Pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure,
[A] party may name as the deponent a public or private corporation ... and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf.... The persons designated must testify about information known or reasonably available to the organization.
While Rule 30(b)(6) “is not designed to be a memory contest,” Equal Employment Opportunity Commission v. American International Group, Inc., No. 93 Civ. 6390, 1994 WL 376052, at *3 (S.D.N.Y. July 18, 1994), the deponents must be both knowledgeable about a given area and prepared to give complete and binding answers on behalf of the organization. Reilly v. Natwest Markets Group Inc., 181 F.3d 253, 268 (2d Cir.1999), Kyoel Fire & Marine Insurance Co. v. M/V Maritime Antalya, 248 F.R.D. 126, 152 (S.D.N.Y.2007). A corporation has an affirmative duty to prepare the designee “to the extent matters are reasonably available, whether from documents, past employees, or other sources.” Tailored Lighting, Inc. v. Osram Sylvania Products, Inc., 255 F.R.D. 340, 2009 WL 367584, at *7 (W.D.N.Y.1009) (quoting Bank of New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 151 (S.D.N.Y.1997)). As is oftrepeated, ‘[p]roducing an unprepared witness is tantamount to a failure to appear.” United States v. Taylor, 166 F.R.D. 356, 363 (M.D.N.C.1996).
*2 In the instant case, the plaintiff argues that the defendants designees were unable to address items one, two, and four from the plaintiff's Notice of Deposition:
one, the defendants' system of record-keeping, including information about what types of records are generated and how records are organized and preserved; two, the defendants record destruction policies; and four, the identities of persons responsible for maintaining, preserving or destroying the defendants' records. (Chittur 2/12/09 Letter at 3; Notice of Dep., 1 2 & 4). The plaintiff also contends that defendants' counsel improperly barred inquiry into topics related to item number three, the defendants' “filings with the [Internal Revenue Service the “IRS”) ], including without limitation, the preparation, filing and maintenance of periodic reports such as IRS Forms 8027.” (Chittur 2/12/09 Letter at 3–4; Notice of Dep., 3). Finally, the plaintiff generally alleges that Mr. Lakhaney failed to prepare for his deposition adequately. (Chittur 2/12/09 Letter at 6). The plaintiff maintains that he is therefore entitled to the relief requested to rectify these “wil[l]ful” violations of Rule(30)(b)(6). (Chittur 2/12/09 Letter at 7).
To be sure, sanctions are appropriate if a corporate defendant fails to make a good faith effort to comply with Rule 30(b)(6). See, e.g.,
Black Horse Lane Associates v. Dow Chemical Corp., 228 F.3d 275, 304 (3d Cir.2000) (affirming sanction when deponent “failed to offer meaningful testimony about most, if not all, of the items specified in the notice of deposition”); Resolution Trust Corp. v. Southern Union Co., 985 F.2d 196, 197–98 (5th Cir.1993) (affirming sanctions when corporation failed to make “meaningful effort” to designate witness with any relevant knowledge); Kyoei Fire & Marine Insurance Co., 248 F.R.D. at 152 (imposing sanctions when designee's performance “amount[ed] to a non-appearance”). Indeed, Rule 37(b)(2)(A) expressly authorizes the court to issue “just orders” to rectify a Rule 30(b)(6) violation. However, “[i]n order for the Court to impose sanctions, the inadequacies in a deponent's testimony must be egregious and not merely lacking in desired specificity in discrete areas.” Kyoei Fire & Marine Insurance Co., 248 F.R.D. at 152 (quoting Bank of New York, 171 F.R.D. at 51).
Here, the plaintiff correctly notes that neither designee claimed to be able to address items one through four of the Notice of Deposition. (Deposition of Maurizio Chiovaro dated Jan. 30, 2009 (“Chiovaro Dep.”), attached as Exh. 4 to Chittur 2/12/09 Letter, at 9–10; Deposition of Sumeet Lakhaney dated Jan. 30, 2009 (“Lakhaney Dep.”), attached as Exh. 5 to Chittur 2/12/09 Letter, at 9–11). In this respect, the defendants surely could have done a more thorough job selecting and preparing their corporate designees. There is no evidence, however, of egregious deficiencies in either Mr. Chiovaro's or Mr. Lakhaney's actual testimony. Although, from the plaintiff's perspective, their testimony day have lacked specificity about record-keeping, each designee exhibited specific knowledge of key issues identified by the plaintiff's notice, including adequate knowledge of the issues related to items one through four.
*3 Mr. Chiovaro was the general manager of the Park Avenue Café during part of Mr. Rahman's employment. (Chiovaro Dep. at 24–25, 27). In preparation for the deposition, Mr. Chiovaro attended two other depositions, reviewed documents, including the Complaint, met with another Park Avenue Café manager, and discussed the case with defendants counsel. (Chiovaro Dep. at 11, 27–28). At the beginning of his deposition, Mr. Chiovaro identified items thirteen through nineteen from the Notice of Deposition as topics he was designated to discuss; he did not mention items one, two, or three and specifically denied being designated to talk about number four. (Chiovaro Dep. at 9–10). During his testimony, however, Mr. Chiovaro did in fact provide relevant information about records generated by the Park Avenue Café. For example, he explained the restaurant? system of generating and maintaining nightly sales reports and weekly tip records, and discussed record-keeping related to personnel files. (Chiovaro Dep. at 65–91, 259–64). In addition, although defendants' counsel objected to questions about the defendants' IRS filings. Mr. Chiovaro described the process of reporting tips to the IRS. (Chiovaro Dep. at 123–32).
Mr. Lakhaney, an information technology director for the defendants, was designated to address items five through twelve. (Lakhaney Mr. at 9). Although Mr. Lakhaney admitted that he “didn't necessarily prepare” for the deposition, he explained that formal preparation was unnecessary because he was intimately familiar with the topics of his deposition.
(Lakhaney Dep. at 34–35, 38). Indeed, Mr. Lakhaney provided detailed testimony about the defendants' computer systems, including the system for storing e-mails and the guest database. (Lakhaney Dep. at 9, 11–14, 25–34). He also answered questions about the defendants' data retention and destruction policies and practices. (Lakhaney Dep. at 19–24).
Overall, both Mr. Chiovaro and Mr. Lakhaney were adequately prepared and able to address completely the vast majority of questions posed by the plaintiff's counsel. In fact, although he complains generally of the deponents' performance, the plaintiff fails to indicate what specific information he still lacks. There is simply no basis for finding that, in total, the testimony provided was anything but sufficient. Sanctions are therefore not appropriate, and further discovery is not warranted.
Although the plaintiff received the defendants' production of guest checks in September and October of 2008, he only now complains of the form and the substance of that discovery response. The plaintiff alleges, without further detail, that production was done in an “unsequential, jumbled up manner.” (Chittur 2/12/09 Letter at 1, 5, 7). He also submits an affidavit from economist Stan V. Smith complaining that “analysis of the data in totality [will be] extraordinarily time consuming and expensive” because the data was produced in “pdf” format. (Smith Aff., 5). Substantively, the plaintiff asserts that the checks produced are “prima facie incomplete and unreliable.” (Chittur 2/12/09 Letter at 5). Specifically, he alleges that several guest checks lack the names of the issuing servers or show multiple servers, that others reflect incorrect totals, and that the guest checks issued by Mr. Rahman in the months of April and July 2002 are missing. (Chittur 2/12/09 Letter at 5; Smith Aff., 3; Affirmation of Mohammed Muhibur Rahman dated Feb. 12, 2009, 2).
*4 Rule 34 of the Federal Rules of Civil Procedure guides the manner in which document production should occur:
(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;
(ii) If a request does not specity a term for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and
(iii) A party need not produce the same electronically store information in more than one form.
Fed.R.Civ.P. 34(b)(2)(E). These rules are intended to prevent parties from “deliberately [mixing] critical documents with others in the home of obscuring significance.” Fed.R.Civ.P. 34, advisory committee's note to 1980 Amendment. Accordingly, if documents are not produced as they are kept in the usual course of business, federal courts routinely “require responding parties to provide documents in some kind of organized, indexed fashion rather than as a mass of undifferentiated, unlabeled documents.” Sparton Corp. v. United States, 77 Fed. Cl. 10, 16 (Fed.Cl.2007) (citing cases).
The defendants here used a vendor to catalog guest checks archived in the Park Avenue Cafe's electronic database. (Letter of Elena Paraskevas–Thadani dated Sept. 4, 2008 (“Paraskevas–Thadani Letter”), attached as Exh. 2 to Affirmation of Andrey Strutinskiy dated Oct. 17, 2008 (“Strutinskiy Aff.”); Defendants' Responses to Plaintiff' Third Set of Requests for Documents (“Def. Response to 3rd Doc. Req.”), attached as Exh. 1 to Strutinskiy Aff., at 4; Chiovaro Dep. at 136; Letter of Gregory B. Reilly dated Feb. 19, 2009 at 6–7). The checks were produced on several CD–ROMs in three-year batches, with each guest check identified by a unique index number. (Paraskeras Thadani Letter; Def. Response to 3rd Doc. Req. at 4). This manner of production is a far cry from dumping a ‘mass of undifferentiated, unlabeled documents” on the plaintiff’ desk, see Sparton Corp., 77 Fed. Cl. at 16, or “simply placing documents in boxes and making them available” to the plaintiff. CooperVision, Inc. v. Ciba Vision Corp., No. 06 Civ. 149, 2007 WL 2264848, at *5 (E.D.Tex. Aug. 6, 2007) (finding Rule 34 violated by “simply placing documents in boxes and making them available” to opponent). Moreover, there is no allegation that the plaintiff requested any specific manner of production or format of electronic documents. Without specific instructions otherwise, pdf format—a familiar format for electronic files that is easily accessible on most computers—is presumptively a “reasonably usable form.” See, e.g.,
Autotech Technologies Ltd. v. Automationdirect.com, Inc., 248 F.R.D. 556, 559–60 (N.D.Ill.2008) (finding that, where requesting party failed to specify desired format, production of documents in pdf and tiff format “complie[d] with the ordinary meaning of Rule 34”); United States v. O'Keefe, 537 F.Supp.2d 14, 23 (D.D.C.2008) (assuming .pdf format is “reasonable usable form” under Rules). Thus, the defendants' guest check production was adequate in form.
*5 The plaintiff's substantive complaints similarly lack merit. The defendants have produced a huge number of guest checks that were originally issued by restaurant wait and managerial staff. Of course some portion of the checks will lack server names or show incorrect totals; these are simply human errors that can provide no serious grounds for complaint. Furthermore, although the plaintiff's expert claims that it is either “not possible” to conduct data analysis or that “such analyses may not be meaningful or reliable due to the “errors and omissions” present within the guest check production (Smith Aff., 4–5), this assertion belies common sense. In addition to producing over one hundred thousand guest checks that show the waiter's name, table assignment, and tip amount, the defendants have produced numerous documents reflecting tip distribution and table assignment, such as “aggregate tip information for [Mr.] Rahman and other waiters, labor reports showing hours worked, [and] tip reports indicating the total gross dollar amount in food and beverages ordered by the tables assigned to a particular server.” (Declaration of Christina Feege dated Oct. 9, 2008, 11 & Exhs. B, C). There is surely enough information for Dr. Smith to conduct statistical analysis for at least some time periods which, in turn, can be extrapolated to other time periods for which sufficient data may be lacking.
For these reasons, all objections to the defendants' guest check production are without merit.
Relying on one ambiguous statement Mr. Chiovaro made during his deposition (Chiovaro Dep. at 316),
the plaintiff claims that the defendants failed to put in place a litagation hold to ensure the retent on of relevant documents until summer 2008.
(Chittur 2/12/09 Letter at 1, 4, 7). The plaintiff makes this assertion in support of his allegation that the defendants' production of so-called “Table Assignment Sheets”
has been incomplete and insufficient. (Chittur 2/12/09 Letter at 3–4). This argument evokes the plaintiff's recent motion for reconsideration, where he argued at treat length that the defendants had a legal obligation to preserved Table Assignment Sheets and therefore could not justify their failure to retain these documents. (Plaintiff's Objections to the Memorandum and Order of Magistrate Judge Francis IV of August 14, 2008 at 11–17; Plaintiff's Reply Memorandum of Law in Further Support of Motion for Reconsideration and in Furtherance of Judge Kaplan's Order of September 12, 2008 at 7–9). Indeed, in his objections to my January order deciding the reconsideration motion,
the plaintiff argues that I erroneously “ignored” gaps in the defendants' production of Table Assignment Sheets and “refused” to address allegations of evidentiary spoliation. (Pl. Obj. Memo. at 10, 12–15). To date, it seems that Table Assignment Sheets have been produced in full for the year 2002 but only for “certain portions of other years.” (Affirmation of Krishnan Chittur dated Jan. 22, 2009, 4).
*6 I previously found that the plaintiff failed to demonstrate “an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice” so as to warrant reconsideration of the defendants' document production related to table assignments. Rahman, 2009 WL 72441, at *1 (quoting Virgin Atlantic Airways, Ltd. v. National Mediation Board, 956 F.2d 1245, 1255 (2d Cir.1992)). Now, construing the plaintiff's arguments as favorably as possible, there is an allegation of new evidence that arguably deserves further attention.
The plaintiff presents, as proof of the defendants' alleged spoliation Mr. Chiovaro's single ambiguous statement that the defendants instigated a litigation hold in “Summer of 2008, maybe” rather than when the lawsuit commenced in August 2006. (Chiovaro Dep. at 316). Mr. Chiovaro's isolated statement, however, is insufficient evidence to support a finding of spoliation.
Even assuming there was, in fact, no litigation hold until the summer of 2008, the plaintiff has failed to establish that any gap in the Table Assignment Sheet production is attributable to the failure to institute litigation hold at an earlier date. Moreover, the guest checks undeniably contain table assignment information that the plaintiff can use to analyze his claims, thus seriously diminishing the importance of the Table Assignment Sheets to the plaintiff's case. In sum, the new evidence from Mr. Chiovaro's deposition does not alter my previous conclusion: the plaintiff is not entitled to further discovery related to table assignments.