279 F.R.D. 59
D. Mass.2011Background
- Neponset moves to preclude any evidence on itemized topics due to NML's alleged failure to adequately prepare its 30(b)(6) witness.
- NML designates Robin Smith as corporate representative who testified on 30 of 36 topics identified by Neponset.
- Smith prepared by reviewing relevant documents and exhibits; court declines sanctions for partial testimony.
- NML may designate additional witnesses to address topics 13(a) and 28 if necessary; each party bears its own deposition expenses.
- Paragraph 32 concerns basis of NML’s affirmative defenses; court distinguishes facts from legal theories and declines extra witness.
- Damages topics 31, 33, 34 require further deposition; court allows re-deposition with the corporation paying costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sanctions are warranted for inadequate 30(b)(6) preparation | Neponset argues sanctions for failure to prepare witness | NML contends substantial knowledge was available and sanctioning is unwarranted | No sanctions; additional witnesses ordered rather than preclusion |
| Whether NML must produce additional witnesses for topics 13(a) and 28 | Neponset seeks complete corporate testimony on these topics | NML may supplement with other witnesses as needed | Additional witnesses to be produced; each party bears own deposition expenses |
| Whether the 30(b)(6) witness can testify about the basis of affirmative defenses | Neponset seeks testimony on defense theories tied to facts | Facts may be testified to, but legal theories should not be laid on a lay witness | No further witness necessary for legal theories; factual topics addressed elsewhere |
| Whether further deposition is required on damages (paragraphs 31, 33, 34) | Neponset requests comprehensive damages testimony | Remedy is to re-depose with proper preparation | NML to arrange re-deposition; costs borne by NML; one hour of counsel time awarded |
| Whether plaintiffs' request for attorneys’ fees is warranted | Neponset seeks fees due to alleged rule flaunting | No improper conduct; fee request not warranted | Fees denied |
Key Cases Cited
- Berwind Prop. Group, Inc. v. Envtl. Mgmt. Group, Inc., 233 F.R.D. 62 (D.Mass.2005) (partial noncompliance not sanctionable per se)
- Tequila Centinela, S.A. de C.V. v. Bacardi & Co. Ltd., 242 F.R.D. 1 (D.D.C.2007) (duty to substitute appropriate deponent when knowledge gaps appear)
- JPMorgan Chase Bank v. Liberty Mut. Ins. Co., 209 F.R.D. 361 (S.D.N.Y.2002) (depositions designed to discover facts, not legal theories)
- Calzaturficio S.C.A.R.P.A. s.p.a. v. Fabiano Shoe Co., Inc., 201 F.R.D. 33 (D.Mass.2001) (remedies include re-designation and re-deposition at corporation's expense)