Webster v. Ivan
Webster v. Ivan
2015 WL 13912104 (W.D.N.Y. 2015)
November 24, 2015

Scott, Hugh B.,  United States Magistrate Judge

Hague Convention
30(b)(6) corporate designee
Failure to Produce
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Summary
The court discussed the standards for discovery under the Federal Rules, including Rule 26(b)(2)(i), Rule 26(c), and Rule 37(a), and granted and denied various motions to compel discovery. The court also amended the Scheduling Order and ordered each movant to submit an application to recover their reasonable motion expenses.
CURTIS J. WEBSTER, Plaintiff,
v.
JOSEPH A. IVAN, TRAVELERS TRANSPORTATION SERVICES INC., Defendants
14CV60S
United States District Court, W.D. New York
Filed November 24, 2015
Scott, Hugh B., United States Magistrate Judge

Order

*1 Before the Court are (a) defendant Travelers Transportation Services Inc.’s motion to compel discovery from plaintiff (Docket No. 31) and (b) plaintiff's cross-motion to compel discovery from defendant Travelers Transportation Services (Docket No. 33). Responses to the motion of Travelers Transportation Services (“Travelers”) was due by September 25, 2015, with a reply due by October 2, 2015 (Docket No. 32), with the discovery Scheduling Order deadlines held in abeyance pending resolution of this motion (id.; see Docket No. 25). For plaintiff's motion, responses were due by October 16, 2015, and replies to both motion then were due by October 23, 2015 (Docket No. 34), and they were deemed submitted (with the intention to decide them together) on October 23, 2015 (id.).
Plaintiff filed his cross-motion in part in response to Travelers’ motion (Docket No. 33) and Travelers submitted its timely reply (Docket No. 36). As for plaintiff's motion, Travelers submitted its response (Docket No. 35), and plaintiff replied (Docket No. 37).
Previously, Travelers moved to compel plaintiff's deposition (Docket No. 23), which was granted (Docket No. 25, Order of June 29, 2015).
BACKGROUND
This is a removed diversity action (Docket No. 1, Notice of Removal). Plaintiff is a New York State resident, while defendant Ivan is alleged to be a resident of Ontario, Canada, and defendant Travelers is a Canadian corporation with its principal place of business in Ontario (id., Notice ¶¶ 2, 3, 4). Defendant Travelers removed this action (id.) and served its Answer (Docket No. 4), but defendant Ivan did not appear. The case was referred by then-Chief Judge William Skretny to the undersigned (Docket No. 5) and this Court entered a Scheduling Order (Docket No. 15), which was amended at the requests of the parties (Docket Nos. 19, 22, 25, 29; see Docket Nos. 18, 21; see also Docket No. 31, Travelers Atty. Affirm. ¶ 7, Ex. E (on deadline in Third Amended Scheduling Order, Docket No. 25)).
Travelers moved to compel production or the alternative for an Order precluding evidence that should have been produced (Docket No. 31, Travelers Atty. Affirm. ¶ 2). It propounded document requests in July 2014 (id. ¶ 5, Ex. C) and Interrogatories in January 2015 (id. ¶ 6, Ex. D). On April 2015 and June 2015, respectively, plaintiff responded to these discovery demands (id. ¶¶ 8, 9, Exs. F, G). Following the motion to compel his deposition (Docket Nos. 23, 25), plaintiff was deposed on July 8, 2015 (Docket No. 31, Travelers Atty. Affirm. ¶ 10), where plaintiff's counsel was advised of the deficiencies in his discovery responses to date (Docket No. 31, Travelers Atty. Affirm. ¶ 10).
On August 17, 2015, Travelers followed up its request with “a detailed letter noting the deficiencies in Plaintiff's discovery responses and requested a response to same by August 31, 2015” (id. ¶ 11, Ex. H). There, Travelers claims that plaintiff failed to produce (responsive to Request No. 1) non-privileged, physical evidence plaintiff preserved, documents, and tape recordings that plaintiff objected to as being overbroad and seeking attorney work product (id., Ex. H). Plaintiff also did not produce his tax filings for 2009-13 (responsive to Request No. 10); documentation of traffic violations for the last ten years (responsive to Request No. 11); documentation of plaintiff's felony convictions (if any, responsive to Request No. 13) (id.). Travelers objected to plaintiff's Interrogatory answers to Interrogatory No. 2, stating where plaintiff was coming from on the date of the accident; No. 3, when plaintiff first noticed the tractor trailer on the date of the incident and where it was; No. 4, which lane plaintiff was in; No. 5, which parts of his body came in contact with the Dodge, the subject vehicle; No. 12, plaintiff's lost wage claim; No. 13, injuries plaintiff sustained before the incident (rather than those subsequent as plaintiff answered); and a missing page to the response (id.). Plaintiff responded to some of the Interrogatories as being properly subject to deposition questioning (id., Ex. G).
*2 In its August 17, 2015, letter Travelers notes that there were discrepancies between plaintiff's discovery responses and his testimony, in particular his Interrogatory answers that denied that he had been in an accident before this incident, and his contrary deposition testimony (id., Ex. H). As of the date of Travelers’ motion, plaintiff had not responded to the August 17 letter or the outstanding discovery requests (id. ¶ 15). Travelers argues that plaintiff's failure to respond is “willful and calculated to frustrate or thwart disclosure” (id. ¶ 17). Travelers moves to dismiss the action or preclude evidence responsive to the outstanding discovery requests, or compel that disclosure (id. at 4).
Plaintiff claims that his email of September 15, 2015, responds to the outstanding issues raised by Travelers (Docket No. 33, Pl. Atty. Aff. ¶¶ 5, 11, Ex. A). First, he did not have any tape recordings or communications pertinent to the incident, save police reports and photographs already turned over (id. ¶ 5, Ex. A). Plaintiff is searching for tax returns and offers to produce them “shortly” (id. ¶ 11, Ex. A). He points to portions of his July 8, 2015, deposition transcript as responsive to the other responses (id., Exs. A, B (transcript)). Finally, plaintiff offers to forward page 7 of the First Set of Interrogatories (id., Ex. A). Plaintiff also cites his Exhibit E as responsive to defendant Travelers’ demands (id. ¶ 11, Ex. E), but that exhibit is plaintiff's document demand to defendants (see Docket No. 36, Travelers Reply at 2 n.1).
Travelers replies that plaintiff's email response either cites to other discovery and is not responsive and not in a proper response format (Docket No. 36, Travelers Reply ¶ 4), seeking Travelers “to review dribs and drabs of information to formulate a response for the Plaintiff” (id. ¶ 5). Travelers concludes that “Plaintiff should be compelled to fully and accurately respond to the discovery demands in an appropriate format and verify the truth of the responses provided” (id. ¶ 5, emphasis in original). Plaintiff still has not produced tax filings for 2009-13 (id. ¶ 6).
In his reply to his cross-motion, plaintiff attached the tax filings sought (Docket No. 37, Pl. Reply ¶ 14, Ex. E (2009-11 tax returns)).
Plaintiff complains that he was noticed for his deposition shorter than the time allotted under the Federal Rules and he cross-noticed defendants’ depositions but neither defendant appeared for their examinations (Docket No. 33, Pl. Atty. Aff. ¶¶ 3-5). Travelers refused to supply dates for its deposition (id. ¶ 5). Both defendants failed to appear for the deposition (id. ¶¶ 5-6). Plaintiff offered to conduct the examination in Canada (id. ¶ 7, Ex. C). Defendants also failed to produce the driver's operational manuals, the truck's “black box” downloads, and Ivan's personnel file (id. ¶ 8, Ex. E, Pl. Document Request, July 22, 2014). As for the driver's manual, Travelers claimed that it was proprietary information and plaintiff offered to enter into a confidentiality agreement (id. ¶ 8). He contends that his email, from September 15, 2015, is the good faith attempt to resolve his disputes short of motion practice (id. ¶ 10, Ex. A).
Travelers responds that it objected to scheduling its deposition on July 2015, that plaintiff cannot identify the corporation's Rule 30(b)(6) representation (Docket No. 35, Travelers Response ¶ 14, Ex. B), naming defendant Ivan as the corporate representative (id. ¶ 11, Ex. A). Travelers waited for a proper Rule 30(b)(6) notice before scheduling dates for the deposition (id. ¶ 16). Representation by Travelers’ counsel office that Ivan could be available for the July 2015 deposition was in error, since the text of the email refers to a female client from another case (id. ¶ 18, Ex. C). Travelers notes that plaintiff has not properly served Ivan by the Hague Convention, hence he cannot be noticed for a deposition (id. ¶¶ 4-10). Travelers next claims that the black box data plaintiff seeks does not exist and it responded to plaintiff indicating this (id. ¶ 19). Travelers still contends that plaintiff's request for the operational manual remains unduly burdensome, irrelevant, and improper (id. ¶ 21), this manual is copyright protected and cannot be reproduced (id.). Further, there is no claim of mechanical issues, hence Travelers concludes that the manual is irrelevant (id.). As for Ivan's personnel file, Travelers is searching for relevant records (id. ¶ 22).
*3 Plaintiff replies that service by mail is valid under the Hague Convention (Docket No. 37, Pl. Reply Aff. ¶¶ 2, 3-10, Ex. A (proof of service of Ivan in Canada)). He argues that he sought to depose a representative of Travelers “preferably Mr. Ivan” (id. ¶ 11, Ex. B), but the notice expressly named Ivan as the representative (id. Ex. B). Plaintiff claims that they are entitled to depose Ivan as an employee of Travelers (id. ¶ 12). Plaintiff replies stressing the importance of Ivan's testimony, the black box data, and Ivan's manual (id. ¶ 13); he reiterates his willingness to execute a confidentiality agreement to release the proprietary manual (id.).
DISCUSSION
I. Discovery Standards
Discovery under the Federal Rules is intended to reveal relevant documents and testimony, but this process is supposed to occur with a minimum of judicial intervention. See 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2288, at 655-65 (Civil 2d ed. 1994). “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense–including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter.” Fed. R. Civ. P. 26(b)(1) (effective Dec. 1, 2007).
Federal Rule 26(b)(2)(i) allows this Court to limit the scope and means for discovery if “the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive.” Under Rule 26(c), this Court may issue a protective order to protect a party “from annoyance, embarrassment, oppression, or undue burden or expense” by not having a proposed disclosure or discovery device, or conditioning the time and manner of that discovery. Fed. R. Civ. P. 26(c)(1), (1)(B)-(C); see id. R. 26(c)(1)(D) (limit the scope or the matters inquired into).
Federal Rule of Civil Procedure 37(a) allows a party to apply to the Court for an Order compelling discovery, with that motion including a certification that the movant in good faith conferred or attempted to confer with the party not making the disclosure to secure that disclosure without court intervention. Fed. R. Civ. P. 37(a)(2)(A). Similarly, under Rule 26(c), prior to obtaining a protective order the movants must certify that they have in good faith conferred or attempted to confer with the other affected parties in an effort to resolve the dispute without court intervention, Fed. R. Civ. P. 26(c). Under Rule 26(c), the Court has power to protect against abuses in discovery. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984). The appropriateness of a protective Order is a balance of the litigation needs of the requesting party and the protectable interests of the party from whom discovery is sought. Mitchell v. Fishbein, 227 F.R.D. 239, 245 (S.D.N.Y. 2005). This Court has broad discretion in issuing such a protective order. Seattle Times, supra, 467 U.S. at 36.
II. Defendant Travelers’ Motion to Compel
Travelers still wants document production and Interrogatory answers to requests plaintiff argues were covered in his deposition. Travelers wants to avoid hunting through plaintiff's deposition transcript for particular items already produced and finds plaintiff's September 2015 email was not in a proper form to be a discovery response.
Rule 26 subjects all discovery to the limitations of Rule 26(b)(2)(C) that discovery not be “unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive,” Fed. R. Civ. P. 26(b)(2)(C)(i), that the party seeking discovery “has had ample opportunity to obtain the information by discovery in the action,” id., R. 26(b)(2)(C)(ii), or the burden of the proposed discovery “outweighs its likely benefit,” id., R. 26(b)(2)(C)(iii), and the sequence of discovery methods can be in any order, id., R. 26(d)(2)(A). The object of discovery is to obtain relevant matters for claims or defense in the case, see id., R. 26(b)(1), not in the particular discovery method used. Requiring plaintiff essentially to repeat his testimony to respond to the Interrogatories and document demands at issue would be duplicative and cumulative. Travelers has not stated that his deposition responses were incomplete, save the instances that his testimony was inconsistent with other responses (see Docket No. 35, Travelers Response ¶ 20). Thus, plaintiff need not respond to Travelers’ outstanding document demands in Request No. 1 for supporting materials for his claim; what plaintiff provided in his deposition suffices. Plaintiff, however, is to respond to Request Nos. 11 and 13, on his prior traffic violations and any prior felony convictions. Travelers’ motion (Docket No. 31) to compel therefore is granted in part, denied in part as to these requests.
*4 As for the tax returns (Request No. 10), plaintiff has yet to produce the 2012 and 2013 returns; Travelers’ motion to compel their production is granted. Plaintiff produced the earlier sought tax returns in the face of Travelers’ motion.
As for Travelers’ Interrogatories, Interrogatories Nos. 2, 3, 4, and 5 were addressed in plaintiff's deposition and plaintiff to answer these Interrogatories would be cumulative; the motion to compel their answer is denied. But Interrogatories Nos. 12 (lost wages) and 13 (pre-incident injuries) need to be answered since plaintiff has not addressed them in other forms of discovery. Plaintiff also is to produce the missing page from his answer to these Interrogatories. Thus, Travelers’ motion to compel answer to its Interrogatories also is granted in part, denied in part.
In light of this resolution, this Court does not reach Travelers’ alternative relief (seeking either dismissal of this action or evidence preclusion).
III. Plaintiff's Cross-Motion to Compel
A. Plaintiff's Deposition
A word about the scheduling of plaintiff's deposition; plaintiff timed his examination of defendant Travelers with his own. He complains that the notice for his deposition was far shorter than required by the Federal Rules (Docket No. 33, Pl. Atty. ¶ 3). This deposition followed Travelers’ motion to compel it (Docket No. 23), which was ordered by this Court to occur by August 14, 2015 (Docket No. 25, Order of June 29, 2015, at 3). Plaintiff may have received short notice for his deposition, although this Court ordered the deposition be held by August 14, 2015, in an Order dated June 29, 2015; hence, any notice for that deposition would be shorter than the 21 days under this Court's Local Civil Rule 30(a) for fair notice. Federal Rule 30 does not specify the length of time for notice for a deposition; notice merely should give “reasonable written notice” to the deponent, Fed. R. Civ. P. 30(b)(1); see generally 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure, § 2111, at 69-70 (Civil 2d 1994).
B. Plaintiff's Deposition of Travelers
Plaintiff scheduled his deposition of Travelers at the same time as his examination. Had the parties conferred after this Court's June 29th Order beyond the exchange of deposition notice and rejection correspondence, the scheduling of all parties’ depositions could have been resolved short of plaintiff's motion.
Plaintiff also sought to depose Ivan as the representative of Travelers (see Docket No. 35, Travelers Response ¶ 11, Ex. A). But Ivan, a Canadian, is named as a separate defendant and, under Rule 30(b)(6), plaintiff cannot designate Travelers’ corporate representative (id. ¶¶ 12, 14). Rule 30(b)(6) provides that the corporate organization being deposed “must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf.” The party requesting the deposition has no say in designating the Rule 30(b)(6) representative, 7 Moore's Federal Practice Civil § 30.25[3], at n. 18.4 (2015); Booker v. Massachusetts Dep't of Public Health, 246 F.R.D. 387, 389 (D. Mass. 2007). This is compounded as, here, the designee is beyond the personal jurisdiction of this Court, since Ivan has not been served (despite plaintiff's argument that service by mail is valid under the Hague Convention, Ivan has not appeared even if he were mailed process). Plaintiff's motion to compel this deposition as noticed by plaintiff (with Ivan as the designated corporate representative of Travelers) is denied; plaintiff may depose Travelers, but needs to notice the corporate defendant properly. It is hoped that the parties will confer to find a mutually convenient date for such an examination.
C. Physical Evidence
*5 As for the physical evidence now sought by plaintiff in this motion, Travelers responded to plaintiff's requests, either by stating that it is seeking Ivan's personnel file for relevant material or that the black box data does not exist. As for the operations manual, the parties are encouraged to work out the terms of a confidentiality agreement that allows for its production. Thus, so much of plaintiff's motion to compel (Docket No. 33) production of these items is granted in part (for those items Travelers is seeking to produce), denied in part (for those items otherwise accounted for in Travelers’ responses).
IV. Fourth Amended Scheduling Order
This series of motions led this Court to hold discovery deadlines in abeyance pending decision of these motions (Docket No. 32). To complete discovery and have this case reach a conclusion, this Court amends the Scheduling Order (Docket Nos. 25, 29) as follows:
Discovery concludes by January 19, 2016;
Dispositive motions by April 18, 2016;
Mediation to end by May 9, 2016;
If no dispositive motions are filed, Status Report also due by May 9, 2016. Status Conference before the undersigned is set for Wednesday, June 8, 2016, 2 pm, at a courtroom or Chambers (to be determined by the Court).
V. Motion Expenses
As previously stated (Docket No. 25, Order of June 29, 2015, at 2-3), under Federal Rule of Civil Procedure 37(a), the grant of a motion to compel, this Court “must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion ... to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees,” Fed. R. Civ. P. 37(a)(5)(A). This sanction may not be awarded if the movant moved before attempting in good faith to obtain the disclosure, id. R. 37(a)(5)(A)(i), which appears not to be the case here, or if the nondisclosure was “substantially justified” or “other circumstances make an award of expenses unjust,” id., R. 37(a)(5)(A)(ii), (iii).
But if a motion to compel is granted in part and denied in part (as here for both movants), “the court ... may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion,” Fed. R. Civ. P. 37(a)(5)(C). Here, both sides prevail at least in part on their respective motions, mostly in obtaining compliance with requests upon the filing of the motions.
Each movant shall submit its application to recover its reasonable motion expenses for only so much of their respective motions in which they prevailed within seven (7) days of entry of this Order, or by December 1, 2015; the opponent may respond to these sanction applications (including reasons why not to impose sanctions) within seven (7) of service of the application, or by December 8, 2015. The Court then will consider these applications and, if they offset, determine whether each party should bear their respective costs.
CONCLUSION
For the reasons stated above, defendant Travelers Transportation Services Inc.’s motion (Docket No. 31) to compel is granted in part, denied in part as discussed in detail above, and plaintiff's motion (Docket No. 33) to compel is also granted in part, denied in part as discussed above.
The current Amended Scheduling Order (Docket Nos. 25, 29) is amended as stated above.
Applications to recover reasonable motion expenses for the motion are due by December 1, 2015, or seven days from entry of this Order, responses (including reasons not to impose sanctions) by December 8, 2015, or seven days after the applications are due and the applications will be deemed submitted.
*6 So Ordered.