DISCOVERY: Vehicle rental company compelled to produce thoroughly educated & prepared 30(b)(6) designees to address topics listed in wrongful death Plaintiffs’ notices (all topics, not just topics specifically identified in Order, to avoid further pettifogging and taking a mile when given an inch), failure to provide knowledgeable designees shall be contempt of court… given Plaintiffs’ failure to specifically request what they now seek and that the materials were ultimately disclosed, sanctions under 37(c) are not appropriate, any other result would value the discovery motion more than the discovery… Molloy.
A Dodge truck pulling a horse trailer owned by Guinnane Ranch and driven by Edwin with Katherine Guinnane as a passenger was in a collision in 7/15 with a Dodge Journey driven by Robert with Nancy Dobbins as a passenger. The Journey was rented from Enterprise RAC of Montana/Wyoming and owned by EAN Holdings. Both Edwin and Robert were killed and Katherine and Nancy suffered serious injuries. Katherine, on behalf of herself and her husband’s estate, in conjunction with Guinnane Ranch, sued Nancy as PR of Robert’s estate alleging negligence and negligence per se and the Enterprise Defendants alleging negligent maintenance.
Plaintiffs seek sanctions against Enterprise for failing to timely supplement discovery regarding maintenance policies and training manuals and failing to produce a qualified prepared witness for their Rule 30(b)(6) deposition. Argument was heard 8/12/20.
A. Training Materials
The crux of this dispute is whether “maintenance policies” could be expected to include employee training materials. Both Enterprise’s Rule 26(a) disclosures and Plaintiffs’ Rule 26(b) discovery requests use the terms “maintenance policies” or vehicle “servicing” or “checklists,” but neither the disclosures nor the requests reference employee training. As a result, Enterprise produced only 3 pages of records in 5/20. Surprised by the dearth of maintenance policies for such a large rental company, Plaintiffs sought and received confirmation that the 3 pages were the “totality of all documents” in Enterprise’s possession.
Plaintiffs emailed Enterprise 4/23/20 to schedule a 30(b)(6) deposition, including 43 topic areas as to Enterprise RAC and 44 as to EAN Holdings. None of the areas referenced employee procedures or training. Counsel for Enterprise responded that he would need to confer with co-counsel and the client, but no further response was provided. Plaintiffs renewed their requests 6/5. Enterprise did not respond. Plaintiffs made a 3rd request 6/11, and even though Enterprise did not respond, Plaintiffs indicated that notices would be sent for a 6/22 deposition. Enterprise finally responded 6/16 with a name, location, and availability of its 30(b)(6) deponent. Plaintiffs agreed to delay the deposition until 7/9.
The day before the deposition, Enterprise objected to many of the topic areas. Plaintiffs responded, noting the unreasonable delay. Enterprise responded that they had “prepared a witness to testify on all topics except those few to which we have objected in total as completely irrelevant.” When asked to justify this delay at the 8/12 hearing, counsel for Enterprise admitted that he could provide no good reason:
The Court: But explain the chronology of this request. As I read the record, and I might not be entirely accurate on the days, but roughly 2 months before the actual 30(b)(6) deposition you had the topics, and sometime during that period there was a request to meet and confer. And then there was no response, literally, and then you get the 30(b)(6) notice, and then the day before the deposition there’s, I guess, objections, is what you call them. But why did it take so long? And if you were anxious for meet and greet and to discuss this, which I think the rules contemplate, why didn’t you do that?
Douglas Baldridge: I can’t defend that, is the answer. I can’t defend that our objections were sent out the day before.
Plaintiffs took the 30(b)(6) deposition of Enterprise’s corporate representative George McNeir 7/9. He referenced several training manuals that had not been produced or specifically identified as a topic for the deposition. A deposition of Marlon Miles proffered similar information. As a result, on 7/15, Plaintiffs sent a letter demanding the documents identified by the 2 employees including:
1. Training Power Point presentations
2. Training packets, McNeir
3. Training road maps, McNeir
4. Training video, Miles
5. New employee handbook, Miles
6. Enterprise Holdings Curriculum.
Plaintiffs further demanded “any additional maintenance policies or training materials, “relying on Enterprise’s obligations under Rules 26(a) and (e). The present motion was file 7/27. 2 days later Enterprise produced:
1. New Hire Orientation – Day 3
2. Digital Image
3. Management Trainee Branch Orientation
4. Trunk to Trunk Inspection Participant Guide
5. Risk Management PowerPoint
6. New Hire Orientation – Day 1
7. Trunk to Trunk Inspection Leader Guide
8. Vehicle Inspection Best Practices
On 8/6 Enterprise produced:
2. Management Trainee Roadmaps
3. Service Agent and Driver Training.
The emails accompanying both disclosures disavow any obligation to produce the documents. Discovery is closed and we are moving toward a fixed trial date. No further discovery is allowed by virtue of the PTO, absent another order.
The first question is whether Enterprise was required to produce these training materials as part of its initial disclosures. A party has a duty to provide “a copy — or a description by category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody or control and may use to support its claims or defenses.” Rule 26(a)(1)(A)(ii). However, this obligation is limited to supporting the disclosing party’s claims and defenses. Webster (D.Mont. 2019); see also 2000 Amendment to Advisory Committee Note to 26(a)(1) (“A party is no longer obligated to disclose witnesses or documents, whether favorable or unfavorable, that it does not intend to use.”). Enterprise has stated that it “did not intend to rely upon [these documents] within the scope of their Rule 26 initial disclosures.” Thus so long as it did not intend to use them “to support its claims or defenses” it did not have a Rule 26(a) obligation to produce them.
The next question is whether these materials fell within the purview of Plaintiffs’ discovery requests under Rule 26(b). Rule 26(a)(1) “does not limit the scope of discovery or prohibit the proponent of discovery from seeking additional information.” Allen (D.Kan. 2012). Plaintiffs’ requests included interrogatories related to “standard maintenance procedure” and production related to “policy/procedure manual(s)” and “vehicle maintenance,” “documents relating to the servicing and maintenance of the Dodge Journey,” and Enterprise’s “pre-rental standard procedure” and “policies, procedures or checklists used.” Enterprise argues that Plaintiffs neither alleged negligent training nor requested employee training materials, and employee training was not a noticed 30(b)(6) topic. Thus, until the 30(b)(6) depositions, it distinguished “maintenance” from “training,” even if that literalism was the product of gamesmanship. That distinction crumbled at the 30(b)(6) deposition when the designee repeatedly referred to training materials when asked about maintenance policy.
If a party fails to provide information as required by Rule 26(a) or (e), “the party is not allowed to use that information at a trial unless the failure was substantially justified or is harmless.” Rule 37(c)(1). The Court may also order payment of reasonable expenses or fees, “inform the jury of the party’s failure,” or impose other sanctions outlined by Rule 37(b)(2)(A). Enterprise did not violate 26(a), but 26(e) imposes a duty to supplement disclosures “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect.” Rule 26(3)(1)(A). The 30(b)(6) deponent’s references to training materials made clear that these documents reasonably fell within the purview of Plaintiffs’ requests, notwithstanding Enterprise’s prior literal interpretation. Thus supplemental disclosure under 26(e) was required.
But that disclosure has since occurred. It is therefore unclear why Plaintiffs continue to insist that sanctions are warranted. Because the training materials are not part of Enterprise’s 26(a) disclosures, it is prevented from relying on them at trial. And with trial 2 months away, Plaintiffs have plenty of time to review them. Given Plaintiffs’ failure to specifically request what they now seek and that the materials were ultimately disclosed, sanctions under 37(c) are not appropriate. Any other result would, as Enterprise suggests, “value the discovery motion more than the discovery.”
II. 30(b)(6) Deposition
Rule 30(b)(6) requires an organization subject to proper notice to produce a witness who can answer questions about the subject in the deposition notice. (See also Sched. Or. requiring parties to meet & confer “to identify each person the organization will designate to testify and the topic areas that will be addressed”). That includes matters beyond those personally known to the witness. Great Am. Ins. (D.Nev. 2008) (collecting cases). Because the designee speaks on behalf of the entity, he “cannot be a potted plant.” Pioneer Drive (D.Mont. 2009).
Plaintiffs identify 21 ways they believe McNeir was not adequately prepared. Enterprise has responded to each allegation. Ultimately, 30(b)(6) required more than Enterprise provided. The amendments to the Rules and in particular 30(b)(6) were intended to put an end to the kind of antics Enterprise adopted here. The meet & confer requirement has no specific time limit but reason dictates that a hiatus of nearly 2 months falls far short of the “just, speedy and inexpensive” resolution of cases,” Rule 1, and the spirit of the amended rule.
McNeir was not prepared to discuss the Enterprise Defendants’ finances (topics 37-40), corporate relationship or structure (topics 1-4), insurance coverage (topic 5), record and maintenance procedures (topics 28-32), rental operation statistics (topics 33-36), corporate knowledge of tire policy (topics 18-22), or the full rental history of the Journey (topics 7-17). Because those topics were properly identified in the deposition notice, Enterprise was obligated to educate and prepare its designee to address them. Enterprise argues that it issued a “blanket objection” to some of those topic areas prior to the deposition. But a party cannot simply object to deposition topics and not prepare its designee. Those objections must be resolved through a meet & confer process or a protective order. Enterprise did neither.
First, despite being provided with the topic lists in 4/20, it — admittedly without justification — did not notice its objections until the day before the deposition. Thus it cannot now argue that it attempted to resolve any dispute about the topics in good faith prior to the deposition.
Second, 30(b)(6) does not provide a mechanism by which a party can simply refuse to produce or prepare its designee on noticed topics. To the contrary, 30(c)(2) indicates that the examination is to proceed subject to objection. While Enterprise could have sought a protective order to challenge those areas that it believed were irrelevant, it did not do so. And now that ship has sailed. It was obligated to provide a witness or witnesses who could accurately answer questions about the relationship between the Enterprise entities, as well as their insurance, including information about their profits, number of vehicles, rental days, operational history, and corporate knowledge of safety concerns. It did not do so.
Rule 37(c) allows a range of sanctions for failure to comply with 30(b)(6). See Pioneer Drive (“Many courts treat the failure of an organization to produce a prepared and educated witness under Rule 30(b)(6) as tantamount to a nonappearance at a deposition, meriting the imposition of sanctions.”) A variety of sanctions have been invoked when a party fails to produce an adequate 30(b)(6) deponent, including:
(1) costs and attorneys’ fees incurred in filing a motion to compel, (2) monetary sanctions against the non-complying party and its counsel, (3) an order compelling compliance with Rule 30(b)(6) and requiring an educated deponent to be produced, (4) requiring a corporation to redesignate an adequately prepared witness to testify in the new deposition at the corporation’s expense. Great Am. Ins. (collecting cases).
Other courts have precluded witnesses from testifying on subjects about which the designee was unable to provide knowledge and specific responses. Reilly (2d Cir. 1999). The jury could also be instructed that it may draw adverse inferences where wrongdoing prevented the opposing party from gaining discoverable information.
Given the nature of this 30(b)(6) violation, sanctions like those in Pioneer Drive are warranted. Enterprise must designate a person or persons to be deposed by Plaintiffs on all matters in its prior 30(b)(6) notices, at a location of Plaintiffs’ choosing (because of COVID, video remote is permissible). (While the Court would normally limit the new deposition to topics specifically identified above, Enterprise has demonstrated that if given an inch it will take a mile. To avoid further pettifogging, all topics in the deposition notices may be addressed.) Enterprise must pay Plaintiffs’ costs and expenses as well as 1 attorney’s fees for retaking the deposition(s). They shall take place before 9/7/20. To ensure that this does not happen again, it shall file a statement with the Court prior to the deposition(s) identifying whom it has designated on each topic. Failure to provide knowledgeable designees shall be treated as contempt of court. Rule 37(b). However, unlike Pioneer Drive, attorney fees are not awarded on the present motion. As discussed above, Plaintiffs do not prevail under Rule 37(c).
Guinnane et al v. Dobbins and Enterprise Rent-A-Car et al, 44 MFR 230, 8/14/20.
James Geddes, Katherine DeLong, and Trent Gardner (Goetz, Baldwin & Geddes), Bozeman, for Plaintiffs; Patrick Sullivan & Randall Colbert (Poore Roth & Robinson), Butte, for Dobbins; Douglas Baldridge & Theodore Randles (Venable LLP), DC, for Enterprise.
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