*1 On September 28, 2021, Defendants Canadian Pacific Railway Company and Soo Line Railroad Company (collectively, “CP”) filed a “Motion to Compel and for Sanctions Related to Rule 30(b)(6) Deposition.” (Doc. No. 347). CP asks this Court to order Intervenor World Fuel Services, Corp. (“WFS”) to produce documents used to prepare the deposition witness, preclude Plaintiff Joe R. Whatley, Jr. (“Whatley”) from contesting WFS’ status as a tortfeasor, preclude Whatley from introducing certain evidence, and make certain findings. For the reasons articulated below, the motion (Doc. No. 347) is DENIED.

I. BACKGROUND

The litigation underlying this dispute stems from a 2013 train derailment in Mégantic, Quebec, Canada. (Doc. No. 1). Plaintiff Whatley brought claims against CP that were acquired by assignment from two entities, WFS and Irving Oil Ltd. (Id.).

The discovery process in this case has been lengthy and has involved much motion practice. On May 14, 2021, this Court denied WFS’ Motion to Quash Defendants’ Notice of Fed. R. Civ. P. 30(b)(6) Deposition of World Fuel Services. (Doc. No. 317). Following the entry of this order, WFS produced David Hornaday to address the topics at issue. WFS and CP do not dispute that in preparation for the deposition Hornaday used documents prepared by counsel for WFS. During the deposition, Hornaday was unable to answer certain questions regarding the topics. Hornaday's inability to address these issues form part of the basis for CP's motion.

II. DISCUSSION

CP makes four arguments related to the deposition of Hornaday. First, CP argues WFS must produce the summaries Hornaday relied on to prepare for the deposition. Second, CP requests this Court preclude Whatley from contesting WFS's status as a tortfeasor because WFS “fail[ed] to adequately prepare” Hornaday for the deposition. Third, CP again argues the Court should preclude Whatley from contesting WFS's status as a tortfeasor because WFS instructed Hornaday not to answer certain questions at his deposition. Fourth, CP argues the Court should prohibit Whatley from introducing evidence on topics Hornaday was not prepared to testify about at the deposition.

A. Summaries Prepared by WFS for the 30(b)(6) Deposition

CP requests this Court order WFS to produce summaries its attorneys created for Hornaday to prepare for the Fed. R. Civ. P. 30(b)(6) deposition. WFS argues those documents are subject to the attorney-work-product doctrine and are protected from production.

Rule 612, Fed. R. Evid., provides “when a witness uses a writing to refresh memory” the “adverse party is entitled to have the writing produced.” Although the rule does not explicitly mention depositions, other courts have applied the rule to writings used by witnesses at depositions. E.g, Frazier v. Ford Motor Co., No. 4:05-cv-04077, 2008 WL 11342570, at *2-4 (W.D. Ark. Oct. 1, 2008); Stanley v. Hall, No. 05-5104, 2006 WL 8453947, at *2 (D.S.D. Nov. 6, 2006). Three requirements must be met before production is required: (1) the witness must use a writing to refresh his or her memory; (2) for the purpose of testifying; and (3) “the court must determine that production is necessary in the interests of justice.” Stanley, 2006 WL 8453947, at *2 (quoting Sporck v. Peil, 759 F.2d 312, 317 (3d Cir. 1985)). “The third element requires the court to apply a balancing test designed to weigh the policies underlying the work product doctrine against the need for disclosure to promote effective cross-examination and impeachment.” Nutramax Labs., Inc. v. Twin Labs. Inc., 183 F.R.D. 458, 468 (D. Md. 1998) (applying a non-exhaustive list of nine factors to the third element). “Ordinary work-product is not discoverable unless the party seeking discovery has a substantial need for the materials and the party cannot obtain the substantial equivalent of the materials by other means.” Stanley, 2006 WL 8453947, at *3 (quoting Baker v. General Motors Corp., 209 F.3d 1051, 1054 (8th Cir. 2000)).

*2 Here, CP and WFS do not dispute the summaries were used to refresh Hornaday's memory for the purpose of testifying. However, WFS does disagree that Hornaday used the summaries for most of the noticed topics for the deposition. In any event, they both agree at some point the first two requirements were met.

The Court will now turn to whether “production is necessary in the interests of justice.” CP argues, “There are serious questions about whether the summaries used to spoon feed testimony contain accurate (or inaccurate) articulation of the documents that underlie them, as well as whether Hornaday's testimony concerning what was in the summaries is accurate.” (Doc. No. 347) (emphasis added). In its reply, CP asserts its belief the summaries may not have been created using documents turned over in discovery because Hornaday testified to certain information that is not supported by any of the discovery documents. (Doc. No. 357). CP accuses WFS of manufacturing Hornaday's testimony through the summaries. (See Doc. No. 347). These allegations mainly revolve around the application of the Limited Distribution Tariff (“LDT”) 2248. Hornaday told CP his recollection that LDT 2248 applied was based on his review of a shipping document. CP argues the shipping document does not mention LDT 2248. WFS maintains Hornaday did review other discovery documents in anticipation of his deposition.

The Court is not convinced compelling WFS to produce the summaries “is necessary in the interests of justice.” CP has not demonstrated a substantial need for the materials protected by the attorney-work-product doctrine. CP has already obtained “the substantial equivalent of the materials” through the discovery process. CP does not even allege Hornaday solely relied on the summaries to prepare for his deposition. Instead, it argues the information he provided is not supported by the evidence already produced. Hornaday was produced as a deposition witness so additional facts could be discovered. To the extent CP disagrees with Hornaday's recollection of the information he provided, including his opinion on the applicability of LDT 2248, it is entitled to use the discovery documents it possesses to prove his recollection is not accurate or supported by the evidence, should he be called as a witness at trial. Effective cross-examination and impeachment are still permissible if Hornaday's statements are contradicted by the documents within discovery. See Nutramax Labs., Inc., 183 F.R.D. at 468. Therefore, the Court refuses to require WFS to produce the protected summaries.

B. WFS’ Preparation of Hornaday for the Deposition

CP argues Hornaday was unprepared for the deposition related to the “discovery on discovery” topics and WFS and Whatley should be sanctioned as a result. CP claims this conduct warrants the Court precluding Whatley from arguing WFS was not a tortfeasor.

Rule 37, Fed. R. Civ. P., allows a court to impose sanctions for violating a court order regarding discovery. One of these sanctions allows the court to direct “that the matters embraced in the order or other designated facts be taken as established for purposes of the action” or “prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence.” Fed. R. Civ. P. 37(b)(2)(A). The Eighth Circuit has held, “In order to impose sanctions under Rule 37, there must be an order compelling discovery, a willful violation of that order, and prejudice to the other party.” Chrysler Corp. v. Carey, 186 F.3d 1016, 1019 (8th Cir. 1999).

*3 To support its requests for sanctions, CP cites Bank of New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135 (S.D.N.Y. 1997). The Bank of New York Court explained how prepared a Rule 30(b)(6) deponent must be, stating “the deponent must make a conscientious good-faith endeavor to designate the persons having knowledge of the matters sought by the party noticing the deposition and to prepare those persons in order that they can answer fully, completely, unevasively, the questions posed as to the relevant subject matters.” Id. at 151 (internal citations and quotations omitted). “The deponent must prepare the designee to the extent matters are reasonably available, whether from documents, past employees, or other sources.” Id. “In 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.” Id.

Here, this Court previously stated, “This discovery process has been unusually convoluted and it appears that many issues are unresolved.” (Doc. No. 317). The Court's previous order allowed CP's counsel to inquire on the “discovery on discovery” topics at the deposition. CP now claims because Hornaday did not know specific information related to these topics that the inadequacies in his testimony were egregious and WFS defied the previous order. The Court disagrees. The convoluted nature of the discovery process would make it impossible for any one person to have knowledge regarding every detail of the process. It would be extremely challenging to require Hornaday to know each and every fact.

According to WFS’ counsel a conscientious good-faith effort was made to prepare Hornaday for the deposition, as many hours went into preparing him. The Court concludes WFS made a “conscientious good-faith endeavor to designate” Hornaday as the person to answer the questions regarding the “discovery on discovery” topics. See Bank of New York, 171 F.R.D. at 151. Hornaday may not have known specific details regarding the extensive discovery process for this litigation. This lack of knowledge does not rise to the level of a willful and egregious violation of the Court's previous order. Instead, his answers were “merely lacking in [CP's] desired specificity in discrete areas.” Id. As a result, no sanctions are warranted under Fed. R. Civ. P. 37.

C. WFS Instructing Hornaday to not Answer Certain Questions

CP argues WFS improperly directed Hornaday to not answer questions regarding Topic 5. CP asserts these directions violated the Court's previous order, and the Court should deem WFS a tortfeasor as a sanction. (See Doc. No. 317). The Court's previous order regarding this topic stated, “The undersigned finds that, on the grounds that this topic may shed light on the applicability of the collateral source rule, CP has made a showing of relevancy for Topic 5. Further, World Fuel has failed to demonstrate that this information is not discoverable. Topic 5 is relevant.” (Id.). Topic 5, as it appeared in the deposition notice, states, “The reasons why You entered into a $110 million USD settlement to settle and resolve claims asserted against You regarding the Lac Megantic Derailment and well as any other settlement agreement stemming from the Lac Megantic Derailment.” (Doc. No. 311-1).

In its motion, CP cites an exchange during the deposition as evidence of Hornaday's refusal to answer questions on this topic. The exchange concerns the collection of “key documents” gathered by WFS’ outside counsel. (Doc. No. 348-1). That exchange went as follows:

(Id.).

CP claims WFS needed to assert any privilege prior to the deposition. It cites two authorities to support this proposition. In the first case CP cites, Orchestratehr, Inc. v. Trombetta, the court explained, “A party cannot fail to raise objections to Rule 30(b)(6) deposition notices, present a representative to testify on those topics, and then later raise objections to the scope or propriety of the topics.” No. 3:13-cv-2100-P, 2015 WL 11120526, at *2 (N.D. Tex. July 15, 2015). The other case, Waste Connections, Inc. v. Appleton Elec., LLC, states, “The plaintiff's objections to the scope of the matters for examination should have been made prior to [the] deposition.” No. 8:12-cv-436, 2014 WL 1281918, at *4 (D. Neb. Mar. 27, 2014).

Other courts have refused to apply the attorney-client privilege prior to a question being asked at a Rule 30(b)(6) deposition. E.g., E.E.O.C. v. LifeCare Mgmt. Servs., LLC, No. 2:08-cv-1358, 2009 WL 772834, at *2 (W.D. Pa.Mar. 17, 2009) (“The Court finds and rules that the EEOC, like all other litigants should object to actual questions which it believes invade any applicable privilege during the deposition and cannot be granted unwarranted or overly broad protections prior to any questions being asked of the deponent.”). In fact, these courts have expressed how the party deposing the witness would be disadvantaged if the court applied a blanket privilege protection prior to the deposition. In Baxter Int'l, Inc. v. Becton, Dickinson and Company, the court stated, “To permit [the deponent] to preemptively assert a blanket claim of attorney-client or work-product privilege for certain Rule 30(b)(6) topics would create an unworkable circumstance in which [the party deposing the witness] loses a primary means of discovery without a meaningful review of [the deponent's] claim of privilege.” No. 17-C-7576, 2019 WL 3408813, at *8 (N.D. Ill. July 26, 2019). Instead, the party “must produce a knowledgeable witness to testify and then, if any question asked during the deposition ventures into what [the deponent] claims is privileged territory, [the deponent's] counsel is free to object to the particular question at issue, state the asserted privilege, and instruct the witness not to answer on the basis of that privilege.” Id.

Here, WFS originally objected to the 30(b)(6) deposition by moving to quash CP's subpoena. This Court ultimately ordered WFS to produce a witness to testify on Topic 5. WFS produced Hornaday to testify and at the deposition objected to certain questions posed by CP based on the attorney-client privilege. CP argues WFS was precluded from objecting based on the attorney-client privilege because WFS did not raise the objection prior to the deposition, and the objections concerned the scope of inquiry. The Court disagrees. Information may be relevant and within the scope of discoverable information, but nonetheless protected from being disclosed. Even if this information is within the scope of discovery, it is outside the bounds of inquiry if it concerns privileged attorney-client communications without a waiver.

*5 Further, the Court also refuses to find WFS waived the privilege. WFS could only know whether a specific question inquired into privileged communications after it was asked at the deposition. See LifeCare Mgmt. Servs., LLC, 2009 WL 772834, at *2. Topic 5 broadly encompasses all of WFS’ reasoning regarding the settlement, some of which could include counseling provided by its attorneys. CP could inquire on non-privileged matters. When it did, Hornaday and WFS’ counsel did not object. Hornaday stated he was prepared to testify on the topic and answer questions, as long as the questions did not inquire into privileged matters. (See Doc. No. 348-1).

In the example put forth by CP, WFS merely objected to a pointed question regarding the “key documents.” WFS’ counsel was “free to object to the particular question at issue, state the asserted privilege, and instruct [Hornaday] not to answer on the basis of that privilege.” Baxter Int'l, Inc., 2019 WL 3408813, at *8. WFS needed to hear the actual questions in order to object as any other request would have been overly broad. See LifeCare Mgmt. Servs., LLC, 2009 WL 772834, at *2. WFS followed the proper protocol by objecting during the deposition and instructing Hornaday not to answer. Likewise, CP was free to further inquire into non-privileged matters regarding Topic 5 following the objection. Therefore, this Court concludes the objections at the deposition were proper and no sanctions against WFS and Whatley should be imposed.

D. Hornaday's Preparation for the Deposition

In its final argument, CP requests this Court prohibit WFS from presenting evidence on issues where Hornaday answered “I don't know.” As explained above, a conscientious good-faith effort was made to prepare Hornaday for the deposition. Hornaday's inability to respond to certain questions is not a willful and egregious violation of this Court's previous order for the deposition. CP is free to dispute the “specificity in discrete areas” with evidence at trial and present Hornaday's previous responses of “I don't know.” However, this Court denies CP's request for significant sanctions based on Hornaday's responses to the questions posed.

III. CONCLUSION

For the reasons articulated above, CP is not entitled to summaries prepared by WFS and no sanctions are warranted. Therefore, Defendants’ motion (Doc. No. 347) is DENIED.

IT IS SO ORDERED.

Dated this 28th day of June, 2022.