*1 Chief Judge Greg N. Stivers referred this matter to U.S. Magistrate Judge Lanny King for resolution of all litigation planning issues, entry of scheduling orders, consideration of amendments thereto, and resolution of all non-dispositive matters, including discovery issues. [DN 5]. On March 23, 2020, Chief Judge Stivers recused and reassigned this matter to Judge Rebecca Grady Jennings. [DN 23].

This matter is currently before the Court on Plaintiffs’ Motion to Compel a Second Deposition of the Corporate Representative for the BJ's Defendants and for the Depositions of Additional Fact Witnesses. [DN 48]. Defendants BJ's Restaurants, Inc. and BJ's Restaurant Operations Company (collectively “the BJ's Defendants”) responded, [DN 50], and Plaintiffs replied, [DN 52]. The Motion is now fully briefed and ripe for adjudication.

For the reasons set forth herein, Plaintiffs’ Motion to Compel a Second Deposition of the Corporate Representative for the BJ's Defendants and for the Depositions of Additional Fact Witnesses, [DN 48], is GRANTED.

This premises liability case arises from a slip and fall incident that occurred at a BJ's restaurant in Louisville, Kentucky on September 4, 2018. That day, Plaintiff Sandra Bobalik and her friend, Linda Savage, went for lunch at the BJ's Restaurant & Brewhouse at 7900 Shelbyville Road, Louisville, Kentucky. [DN 1-1, DN 22]. As they were being led to a booth, Mrs. Bobablik fell and was injured. [DN 22]. Plaintiffs allege that Mrs. Bobalik's fall and subsequent injury was caused by the floor being slippery or slick at the time of the subject incident. Id.

Mrs. Bobalik and her husband, Joseph Bobalik, then brought suit in the Commonwealth of Kentucky's Jefferson Circuit Court, asserting claims for negligence and loss of consortium against the BJ's Defendants and Central Cleaning, LLC (“Central Cleaning”), the cleaning company used at this BJ's location. [DN 1-1]. As part of those claims, Plaintiffs seek punitive damages, amongst other things, arguing that “BJ's longstanding knowledge of the floors being slick, greasy, and/or wet, their less than adequate safety measures despite this knowledge, and the high frequency of the falls all go towards the likelihood of a patron falling and being injured.” [DN 22 at 117].

In response, the BJ's Defendants asserted a cross-claim against Central Cleaning, LLC, for indemnity, apportionment, and contribution. [DN 1-1 at 48-52].

Central Cleaning then removed this action from Jefferson Circuit Court to the United States District Court for the Western District of Kentucky pursuant to 28 U.S.C. § 1332(a)(1) and 28 U.S.C. § 1441(a).

Since then the Parties have proceeded with discovery, including depositions. On July 22, 2020, Plaintiffs requested to depose the BJ's Defendants’ corporate representative. [DN 48]. On August 26, 2020, the BJ's Defendants identified Don Gardner, the Vice President of Restaurant Facilities, as their corporate representative for purposes of that deposition. Id. The 30(b)(6) deposition was then scheduled for September 16, 2020. Id. The BJ's Defendants later requested to reschedule the deposition as Mr. Gardner was busy travelling to locations in Louisiana to prepare for an impending hurricane. Id. Plaintiffs agreed and the deposition was rescheduled for September 23, 2020. [DN 48-3].

*2 In their deposition notice, Plaintiffs identified nine different topics and several sub-topics that would be addressed at the 30(b)(6) deposition. [DN 48-3]. Topics 1 and 2 sought information about the wooden flooring at the subject BJ's restaurant and BJ's restaurants across the country. Id. Topics 3 and 4 sought information about proper cleaning of both the wooden and slate flooring at the subject BJ's restaurant. Topic 5 sought information about slips, trips, and falls in the dining areas at BJ's restaurants across the country, including the subject BJ's restaurant. Finally, Topic 6 sought information regarding corrective actions taken to prevent such incidents at all BJ's restaurants, including the subject BJ's restaurant.

On September 18, 2020, the BJ's Defendants objected by letter to several of the topics in the 30(b)(6) notice, including, at least to some degree, Topics 1, 2, 5, and 6. Broadly, the BJ's Defendants objected to those topics to the extent they sought information protected by the attorney-client privilege and/or work product doctrine, to the extent they seek information not within the BJ's Defendants possession, and to the extent they seek information about all BJ's restaurants, as opposed to the BJ's location in Louisville where the subject incident occurred.[1] [DN 48-4].

The BJ's Defendants 30(b)(6) deposition then proceeded as scheduled on September 23, 2020. [DN 50-3]. At that time, Mr. Gardner was asked about his preparation for the deposition. Mr. Gardner stated that he spoke with counsel the day before the deposition, he “lightly” reviewed some of the deposition transcripts,[2] he reviewed the incident report filled out by Mrs. Bobalik, he watched the video of the subject incident, and he reviewed one-page documents describing two items used in the floor refinishing process. Id. at 591.

When questioned, however, Mr. Gardner was unable to provide information on a variety of topics.[3] Mr. Gardner could not provide information about why work was done on the wooden floors at the subject BJ's restaurant, what portion of that floor may have been replaced, or the timeline for that whole process. Id. at 607-610. Nor could he answer certain questions related to cleaning the floors at the subject restaurant.[4]

Most concerning, Mr. Gardner could not answer questions about incidents and incident investigations at the subject BJ's restaurant. Mr. Gardner could not testify as to the incident rate at that specific restaurant, claiming he was “not privy to that information.” Id. at 599. He could not testify as to flooring complaints and complaints about slips and fall incidents as he does not receive such complaints. Id. at 605. Mr. Gardner was then asked about the BJ's investigation for the subject incident. Id. at 613. Despite that incident being central to this litigation, Mr. Gardner could not provide any information about BJ's investigation, claiming he was not “in the investigative arm of this -- of these topics. So [he] can't answer that.” Id. at 613.

*3 Mr. Gardner testified that he did attempt to obtain some of this information by performing a search on the BJ's Defendants’ service channel communications. See e.g. 595, 607. That channel is the “conduit by which [the BJ's Defendants’] restaurants express maintenance or repair needs for anything facilities related in the restaurants.” Id. at 595. Mr. Gardner indicated, however, that he was unsuccessful in completing that search, claiming that the low bandwidth at the hotel in which he was staying may have caused the search failure. Id. at 595.

Despite not being able to access those documents on service channel, Mr. Gardner did not then attempt to contact other individuals who would have access to those documents. Id. at 605. Mr. Gardner explained that he did not do this because those other individuals were busy, he did not want to bother them, and he “just assumed [he'd] have an opportunity afterwards to continue that search.” Id. at 605, 607.

After, Mr. Gardner was unable to answer questions about the investigation the BJ's Defendants undertook related to the subject incident, the following exchange took place:

Id. at 614.

Mr. Gardner admits above that he was unprepared for the deposition and that he had even requested to be deposed at another time. Mr. Gardner references that he had been on the road. As he noted earlier in his deposition, Mr. Gardner has been traveling for approximately one month to prepare BJ's restaurants for upcoming natural disasters and to repair any damage after those disasters. Id. at 591.

Two days after the deposition, on September 25, 2020, Plaintiffs requested a second deposition of the BJ's Defendants’ corporate representative and to take the individual deposition of Debbie Nichols, the BJ's Defendants’ Vice President of Risk Management, whom Mr. Gardner identified during his deposition as the person in risk management with the most knowledge about video surveillance from the standpoint of investigating incidents. The BJ's Defendants refused both requests.

On October 23, 2020, the Court conducted a telephonic status conference to discuss this dispute. [DN 47]. Following discussions at that time, the Court granted Plaintiffs leave to file a motion to compel regarding 30(b)(6) and fact witness depositions. Id. An expedited briefing schedule was put in place, which only permitted a reply to Plaintiffs’ anticipated motion if requested by the Court. Id.

On November 3, 2020, Plaintiffs filed the instant Motion to Compel, in which they make three requests: (1) that the BJ's Defendants be compelled to produce a corporate representative for a second deposition on the basis that Mr. Gardner was unprepared for the first deposition and unable to answer a number of questions; (2) that the BJ's Defendants be compelled to produce Debbie Nichols for her individual deposition on the basis that she could provide information about surveillance video retention relevant to a potential spoliation instruction; and (3) that the Court extend the fact discovery deadline. [DN 48]

*4 On November 13, 2020, the BJ's Defendants filed their Response. [DN 50]. Therein, they object to all three requests. Specifically, the BJ's Defendants argue that Mr. Gardner was reasonably prepared for the 30(b)(6) deposition, that Plaintiffs cannot require Debbie Nichols to testify as the BJ's Defendants’ corporate representative, and additional depositions and discovery are not warranted in this matter.

Upon review of both the Motion and Response, this Court determined that additional briefing would be useful in its review of these issues. [DN 51]. Accordingly, the Court ordered Plaintiffs to file a reply by no later than November 30, 2020. Id.

Plaintiffs filed their Reply on November 30, 2020, reiterating their arguments in the Motion to Compel. [DN 52]. With that, Plaintiffs’ Motion to Compel is fully briefed and ripe for adjudication.

Plaintiffs’ Motion to Compel requests the Court compel the BJ's Defendants to produce a corporate representative for a second deposition, to compel the BJ's Defendants to produce Debbie Nichols for her individual deposition, and to extend the fact discovery deadline. The Court shall address each of these issues in turn.

A. Second Deposition of the BJ's Defendants’ Corporate Representative

Federal Rule of Civil Procedure 30(b)(6) sets forth the substantive rule regarding the depositions of corporate representatives:

Fed. R. Civ. P. 30(b)(6). In order to properly comply with the rule, the party must prepare their witness in anticipation of the deposition. “Simply put, the corporation or agency in preparation for the Rule 30(b)(6) deposition must review all matters known or reasonably available to it in a good faith effort to find out the relevant facts and to collect information, review documents and interview those employees with personal knowledge.” Consumer Fin. Prot. Bureau v. Borders & Borders, PLC, No. 3:13-CV-1047-CRS, 2016 WL 9460471, at *4 (W.D. Ky. June 29, 2016) (citing QBE Ins. Corp. v. Jorda Enterprises, Inc., 277 F.R.D. 676, 690 (S.D. Fla. 2012)).

As pointed out by the BJ's defendants, these preparations need not be perfect. Indeed, “a Rule 30(b)(6) witness is not expected to perform with absolute perfection, and the inability of such a witness to answer every question on a particular topic does not necessarily mean that the corporation failed to comply with its obligations under the Rule.” Schall v. Suzuki Motor of Am., Inc., No. 4:14CV-00074-JHM, 2017 WL 4050319, at *5 (W.D. Ky. Sept. 13, 2017) (citing Pogue v. Northwestern Mut. Life Ins. Co., No. 3:14-CV-598-CRS, 2017 WL 3044763, at *8 (W.D. Ky. July 18, 2017)). Courts use the standard of reasonableness. Borders, 2016 WL 9460471, at *4.

*5 Reasonableness, though, still places certain duties on the corporation. “When a corporation is served with a notice of a Rule 30(b)(6) deposition, it is obligated to produce a witness or witnesses knowledgeable about the subject or subjects described in the notice and to prepare the witness or witnesses to testify not simply to their own knowledge, but the knowledge of the corporation. Schall, 2017 WL 4050319, at *5 (citing Pogue, 2017 WL 3044763, at *8)). And in the case where the deficiency of the designee becomes apparent, “then the responding entity has a duty to timely designate additional or supplemental witnesses as substitute deponents.” Borders, 2016 WL 9460471, at *4 (citing QBE Ins., 277 F.R.D. at 690).

In his deposition, Mr. Gardner was not able to say why work was done on the floor, what floor was replaced, or the timeline of replacement. [DN 50-3 at 607-610]. He did not know how the floors were cleaned nor which employee trained the cleaning company. Id. at 602, 611. He was not privy to the incident rate, nor was he knowledgeable of any incidents, for that matter. Id. at 599, 605. In fact, he was not privy to investigative information at all. Id. at 613.

The Plaintiffs are entitled to depose a corporate representative who is prepared and knowledgeable to the matters for examination. It shall be left to the Plaintiffs to designate a corporate representative for this second deposition; however, they shall be prepared—whether it is Mr. Gardner, Debbie Nichols, or some other person.

B. Deposition of Additional Fact Witnesses

A party “may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26. The movant of a motion to compel bears the burden of demonstrating relevance, but it is a low bar, as relevance is “construed broadly.” Hadfield v. Newpage Corp., No. 5:14-CV-00027-TBR-LLK, 2016 WL 427924, at 3 (W.D. Ky. Feb. 3, 2016).

In the present case the Plaintiffs seek to depose Mr. Gardner, Debbie Nichols, and others in their individual capacities. [DN 52 at 10]. First, The Plaintiffs provide evidence that Debbie Nichols would know about the criteria for when video footage is retained and when it is not. [DN 48 at 12-13]. Additionally, Mr. Gardner identified her as someone who is involved in investigating guest incidents and would have the requisite knowledge to discuss the topic. Id.

And if Mr. Gardner is not presented again as the Corporate Representative, Plaintiffs ought to be permitted to depose him a second time. Plaintiffs present ample evidence that many of his deficiencies were because he was handling hurricane preparation and unable to properly prepare for the deposition. [DN 52 at 3-4].

The BJ's defendants provide two specific reasons why Plaintiffs should not be permitted additional fact witness depositions. First, they argue that there is no new evidence to justify extending the discovery deadline. This is untrue. Plaintiffs received information regarding the Bona Traffic Anti-Slip chemicals on October 10, 2020, justifying additional discovery. [DN 50 at 13].

Second, The BJ's defendants argue that these documents were received from non-parties and should have been obtained previously. However, this was in the BJ's defendants’ control, not the Plaintiff's and it is unclear to the Court why these documents were not produced by the BJ's defendants. Id. at 13-14.

Neither reason rises to the standard necessary to outweigh the presumption for disclosure. “[T]he party opposing discovery must show that the material sought either falls beyond the scope of relevance, or is so marginally relevant that the potential harms of production outweigh the presumption in favor of broad disclosure. Bentley v. Highlands Hosp. Corp., No. 7:15-CV-97-ART-EBA, 2016 WL 762686, at 1 (E.D. Ky. Feb. 23, 2016). Thus, the sought testimony falls within the scope of discovery. The BJ's defendants are required to produce additional fact witnesses for deposition.

C. Extension of the Fact Discovery Deadline

*6 Plaintiffs request the Court extend the fact discovery deadlines so Plaintiffs can explore newly-discovered information and issues regarding chemicals used on the wooden floors at the subject BJ's restaurant. [DN 48 at 15-16].

Plaintiffs represent that on October 10, 2020, the Parties received documents from non-party Foster Flooring pursuant to a subpoena issued by Central Cleaning. Plaintiffs claim those documents evidence that the BJ's Defendants require Foster Flooring to use Bona products for refinishing the BJ's restaurants’ floors, including Bona Traffic Anti-Slip. Those documents allegedly show that the BJ's Defendants require Foster Flooring to use one more coat of Bona Traffic Anti-Slip than recommended by Bona. Further, Plaintiffs assert that those documents revealed that BJ's requires Foster Flooring to use different cleaning chemicals than those recommended by Bona when using Bona's finishing products.

After receipt of these documents, the BJ's Defendants explored these issues in a previously-scheduled deposition of Jerry Moore, who works in the same facilities department as Mr. Gardner and who is responsible for the region in which the subject BJ's restaurant is located. Plaintiffs represent that Mr. Moore deferred to Mr. Gardner regarding the flooring on the subject restaurant and the chemicals used thereon. As such, Plaintiffs claim they will need to depose Mr. Gardner in his individual capacity if he is not presented as a corporate representative for a second deposition.

Additionally, Plaintiffs represent that they need to obtain documents from EcoLab to fully investigate the issue of the choice of cleaners and the compatibility of those cleaners with the flooring used.

The BJ's Defendants object to any extension of the fact discovery deadline. They argue that the Foster Flooring documents should not be relevant to whether the fact discovery deadline should be extended because “Plaintiffs could and should have obtained these documents months ago, instead of relying on [Central Cleaning] to conduct the discovery. [DN 50 at 577]. The BJ's Defendants then argue that any further discovery is unnecessary given their representation that this is a “straightforward slip and fall case” that has already seen discovery practice take place. Id.

In their Reply, Plaintiffs argue that who subpoenaed the information is irrelevant to this analysis; rather, Plaintiffs should be entitled to fully investigate the information gleaned from the Foster Flooring documents as it “could be critical to the cause of the slickness of the wooden floors” at the subject restaurant. [DN 52 at 711]. Plaintiffs argue this case was only filed in state court on June 24, 2019, and then removed to this Court on September 18, 2019. Since then, the parties have diligently proceeded with discovery. The Plaintiffs assert they do not seek open-ended and unlimited discovery.

Under the Federal Rules of Civil Procedure, when an act may or must be done within a specified time, the court may, for good cause, extend [that] time.” Fed. R. Civ. P. 6(b). Ultimately, the Court has broad discretion in fashioning and limiting discovery. Waters v. City of Morristown, 242 F.3d 353, 363 (6th Cir. 2001) (“The discovery rules vest broad discretion in the trial court.”); Bush v. Dictaphone Corp., 161 F.3d 363, 367 (6th Cir. 1998) (“The scope of discovery is, of course, within the broad discretion of the trial court.”).

*7 Here, the Court finds that Plaintiffs have established good cause for the extension of the fact discovery deadline. Under the Federal Rules “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Plaintiffs argue that the chemicals used on the wooden floor of the subject BJ's restaurant are relevant to their claims against the BJ's Defendants and Central Cleaning. This Court agrees. As such, those issues fall within the scope of discovery. Further, the information and issues related to those chemicals were only discovered after the close of fact discovery on October 10, 2020. As Plaintiffs have not yet had an opportunity to develop these issues, the Court finds that there is good cause for an extension of the fact discovery deadline.

The Court shall determine the exact nature of that deadline at the next status conference in this matter. At that time, the Parties are to come prepared with a specific discovery plan going forward, including the number of expected depositions, discovery requests, subpoenas, etc.

For the foregoing reasons, Plaintiffs’ Motion to Compel a Second Deposition of the Corporate Representative for the BJ's Defendants and for the Depositions of Additional Fact Witnesses, [DN 48], is GRANTED.

1. Plaintiffs’ Motion to Compel a Second Deposition of the Corporate Representative for the BJ's Defendants and for the Depositions of Additional Fact Witnesses, [DN 48], is GRANTED.

2. The BJ's Defendants shall make their corporate representative(s) available for a continued Rule 30(b)(6) deposition. That representative(s) shall be adequately prepared to address all topics contained within Plaintiffs’ Rule 30(b)(6) Deposition Notice.

3. The BJ's Defendants shall make Debbie Nichols available to be deposed in her individual capacity.

4. The BJ's Defendants shall make Don Gardner available to be deposed in his individual capacity.

5. The Court shall address specific extensions to this Court's Scheduling Orders at the next status conference, which shall be scheduled by separate order. At that status conference, counsel shall be prepared to discuss in specific terms any additional discovery that is needed, the reasons therefor, and any additional time needed to complete.

IT IS SO ORDERED.

The BJ's Defendants also asserted objections; claiming certain topics were overly broad, unduly burdensome, and irrelevant.

Mr. Gardner testified that he had “looked at the depositions for Amy and Kenneth, but not in [their] entirety.” [DN 50-3 at 591]. Further, he testified that he did not review the depositions of Scott Wimsatt, Gena Castellion, or the depositions of the Central Cleaning Company. Id. at 591-92.

The following recitation of topics that Mr. Gardner could not adequately address is not to be considered exhaustive.

Mr. Gardner specifically could not answer how the slate floors were cleaned at the BJ's restaurant at issue at the time of the subject incident and could not answer what BJ's Defendants’ employee trained the cleaning company that services that restaurant. Id. at 602, 611.