Seich v. The Boppy Co.

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TRAVIS SEICH, as Personal Representati of the Estate of N.S., infant, decedent, Plaintiff, v. THE BOPPY COMPANY, LLC, a Colorado Limited Liability Company, Defendant.

No. 3:22cv668-TKW-HTC

United States District Court, N.D. Florida, Pensacola Division

October 27, 2023

ORDER

HOPE THAI CANNON, UNITED STATES MAGISTRATE JUDGE

Plaintiff Travis Seich, the Personal Representative of N.S.'s Estate, brings this product liability suit against Defendant The Boppy Company, LLC (“Boppy”), after infant N.S. was found deceased on a Boppy Newborn Lounger (“Newborn Lounger”). Plaintiff sues Boppy for defective design, failure to warn, and negligence. Currently before the Court is Plaintiff's motion to compel, ECF Doc. 62,^[1]which seeks to compel Boppy to put up the same or another witness for a 30(b)(6) deposition and to compel Boppy to produce additional documents. The discovery dispute, thus, poses two questions for the Court: (1) whether Boppy's 30(b)(6) representative was adequately prepared to answer questions posed to her during her deposition; and (2) whether Boppy has produced all responsive documents. Upon consideration of Plaintiff's motion to compel Boppy's response, ECF Docs. 63 & 66, and the relevant law, the Court answers both questions in the negative and finds the motion to compel should be GRANTED.

I. Motion to Compel a Second Rule 30(b)(6) Deposition

A. Rule 30(b)(6)

Federal Rule of Civil Procedure Rule 30(b)(6) governs the depositions of corporate entities. Pursuant to Rule 30(b)(6), the party seeking to depose a corporation “must describe with reasonable particularity the matters for examination.” Once that is done, the “organization must designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf.” Fed.R.Civ.P. 30(b)(6). The designated person “must testify about information known or reasonably available to the organization.” Id. While the Rule does not “require the corporation or entity to produce the ‘person most knowledgeable' for the corporate deposition” or to designate someone with the best memory, it does require the corporation “to make a good faith, conscientious effort to designate appropriate persons and to prepare them to testify fully and non-evasively about the subjects.” QBE Ins. Corp. v. Jorda Enters., Inc., 277 F.R.D. 676, 688-89 (S.D. Fla. 2012) (listing the “litigation commandments” governing Rule 30(b)(6)).

The designee should be able to testify to matters known or reasonably available to the corporation. Id. at 689-91. “[W]hat is known to the organization refers to the corporation's collective knowledge of all its employees.” Richardson v. Fiat Chrysler Automobiles (FCA) US, LLC, 2020 WL 592329, at *2 (M.D. Ga. Feb. 6, 2020); McCreight v. AuburnBank, 2020 WL 13002636, at *2 (M.D. Ala. Aug. 26, 2020) (“not only must the organization designate one or more witnesses to testify on its behalf, it must prepare the witness or witnesses to ‘testify about all information known or reasonably available to the organization' for any questions that could arise under the noticed topics”). A corporation, therefore, “must prepare its designees by having them review available materials, such as fact witness deposition testimony, exhibits to depositions, documents produced in discovery, materials in former employees' files and, if necessary, interviews of former employees or others with knowledge.” Richardson, 2020 WL 592329, at *2.

In determining whether a corporate deponent has met its Rule 30(b)(6) obligations, [c]ourts have examined the degree and type of effort made by the organization to prepare a witness in light of the deposition topics, and whether the organization acted ‘in good faith.'” Mfrs. Alliance Ins. Co. v. Brencorp, Inc., 2016 WL 11745984, at *10 (N.D.Ga. Aug. 3, 2016) (quoting Costa v. Cnty. of Burlington, 254 F.R.D. 187, 190 (D.N.J. June 27, 2008)). “It is left to the court's discretion to decide what knowledge can be considered ‘reasonably available,' and what percentage of questions a witness must be able to answer to render her adequate.” Thermolife Int'l, LLC v. Vital Pharms., Inc., 2015 WL 11197783, at *1 (S.D. Fla. Oct. 5, 2015).

“If it becomes apparent during the deposition that the designee is unable to adequately respond to relevant questions on listed subjects, then the responding corporation has a duty to timely designate additional, supplemental witnesses as substitute deponents. QBE Ins. Corp., 277 F.R.D. at 690. If the designee is not able to answer questions regarding the subject matter he was designated to testify about, the corporation has failed to satisfy its obligation to prepare the designee and may be subject to sanctions. See Fuentes v. Classica Cruise Operator Ltd, Inc., 32 F.4th 1311, 1322 (11th Cir. 2022) (citing Black Horse Lane Ass'n, L.P. v. Dow Chem. Corp., 228 F.3d 275, 304 (3d Cir. 2000)); Stoneeagle Serv., Inc. v. Pay-Plus Solutions, Inc., 2015 WL 12843846, at *1 (M.D. Fla. Apr. 29, 2015); Cont'l Cas. Co. v. Compass Bank, 2006 WL 533510, at *20 (S.D. Ala. Mar. 3, 2006) (sanctioning defendant for the failure of its corporate designee to “appear” for several areas of inquiry noticed by plaintiff). “[A] 30(b)(6) corporate designee's lack of preparation for a deposition may be deemed to be a failure to appear, for purposes of Rule 37(d).” Mfrs. Alliance Ins. Co., 2016 WL 11745984, at *10.

B. Boppy's 30(b)(6) Deposition

On July 26, 2023, Plaintiff took the deposition of Boppy's Rule 30(b)(6) corporate representative in Denver, Colorado. Prior to taking the deposition, the parties agreed on 22 topics that the representative would testify about. Included among the topics were 7 different topics relating to warnings on the Newborn Lounger (Topics 1, 2, 7, 8, 10, 18, and 21), including how and why the warnings changed; 3 topics on hazard assessments or testing (Topics 3, 4, and 11); and 5 topics on design or manufacturing specifications and tolerances (Topics 5, 6, 17, 20, and 22). ECF Doc. 60-1 at 1-6.

Boppy designated Nancy Rae Bartley (“Bartley”), Boppy's CEO, as the corporate representative. The Court has reviewed the transcript of Bartley's deposition and finds that she was not prepared to answer questions regarding warnings, hazard assessments/ testing, or manufacturing and design of the Newborn Lounger. See e.g., Hannah v. Armor Correctional Health Servs., Inc., 2020 WL 10692760, at *6 (M.D. Fla. June 30, 2020) (finding witness was unprepared to answer bulk of relevant questions).

Although Bartley has been with Boppy since 1999, she was not personally involved with many aspects of the design, warnings, or testing of the Newborn Lounger. Depo., Tr. 75:8-10. Her lack of direct personal knowledge, however, is irrelevant. It was incumbent upon Bartley as the corporate representative to conduct an investigation into the topics on which she was designated to testify. See Fed. Deposit Ins. Corp. v. Hutchins, 2013 WL 12109446, at *3 (N.D.Ga. Oct. 25, 2013) (The representative “must become educated and gain the requested knowledge to the extent reasonably available” regardless of the representative's relevant knowledge at the time of designation); SRT OPS, LLC v. R. Baker, Inc., 2012 WL 13026950, at *2 (N.D. Ala. July 26, 2012) (the organization's “duty to present and prepare a Rule 30(b)(6) designee goes beyond matters personally known to that designee or to matters in which that designee was personally involved”).

Based on Bartley's testimony, however, she did very little, if anything, to obtain “the collective knowledge of the corporation” before her deposition. QBE Ins. Corp., 277 F.R.D. at 688. Instead, Bartley relied primarily, if not solely, on her own knowledge and experience with the company and her own memory of events. This is not sufficient. Cont'l Cas. Co. v. First Fin. Emp. Leasing, Inc., 716 F.Supp.2d 1176, 1189 (M.D. Fla. 2010) (“A corporate party does not meet its obligation by merely “producing a designee and [then] seeing what [s]he has to say or what [s]he can cover.”).

Bartley confirmed at the outset of the deposition that she has knowledge of the topics identified in the notice. Depo., Tr. 24:23-25. However, Bartley had no knowledge of what testing was done on the Newborn Lounger and could only testify to what testing would have been done in the normal course of business. Depo., Tr. 27:12-28:17; 71:14-22; 73:9-15. Aside from such generalizations, Bartley was also unable to provide any information about what was actually done during the initial hazard assessment or any subsequent assessment or even when any assessment occurred during the life of the Newborn Lounger. Depo., Tr. 122:12-123:11; 132:19.

This information, however, was clearly reasonably available to the corporation and should have been gathered by Bartley, as the designated 30(b)(6) representative for Boppy. “[P]rior to a 30(b)(6) deposition, an organization is required to conduct an investigation and to review information that would assist it in knowledgeably answering the questions posed therein. This investigation may include reviewing documents produced in discovery, fact-witness testimony, exhibits to depositions, and company files. It may also include interviewing current and former employees with knowledge about the topics noticed.” See McCreight, 2020 WL 13002636, at *2.

Bartley testified there were other people at Boppy who were involved with testing; Bartley, however, did not interview any of them. Depo., Tr. 30:13-19. Bartley also did not ask for any documents regarding testing or review any such documents. Depo., Tr. 30:20-31:11. Nonetheless, Bartley admitted identifying what testing was done is “something she could figure out.” Depo., Tr. 124:17-20. Bartley testified a former...