*1 Plaintiff deposed Defendant Armor Correctional Health Services, Inc.’s (“Armor's”) five Rule 30(b)(6) corporate representatives on February 18, 2020. Three months later, Plaintiff moved for the Court to impose sanctions against Armor under this Court's inherent authority and Rule 37(d)(3) for its “flagrant, self-serving violations of Rule 30(b)(6).” (Doc. 194 at 3). At bottom, Plaintiff contends Armor's corporate representatives were ill-prepared to testify as to the 142 areas of inquiry specified in the deposition notice, despite 76 days to do so (Docs. 194, 216). Armor responds that sanctions are inappropriate because it objected to the “mind-boggling breadth and scope of plaintiff's notice” before the deposition, both to Plaintiff and the Court (Doc. 207 at 3). The Court has considered Plaintiff's sanctions motion and attached deposition transcripts (doc. 194), Armor's response (doc. 207), and Plaintiff's reply and attachments (Doc. 216).[1] Plaintiff's motion is granted in part and denied in part.

Plaintiff, as Darryl Vaughn Hanna, Jr.’s legal guardian, brought this action against Manatee County, Rick Wells (in his official capacity as Sheriff of the Manatee County Sheriff's Office (“MCSO”)), Armor, and several of Armor's nurses and doctors, alleging deliberate indifference to a pretrial detainee's serious medical needs and Sheriff Wells’ negligent hiring, retention, and supervision of Armor. The case arises out of the alleged delayed medical treatment of Hanna, Jr., who suffered multiple syncopal episodes from August 2017 through August 2018, after which he did not regain consciousness. He remains in a persistent vegetative state. (See, generally, Doc. 40). The contract between MCSO and Armor, a private health care provider, became effective on October 1, 2012 and remained in effect until September 30, 2015. (Id. at ¶¶ 34, 37). Thereafter, MCSO and Armor allegedly executed seven amendments for additional one-year terms with the last amendment being extended through December 31, 2018. (Id. at ¶ 73).

In her 23-count Amended Complaint, Plaintiff alleges a state law cause of action against Sheriff Wells for “Negligent Hiring, Retention, and Supervision of Armor” in Count V. Plaintiff alleges that Sheriff Wells knew or should have known about Armor's history of claims, adverse litigation, medical negligence, deliberate indifference, and fraud throughout the State of Florida and the country. (Id. at ¶ 320). Plaintiff alleges that MCSO breached its duty to exercise reasonable care and due diligence by contracting with Armor and renewing the contract despite that other counties had cancelled, voided, terminated, or refused to renew their contracts with Armor. (Id. at ¶ 321).

In Count VII, Plaintiff alleges a claim of deliberate indifference, pursuant to Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978), against Sheriff Wells and MCSO contending “a policy or custom to not reasonably scrutinize and evaluate ARMOR's performance the contract [sic] and to not ensure ARMOR was compliant.” (Id. at ¶ 365). Plaintiff also alleges a Monell claim in Count XI against Manatee County, contending it had a “policy or custom to not reasonably scrutinize and evaluate prospective contractors such as Armor prior to engaging them for services.” (Id. at ¶ 462).

*2 Under Rule 30(b)(6), upon receiving a deposition notice that describes “with reasonable particularity the matters for examination,” a corporation must make a good faith effort to designate a representative having knowledge of the matters listed in the notice and to prepare the representative so he or she can answer fully, completely, and not evasively. Fed. R. Civ. P. 30(b)(6); Marcelle v. Am. Nat'l Delivery, Inc., No. 3:09-cv-82-J-34MCR, 2009 WL 4349985, at *2 (M.D. Fla. Nov. 24, 2009). “The rules require that the corporation select an officer or employee to gather and obtain from books, records, other officers or employees, or other sources, the information necessary to answer the [discovery].” Palma v. Metro PCS Wireless, Inc., No. 8:13-cv-698-T-33MAP, 2014 WL 1900102, at *1 (M.D. Fla. Apr. 30, 2014) (citation and quotation marks omitted).

A corporate party does not satisfy its obligations under Rule 30(b)(6) by merely “producing a designee and [then] seeing what he has to say or what he can cover.” Cont'l Cas. Co. v. First Fin. Emp. Leasing, Inc., 716 F. Supp. 2d 1176, 1189 (M.D. Fla. 2010) (citation and quotations omitted). “If it becomes obvious that the deposition representative designated by the corporation is deficient, the corporation is obligated to provide a substitute.” Id. (citation and quotations omitted). If the Rule 30(b)(6) designee cannot answer questions on the topics as to which she is designated, “the corporation has failed to comply with its Rule 30(b)(6) obligations and may be subject to sanctions.” Id. (quoting King v. Pratt & Whitney, a Div. of United Techs. Corp., 161 F.R.D. 475, 476 (S.D. Fla. 1995)).

Plaintiff asks the Court to sanction Armor under Rule 37. Producing an unprepared Rule 30(b)(6) witness may be sanctionable as a nonappearance under the rule. See Cont'l Cas. Co., 716 F. Supp. 2d at 1189. Permissible sanctions include an order “prohibiting the [organization] ... from introducing designated matters in evidence,” Fed. R. Civ. P. 37(b)(2)(A)(ii), in addition to or in lieu of an award of reasonable expenses, including attorney's fees, caused by the nonappearance. Fed. R. Civ. P. 37(d)(3). “[A]lthough Rule 37 confers upon district court judges broad discretion ... this discretion is not unbridled.” United States v. Certain Real Prop. Located as Route 1, Bryant, Ala., 126 F.3d 1314, 1317 (11th Cir. 1997) (citation omitted). “[D]istrict courts should wield it wisely and with restraint and discretion,” fashioning a sanction that is appropriate considering the circumstances. Ulysse v. Waste Mgmt., Inc. of Fla., 617 F. App'x 951, 953 (11th Cir. 2015).

Plaintiff also asks the Court to exercise its inherent authority to sanction Armor. The Court has inherent authority to impose sanctions that “is both broader and narrower than other means of imposing sanctions.” Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991). The Court's inherent power extends to a full range of litigation abuses; it can be invoked even if other rules sanction the same conduct “for these rules are not substitutes for the inherent power.” Peer v. Lewis, 606 F.3d 1306, 1314 (11th Cir. 2010) (quotation and citation omitted). But it is subject to a bad faith standard, which in effect narrows the range of conduct that can satisfy this higher threshold for sanctions. See Chambers, 501 U.S. at 47; Sciarretta v. Lincoln Nat'l Life Ins. Co., 778 F.3d 1205, 1212 (11th Cir. 2015) (“[t]he key to unlocking that inherent power is a finding of bad faith.”).

To sanction Armor for producing ill-prepared Rule 30(b)(6) deponents and “also to deter any corporate onlooker wondering whether it too may shirk its duties under Rule 30(b)(6) with impunity[,]” Plaintiff asks the Court to order Armor to pay $500,000 to a COVID-19 relief organization (the approximate amount MCSO paid Armor per month in August and September 2017), reimburse Plaintiff for the attorney's fees she incurred litigating the sanctions issue, and prohibit Armor “from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence at summary judgment or trial.” (Doc. 194 at 4). Armor balks that “Plaintiff's motion is nothing more than a contrived attempt at creating sanctionable conduct where none existed[.]” (Doc. 207 at 3). It contends Plaintiff rejected its invitation to re-depose its corporate representatives. Armor accuses Plaintiff of “gamesmanship” because, rather than filing a motion to compel discovery, Plaintiff filed the instant motion for sanctions (Id.)

A. Procedural History

*3 A review of the case history leading to Plaintiff's motion is instructive. On December 31, 2019, Plaintiff served Armor with a Rule 30(b)(6) deposition notice for February 10, 2020 (see Doc. 130 at 1). Citing scheduling conflicts, Armor filed a motion for protective order on January 29, 2020, asking the Court to set the deposition on a mutually agreeable date (Id.). That same day, Armor filed objections to the deposition notice, arguing its 142 topics were “overly broad in scope and duration, vague and ambiguous, not reasonably particular, unduly burdensome, irrelevant to the issues in the case, and fails to meet the proportionality requirements of discovery.” (Doc. 135 at 3-4).

The Court granted Armor's motion for a protective order regarding the deposition date because both parties “seem[ed] amendable to rescheduling the deposition if the expert disclosure deadline is extended.” (Doc. 141 at 1). Regarding Armor's objections to Plaintiff's designated areas of testimony, the Court declined to consider them because Armor filed them without first conferring with Plaintiff to attempt to narrow the dispute (Id.). The Court provided this guidance: “[W]hen necessary, the proper way to seek an order limiting the scope of a Rule 30(b)(6) deposition is to file a motion for protective order. Fed. R. Civ. P. 26(c).” (Id. at 2).

The parties rescheduled Armor's Rule 30(b)(6) deposition for February 18, 2020. Then, a week before the deposition, Armor refiled its motion for protective order, this time objecting to the scope of Plaintiff's deposition notice (Doc. 142). The Court denied this motion without prejudice due to Armor's failure to confer with Plaintiff before filing the motion in accordance with Local Rule 3.01(g), M.D. Fla. (Doc. 143). Armor amended its motion and refiled (its third motion for protective order related to the deposition) on February 17, 2020, the day before the deposition (Doc. 144). Plaintiff notified the Court that it had amended its notice to eliminate 12 areas if inquiry and re-served it (Docs. 145-2, 194-3). Considering the deposition was set to occur the next day, the Court entered this endorsed Order:

(Doc. 146).[2]

The Rule 30(b)(6) deposition proceeded as scheduled with Armor designating five corporate representatives. Thomas Gable, M.D., Armor's Chief Medical Director, testified by videoconference first, and the parties acknowledged early on the outstanding issues regarding Armor's objections. When Plaintiff questioned Dr. Gable about certain company policies and procedures, Armor's counsel interrupted: “I'm objecting. This was part of our motion for protective order with regard to having someone prepared to testify with regard to everything produced. This is not specifically identified as a policy and I want to preserve our objection as we indicated in our motion for protective order, which we received an order today indicating that those objections should be identified in the deposition or otherwise indicated.” (Doc. 194-1, Gable Depo., p. 16, l. 18 – p. 17, l. 2). Plaintiff's counsel responded: “[T]he way I read the order is you have a standing objection to all of your objections phrased in the amended protective order you filed [at] docket entry 144. I don't think there's a need for you to raise it ... I can tell you plaintiff is not going to take issue with the court's order, which says the deposition shall proceed subject to objections.” (Gable Depo., p. 17, l.13-20). Plaintiff deposed all five of Armor's corporate representatives that day, all subject to the same objection.

*4 Next, on March 2, 2020, the Court held a hearing on all then-pending discovery motions – the motion for protective order regarding Armor's Rule 30(b)(6) deposition plus six others (see Docs. 144, 165-66). Considering that the Rule 30(b)(6) deposition had already occurred, the Court addressed Plaintiff's counsel:

(Doc. 165, audio transcript of Mar. 2, 2020 hrg. beginning at 51:10). The Court denied the motion for protective order without prejudice with the understanding that it would “take it up on a motion to compel if one is filed.” (Id.) After that, the issue of Armor's Rule 30(b)(6) deposition did not come up again until May 18, 2020 (three months to the day after the deposition), when Plaintiff filed the instant motion for sanctions (Doc. 194).

B. Rule 37(d) sanctions

Plaintiff did not move to compel a second Rule 30(b)(6) deposition under Rule 37(a). See Fed. R. Civ. P. 37(a)(3)(B)(i) (a party may move to compel if “a deponent fails to answer a question asked under Rule 30 or 31”). Instead, Plaintiff moves under Rule 37(d), which authorizes sanctions if a Rule 30(b)(6) designee fails to appear for a deposition. Fed. R. Civ. P. 37(d)(1)(A)(i). Contrary to Armor's suggestion, Plaintiff was not required to file a motion to compel prior to filing its sanctions motion. See Fed. R. Civ. P. 37(d)(1)(A), (3); In re Brican Am. LLC Equipment Lease Litig., 2013 WL 5519969, at *5 (S.D. Fla. Oct. 1, 2013) (“There is nothing in Rule 37(d) that requires the Plaintiffs to file a motion to compel prior to seeking sanctions for the conduct alleged in the instant Motion.”).[3]

A corporation must prepare its Rule 30(b)(6) designee to the extent information is reasonably available, whether from documents, past employees, or other sources. In re Brican Am. LLC Equipment Lease Litig., 2013 WL 5519969, at *4. Otherwise, the corporation has failed to comply with its Rule 30(b)(6) obligations and may be subject to sanctions. Stoneeagle Serv., Inc. v. Pay-Plus Solutions, Inc., No. 13-cv-2240-T-33MAP, 2015 WL 12843846, at *1 (M.D. Fla. Apr. 29, 2015) (citing King v. Pratt & Whitney, 161 F.R.D. 475 (S.D. Fla. 1995)). A corporation's obligation under Rule 30(b)(6) does not mean the witness can never answer that the corporation lacks knowledge of a certain fact. Id. (citing New World Ltd., 2007 WL 1068124). But if an organization no longer has a person with knowledge on a designated topic, it is not relieved of the duty to prepare a Rule 30(b)(6) designee. In re Brican Am. LLC Equipment Lease Litig., 2013 WL 5519969, at *4.

Here, the Court's review of the deposition transcripts shows Armor did not adequately prepare two of its five Rule 30(b)(6) designees to testify as to certain topics.[4] Armor designated Dr. Gable as its corporate representative as to 40 of the 142 topic areas, including knowledge of company policies at the Manatee County Jail, medical care provided to Hanna, medical equipment available at the jail, Armor's training and supervision of its employees (and MCSO employees) at the jail, and when Armor expected its employees to contact a licensed medical doctor or 911 about an inmate or detainee's condition (see Doc. 194-3). To prepare for his deposition, Dr. Gable testified that the day before he reviewed Hanna's medical records up to the date he entered the hospital, “scanned” Armor's company policies, and had one telephone conversation with Armor's counsel.[5] Dr. Gable could not name Armor's director of nursing at the jail (“I don't know what was going on at Manatee County [Jail] during that time and who was in charge of who.”) (Doc. 194-1, Gable Depo at p. 26, l. 4-5). When asked about Armor's peer review policy at the Manatee County Jail, Dr. Gable testified, “I just received all this information yesterday. I wouldn't have had time to contact anybody. We're not contracted with that site anymore. I wouldn't even know who to contact.” (Id. at p. 22, l. 20-24). He had not seen or read the health services contract between Armor and MCSO (Id. at p. 59, l. 5-9). He did not know if Armor had an EKG machine at the jail in 2017 and 2018; when asked, he replied, “I do not know if they had one available to them or if they had one that was available that was not functioning. I can't answer your question.” (Id. at p. 61, l. 4-7). He explained that he “did not contact the site to find out what equipment they have or what equipment they had that was working during that time frame.” (Id. at p. 61, l. 23-25). He testified he had reviewed Hanna's medical records “up to the point that he went to the hospital,” but not his medical records once he was returned to the jail in a vegetative state (Id. at 68, l. 10-12).

*5 Plaintiff asked him: “[U]nder what facts or circumstances Armor expected its nurses that worked in the Manatee County Jail to contact a licensed medical doctor to inform him or her about a detainee's medical condition in the year 2017?” He testified, “I think that that could be better answered by the director of nursing, nursing supervisors. I don't know all the information,” while also stating he did not know who the director of nursing was (Id. at p. 94, l.14-22). Dr. Gable could not identify Armor's medical doctor assigned to the facility, either. In fact, “I don't know what they were doing at Manatee so I can't answer that.” (Id. at p. 55, l. 13-14, when asked how often Armor employees were trained at the jail). Armor's counsel had provided him a stack of policies to review the day before his deposition, but he did not contact any Armor employee who worked at the Manatee County Jail during the relevant time period to discuss how the policies were implemented at the facility (Id. at p. 43, l. 1-4; p. 52, l. 2-5; p. 69, l. 21-25).

Next up was Plaintiff's deposition of Giusselle Reyes, Armor's legal and risk coordinator. Armor designated her to testify as to its communications with Manatee County officials (particularly regarding Hanna), Armor's emails produced during discovery, and the factual bases for Armor's affirmative defenses (see Doc. 194-3). To prepare for her deposition, Ms. Reyes “read the affirmative defenses.” (Doc. 194-2, Reyes Depo. at p. 11, l. 19). When asked about the facts supporting them, she testified repeatedly, “I don't have any knowledge as to these defenses. They were prepared by them .... They were prepared by counsel. All the affirmative defenses.” (Id. at p. 13, l. 6-8, 23-25).[6] She “did not know the specific facts of the case.” (Id. at p. 14, l. 15-16). She “didn't know it was a requirement to start asking questions about Darryl Hanna for affirmative defenses that were created by our attorney.” (Id. at p. 19, l. 18-21). When asked, “[Y]ou did not undertake any duty to investigate facts that support any of these affirmative defenses?” she replied, “I did not.” (Id. at p. 15, l. 7-10).

On this record, considering the 142 topics Plaintiff enumerated in the deposition notice, it is difficult for the Court to rule on the proper scope of the answers Armor should have prepared Dr. Gable and Ms. Reyes to provide. A motion to compel – if Plaintiff had filed one – would have made this process much easier for the Court. See New World Network, 2007 WL 1068124, at *4 (“Instead, the better procedure to follow for the proper operation of the Rule is for a corporate deponent to object to the designation topics that are believed to be improper and give notice to the requesting party of those objections, so that they can either be resolved in advance or otherwise. The requesting party has the obligation to reconsider its position, narrow the scope of the topic, or otherwise stand on its position and seek to compel additional answers if necessary, following the deposition.”).

On the one hand, Armor notified Plaintiff as early as January 29, 2020 (20 days before the deposition, see Doc. 135) that it objected to the breadth and scope of the Rule 30(b)(6) notice. Both designees testified knowledgeably about some matters subject to these objections. And some of the 142 topics were outside Rule 26’s liberal scope.[7] As Armor emphasizes, “[i]f the witness is not prepared to answer a slew of questions that are glaringly irrelevant to the claims and defenses in the case, a requesting party who seeks to compel or sanction a deponent for not knowing such answers will not be successful before the Court, and indeed may himself be sanctioned under Rule 37 if the Court finds that the questions were so improper and the party's position substantially unjustified.” (Doc. 207 at 9, quoting New World Network, 2007 WL 1068124, at *4).

*6 This situation is different, however. Dr. Gable and Ms. Reyes were unprepared to answer the bulk of the relevant questions Plaintiff asked them; despite two months’ notice of the deposition topics, they each testified they prepared the day before. For example, Dr. Gable could not answer Plaintiff's questions about the medical equipment available at the Manatee County Jail, how Armor implemented its policies at the site, or who was in charge of implementing them. In one instance, after reading Armor's nursing protocol verbatim back to Plaintiff, he testified he did not know how Armor trained its employees on the policy or how the company would have documented any training on it. As for Ms. Reyes, she eyeballed Armor's affirmative defenses but did not investigate whether and what facts supported them. Instead, she claimed that such information was the realm of Armor's lawyers.

In short, Armor's objections and its then-pending motion for protective order did not relieve it of its duty to prepare its witnesses for deposition. Based on a careful review of Dr. Gable's and Ms. Reyes's deposition transcripts, the Court finds that Armor failed to produce an adequate Rule 30(b)(6) deponent as to discoverable topics. The Court ordered the deposition to proceed subject to Armor's objections, and “[t]his procedure of course does not mean that [Armor] can simply instruct a witness not to answer questions that the party's lawyer unilaterally deems irrelevant.” New World Network, 2007 WL 1068124, at *4. Armor filed its motion the day before the Rule 30(b)(6) deposition, affording Plaintiff little time to address Armor's objections prior to the deposition via a motion to compel (see Doc. 144). Armor points out that Plaintiff had ample time after the Rule 30(b)(6) deposition to move to compel additional testimony (the March 2, 2020 hearing transcript reveals that both Armor and the Court expected such a motion). Plaintiff neither filed a motion to compel nor accepted Armor's offer to provide substitute corporate representatives for re-deposition, despite that there was enough time after the Rule 30(b)(6) deposition and before the close of discovery to pursue either path. This observation weakens Plaintiff's sanctions request but does not foreclose it.

Although Plaintiff did not raise the issue of sanctions until three months after Armor's Rule 30(b)(6) deposition, Plaintiff's counsel states he was attempting to resolve the issue with Armor's newly retained counsel rather than involve the Court. Armor's prior counsel had moved to withdraw on February 28, 2020, ten days after the Rule 30(b)(6) deposition (Doc. 163). The Court granted the request on March 2, 2020, following the discovery hearing (Doc. 167). Armor's replacement counsel entered a notice of appearance on March 24, 2020 (Doc. 172). According to Plaintiff, he gave Armor's new counsel time to get up to speed on the case as a courtesy (Doc. 216 at 2). The discovery deadline was approaching fast, and the parties were embroiled in prolific motion practice.

Against this backdrop, the remaining issue is the sanctions to impose on Armor. Sanctions for discovery abuses are intended to prevent unfair prejudice to litigants and to ensure the integrity of the discovery process. Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005) (citation omitted). Plaintiff suggests that the Court prohibit Armor from supporting or opposing its claims as to more than 40 topics enumerated in Plaintiff's deposition notice, including, “Armor may not oppose the claim that the deaths of those detainees listed were preventable but for medical negligence and/or deliberate indifference by Armor.” (Doc. 194 at 5) And, “Armor may not oppose any claim as to the inadequacy of the medical equipment used to care for DVH while he was in the Manatee County Jail,” (Id.) and “Armor may not oppose the claim that its efforts to prepare for DVH's return from the hospital to the jail while in a vegetative state were inadequate.” (Id. at 6). This would effectively prohibit Armor from defending this case and is unwarranted.[8]

*7 An appropriate remedy would be for Plaintiff to move to re-depose Armor's corporate representative. Plaintiff has not requested this relief, however, and discovery closed last week. Considering this and the Court's discretion to tailor sanctions to fit the circumstances, the undersigned concludes that Armor shall bear Plaintiff's reasonable expenses, including attorneys’ fees, associated with preparing the instant motion for sanctions (Doc. 194). See Fed. R. Civ. P. 37(d)(3). The parties shall consult to agree upon the amount of those expenses. If the parties are unable to agree on an amount, Plaintiff may file an appropriate motion requesting those expenses and shall submit detailed time records and/or receipts to support the amount sought.

It is ORDERED:

DONE and ORDERED in Tampa, Florida on June 30, 2020.