conduct necessitated the motion, the party or attorney advising that conduct,
or both to pay the movant’s reasonable expenses incurred in making the motion,
including attorney’s fees,” unless I find that an award of expenses would be unjust.
Fed. R. Civ. P. 37(a)(5)(A). In determining an appropriate sanction, I should
consider:
(1) whether the noncomplying party acted in bad faith; (2) the amount
of prejudice [its] noncompliance caused [its] adversary, which
necessarily includes an inquiry into the materiality of the evidence [it]
failed to produce; (3) the need for deterrence of the particular sort of
noncompliance; and (4) the effectiveness of less drastic sanctions.
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Mut. Fed. Sav. & Loan Ass’n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir.
1989). 1
I find that VDOC violated the requirements of Rule 30(b)(6) and acted in
bad faith by failing to produce prepared witnesses who could answer questions that
clearly fell within the narrow topics on which the witnesses above were designated
to testify. Rule 30(b)(6) witnesses cannot simply rely on their personal knowledge.
They must undertake some investigation to obtain information reasonably available
to the organization. The witnesses above did nothing more than meet briefly with
counsel. Their failure to prepare for their depositions by talking to colleagues and
reviewing documents demonstrated bad faith.
However, the plaintiff has suffered minimal prejudice as a result of VDOC’s
lack of preparation. The plaintiff conducted 26 depositions and received thousands
of pages of documents in discovery in this case. It appears as though most if not
all of the questions at issue were answered, at least in part, through other witnesses
or documentary evidence. It is true that the plaintiff cannot be expected to prove a
negative and might not know exactly what information he is lacking. Even so, he
has not identified specific material information that he was unable to obtain.
While I sympathize with counsel’s frustration about time wasted in preparing for
1

This four-factor test applies where the movant seeks default judgment as a
sanction. See, e.g., Kelly v. SunTrust Bank, 589 F. App’x 146, 147 (4th Cir. 2015)
(unpublished). Latson does not seek default judgment, but I nevertheless find that the
four-part test provides a useful framework for analyzing the instant motion.
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depositions for which VDOC’s witnesses did not prepare, such unnecessary costs
do not prejudice the plaintiff’s case.
With respect to the third and fourth factors, there is a need to deter the type
of noncompliance perpetrated by VDOC.

However, I do not find that it is

necessary to reconvene depositions in this case. Under the Federal Rules, the
scope of discovery is broad, but it must be
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.
Fed. R. Civ. P. 26(b)(1). Reconvening depositions in Washington, D.C., as the
plaintiff requests, would be costly, time-consuming, and probably minimally
fruitful.
Instead, I will permit the plaintiff to propound additional requests for
admission and interrogatories on the deposition topics that are the subject of his
Motion to Compel. The requests and interrogatories must be served upon VDOC
within 14 days of the date of this Opinion and Order. VDOC must respond to the
new requests and interrogatories within 14 days of their receipt. In the event the
plaintiff wishes to supplement his response to the defendants’ Motion for Summary
Judgment based upon VDOC’s response to the requests and interrogatories, he

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must file the supplement within 7 days of the receipt of the responses to the
requests and interrogatories, and the defendants may reply within 7 days thereafter.
I will require VDOC to pay the plaintiff’s attorneys’ fees and costs incurred
in preparing the Motion to Compel and the additional written discovery permitted.
The plaintiff may submit an itemization of fees and costs after serving the
additional written discovery permitted.

The defendants may respond to such

itemization within 14 days after filing, and the plaintiff may reply within 7 days
thereafter.
Accordingly, it is ORDERED that Plaintiff Reginald Cornelius Latson’s
Motion to Compel Additional 30(b)(6) Testimony and for Associated Costs and
Fees, ECF No. 176, is GRANTED IN PART AND DENIED IN PART, as set forth
herein.
ENTER: May 14, 2018
/s/ James P. Jones
United States District Judge

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