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Depositions

Court Denies Plaintiff’s Sanctions Request, Points Out Her Own “Misconduct”: eDiscovery Case Law

In Vaks v. Quinlan, et al., No. 18-12571-LTS (D. Mass. Feb. 24, 2020), Massachusetts District Judge Leo T. Sorokin denied the plaintiff’s Motion to Compel and for Sanctions, calling her accusations “without basis” and pointing out her own “pattern of misconduct and disregard of the governing rules”.

Case Background

In this case involving claims of age discrimination by the plaintiff against the defendants, the plaintiff, in filing the motion, accused the defendants and their attorneys of: (1) “obstructing” a deposition; (2) “relentless refusal to produce documents”; and (3) “defiantly [and] in bad faith violat[ing] every Federal Rule of Civil Procedure related to discovery[.]”

Judge’s Ruling

Judge Sorokin, in responding to the plaintiff’s accusations, stated: “These are serious accusations made in writing. They are without basis.”  Judge Sorokin also referenced a previous observation from his court where he “note[d] that there is no basis to infer improper discovery practices by defendant or anything other than reasonable forthright practices by [defense] counsel.”  Continuing, he noted:

“Indeed, to date, Plaintiff—rather than Defendants—has not conformed to the governing rules. She filed late discovery requests…which the Court ultimately found were almost entirely overbroad, unreasonable, and not proportional to the case…She induced the Court to issue an order by making a material misrepresentation: in writing, she represented that defense counsel had assented to an extension of the governing schedule which, the Court later learned, defense counsel had not.”

Judge Sorokin also outlined the plaintiff’s submission of documents produced by the defendants in a pending motion as “plainly designated as confidential” and “in direct violation of the protective order” that defendants had requested which was approved by the court, even though the plaintiff had “never challenged any confidentiality designations”.  Judge Sorokin indicated that filing “establishes a pattern of misconduct and disregard of the governing rules.”

As for the merits of the plaintiff’s motion to compel, Judge Sorokin addressed her five claims, as follows:

  • Format of the documents produced electronically by defendants: Judge Sorokin stated: “This challenge is without merit. Defendants produced the metadata both for documents and emails. As to emails, they searched their servers, and produced the relevant emails with attachments and metadata…This is a permissible practice.”
  • Defendants advanced improper general objections: Judge Sorokin stated: “Not so. Defendants augmented their ‘general’ objections with specific objections.”
  • Defendants withheld responsive non-privileged documents: Judge Sorokin stated that “nothing before the Court, contrary to Vaks’ arguments, suggests” that took place, noting that “Defendants produced multiple privilege logs” and indicated that the plaintiff “simply misunderstands” a reference from the defendants to imply there were suppressed documents.
  • Certain documents withheld by Defendants pursuant to the work product privilege doctrine were not privileged: Judge Sorokin stated: “This argument similarly fails”, noting that documents in contention were prepared at the direction of the defendant’s general counsel, “so that she could provide legal advice. In these circumstances, such documents are properly withheld.”
  • Reopen the now-completed Rule 30(b)(6) deposition: Judge Sorokin noted that there was “no basis” to do so, stating: “Indeed, Vaks has not demonstrated in any way that Mr. LeBlanc did not adequately answer questions during his deposition. Moreover, she did not, in any of the parties’ communications after Mr. LeBlanc’s deposition, claim that the deposition was deficient.”

In denying the motion, Judge Sorokin also stated: “One more issue bears comment. Vaks requests sanctions. None are merited here. Whatever the merits of Vaks’ claims—a matter upon which the Court has no view—defense counsel has discharged her discovery obligations well. She has made reasonable accommodations for a pro se party, as she must, while pressing her client’s positions firmly—all while under repeated attack. There is no basis whatsoever for the imposition of sanctions, nor even an arguable basis to request sanctions.”

So, what do you think?  Does the ruling open the door for the defendants to file their own motion for sanctions?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Today’s Webcast Will Discuss the DOS and DON’TS of 30(b)(6) Witness Depositions: eDiscovery Webcasts

As we learned in Tom O’Connor’s recent six part blog series, Rule 30(b)(6) permits a party to notice or subpoena the deposition of an organization which then must then designate one or more individuals who consent to testify on its behalf about information “known or reasonably available to the organization.”  But, how should it be conducted to maximize the discovery obtained, what are some strategies to consider to help ensure a successful deposition and what are some common mistakes to avoid?  And, what are some eDiscovery related topics about which a 30(b)(6) witness should be prepared to testify?  Today’s webcast that will answer those questions – and more!

TODAY at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast DO’S and DON’TS of a 30(b)(6) Witness Deposition.  This CLE-approved* webcast session will (obviously) discuss the DO’S and DON’TS of preparing for and conducting a 30(b)(6) witness deposition. Key topics include:

  • Initial Considerations for 30(b)(6) Witness Depositions
  • Proposed Changes to Rule 30(b)(6)
  • Potential eDiscovery Topics for Your 30(b)(6) Witnesses
  • Common Mistakes in Preparing 30(b)(6) Witnesses
  • Specific Strategies to Consider for 30(b)(6) Witness Depositions
  • Case Study: Example of a Hostile 30(b)(6) Witness Presentation
  • 39 Rules for Corporate 30(b)(6) Witness Depositions

As always, I’ll be presenting the webcast, along with Tom O’Connor.  To register for it, click here – it’s not too late! Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you want to learn the ins and outs of preparing for and conducting a 30(b)(6) witness deposition, this is the webcast for you!

So, what do you think?  Have you ever been a 30(b)(6) deponent?  Or been involved in preparing one for testimony?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Here’s a Webcast That Will Discuss the DO’S and DON’TS of 30(b)(6) Witness Depositions: eDiscovery Webcasts

As we learned in Tom O’Connor’s recent six part blog series, Rule 30(b)(6) permits a party to notice or subpoena the deposition of an organization which then must then designate one or more individuals who consent to testify on its behalf about information “known or reasonably available to the organization.”  But, how should it be conducted to maximize the discovery obtained, what are some strategies to consider to help ensure a successful deposition and what are some common mistakes to avoid?  And, what are some eDiscovery related topics about which a 30(b)(6) witness should be prepared to testify?  Here’s a webcast that will answer those questions – and more!

On Tuesday, November 19 at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast DO’S and DON’TS of a 30(b)(6) Witness Deposition.  This CLE-approved* webcast session will (obviously) discuss the DO’S and DON’TS of preparing for and conducting a 30(b)(6) witness deposition. Key topics include:

  • Initial Considerations for 30(b)(6) Witness Depositions
  • Proposed Changes to Rule 30(b)(6)
  • Potential eDiscovery Topics for Your 30(b)(6) Witnesses
  • Common Mistakes in Preparing 30(b)(6) Witnesses
  • Specific Strategies to Consider for 30(b)(6) Witness Depositions
  • Case Study: Example of a Hostile 30(b)(6) Witness Presentation
  • 39 Rules for Corporate 30(b)(6) Witness Depositions

As always, I’ll be presenting the webcast, along with Tom O’Connor.  To register for it, click here. Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you want to learn the ins and outs of preparing for and conducting a 30(b)(6) witness deposition, this is the webcast for you!

So, what do you think?  Have you ever been a 30(b)(6) deponent?  Or been involved in preparing one for testimony?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

DOS and DON’TS of a 30(b)(6) Witness Deposition, Part Six

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, What is the Future of the Legal Technology Conference?  Now, Tom has written another terrific overview regarding the state of legal technology conferences titled DOS and DON’TS of a 30(b)(6) Witness Deposition that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into six parts, so we’ll cover each part separately.  The first part was last Monday, the second part was last Wednesday, the third part was last Friday, the fourth part was Monday and the fifth part was Wednesday, here’s the sixth and final part.

Conclusions

The rule requires that the designated witness must be able to testify to the knowledge of the entire company on every area designated in your deposition notice. Further, the corporation must produce as many deponents as is necessary to respond to the areas of inquiry set out in the deposition notice. So, the notice should be carefully crafted and specific as to areas of inquiry.

On the other side, the corporation may designate more than one deponent, but it must clearly identify them and describe the areas on which each one will testify.  The deponents need not have firsthand knowledge of the events in question, but if they do not the corporation must provide them with the information necessary to provide “complete, knowledgeable, and binding answers on behalf of the corporation.”

Perhaps the most comprehensive decision on depositions of corporate defendants under Rule 30(b)(6) is QBE Insurance Corporation v. Jordan Enterprises, 277 F.R.D. 676, 687 (2012). In his opinion, Magistrate Judge Johnathon Goodman went beyond the ruling in the case and his decision set forth 39 rules for corporate depositions. They are included below for your reference and consideration.

39 Rules for 30(b)(6) Depositions:

  1. The rule’s purpose is to streamline the discovery process. In particular, the rule serves a unique function in allowing a specialized form of deposition. Great Am. Ins. Co. v. Vegas Constr. Co., Inc., 251 F.R.D. 534, 539 (D.Nev.2008).
  2. The rule gives the corporation being deposed more control by allowing it to designate and prepare a witness to testify on the corporation’s behalf. United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C.1996).
  3. It is a discovery device designed to avoid the bandying by corporations where individual officers or employees disclaim knowledge of facts clearly known to the corporation. Great Am., 251 F.R.D. at 539; Taylor, 166 F.R.D. at 361.
  4. Therefore, one purpose is to curb any temptation by the corporation to shunt a discovering party from “pillar to post” by presenting deponents who each disclaim knowledge of facts known to someone in the corporation. Great Am., 251 F.R.D. at 539. Cf. Ierardi v. Lorillard, Inc., No. 90–7049, 1991 WL 66799, *2 (E.D.Pa. Apr. 15, 1991), at *2 (without the rule, a corporation could “hide behind the alleged ‘failed’ memories of its employees”).
  5. Rule 30(b)(6) imposes burdens on both the discovering party and the designating party. The party seeking discovery must describe the matters with reasonable particularity and the responding corporation or entity must produce one or more witnesses who can testify about the corporation’s knowledge of the noticed topics. Great Am., 251 F.R.D. at 539.
  6. The testimony of a Rule 30(b)(6) witness represents the collective knowledge of the corporation, not of the specific individual deponents. A Rule 30(b)(6) designee presents the corporation’s position on the listed topics. The corporation appears vicariously through its designees. Taylor, 166 F.R.D. at 361.
  7. A corporation has an affirmative duty to provide a witness who is able to provide binding answers on behalf of the corporation. Ecclesiastes 9:10–11–12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1147 (10th Cir.2007).
  8. Thus, a Rule 30(b)(6) witness need not have personal knowledge of the designated subject matter. Ecclesiastes, 497 F.3d at 1147; see generally Federal Civil Rules Handbook, 2012 Ed., at p. 838 (“the individual will often testify to matters outside the individual’s personal knowledge”).
  9. The designating party has a duty to designate more than one deponent if necessary to respond to questions on all relevant areas of inquiry listed in the notice or subpoena. Ecclesiastes, 497 F.3d at 1147; Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 127 (M.D.N.C.1989) (duty to substitute another witness as a designee once the initial designee’s deficiencies become apparent during the deposition); Alexander v. F.B.I., 186 F.R.D. 137, 142 (D.D.C.1998).
  10. The rule does not expressly or implicitly require the corporation or entity to produce the “person most knowledgeable” for the corporate deposition. Nevertheless, many lawyers issue notices and subpoenas which purport to require the producing party to provide “the most knowledgeable” witness. Not only does the rule not provide for this type of discovery demand, but the request is also fundamentally inconsistent with the purpose and dynamics of the rule. As noted, the witness/designee need not have any personal knowledge, so the “most knowledgeable” designation is illogical. PPM Fin., Inc. v. Norandal USA, Inc., 392 F.3d 889, 894–95 (7th Cir.2004) (rejecting argument that trial court should not have credited the testimony of a witness who lacked personal knowledge because the witness was a 30(b)(6) witness and “was free to testify to matters outside his personal knowledge as long as they were within the corporate rubric”). Moreover, a corporation may have good grounds not to produce the “most knowledgeable” witness for a 30(b)(6) deposition. For example, that witness might be comparatively inarticulate, he might have a criminal conviction, she might be out of town for an extended trip, he might not be photogenic (for a videotaped deposition), she might prefer to avoid the entire process or the corporation might want to save the witness for trial. From a practical perspective, it might be difficult to determine which witness is the “most” knowledgeable on any given topic. And permitting a requesting party to insist on the production of the most knowledgeable witness could lead to time-wasting disputes over the comparative level of the witness’ knowledge. For example, if the rule authorized a demand for the most knowledgeable witness, then the requesting party could presumably obtain sanctions if the witness produced had the second most amount of knowledge. This result is impractical, inefficient and problematic, but it would be required by a procedure authorizing a demand for the “most” knowledgeable witness. But the rule says no such thing.
  11. Although the rule is not designed to be a memory contest, the corporation has a duty to make a good faith, conscientious effort to designate appropriate persons and to prepare them to testify fully and non-evasively about the subjects. Great Am., 251 F.R.D. at 540.
  12. The duty to prepare a Rule 30(b)(6) witness goes beyond matters personally known to the designee or to matters in which the designated witness was personally involved. Wilson v. Lakner, 228 F.R.D. 524 (D.Md.2005).
  13. The duty extends to matters reasonably known to the responding party. Fowler v. State Farm Mut. Auto. Ins. Co., No. 07–00071 SPK–KSC, 2008 WL 4907865, at *4 (D.Haw.2008).
  14. The mere fact that an organization no longer employs a person with knowledge on the specified topics does not relieve the organization of the duty to prepare and produce an appropriate designee. Id.; Great Am., 251 F.R.D. at 540; Taylor, 166 F.R.D. at 362; cf. Ecclesiastes, 497 F.3d at 1148 (in “one common scenario,” the corporation designates individuals who lack personal knowledge “but who have been educated about it”) (emphasis added).
  15. Faced with such a scenario, a corporation with no current knowledgeable employees must prepare its designees by having them review available materials, such as fact witness deposition testimony, exhibits to depositions, documents produced in discovery, materials in former employees’ files and, if necessary, interviews of former employees or others with knowledge. Great Am., 251 F.R.D. at 540; Federal Civil Rules Handbook, p. 838; see generally Wilson, 228 F.R.D. at 529 (preparation required from myriad sources, including “documents, present or past employees, or other sources”).
  16. In other words, a corporation is expected to create an appropriate witness or witnesses from information reasonably available to it if necessary. Wilson, 228 F.R.D. at 529.
  17. As a corollary to the corporation’s duty to designate and prepare a witness, it must perform a reasonable inquiry for information that is reasonably available to it. Fowler, 2008 WL 4907865 at *5; Marker, 125 F.R.D. at 127.
  18. A corporate designee must provide responsive answers even if the information was transmitted through the corporation’s lawyers. Great Am., 251 F.R.D. at 542.
  19. In responding to a Rule 30(b)(6) notice or subpoena, a corporation may not take the position that its documents state the company’s position and that a corporate deposition is there-fore unnecessary. Great Am., 251 F.R.D. at 540.
  20. Similarly, a corporation cannot point to interrogatory answers in lieu of producing a live, in-person corporate representative designee. Marker, 125 F.R.D. at 127.
  21. Preparing a Rule 30(b)(6) designee may be an onerous and burdensome task, but this consequence is merely an obligation that flows from the privilege of using the corporate form to do business. Great Am., 251 F.R.D. at 541; see also Calzaturficio S.C.A.R.P.A. s.p.a. v. Fabiano Shoe Co., Inc., 201 F.R.D. 33, 38 (D.Mass.2001) (review required even if “documents are voluminous and the review of those documents would be burdensome”).
  22. Not only must the designee testify about facts within the corporation’s collective knowledge, including the results of an investigation initiated for the purpose of complying with the 30(b)(6) notice, but the designee must also testify about the corporation’s position, beliefs and opinions. Great Am., 251 F.R.D. at 539; Taylor, 166 F.R.D. at 362 (designee presents corporation’s “position,” its “subjective beliefs and opinions” and its “interpretation of documents and events”).
  23. The rule implicitly requires the corporation to review all matters known or reasonable available to it in preparation for a Rule 30(b)(6) deposition. Wilson, 228 F.R.D. at 529 (“good faith effort” to “find out the relevant facts” and to “collect information, review documents and interview employees with personal knowledge”).
  24. If a corporation genuinely cannot provide an appropriate designee because it does not have the information, cannot reasonably obtain it from other sources and still lacks sufficient knowledge after reviewing all available information, then its obligations under the Rule cease. Calzaturficio, 201 F.R.D. at 39; see also Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 70, 76 (D.Neb.1995).
  25. If it becomes apparent during the deposition that the designee is unable to adequately respond to relevant questions on listed subjects, then the responding corporation has a duty to timely designate additional, supplemental witnesses as substitute deponents. Alexander, 186 F.R.D. at 142; Marker, 125 F.R.D. at 127.
  26. The rule provides for a variety of sanctions for a party’s failure to comply with its Rule 30(b)(6) obligations, ranging from the imposition of costs to preclusion of testimony and even entry of default. Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 269 (2d Cir.1999) (affirming order precluding witness five witnesses from testifying at trial); see also Taylor, 166 F.R.D. at 363 (“panoply of sanctions”); Great Am., 251 F.R.D. at 543 (“variety of sanctions”).
  27. The failure to properly designate a Rule 30(b)(6) witness can be deemed a nonappearance justifying the imposition of sanctions. (Resolution Trust Corp. v. Southern Union Co., Inc., 985 F.2d 196, 198 (5th Cir.1993)). See also Black Horse Lane Assoc., L.P. v. Dow Chem. Corp., 228 F.3d 275, 305 (3d Cir.2000) (a 30(b)(6) witness who is unable to give useful information is “no more present for the deposition than would be a deponent who physically appears for the deposition but sleeps through it”).
  28. When a corporation’s designee legitimately lacks the ability to answer relevant questions on listed topics and the corporation cannot better prepare that witness or obtain an adequate substitute, then the “we-don’t know” response can be binding on the corporation and prohibit it from offering evidence at trial on those points. Phrased differently, the lack of knowledge answer is itself an answer which will bind the corporation at trial. Fraser Yachts Fla., Inc. v. Milne, No. 05–21168–CIV–JORDAN, 2007 WL 1113251, at *3 (S.D.Fla. Apr. 13, 2007); Chick–fil–A v. ExxonMobil Corp., No. 08–61422–CIV, 2009 WL 3763032, at *13 (S.D.Fla. Nov. 10, 2009); see also Ierardi, 1991 WL 66799 at *3 (if party’s 30(b)(6) witness, because of lack of knowledge or failing memory, provides a “don’t know” answer, then “that is itself an answer” and the corporation “will be bound by that answer”).
  29. Similarly, a corporation which provides a 30(b)(6) designee who testifies that the corporation does not know the answers to the questions “will not be allowed effectively to change its answer by introducing evidence at tri-al.” Ierardi v. Lorillard, No. 90–7049, 1991 WL 158911 (Aug. 13, 1991) (E.D.Pa. 1991, at *4).
  30. The conclusion that the corporation is bound at trial by a legitimate lack of knowledge response at the 30(b)(6) deposition is, for all practical purposes a variation on the rule and philosophy against trial by ambush. Calzaturficio, 201 F.R.D. at 38; Wilson, 228 F.R.D. at 531; Taylor, 166 F.R.D. at 363 (rule prevents “sandbagging” and prevents corporation from making a “half-hearted inquiry before the deposition but a thorough and vigorous one before the trial”).
  31. If the corporation pleads lack of memory after diligently conducting a good faith effort to obtain information reasonably available to it, then it still must present an opinion as to why the corporation believes the facts should be construed a certain way if it wishes to assert a position on that topic at trial. Taylor, 166 F.R.D. at 362.
  32. There is nothing in the rule which prohibits a corporation from adopting the testimony or position of another witness in the case, though that would still require a corporate designee to formally provide testimony that the corporation’s position is that of another witness. Fraser Yachts, 2007 WL 1113251, at *3.
  33. The rule does not expressly require the designee to personally review all information available to the corporation. So long as the designee is prepared to provide binding answers under oath, then the corporation may prepare the designee in whatever way it deems appropriate—as long as someone acting for the corporation reviews the available documents and information. Reichhold, Inc. v. U.S. Metals Ref. Co., No. 03–453(DRD), 2007 WL 1428559, at *9 (D.N.J. May 10, 2007) (the rule “does not require that the corporate designee personally conduct inter-views,” but, instead, requires him to testify to matters known or reasonably available to the corporation).
  34. Rule 30(b)(6) means what it says. Corporations must act responsibly. They are not permitted to simply declare themselves to be mere document-gatherers. They must produce live witnesses who have been prepared to provide testimony to bind the entity and to explain the corporation’s position. Wilson, 228 F.R.D. at 531; Great Am., 251 F.R.D. at 542 (entitled to “corporation’s position”).
  35. Despite the potentially difficult burdens which sometimes are generated by Rule 30(b)(6) depositions, the corporation is not without some protection, as it may timely seek a protective order or other relief. F.T.C. v. Noble Metals Int’l, Inc., 67 F.3d 766, 772 (9th Cir.1995).
  36. Absolute perfection is not required of a 30(b)(6) witness. The mere fact that a designee could not answer every question on a certain topic does not necessarily mean that the corporation failed to comply with its obligation. Costa v. County of Burlington, 254 F.R.D. 187, 191 (D.N.J.2008); Chick–fil–A, 2009 WL 3763032, at *13 (explaining that the corporation need not produce witnesses who know every single factonly those relevant and material to the incidents underlying the lawsuit).
  37. A corporation cannot be faulted for not interviewing individuals who refuse to speak with it. Costa, 254 F.R.D. at 191.
  38. There are certain cases, such as subrogation cases or those involving dated facts, where a corporation will not be able to locate an appropriate 30(b)(6) witness. In those types of scenarios, the parties “should anticipate the unavailability of certain information” and “should expect that the inescapable and unstoppable forces of time have erased items from … memory which neither party can retrieve.” Barron v. Caterpillar, Inc., 168 F.R.D. 175, 178 (E.D.Pa.1996) (concluding that corporation did not act in bad faith when its designee did not remember events from almost thirty years earlier).
  39. A corporation which expects its designee to be unprepared to testify on any relevant, listed topic at the corporate representative deposition should advise the requesting party of the designee’s limitations before the deposition begins. Calzaturficio, 201 F.R.D. at 39.

So, what do you think?  Have you ever been a 30(b)(6) deponent?  Or been involved in preparing one for testimony?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

DOS and DON’TS of a 30(b)(6) Witness Deposition, Part Five

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, What is the Future of the Legal Technology Conference?  Now, Tom has written another terrific overview regarding the state of legal technology conferences titled DOS and DON’TS of a 30(b)(6) Witness Deposition that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into six parts, so we’ll cover each part separately.  The first part was last Monday, the second part was last Wednesday, the third part was last Friday and the fourth part was Monday, here’s the fifth part.

Specific Strategies to Consider

Some specific strategies to consider include:

Timing of the Deposition

As mentioned previously, strategic timing of the deposition can help streamline the issues and avoid future claims that discovery sought against the organization is a fishing expedition. To this point, it may be helpful to prepare an issue outline before preparing the deposition notice and using it to decide when to conduct the 30(b)(6) depo.

Do not agree to a question-by-question or objection-by-objection format

Some courts have ruled that a defendant should produce a Rule 30(b)(6) witness to testify on objectionable topics and counsel for the witness could then interpose objections on a question-by-question basis. Other courts have rejected this suggestion, calling it:

  1. A veiled attempt to depose the other party’s attorney. & Exch. Comm’n v. Merkin, 283 F.R.D. 689 (S.D. Fla. 2012), objections overruled, 283 F.R.D. 699 (S.D. Fla. 2012)
  2. An impermissible intrusion into work product & Exch. Comm’n v. SBM Inv. Certificates, Inc., Civil Action No. DKC 06-0866 (D. Md. Mar. 2, 2012)
  3. A violation of privileges and other protections. SEC v Rosenfeld, 97 CIV. 1467 (RPP), 1997 WL 576021, at *2-4 (S.D. Fla. April 18, 2002).

Seeking information about allegations in the complaint

Many courts have ruled that Rule 30(b)(6) depositions are not the proper vehicle for discovering facts about the allegations in a civil enforcement complaint, commenting that contention interrogatories are a more appropriate vehicle for fact discovery. CF, Equal Employment Opportunity Commission v. Texas Roadhouse, Inc., No. 11-11732-DJC, 2014 WL 4471521, (D. Mass. Sept. 9, 2014) and Equal Employment Opportunity Commission v. American International Group, No. 93 CIV 6390 (PKL) RLE, 1994 WL 376052 (S.D.N.Y. July 18, 1994).

Seeking discovery of third-party information

Defendants in an enforcement investigation usually recognize the State has gathered facts from third parties as part of their investigation. Rather than invest effort into written discovery or third-party depositions, some defendants attempt to elicit the State’s work product through 30(b)(6) depositions.

Topics that seek information regarding the knowledge of third parties, such as complaint information, persons and documents identified in initial disclosures, or information dealing with the substance of a third party’s knowledge, are improper for Rule 30(b)(6) purposes. If a defendant requires such information, it should conduct written discovery, subpoena the complaint agency, interview or even depose such third parties.

Protection of privileges

As noted previously, many cases discuss protection of the work product privilege. But other privileges may be at risk as well, including:

  1. Common Interest Privilege
  2. Deliberative Process Privilege
  3. The Law Enforcement Privilege
  4. State Secrets Privilege

Depositions of agencies

Depositions of government agencies are explicitly permitted under Rule 30(b)(6), but if the agency happens to be serving as trial counsel in an enforcement action and also conducted or supervised the underlying investigation, many courts refuse to permit the deposition.

The risk is that work product and other privileges overlapping as case facts become mixed with trial counsel’s mental processes and legal strategies. Although the general rule is that defendants have an absolute right to depose the government under Rule 30(b)(6), some courts have carved out exceptions and it is best to research the law in your jurisdiction.

Depositions of opposing counsel

The leading case on the standards for deposing opposing counsel is the Eighth Circuit case of Shelton v. American Motors Corporation. 805 F.2d 1323 (8th Cir. 1986) in which the court reaffirmed the general disapproval of attempts to depose opposing counsel. The Shelton court established a three-part test for situations in which a deposition of opposing counsel is sought, stating that the moving party must establish that:

  • no other means exist to obtain the sought information;
  • the information is relevant and non-privileged; and
  • the information is crucial in the case.

Deposing the plaintiff

Several leading cases have granted protective orders to the government or denied defense motions to compel in cases where defendants have attempted to depose enforcement plaintiffs under Rule 30(b)(6).

These include:

Securities and Exchange Commission v. Rosenfeld, op cit

Securities and Exchange Commission v. Buntrock, 217 F.R.D. 441 (N.D. Ill. 2003).

Securities and Exchange Commission v. SBM Investment Certificates, Inc., D. Maryland, Civil Action No. DKC 2006-0866 (D. Md. Feb. 23, 2007)

Equal Employment Opportunity Commission v. Evans Fruit Company, Inc., 2:2011cv03093, (E.D. Wash. 2013)

Other cases have allowed Rule 30(b)(6) depositions of enforcement authorities to proceed as noticed, including.

Securities Exchange Commission v. Kramer, CASE NO.: 8:09-cv-455-T-23TBM (M.D. Fla. Apr. 1, 2011)

Securities and Exchange Commission v. Merkin, Case No. 11-23585-CIV, United States District Court, S.D. Florida, Miami Division. 3012 

Securities and Exchange Commission v. McCabe, No. 2:2013cv00161 – Document 57 (D. Utah 2015)

Federal Trade Commission v. DIRECTV , Inc., Case No. 15-cv-01129-HSG. United States District Court, N.D. California. (2018)

E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, 918 F.Supp.2d 1171 (2013)

We’ll publish Part 6 – Conclusions – on Wednesday.

So, what do you think?  Have you ever been a 30(b)(6) deponent?  Or been involved in preparing one for testimony?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

DOS and DON’TS of a 30(b)(6) Witness Deposition, Part Four

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, What is the Future of the Legal Technology Conference?  Now, Tom has written another terrific overview regarding the state of legal technology conferences titled DOS and DON’TS of a 30(b)(6) Witness Deposition that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into six parts, so we’ll cover each part separately.  The first part was last Monday, the second part was last Wednesday and the third part was last Friday, here’s the fourth part.

Common Mistakes

Here are some of the common mistakes associated with preparation for 30(b)(6) witness depositions:

Failure to Thoroughly Review the Deposition Notice

The rule requires that it describe the matters for examination with reasonable particularity. Thus, the witness need be prepared only for what is described. The deposing party may ask a witness questions that are outside the scope of the matters for examination but counsel for the deponent should be prepared to object and make clear that any answers provided are not binding on their client.

Designating the Wrong Representative or Failing to Designate Multiple Representatives

30(b)(6) requires that the organization “designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf.” In addition, the organization may set out the matters on which each person designated will testify and note that testimony is limited in scope to the issues of which they have personal knowledge.

If the potential witness does not have such personal knowledge it may be better to designate another witness or use multiple witnesses to discuss specific matters. The point is that the party upon whom the notice or subpoena is served is required to designate which individual or individuals are appropriate to testify on which topics.

Because testimony generated during a deposition has the potential to be admitted into evidence at trial, a witness testifying about a subject outside his or her direct knowledge could lead to damaging testimony at trial. Costly delays from resolving these issues at trial are one factor in the proposed rule changes discussed above.

Inadequate Preparation of Witness

Rule 30(b)(6) requires that a corporation do more than merely gather documents and produce a witness with general knowledge about the issues in the case. It must produce a witness who has been prepared.

But the rule does not require perfection; the mere fact that a witness can not answer every question on a certain topic does not mean that the corporation failed to comply with its obligation.

Still, the duty is significant and has even been described by one court as “onerous.” because, in the words of the Court, “… we are not aware of any less onerous means of assuring that the position of a corporation, that is involved in litigation, can be fully and fairly explored.” Prokosch v. Catalina Lighting Inc., 193 F.R.D. 633, 638. (D. Minn. 2000)

We’ll publish Part 5 – Specific Strategies to Consider – on Wednesday.

So, what do you think?  Have you ever been a 30(b)(6) deponent?  Or been involved in preparing one for testimony?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

DOS and DON’TS of a 30(b)(6) Witness Deposition, Part Three

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, What is the Future of the Legal Technology Conference?  Now, Tom has written another terrific overview regarding the state of legal technology conferences titled DOS and DON’TS of a 30(b)(6) Witness Deposition that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into six parts, so we’ll cover each part separately.  The first part was Monday and the second part was Wednesday, here’s the third part.

Proposed Rule Change

The current Rule provides little guidance on how much notice is required, how a 30(b)(6) deposition counts towards the limit and duration of depositions, the presumptive limit on the number of deposition topics and the process for objecting to, and resolving disputes about, the scope of a notice.

With that in mind, the Advisory Committee on Civil Rules began considering a variety of changes to the Rule beginning in April 2016. The amendment eventually put forth by the Committee says that “[b]efore or promptly after the notice or subpoena is served, and continuing as necessary, the serving party and the organization must confer in good faith about the number and description of the matters for examination and the identity of each person the organization will designate to testify.”

Public comments on the proposed changes closed in February of this year and many major corporations voiced concern over these proposed changes. Over 100 organizations (including Ford, Microsoft, and Comcast) submitted a joint public comment letter to the committee objecting to the new language.

Specifically, these organizations voiced the following concerns:

  • An organization should be able to retain the exclusive right to identify Rule 30(b)(6) witnesses and the subject matters these witnesses will testify about without input from opposing counsel.
  • The rule needs to provide more guidance. For example, the language requiring counsel to confer about “the number and description of the matters for examination” is unclear and fails to lay out with specificity what the parties need to address prior to the deposition.
  • An amendment forcing the parties to confer would increase, rather than decrease, discovery disputes.

The Committee felt, however, that the amendment will not increase discovery disputes, but instead reduce these issues and streamline litigation. Their belief was that having the parties confer with each other prior to the deposition may help bring issues to the forefront so the court can handle the matters promptly rather than the current method of interrupting a deposition or even a trial to handle arguments about testimonial issues then.

The Draft Committee Note addresses some of the concerns that were raised and specifically reiterates that the “named organization ultimately has the right to select its designees,” and notes that “the amendment does not require the parties to reach agreement.”. The Advisory Committee’s official position paper can be found here. If approved by the Committee on Rules of Practice and Procedure, the Judicial Conference, and the Supreme Court, the Amendment would go to Congress for final approval and become effective on December 1, 2020.

We’ll publish Part 4 – Common Mistakes – next Monday.

So, what do you think?  Have you ever been a 30(b)(6) deponent?  Or been involved in preparing one for testimony?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

DOS and DON’TS of a 30(b)(6) Witness Deposition, Part Two

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, What is the Future of the Legal Technology Conference?  Now, Tom has written another terrific overview regarding the state of legal technology conferences titled DOS and DON’TS of a 30(b)(6) Witness Deposition that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into six parts, so we’ll cover each part separately.  The first part was Monday, here’s the second part.

Initial Considerations

Notice that the rule requires simply that the responding party must designate someone to testify on behalf of the business entity and not that the requesting party can specify the identity or even the position in the organization of the witness. It is also commonly interpreted by responding parties that they are not necessarily required to produce for deposition the most knowledgeable person in the organization but rather, anyone of their choosing who agrees to testify.

Since this means the witness will testify as the organization’s knowledge, not his or her own personal knowledge on the subject of the deposition, the obligation to educate the witness on the requested topics falls to the organization.

The key for the requesting party to ensure specificity during the deposition is the crafting of the notice of deposition. It should include specific topics to be covered at the deposition which are “reasonably particular” as the rule states but not be so detailed that objections can be raised during the deposition that a question or questions being asked was not part of the deposition notice.

The timing of the 30(b)(6) deposition is important. If taken at the beginning of the case, it may helpful to pinpoint issues for further discovery, such as detailing policies or procedures that can help define requests for production.  But a deposition taken later, say after document productions, can fill in gaps or answer questions raised by the documents themselves or even identify further fact witnesses to answer those questions.

Once the deposition has begun and it becomes clear that the witness is not able to testify about the topics in the deposition notice, a decision must be made to establish either that this is not the proper  witness to testify on the requested issues or merely demonstrate that the witness is not knowledgeable on the issues. The difference is whether you intend to seek a motion to compel the appearance of a different witness or alternatively preclude the organization from introducing testimony on these areas at trial.

On occasion, the witness is evasive or even outright hostile. This may be simply because the IT person designated to testify is not well prepared as noted above. But it may also be that the witness is not happy about having to testify, feels they are overqualified to testify and are being forced to deal with people who know less than he does or, in some rare cases, is part of a corporate document management strategy designed to specifically preserve and produce documents in only one specific manner.  Here’s a link to the outline of a CLE session presented by Chris Ralston, a senior Commercial Litigation Partner at Phelps Dunbar in New Orleans, and me, dealing with such a hostile witness.

We’ll publish Part 3 – Proposed Rule Change – on Friday.

So, what do you think?  Have you ever been a 30(b)(6) deponent?  Or been involved in preparing one for testimony?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

DOS and DON’TS of a 30(b)(6) Witness Deposition

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, What is the Future of the Legal Technology Conference?  Now, Tom has written another terrific overview regarding the state of legal technology conferences titled DOS and DON’TS of a 30(b)(6) Witness Deposition that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into six parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

30(b)(6) depositions are a large part of many ediscovery matters with many considerations about how to work with a witness, get the proper information and best practices for framing and answering questions.

But before we look at some of those issues, let’s take a look at the rule itself and define our terms so it’s clear what we’re talking about.

What is a 30(b)(6) Deposition?

Federal Rule of Civil Procedure 30(b)(6) (found here) permits a party to notice or subpoena the deposition of “a public or private corporation, a partnership, an association, a governmental agency or other entity and must describe with reasonable particularity the matters for examination.”

In response, 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.” Once noticed, the designated witness “…. must testify about information known or reasonably available to the organization.”

In this paper, we will take a look at several aspects and best practices regarding 30(b)(6) depositions, including:

  1. Initial Considerations
  2. Proposed Rule Change
  3. Common Mistakes
  4. Specific Strategies to Consider
  5. Conclusions

We’ll publish Part 2 – Initial Considerations – on Wednesday.

So, what do you think?  Have you ever been a 30(b)(6) deponent?  Or been involved in preparing one for testimony?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Plaintiff Argument for Failure to Produce Cell Phone Data in Wife’s Name is “Unpersuasive”: eDiscovery Case Law

In Ortiz v. Amazon.com LLC, et al, No. 17-cv-03820-JSW (MEJ) (N.D. Cal. May 25, 2018), California Magistrate Judge Maria-Elena James ordered the plaintiff, who failed to produce court-ordered cell phone records because the account was in his wife’s name and refused to provide her information, to provide defendant Golden State with his cell phone account holder’s name and address so that defendant could subpoena the cell phone records from her.  Judge James also ordered the plaintiff to appear for a deposition in San Francisco, as originally scheduled, instead of Los Angeles (where the plaintiff had moved).

Case Background

In this case on March 7, 2018, the Court ordered the plaintiff to produce his cell phone records to Golden State no later than April 6, 2018. The plaintiff stated these records were not in his possession or control, as the account for the phone records was in his non-party wife’s name.  The plaintiff claimed he had attempted to obtain the phone records by requesting them from the carrier, but was not authorized to do so, nor could he get them from his wife (the plaintiff didn’t explain why).  He did not inform Golden State that the cell phone records were in his wife’s name and thus unobtainable until April 27, 2018 – three weeks after the Court-ordered deadline for production.  The plaintiff also refused to provide his wife’s name and address to allow defendant Golden State to subpoena the records from her, despite his representations that he would do so by May 8 and 16.

Also, on January 25, 2018, defendant Golden State requested the plaintiff’s availability for deposition and, at the beginning of March, he confirmed his deposition would take place on April 23, 2018. On March 7, 2018, defendant Golden State served a Notice of Deposition that Plaintiff’s deposition would take place at defense counsel’s San Francisco office, but on April 19, 2018, Plaintiff cancelled the deposition because he moved to Los Angeles.

The plaintiff defendant Golden State filed two joint discovery dispute letters, from which the Court made its ruling.

Judge’s Ruling

In assessing the request for cell phone records, Judge James stated that “Plaintiff does not explain his delay in informing Golden State that the cell phone records are not in his possession or control. Plaintiff knew or should have known who is named on the account; he offers no reason why this information was not available to him prior to April 27. Plaintiff has known as early as September 18, 2017, and at the very latest, as of March 7, 2018, that he had to produce his phone records… Plaintiff states that, ‘[f]or personal reasons, Plaintiff wishes to maintain the details of his relationship status, and interactions with his wife, private.’…This argument is unpersuasive. By alleging Golden State failed to pay him for all hours worked and to provide him with meal and rest breaks, Plaintiff has placed his work day activities—including whether he made or received phone calls or text messages on his personal cell phone—at issue. Providing the account holder’s name and address reveals minimal details, if any, about Plaintiff’s marital status or interactions.”  As a result, Judge James ordered the plaintiff to provide defendant Golden State with his cell phone account holder’s name and address so that defendant could subpoena the cell phone records from her.

As for the deposition, Judge James ordered the deposition to be conducted in San Francisco, noting the fact that the plaintiff “did not inform Golden State that his relocation would cause difficulties until the eve of the deposition is not well taken” and rejecting the plaintiff’s proposed compromise to have one of Golden State counsel’s Los Angeles attorneys take the deposition in counsel’s Los Angeles office.  She also granted Golden State’s request for an order that “Plaintiff appear at his deposition before he can compel or proceed with depositions of Golden State’s witnesses”.

So, what do you think?  Do these seem like delay tactics or could the plaintiff have had a legitimate reason for failing to produce the cell phone records?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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