Effort to Sanction United States Under Rule 30(b)(6) Fails


Rule 30(b)(6) allows a party to serve a deposition notice on an organization and the organization must tender a witness who can answer questions. The party serving the notice sets forth the issues it will cover in the deposition and the responding party is required to identify and produce a witness who has knowledge of said matters.

In this case, the United States tendered a Rule 30(b)(6) witness, but the plaintiff claimed that the witness was a “Know Nothing Witness” who did not provide useful information. The court rejected that argument and denied the sanctions motion and explained:

Plaintiff alleges that Mr. Whitaker was not prepared for his RCFC 30(b)(6) deposition. When asked to explain how he had prepared for the RCFC 30(b)(6) deposition, Mr. Whitaker stated that he had seen the list of plaintiff’s RCFC 30(b)(6) deposition topics only the day before his deposition, and that, in order to familiarize himself with the topics, he looked at each one of the admissions and the spreadsheets produced by defendant in discovery. Mr. Whitaker also testified that he had not thoroughly reviewed the contract between Securiforce and DLA Energy before his deposition.

Plaintiff points to different statements made by Mr. Whitaker during his RCFC 30(b)(6) deposition to demonstrate that the “government’s designated witness, Mr. Whitaker, had no firsthand knowledge concerning the specified topics and had undertaken no investigation as to what was `reasonably known to the organization.'” Specifically, Mr. Whitaker testified that he had no personal knowledge as to whether fuel was delivered to any of Securiforce’s sites between September 7, 2011 and October 24, 2011, and that his knowledge regarding specific fuel deliveries was based on the information contained in the spreadsheets that were produced to plaintiff in July 2013. When asked about the process for ordering and delivering fuel in Iraq, however, Mr. Whitaker articulated a developed understanding of this process and its nuances, including how the process could be different based on the source of the fuel. Furthermore, Mr. Whitaker was able to testify to the information contained in defendant’s response to interrogatory 16, including the data systems used to compile the spreadsheets.

The transcript of Mr. Whitaker’s deposition demonstrates that he offered a thorough knowledge of the spreadsheets prepared by DLA and previously turned over to plaintiff. The spreadsheets purportedly captured the fuel deliveries to the Securiforce Department of State sites in Iraq during the relevant time period according to defendant’s information when the spreadsheets were prepared. Mr. Whitaker stated that he was familiar with the various databases listed on the spreadsheets, including “DLA Energy’s fuels enterprise server, DLA Energy’s defense fuel, automated management system, and DLA Energy’s automated voucher examination and dispersing system” and was able to explain the systems to plaintiff’s counsel when asked. The dialogue contained in the deposition transcript indicates that Mr. Whitaker could speak intelligently about the information contained in the spreadsheets. Mr. Whitaker answered many questions posed by plaintiff’s counsel about specific, detailed information contained in the spreadsheets based on his ability to decipher the spreadsheets. Specifically, Mr. Whitaker could read the codes used in the spreadsheets to identify countries of origin, invoice numbers, billing codes, delivery sites, delivery dates, funding codes, stock numbers, fuel quantities, and fuel grades. Mr. Whitaker’s knowledgeable deposition testimony about the spreadsheets and fuel deliveries in Iraq indicates that he was prepared to discuss a broad range of the topics plaintiff included in the RCFC 30(b)(6) deposition notice based on the information contained in DLA Energy’s records.

It is clear from Mr. Whitaker’s deposition testimony that, although he could not provide specific details for all of plaintiff’s counsel’s questions, he testified about information reasonably known by the government, based on DLA Energy’s records, and was responsive to a significant portion of plaintiff’s identified RCFC 30(b)(6) topics. Because Mr. Whitaker testified knowledgably about the DLA-prepared spreadsheets, and the information contained therein, his deposition testimony as a RCFC 30(b)(6) witness was not such that he was, as alleged by plaintiff, a “No-show” witness. Moreover, it would be hard to argue that only one witness could have testified to DLA Energy headquarters’ records and whether onsite deliveries in the conflict theater of Iraq actually occurred, as well as to possible fuel deliveries by the Army. The government offered to provide additional RCFC 30(b)(6) witnesses, and identified possible further witnesses, but plaintiff declined to depose any additional witnesses who could speak to the onsite fuel deliveries in Iraq. Instead, plaintiff chose to file its motion for sanctions and seek monetary compensation.

The case is interesting because it shows what work must be done by the party producing the Rule 30(b)(6) witness to make sure the witness knows what he is talking about. Source: SECURIFORCE INTERNATIONAL AMERICA, LLC v. US, Court of Federal Claims 2016 – Google Scholar

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