Monetary Sanctions for Failure to Prepare 30(b)(6) Witness Properly

From Cherrington Asia Ltd. v. A&L Underground, Inc., 263 F.R.D. 653 (D. Kan. 2010):

One of the seminal cases regarding discovery sanctions in this district is Starlight International, Inc. v. Herlihy, 186 F.R.D. 626 (D. Kan. 1999), and 190 F.R.D. 587 (D. Kan. 1999).***

...Starlight stands for the proposition that producing an unprepared witness for a Rule 30(b)(6) deposition "is tantamount to a failure to appear at a deposition . . .," and therefore constitutes sanctionable conduct under Fed. R. Civ. P. 37(d)(1)(A). Starlight , 186 F.R.D. at 639, citing United States v. Taylor, 166 F.R.D. 356, 363 (M.D.N.C.), aff'd 166 F.R.D. 367 (1966). Therefore, if a Rule 30(b)(6) witness is not adequately prepared to testify about topics properly identified in a notice to take the deposition, the court may impose various types of sanctions, including the imposition of reasonable attorneys fees and expenses caused by the failure, unless the failure was "substantially justified." Fed. R. Civ. P. 37(d)(3). Those sanctions may be imposed on the party failing to act, the attorney advising the party, or both. Id. ***

After a review of all of the Rule 30(b)(6) testimony provided by the parties, the court concludes that A&L did not properly prepare its witnesses to testify about the topics designated in the deposition notices. Gilstrap's preparation was wholly inadequate to meet the duties of a Rule 30(b)(6) witness, and when considered in light of his February 16, 2006 email, suggests that he did not give proper attention to accumulation and production of documents in the first instance, and then followed up by failing to properly prepare to testify as a Rule 30(b)(6) witness. While Gowdy's testimony appears more forthcoming, it is apparent that there was no coordination within A&L as between the witnesses being presented in connection with the Rule 30(b)(6) deposition preparation.

As Judge Rushfelt noted in Starlight, foremost among the purposes of Rule 30(b)(6) is the intent to curb the "bandying" by which officers or managing agents of corporations are deposed in turn, but each disclaims knowledge of facts that are clearly known to person in the organization and thereby known to the corporation. 186 F.R.D. at 638, citing Rainey v. American Forest & Paper Ass'n, 26 F. Supp. 2d 82, 95 (D.D.C. (1998) (quoting Fed. R. Civ. P. 30(b)(6) advisory committee notes (1970 amend.)). To promote effective and efficient discovery regarding corporations, the spokesperson for the corporation must be informed. Rule 30(b)(6) implicitly requires the designated representative

to review all matters known or reasonably available to it in preparation for the Rule 30(b)(6) deposition. This interpretation is necessary in order to make the deposition a meaningful one and to prevent the sandbagging of an opponent by conducting a half-hearted inquiry before the deposition but a thorough and vigorous one before the trial. This would totally defeat the purpose of the discovery process. The Court understands that preparing for a Rule 30(b)(6) deposition can be burdensome. However, this is merely the result of the concomitant obligation from the privilege of being able to use the corporate [or other organizational] form in order to conduct business.

186 F.R.D. at 638, citing United States v. Taylor, 166 F.R.D. 356, 362 (M.D.N.C.), aff'd 166 F.R.D. 367 (1966).

Because the court concludes that A&L failed to properly prepare its Rule 30(b)(6) witnesses, this constitutes sanctionable conduct under Fed. R. Civ. P. 37(d)(1)(A).

[Footnote 11] The court is not unmindful of A&L's excuses for any problems concerning the Rule 30(b)(6) depositions including (1) the fact that Alex Lowe was the most knowledgeable about the Iraq project but had died before the scheduled deposition, (2) that A&L was a small company not organized like an IBM and with only a small staff, (3) that the project took place in a foreign country, and (4) that some of Plaintiffs' topics and/or document requests were "vague." The court has considered these arguments but finds that none of these circumstances justifies the lack of preparation described above. For example, had A&L needed additional time to prepare Rule 30(b)(6) witnesses after Alex Lowe's death, it could have requested a continuance, but it did not. And, if A&L really believed that any of the deposition topics in the notice failed to identify the proposed subjects of the Rule 30(b)(6) testimony with "reasonable particularity" as required by Rule 30(b)(6), it could have objected or sought a protective order, but it did not.

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