United States District Court, E.D. Wisconsin
ORDER GRANTING DEFENDANTS' CIVIL L.R. 7(h)
EXPEDITED NON-DISPOSITIVE MOTION TO COMPEL DEPOSITION
TESTIMONY OF PLAINTIFF'S CORPORATE REPRESENTATIVE (DKT.
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
September 8, 2017, the defendants filed this expedited,
non-dispositive motion under Civil L.R. 7(h) to compel
deposition of the plaintiff's corporate representative
under Federal Rule of Civil Procedure 30(b)(6). Dkt. No. 85.
The plaintiff responded on September 15, 2017, dkt. no. 87,
and after the court granted leave for the defendants to file
a reply brief, the defendants replied on September 22, 2017,
dkt. no. 90. The court grants the motion.
5, 2017, after the parties notified the court that mediation
had been unsuccessful, the court held a status conference.
Dkt. No. 83. At the hearing, counsel for Michael Webber and
James J. Webber Jr.-who was new to the case as of May
2017-told the court that he would need to conduct some
additional discovery by deposing some FLEXX witnesses.
Id. Specifically, counsel indicated that he wanted
to depose two FLEXX representatives. Id. Counsel for
the plaintiff objected, stating that he opposed
“reopening” fact discovery. The court pointed out
that under its October 21, 2016 scheduling order, fact
discovery remained open until July 28, 2017; thus, the period
for conducting fact discovery had not closed. The court
extended the deadline for completing discovery to the end of
the day on October 13, 2017. Id.
current Rule 7(h) motion to compel, the defendants state that
on August 18, 2017, they served the plaintiff with a notice
of deposition under Fed.R.Civ.P. 30(b)(6). Dkt. No. 85 at 1.
The notice indicated that the deposition would take place on
September 6, 2017. Dkt. No. 86-1 at 2. On August 30, 2017-a
week before the scheduled deposition-the plaintiff objected
by letter, indicating that a corporate representative of
IEMFS may not exist. Dkt. No. 85 at 1. On the afternoon of
September 5, 2017, counsel for the plaintiff told defense
counsel that no one would be attending the September 6
deposition, and that he might be seeking a protective order.
Id. The defendants filed this motion two days later,
asking the court to compel the plaintiff to produce a witness
for a Fed.R.Civ.P. 30(b)(6) deposition, to award the
defendants the costs and fees incurred in relation to
bringing this motion, and to modify the scheduling order to
account for the delay. Id.
plaintiff opposed the motion on several grounds. Dkt. No. 87.
First, the plaintiff argued that the notice of deposition was
overly broad, because the defendants sought twenty-one
categories of information. Dkt. No. 87 at 1. Second, the
plaintiff contended that the defendants sought information
that they already had obtained through their November 2016
depositions of two of the plaintiff's managers, Tim
D'Anza and John Gaughan. Id. at 3. Finally, the
plaintiff contended that, at the July 5, 2017 status
conference, defense counsel had not indicated that he
intended to conduct a deposition of a Rule 30(b)(6) witness.
30(b)(6) provides that, upon notice that describes
“with reasonable particularity the matters for
examination[, ] the named organization must . . . designate
one or more officers, directors, or managing agents, or
designate other persons who consent to testify on its
behalf[.]” Here, the defendants issued a timely notice
of deposition; the notice was served August 18, 2017, for a
September 6, 2017 deposition. The defendants served a notice
that described, with particularity, the matters on which the
defendants wanted to examine the representative. The
defendants served the notice almost two months before the
October 13, 2017 close of discovery, and almost three weeks
before the date set for the deposition. The defendants'
notice complied with the requirements of Rule 30(b)(6).
appears that the plaintiff waited some two weeks after
receiving the deposition notice. It then sent a letter of
objection to defense counsel, arguing that (a) the defendants
could obtain the information they sought from the two
witnesses they'd already deposed, (b) the notice
contradicted defense counsel's statement at the July 5,
2017 status conference, and (c) Flexx no longer existed as a
going concern “in the business model that it maintained
at the time of the filing of this lawsuit, ” and thus
that “it [was] likely that there [would] be no Rule
30(b)(6) witness” who could provide the testimony the
defendants identified in the notice. Dkt. No. 86-2 at 1-2.
The defendants declined to withdraw the notice of deposition,
and on August 31, 2017, counsel for the plaintiff said that
they'd get back to counsel for the defendants the next
day (September 1, 2017). Dkt. No. 85 at 2.
September 5, 2017-the day before the scheduled deposition-the
plaintiff had not gotten back to the defendants, so defense
counsel reached out. That afternoon, counsel for the
plaintiff responded that there would be no witness appearing
at 9:00 a.m. the next day, and that counsel “was not
sure” whether he'd be seeking a protective order.
The court did not receive either a motion to quash or a
motion for a protective order prior to 9:00 a.m. on September
court first notes that the plaintiff could have, at any time
prior to 9:00 a.m. on September 6, 2017, filed either motion.
Had the plaintiff done so, the court could have considered
the plaintiff's objections before the defendants prepared
for the deposition, and before they likely arranged for a
court reporter. Instead, to use somewhat dated parlance, the
plaintiff “blew off” the deposition, and forced
the defendants to file (two days after the aborted
deposition) this motion to compel. The Federal Rules of Civil
Procedure provide parties with procedures for timely
objecting to discovery demands, designed to avoid a situation
like this one.
the fact, and in response to a motion to compel-the plaintiff
argues to the court that the deposition notice was overbroad
in the information that it sought, and that the defendants
already had the information that a Rule 30(b)(6) witness
would provide through depositions of other witnesses. The
plaintiff cites Milwaukee Elec. Tool Corp. v. Chevron
North America, Inc., No. 14-CV-1289-JPS, 2015 WL
4393896, at *5 (E.D. Wis. July 16, 2015) in support of its
argument that Rule 30(b)(6) is designed to streamline, not
unduly prolong, the discovery process. The case stands for
that proposition. Interestingly, however, the district court
in Milwaukee Electric Tool Corp. denied the
plaintiffs' motion for a protective order based on
similar arguments to those the plaintiff makes here. Judge
Stadtmueller rejected the argument that the deposing party
could have gotten the information it sought in other ways:
“Parties to litigation do not have to accept their
opponent's statement that all relevant evidence has been
produced via a given discovery vehicle . . . .”
Milwaukee Elec. Tool Corp., 2015 WL 4393896 at *5
(citing Iris Corp. Berhad v. United States, 84
Fed.Cl. 489, 493 (Fed. Cl. 2008)).
regard to the plaintiff's argument that at the July 5,
2017 status conference, counsel for the defendant did not
expressly state that he would be seeking to depose a Rule
30(b)(6) representative: Defense counsel indicated at that
hearing that he wanted to conduct some additional discovery,
and specifically indicated that he wanted to depose some
FLEXX witnesses. Indeed, defense counsel specifically
indicated that he wanted to depose to FLEXX representatives.
A Rule 30(b)(6) representative from FLEXX is both a FLEXX
witness and a FLEXX representative. The court is somewhat
mystified by the plaintiff's apparent belief that defense
counsel committed himself to deposing only two witnesses, or
that he committed himself to deposing only specific
witnesses. Further, the court extended the deadline for
all discovery; the court did not place
limits on what discovery the parties could seek, or who they
could depose. Dkt. No. 83.
court GRANTS the defendants' expedited,
non-dispositive Civil L.R. 7(h) motion to compel deposition
testimony of the plaintiffs corporate representative. Dkt.
No. 85. The court EXTENDS the deadline for
completing all discovery to November 30,
2017. The court further EXTENDS the
deadline for filing dispositive motions to January
12, 2018. The response and reply deadline mandated
by the local rules shall apply.
court ORDERS that, by the end of the day on
Friday, October 27, 2017, the plaintiff
shall file a pleading, explaining why the court should not
require the plaintiff to pay the defendants' reasonable
costs incurred in filing the ...