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hibu Inc. v. Peck

United States District Court, D. Kansas

April 21, 2017

hibu INC., Plaintiff,
CHAD PECK, Defendant.


          Teresa J. James U.S. Magistrate Judge

         This matter is before the Court on Plaintiff hibu Inc.'s Motion to Compel and for Sanctions (ECF No. 158). Plaintiff asks the Court to compel non-party Dex Media, Inc. (“Dex”) to fully prepare and produce witnesses to answer questions relating to two of the topics Plaintiff designated in its Rule 30(b)(6) subpoena, and to pay the costs of such remedial deposition. Plaintiff also seeks an award of its expenses and costs incurred in relation to the first deposition and in bringing the instant motion. Dex opposes the motion. For the reasons set forth below, the Court grants the motion in part and denies it in part.

         I. Relevant Background

         On September 29, 2016, Plaintiff filed and served on Defendant notice that it would serve two Subpoenas to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action on Dex One Service, Inc.[1] Plaintiff included in its filing copies of the subpoenas and attachments thereto.[2] The subpoenas directed Dex One Service, Inc. to produce the documents on October 5, 2016. On September 30, 2016, Plaintiff obtained personal service on Dex One Service, Inc. at each address.[3] Also on September 29, Plaintiff prepared a Subpoena to Testify at a Deposition in a Civil Action for Dex One Service, Inc., with the same attachment as the document subpoena.[4] The attachment lists twelve topics on which a corporate representative was to testify.

         Dex designated Jim McCusker, its Chief Revenue Officer, to testify to Topic 7 in the subpoena, and agreed to produce him on February 9, 2017. Plaintiff noticed McCusker's deposition in his personal capacity for the same date. Topic 7 states as follows:

Business cases, budgets, proposals, studies, plans, strategies, analysis, requests for approval or discussions relating to (i) the expansion of the business of Dex Media in the State of Kansas to or within any market managed or to be managed in whole or in part by Chad Peck, or ii) involving hibu's business, customers, employees, directories and other products in the State of Kansas, in each case, prepared, in whole or in part, by Chad Peck, whether jointly or with others, or received by Chad Peck from Dex Media, in each case at any time from 2014 to the present.[5]

         Dex designated John Gregory, its Vice President of Directory Marketing and Pricing, to testify to Topic 6. Dex agreed to produce him on February 10, also the same date on which Plaintiff noticed Gregory's personal deposition. Topic 6 states as follows:

Studies, analysis, business cases, requests for approval, business plans, maps, budgets and forecasts pertaining to (i) the acquisition, or potential acquisition, of any or all assets or business in the State of Kansas of User Friendly or other yellow pages directory publishers, or (ii) the launch of new yellow pages directories, the expansion of existing yellow pages directories or other joint venture or association of any type by Dex Media with User Friendly or other such publishers, or by User Friendly or other such publishers with Dex Media, in each case produced at any time from 2014 to the present.[6]

         In both instances, Plaintiff began the sessions by taking the witness's deposition in his personal capacity, followed immediately by the Rule 30(b)(6) deposition.[7] Plaintiff's counsel stated at the end of each 30(b)(6) session that he did not find the witnesses had been adequately prepared to testify on behalf of Dex as to their respective topics.

         During a March 15, 2017 conference, the undersigned Magistrate Judge learned of the parties' dispute concerning this issue and imposed a March 29, 2017 deadline for the parties to resolve it or file a motion.[8] On March 29, 2017, counsel for Plaintiff sent an email to the undersigned Magistrate Judge to update the Court regarding the parties' meet and confer, indicating they had not resolved the matter and a motion would follow.[9]

         II. Legal Standards

         Rule 30(b)(6) requires that persons designated to testify on behalf of an entity “must testify about information known or reasonably available to the organization.” Thus, the rule implicitly requires a designated representative to review all matters known or reasonably available to the organization in preparation for the Rule 30(b)(6) deposition.[10] This is necessary to prevent a party from sandbagging its opponent by conducting only a minimal inquiry before the deposition but a thorough inquiry in preparing the witness to testify at trial.[11]

A notice of deposition made pursuant to Rule 30(b)(6) requires the corporation to produce one or more officers to testify with respect to matters set out in the deposition notice or subpoena. A party need only designate, with reasonable particularity, the topics for examination. The corporation, then must not only produce such number of persons as will satisfy the request, but more importantly, prepare them so that they may give complete, knowledgeable and binding answers on behalf of the corporation.[12]

         In other words, an organization does not fulfill its obligations under Rule 30(b)(6) by producing a witness who states he or she is without knowledge of facts on a designated topic, when those facts are ...

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