United States District Court, D. Massachusetts
BRUCE M. COOPER et al., Plaintiffs
CHARTER COMMUNICATIONS, INC. et al., Defendants
ORDER ON PLAINTIFFS’ MOTION TO COMPEL CONTINUATION OF FIRST RULE 30(b)(6) DEPOSITION
KATHERINE A. ROBERTSON, U.S. MAGISTRATE JUDGE.
On December 10, 2015, the undersigned conducted a hearing on multiple discovery motions - and oppositions thereto - filed by both sides in this litigation (Dkt. Nos. 159-164, 170-171, 173, 176-191). At the hearing, the parties agreed that, as a next step in discovery, plaintiffs would take five depositions that they had previously noticed, including a second Rule 30(b)(6) deposition of Charter Communications, Inc. and Charter Communications Entertainment, LLC (collectively, “Charter”). The court deferred ruling on certain discovery motions on the theory that this further discovery would render moot some of the existing disputes between the parties. Plaintiffs have now requested that the court rule on their pending motion to compel a continuation of their first Rule 30(b)(6) deposition of Charter so that any continuation of this first Rule 30(b)(6) deposition may take place in advance of the June 17, 2016 deadline set for class certification discovery (Dkt. No. 225). This order, issued accordingly, grants in part and denies in part plaintiffs’ motion, and denies their request for attorney’s fees and costs.
II. RELEVANT BACKGROUND
Charter provides cable television, internet and telephone services to residential and business customers in Massachusetts and other states. In this putative class action case, plaintiffs contend that, from 2008 to the present, Charter failed to provide its customers with a credit, refund, or rebate for periods when services already paid for by Charter customers were unavailable because of wide spread power outages of which Charter was aware, failed to disclose its refund policy clearly and conspicuously to its customers in violation of Massachusetts law, and maintained a refund policy that was in violation of state law (Dkt. No. 115).
Plaintiffs served Charter with a notice for a first Rule 30(b)(6) deposition on June 4, 2015, setting a June 30, 2015 deposition date. By agreement between the parties, the deposition was continued to July 13, 2015. On June 23, 2015, plaintiffs served a 30(b)(6) deposition re-notice with an attached schedule A listing sixteen (16) topics (“Schedule A”) related primarily to Charter’s credit and refund policies and its disclosures about those policies to its customers, and directing Charter to designate the person or persons most knowledgeable in the areas described in Schedule A to testify (Dkt. No. 191-2).
Thomas Cohan, Charter’s Director of Government Affairs, was designated by Charter as its sole Rule 30(b)(6) deponent (Dkt. No. 210 at 3). The deposition commenced at approximately 9:00 a.m. and continued until almost 5:30 p.m. At that point, on the grounds that documents requested in discovery related to topics set out in Schedule A were produced late or had not been produced, that the witness was not adequately prepared, and that Charter’s counsel had improperly instructed the witness not to answer questions about the interpretation of customer agreements that contained arbitration clauses and class action waivers, plaintiffs stated on the record their intention to “keep the deposition open” (Dkt. No. 191-3 at 54-55). While acknowledging that the deponent had been asked some questions he was unable to answer and had indicated that additional information might be available on some topics, Charter’s counsel disagreed that Mr. Cohan had been inadequately prepared (id.).
In their motion, plaintiffs identified four topics or areas as examples of Mr. Cohan’s alleged shortcomings as a Rule 30(b)(6) witness. They seek an order from the court that compels Charter to answer additional questions on any and all of the topics listed in Schedule A, instructs Charter’s counsel not to object or instruct the deponent not to answer except in compliance with Federal Rule of Civil Procedure 39(c)(2), and compels Charter to pay plaintiffs’ fees and costs incurred in connection with the taking of such further Rule 30(b)(6) testimony (Dkt. No. 190 at 8). Charter, for its part, contends that Mr. Cohan was adequately prepared, that further Rule 30(b)(6) deposition testimony responsive to Schedule A, if any, should be strictly limited and should not include testimony about the interpretation of agreements subject to an arbitration clause, and that sanctions are not warranted.
1. Plaintiffs’ request for an unlimited continuation of the Rule 30(b)(6) deposition and for fees and costs
“In determining whether a corporate deponent has met its Rule 30(b)(6) obligation, courts examine the degree and type of effort made by the organization to prepare the witness in light of the deposition topics.” Fed. Ins. Co. v. Delta Mech. Contractors, LLC, CA No. 11-048ML, 2013 WL 1343528, at *4 (D.R.I. Apr. 2, 2013). Particularly when, as here, the list of topics is relatively long and those topics are broadly defined, “[t]he fact that the designee cannot answer every question posed at the deposition does not mean that the organization failed to satisfy its obligation to prepare the witness.” Int’l Bhd. of Teamsters, Airline Div. v. Frontier Airlines, Inc., Civil Action No. 11-cv-02007-MSK-KLM, 2013 WL 627149, at *6 (D. Colo. Feb. 19, 2013).
The court has reviewed the entire 295-page transcript of Mr. Cohan’s testimony. It does not confirm Plaintiffs’ characterization of his preparation or testimony. Mr. Cohan’s role as Charter’s Director of Government Relations and point person for Charter’s response to a catastrophic October 2011 snowstorm, which is a major focus of plaintiffs’ claims against Charter, made him a knowledgeable and appropriate Rule 30(b)(6) designee. As that designee, he did not rest on his personal knowledge. Rather, he took reasonable and substantive steps to prepare for the Rule 30(b)(6) deposition: he met with at least four Charter employees with relevant knowledge and spoke by telephone with at least three others, reviewed relevant documents, conferred with Charter’s inside and outside counsel, and reviewed his prior affidavits and deposition testimony as well as another deponent’s testimony. When, in the course of his preparation, he learned of the existence of documents he had not known existed, he took steps to obtain copies that Charter thereafter produced (Dkt. No. 191-3 at 5-6, 13). During the deposition, he answered most of the questions posed to him with knowledge and substance. When he did not know the answer, he acknowledged as much and often identified an individual likely to have relevant knowledge. This is far from a case in which the deponent’s inability to answer every question posed by plaintiffs’ counsel was “’tantamount to a complete failure’ of the corporation to appear.” Berwind Prop. Grp., Inc. v. Envtl. Mgmt. Grp., Inc., 233 F.R.D. 62, 65 (D. Mass. 2005) (quoting United States v. Mass. Indus. Fin. Agency, 162 F.R.D. 410, 412 (D. Mass. 1995)); contrast, e.g., Calzaturficio S.C.A.R.P.A. v. Fabiano Shoe Co., Inc., 201 F.R.D. 33 (D. Mass. 2001) (company made no effort to educate Rule 30(b)(6) deponent and disclaimed any obligation to do so).
Because Charter produced a deponent who was adequately prepared to testify, plaintiffs are not entitled to a second day of unlimited testimony on the topics listed in Schedule A. Further, because Charter did not frustrate the fair examination of the deponent or otherwise significantly impede plaintiffs’ examination, plaintiffs are not entitled to an award of expenses and reasonable attorney’s fees. See Fed. R. Civ. P. 30(d)(2); cf. Berwind, 233 F.R.D. at 65 (declining to require party to produce another Rule 30(b)(6) deposition notice despite court’s finding that preparation was inadequate); Calzaturficio, 201 F.R.D. at 41 (reserving issue of fees and costs despite finding that party failed properly to prepare Rule 30(b)(6) witness and counsel conducted himself improperly during deposition).
This leaves the question of whether Charter should be required to supplement Mr. Cohan’s Rule 30(b)(6) testimony, and, if so, on what topics supplementation is required. See Berwind, 233 F.R.D. at 65. “[T]he party moving to compel discovery over an adversary’s objection bears the burden of showing that the information he seeks is relevant[.]” McEvoy v. Hillsborough County, Civ. No. 09-cv-431-SM, 2011 WL 1813014, at *2 (D.N.H. May 5, 2011).The difficulty faced by the court is that, having chosen to rest their motion to compel on an unwarranted broadside attack on Charter’s Rule 30(b)(6) deponent, plaintiffs have, for the most part, failed to: (a) identify specific topics or areas in which Charter’s testimony should be supplemented; and (b) show the relevance of additional information on the topics listed in Schedule A.Nonetheless, if fairly appears, based on ...