Category: Rule 30(b)(6)

Poor Preparation of Rule 30(b)(6) Witness Merits Sanctions

In Westover v. Provident Mutual Life and Accident Ins. Co., No. C20-5931 (W.D. Washington, March 31, 2021), Provident Mutual designated a 30(b)(6) witness to testify. A 30(b)(6) witness is a company representative who is to testify on certain topics relevant to the litigation. Here, the witness testified but was unprepared on certain topics. The District Court awarded Rule 37 sanctions, but the sanctions were that the deponent was to sit for a second session, presumably after he studied the topics. The reasoning:

Sanctions are warranted here for Provident’s dilatory discovery production in relation to the Rule 30(b)(6) deposition, but not in the form that Plaintiffs request. Provident’s conduct is not so severe as to warrant monetary sanctions or warrant barring Provident from using the recently produced documents in opposition to Plaintiffs’ partial motion for summary judgment. Furthermore, it appears that the late-produced documents have not precluded Plaintiffs from filing a partial motion for summary judgment regarding the scope of ERISA preemption in accordance with the parties’ agreed schedule. See Dkt. 38.

It is concerning to the Court that Provident did not produce or make available all documents as requested in the Notice of Deposition. Therefore, the Court orders sanctions against Provident in requiring that Provident make its Rule 30(b)(6) witness available for a second deposition concerning the untimely produced documents and that Provident bear the cost of the second deposition.[2] The parties may stipulate to an extended briefing schedule on Plaintiffs’ partial motion for summary judgment and Provident’s motion to dismiss Plaintiffs’ state law claims, if the second Rule 30(b)(6) deposition is necessary to resolve the pending motions. Such a deposition may resolve Plaintiffs’ recently-filed second motion for sanctions, see Dkt. 48, and the parties should advise the Court if that is the case.

Defendant City Sanctioned For Failing to Designate Rule 30(b)(6) Witness

Wheat v. City of East Cleveland

This is a civil rights case filed by four men who were released from prison after serving ten years of their sentences. The men won a new trial based on what is described as exculpatory evidence. The plaintiffs served a Rule 30(b)(6) deposition notice on the Defendant City of East Cleveland.

Rule 30(b)(6) requires a party, such as a company or other organization, to designate a witness for the organization who can answer questions on topics that the other party provides in advance. The 30(b)(6) deposition can be a useful tool to resolve litigation in an efficient manner.  The party who offers the witness (or witnesses) must prepare the witness to testify. So, in a civil rights case against the City of East Cleveland, the City would be required to locate someone who had knowledge concerning the events in dispute. The City would also be required to prepare that witness to testify.

Here, the City of East Cleveland struggled to find a witness who could testify and the Plaintiffs moved for discovery sanctions under Rule 37. A short quotation from the opinion will suffice:

Both Magistrate Judge Baughman and this Court have ordered the City of East Cleveland to designate a Rule 30(b)(6) witness who is competent to testify about the matters Plaintiffs requested. The City has failed to do so.

The Court recognizes that the events the City’s 30(b)(6) witness would testify about occurred almost two decades ago. In that time, memories fade, documents are lost or innocently destroyed, and relevant parties may leave the Court’s jurisdiction. If the City had shown that it undertook a diligent inquiry in an attempt to respond to Plaintiffs’ request, but the passage of time made their search impossible, the Court would see no reason for sanctions.

That is not what happened here. In response to Plaintiffs’ request that the City designate a 30(b)(6) witness, the City has attempted to designate three people. Initially, the City failed to designate anyone, purportedly because of the years between the events at issue in this case and the present litigation.[11]

Magistrate Judge Baughman then met with the parties and determined that the City had failed to perform a due diligent inquiry before failing to name a designee.[12] He ordered the City to perform its due diligence and to designate someone within thirty days of his order.[13]

Shortly after Judge Baughman’s order, the City attempted to designate the former Mayor of East Cleveland, Emmanuel Onunwor.[14] The City, however, has had zero contact with the former Mayor, and his location is currently unknown to the City.[15]

Then, the City designated Detective Patricia Lane, a named defendant who was, in counsel for the City’s words, “in a coma.”[16] This designation of someone so patently unavailable and unprepared to testify suggests that the City either willfully disobeyed Judge Baughman’s order, or, at best, negligently ignored his order to perform “due diligent inquiry.”

This Court then informed the City that neither Detective Lane nor Mayor Onunwor was a proper designation, and ordered the City to designate a witness who was competent to testify within thirty days.[17] The same day that this Court issued that order, the City designated former East Cleveland Law Director Helen Forbes Fields.[18] Ms. Forbes Fields is medically available to testify, and the City knows her location.[19]

The City, however, apparently never informed Ms. Forbes Fields that she would be the City’s designated witness. After Plaintiffs subpoenaed Ms. Forbes Fields and scheduled her deposition in consultation with the City, Ms. Forbes Fields called Plaintiffs’ attorneys. She told them that she (1) lacked any knowledge of the information Plaintiffs would depose her about, other than what she had previously stated in an affidavit, and (2) was unavailable at the time of her scheduled deposition.[20]

These facts make clear that the City never contacted Ms. Forbes Fields when scheduling her deposition with Plaintiffs, made no effort to prepare Ms. Forbes Fields, and seemingly did not contact her about serving as the designated witness. These lapses are especially troubling, because Federal Rule of Civil Procedure 30(b)(6) explicitly states that an organization must designate some person “who consent[s] to testify on its behalf.”[21]

The court, however, did not award any relief to the plaintiffs. Instead, the court gave the City of East Cleveland one week to identify a witness who could act as a 30(b)(6) representative. This opinion was especially entertaining because the City designated someone who is in a coma to testify and then designated another witness, but then failed to prepare the witness.

Edward X. Clinton, Jr.

The Clinton Law Firm, LLC