Wolverine World Wide v. Am. Ins. Co.
Wolverine World Wide v. Am. Ins. Co.
2023 WL 8680345 (W.D. Mich. 2023)
November 1, 2023
Manderfield, Paula J., Special Master
Summary
The court granted a motion to compel additional deposition testimony and limited re-depositions of former employees in relation to Electronically Stored Information, due to the complexity of the case and the high amount in controversy. The court also cautioned against asking cumulative questions and stated that fact discovery would not be reopened.
Additional Decisions
WOLVERINE WORLD WIDE, INC., Plaintiff,
v.
THE AMERICAN INSURANCE COMPANY, et al., Defendants
v.
THE AMERICAN INSURANCE COMPANY, et al., Defendants
Case No. 1:19-cv-00010-JTN-ESC
United States District Court, W.D. Michigan, Southern Division
Filed November 01, 2023
Counsel
Anthony C. Sallah, Charles M. Denton, Barnes & Thornburg LLP, Grand Rapids, MI, Kelly Koss, Kevin Bernard Dreher, Barnes & Thornburg LLP, Chicago, IL, for Plaintiff.Bradford S. Moyer, Grand Rapids, MI, Stephanie M. Brochert, Tanya Murray, Bloomfield Hills, MI, William Gerald McElroy, Jr., Zelle LLP, for Defendants. American Insurance Company, The.
Bradley K. Glazier, Bos & Glazier PLC, Grand Rapids, MI, Brian C. Coffey, Cohn Baughman & Martin, Chicago, IL, Carole D. Bos, Cunningham Dalman PC, Holland, MI, Daniel F. Gourash, Seeley Savidge Ebert & Gourash Co. LPA, Cleveland, OH, Robert D. Anderle, Seeley, Savidge & Ebert Co., LPA, Westlake, OH, William Gerald McElroy, Jr., Zelle LLP, Framingham, MA, for Defendants. Century Indemnity Company.
Jason T. Newman, Troy, MI, Wayne S. Karbal, Howard J. Fishman, Karbal Cohen Economou Silk & Dunne, LLC, Chicago, IL, Anthony F. Caffrey, III, Troy, MI, Michelle Anne Miner, Karbal Cohen Economou Silk & Dunne, LLC, Chicago, IL, William Gerald McElroy, Jr., Zelle LLP, Framingham, MA, for Defendants. First State Insurance Company
Richard McDermott, Brent J. Graber, Caroline Kim, Hinkhouse Williams Walsh LLP, Chicago, IL, Seth M. Jaffe, Clyde & Co LLP, Chicago, IL, for Defendants. SPARTA Insurance Company.
Gary A. Maximiuk, Wheeler Upham PC, Grand Rapids, MI, Matthew V. Fisher, Michael J. Cohen, Pamela J. Tillman, Scott Reigle, Meissner Tierney Fisher & Nichols S.C., Milwaukee, WI, for Defendants. Liberty Mutual Insurance Company.
Kristin Ann Heres, William Gerald McElroy, Jr., Zelle LLP, Framingham, MA, for Defendants. Employers Insurance Company of Wausau.
Manderfield, Paula J., Special Master
OPINION AND ORDER REGARDING CERTAIN DEFENDANTS’ MOTION TO COMPEL ADDITIONAL DEPOSITION TESTIMONY OF WOLVERINE'S RULE 30(B)(6) WITNESS BRADLEY LORDEN, LIMITED RE-DEPOSITIONS OF CERTAIN FORMER WOLVERINE EMPLOYEES, AND FOR ALTERNATIVE SERVICE ON CHERYL OLIVER
Honorable Janet T. Neff, Mag. Judge Sally J. Berens
Before the Court is Certain Defendants’[1] Motion to Compel Additional Deposition Testimony of Wolverine's 30(b)(6) Witness Bradley Lorden, Limited Re-Depositions of Certain Former Wolverine Employees, and for Alternative Service on Cheryl Oliver (“Motion”) (“ECF No. 2128). Wolverine World Wide Inc.’s (“Wolverine”) Response to this Motion is at ECF No. 2153. Leave was Granted to Defendants to File a Reply (ECF No. 2178).
Defendants move: (1) to compel additional deposition testimony of Wolverine's Rule 30(b)(6) witness Bradley Lorden; (2) to compel the limited re-depositions of seven former Wolverine employees, Bob DeBusschere, Guy Hayden, Frank Metsaars, David Huey, Greg Mills, John O'Brien, and Bob Winegar; (3) to allow alternative service of a deposition subpoena on non-party witness Cheryl Oliver (“Ms. Oliver”), and (4) to extend the fact discovery closure date to effectuate the relief requested herein. For the reasons stated herein, the Motion is Granted. In fact, all three of Defendants’ Motions are Granted as the Motion is essentially three combined motions.
On August 16, 2023, Defendants conducted the deposition of Wolverine's Rule 30(b)(6) designated corporate witness, Bradley Lorden (“Mr. Lorden”) who was one of two corporate witnesses designated by Wolverine to testify on multiple topics. After seven hours of testimony, Wolverine terminated Lorden's deposition over the objections of defense counsel. At the time the deposition was terminated, North River's counsel had not completed his questioning and First State's counsel had no opportunity to question the witness. Defendants requested additional time to question the witness in order to examine the deponent as required under Rule 30 and argue there is good cause for the court to allow additional time to complete the deposition of Lorden.
Defendants argue that good cause exists for granting this relief and it is warranted by, among other things, the complexity of this matter, the number and scope of topics for which Mr. Lorden was designated, the decades-long factual history, the voluminous documents produced by the parties, the enormous amount in controversy, and the multiple defendants.
Wolverine opposes the relief requested and contends that fact discovery closed in September, Defendants have not shown good cause to re-depose witnesses as required by the Court rule, and that these redepositions would burden Wolverine with the cost, expense, time, and annoyance of having to prepare these witnesses once again for deposition—all while Wolverine should be focusing its attention on completing fact discovery against Travelers (ECF No. 2170, PageID.141364).
Wolverine further argues that under Defendants’ Joint Defense Agreement, they allowed Travelers Indemnity Company's attorney to use the majority of the deposition time without any objection and when North River's attorney questioned Mr. Lorden, he did not ask any questions about the topics for the deposition. Wolverine contends this is gamesmanship and it is Defendants strategy to simply want to get the last word in after they have had over a month to study the first deposition transcript. Wolverine further contends that Defendants do not show good cause justifying such an order contrary to the Advisory Committee Note to the 2000 Amendments to Rule 30. Sabol-Krutz v. Quad Elecs., Inc., No. 2:15-CV-13328, 2016 WL 6277083, at *2 (E.D. Mich. Oct. 27, 2016).
*2 Wolverine argues that Mr. Lorden's testimony was limited to facts that developed over the past six years (i.e., since Wolverine was sued in the Underlying Actions). Mr. Lorden was prepared to and did respond to questions related to Wolverine's bad faith allegations, its defense and indemnity costs, and its notice to Defendants of the Underlying Actions. This six year time frame is in contrast to Wolverine's other 30(b)(6) witness, John Byl, whose testimony spanned decades. Mr. Byl was designated to testify on topics related to Wolverine's waste disposal, environmental investigation and remediation, and tannery operation. As a result there, Wolverine argues that there is no need for further deposition testimony from Mr. Lorden.
Although Rule 30 provides the length of a deposition is limited to one day of seven hours, it expressly provides that “[t]he court must allow additional time consistent with Rule 26(b)(1) and (2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.” Fed R Civ P 30(d)(1). The Advisory Notes on 2000 Amendments provide, in pertinent part, that “[i]f the examination will cover events occurring over a long period of time, that may justify allowing additional time” and that “[i]n multi-party cases, the need for each party to examine the witness may warrant additional time, although duplicative questioning should be avoided and parties with similar interests should strive to designate one lawyer to question about areas of common interest.” Fed R Civ P 30 (2000 Amendments Advisory Notes); see also Brown v. Scaglione, No. 20-10192, 2020 U.S. Dist. LEXIS 269906, at *5 (E.D. Mich. Nov. 13, 2020).
In Sabol-Krutz v. Quad Electronics, Inc., No. 2:15-cv-13328, 2016 U.S. Dist. LEXIS 148820 (E.D. Mich. Oct. 27, 2016), the plaintiff was deposed for over five hours and the parties agreed that the deposition should be resumed but disagreed about the length of additional testimony. The Sabol-Krutz court granted an additional five hours of deposition time and concluded that good cause existed due to the complexity of the amended pleadings and issues, the voluminous discovery produced, the seven figure damages sought, and plaintiff's lengthy list of witnesses. Sabol-Krutz is similar to this case as voluminous discovery was produced, the issues are complex, multiple parties are involved, and the amount in controversy is high. All of these factors weigh in favor of granting this portion of the Motion.
Although Wolverine makes a strong argument for not granting additional time for Mr. Lorden's deposition, the Special Master is concerned that First State did not have any time to ask any questions and North River did not complete its questioning. Therefore good cause has been shown to grant this relief. The better course appears to allow a limited deposition with restrictions on cumulative questions. Therefore, the Special Master will allow four additional hours of deposition testimony so that First State may question Mr. Lorden regarding the noticed topics only. Defendants are cautioned to not to ask cumulative questions already asked by other Defendants. If there is any remaining time in the deposition, North River may continue questioning of the deponent. As Defendants do not seek to reopen fact discovery but instead seek to compel properly noticed depositions served prior to the discovery cutoff date, fact discovery will not be reopened as to Certain Defendants (ECF No. 2178, PageID.141403).
Defendants allege that on January 27, 2023, after Wolverine employees Bob DeBusschere, Guy Hayden, Frank Metsaars, David Huey, Greg Mills, John O'Brien, and Bob Winegar (collectively “Certain Witnesses”) were deposed, Wolverine served its Responses to Defendants’ Third Set of Phase II Interrogatories (ECF No. 2128, Ex. 1, Interrogatory No. 2, pp. 12-35). The responses identify a number of purported “sudden and accidental releases” that Wolverine contends caused the contamination at issue in the Underlying Actions, including events that happened decades ago that Wolverine clearly must have known about for years, such as a tornado in 1965 and a train crash at the tannery in 1966. The responses also identify numerous individuals who are purportedly knowledgeable about these previously undisclosed historical events, including the Certain Witnesses. In those responses, Wolverine for the first time identified a number of discrete “events” it now contends gave rise to PFAS and other environmental contamination, and for the first time identified Certain Witnesses as having knowledge of these specific, previously undisclosed events.
*3 Wolverine admits that, on January 27, 2023, after each of the seven former employees were deposed, it served a Supplemental Phase II Disclosure Statement (ECF No. 2153, Ex. 2) and Responses to Defendants’ Third Set of Interrogatories (ECF No. 2153, Ex. 1) that identified, in an extensive narrative, twelve specific “sudden and accidental” events resulting in release of PFAS, including: 1965 Tornado, Train Crash, Derecho Wind Event, Dust Bin Fires, Dust Container Fire, Sludge Container Spills, Liquid Wastewater Overflow, Pipe Burst, Clarifier Tank Crack, Foam Overflows, Drinking Fountain Accident, and the Christmas Flood. Id.
The responses also identify numerous individuals who are purportedly knowledgeable about these previously undisclosed historical events, including the Certain Witnesses. Defendants allege that although they previously took the depositions of Certain Witnesses in this action, they had no opportunity to question them about their knowledge of these discreet events because Wolverine deliberately hid them from the insurers for years and allowed their depositions to proceed without providing this critical information to the insurers.
Defendants argue they did not know of Wolverine's reliance on Certain Witnesses’ “Sudden and Accidental” testimony at the time these witnesses were deposed in this action and had no reason to know of those events because Wolverine had not yet identified them despite the extensive efforts of the insurers over a period of years to obtain this information.
As a result of the new information that Wolverine provided after the depositions of these Certain Witnesses, the Defendants issued notices of deposition that were specifically limited in scope. (ECF 2128, Ex. 4.) As set forth in these notices, each of the depositions would be limited to each witness's knowledge of the events identified in Wolverine's response to Interrogatory No. 2 of Defendants’ Third Set of Phase II Interrogatories and Wolverine's April 26, 2023 Supplemental Phase II Initial Disclosure Statement.
Wolverine contends that Defendants’ Motion is a blatant attempt to delay this litigation and harass Wolverine and its witnesses. Further, Wolverine argues that the Motion should be denied because Defendants have not shown good cause to reopen Phase II fact discovery or re-depose Wolverine's witnesses. Defendants had the full seven hours, but utilized much less time, to examine each of Wolverine's witnesses, and their failure to ask all the questions they now wish they had asked during those seven hours is not a basis to harass and prejudice Wolverine and these witnesses. Wolverine asserts that these issues have been in contention since day one and it is Defendants fault for not inquiring into Certain Defendants’ knowledge of sudden and accidental releases.
The Special Master finds this issue disconcerting. While Certain Defendants have been previously deposed, some more than once, this is burdensome to the deponents. However, the Certain Defendants could testify to extremely critical information bearing on whether the limited pollution exclusion applies in this case. As a result, the Special Master grants this portion of the Motion with limitations. Each of the Certain Defendants deposition is limited to each witness's knowledge of the events identified in Wolverine's response to Interrogatory No. 2 of Defendants’ Third Set of Phase II Interrogatories and Wolverine's April 26, 2023 Supplemental Phase II Initial Disclosure Statement. Each deposition is limited to seven hours including the time used for the first deposition.
Cheryl Oliver (“Ms. Oliver”) is another former employee of Wolverine identified in its Rule 26 disclosures as having knowledge of Wolverine's historic environmental health and safety processes. First State has been unable to personally serve a subpoena compelling Ms. Oliver's appearance at a deposition that was first noticed on July 21, 2021. On August 24, 2022, Wolverine's counsel advised Defendants that if they want to conduct Ms. Oliver's deposition, they should issue a subpoena. First State did so and contends it has made diligent efforts to personally serve Ms. Oliver at her residence in Fruitport, Michigan multiple times and utilized two different process servers who provided affidavits detailing their 19 different attempts to personally serve Ms. Oliver (ECF No. 2128, PageID.140011).
*4 Defendants contend Ms. Oliver has willfully evaded service and most recently outright refused to accept personal service, demanding that the process server leave her property, making continued attempts at personal service futile.
Michigan courts have interpreted Rule 45 (which ordinarily requires personal service) to permit service of a subpoena by alternate means where (1) the party is unable to effectuate personal service after a diligent effort, and (2) the alternate means are reasonably calculated to achieve actual delivery. Sharpe v. City of Southfield, 2023 WL 1453129, 2023 U.S. Dist. LEXIS 16904, *6 (E.D. Mich. Feb. 1, 2023); State Farm Mut. Auto. Ins. Co. v. Precious Physical Therapy, Inc., 2020 WL 7249484, 2020 U.S. Dist. LEXIS 230767, *5 (E.D. Mich. Dec. 9, 2020).
Defendants certainly have attempted to serve Ms. Oliver, in fact, Defendants have attempted to serve Ms. Oliver 19 separate times. One would have thought that perhaps after three or five failed attempts at personal service, a party would move for alternate service and Wolverine argues that Defendants have been dilatory in not bringing this motion sooner. However, based on two different process servers’ efforts at service as detailed in their Affidavits and nineteen visits to Ms. Oliver's home, Defendants have been diligent in their efforts at serving Ms. Oliver. As Ms. Oliver has been located and appears to reside at the Fruitport, Michigan address alternative service can be reasonably calculated to effectuate service. Therefore, utilizing the U.S. Postal Service and tacking the subpoena to the front door are means reasonably calculated to actually providing service. The Motion is granted as to the Request for Alternate Service.
For the reasons stated above, the Special Master finds good cause to Grant Certain Defendants’ Motion to Compel Additional Deposition Testimony of Wolverine's 30(b)(6) Witness Bradley Lorden, Limited Re-Depositions of Certain Former Wolverine Employees, and For Alternative Service on Cheryl Oliver (“ECF No. 2128”).
IT IS HEREBY ORDERED THAT Wolverine's Rule 30(b)(6) witness Bradley Lorden may be subject to an additional deposition testimony according to the following restrictions:
a. The Deposition is limited to four hours.
b. No duplicative questions or testimony are permitted, including duplicative questions from Mr. Lorden's earlier deposition.
c. Defendant First State may question the witness; if there is any remaining time, Defendant North River may question the witness.
d. Deposition questions are limited to the noticed topics only.
IT IS FURTHER ORDERED that the former employees of Wolverine Bob DeBusschere, Guy Hayden, Frank Metsaars, David Huey, Greg Mills, John O'Brien, and Bob Winegar may be re-deposed limited to no duplicative questions or testimony and the deposition time is limited to no more than seven hours including the time used for their first depositions; and each of the depositions will be limited to the witness's knowledge of the events identified in Wolverine's response to Interrogatory No. 2 of Defendants’ Third Set of Phase II Interrogatories and Wolverine's April 26, 2023 Supplemental Phase II Initial Disclosure Statement.
IT IS FURTHER ORDERED THAT Defendants request for an Order for Alternative Service for Cheryl Oliver is Granted. Ms. Cheryl Oliver may be served by First Class Mail to her residence address and by tacking the Order for Alternative Service and the Subpoena to Testify on Ms. Oliver's residence front door in Fruitport, Michigan.
*5 IT IS SO ORDERED.
Footnotes
As used herein, Certain Defendants are First State Insurance Company (“First State”) and North River Insurance Company (“North River”) referred to herein as Defendants or Movants.