QBE Insurance v. Jorda Enterprises, Inc.
277 F.R.D. 676
S.D. Fla.2012Background
- QBE seeks subrogation against Jorda Enterprises after paying about $3.0 million for water damage at a Florida condo; 30(b)(6) notice listed 47 topics, 12 non-ESI and 35 ESI topics; QBE produced one designee who admitted lack of knowledge on many topics; discovery deadline expired; insured cooperation impeded testimony; court held a hearing and granted sanctions in part.
- QBE’s designee Timothy O’Brien testified six hours but could not address numerous topics, especially the 35 ESI topics and several non-ESI topics; QBE did not timely designate additional designees or obtain cooperation from the insured or the developer.
- The insured condominium association refused to cooperate despite contractual duties; Jorda argues sanctions are warranted for failure to adequately prepare and for lack of knowledge on many topics; QBE argues mitigation due to insurance-subrogation nature and lack of access to non-party information.
- The court found that QBE did not adequately prepare its designee, did not timely secure a substitute designee, and failed to obtain cooperation from its insured, which led to inability to testify on many topics; the discovery deadline had expired, and the court sanctioned by precluding trial testimony on topics lacking 30(b)(6) testimony and awarding $2,300 in expenses; the court noted a Catch-22 due to subrogation and lack of access to third-party information.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sanctions are proper for failure to design and prepare a 30(b)(6) witness | Jorda: sanctions warranted for incomplete knowledge and lack of preparation | QBE: lack of knowledge from insured/third parties justifies relief; preparation insufficient but not sanctionable | Sanctions granted for lack of adequate 30(b)(6) preparation and knowledge |
| Whether the insured’s non-cooperation extinguishes 30(b)(6) obligations | Jorda: cooperation failures justify sanctions and preclude testimony on those topics | QBE: cooperation failure prevents knowledge but not obligation; cannot sanction third-party non-cooperation | Obligation not extinguished by insured non-cooperation; but sanctions still imposed for lack of adequate preparation and inability to obtain testimony |
| Whether the court should preclude trial testimony on topics lacking 30(b)(6) testimony | Jorda seeks preclusion of testimony on those topics | QBE argues fair results despite lack of information | QBE precluded from offering trial testimony on topics where O’Brien did not testify |
| Amount of sanctions and whether to award attorney’s fees | Jorda seeks full costs due to sanctionable conduct | QBE challenges amount | $2,300 awarded as expenses; costs awarded against QBE within discretion |
Key Cases Cited
- Black Horse Lane Assoc., L.P. v. Dow Chem. Corp., 228 F.3d 275 (3d Cir. 2000) (30(b)(6) duties and bounds of designees; testimony represents corporation’s position)
- Ecclesiastes v. LMC Holding Co., 497 F.3d 1135 (10th Cir. 2007) (corporation’s duty to provide a binding designee and prepare across topics)
- Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253 (2d Cir. 1999) (panoply of sanctions; failure to comply with 30(b)(6) can lead to sanctions)