United States District Court, S.D. New York
OPINION AND ORDER
PITMAN, United States Magistrate Judge
to resolve the discovery dispute addressed in Docket Items
a fairly straight forward personal injury action in which
plaintiff alleges that she slipped and fell in
defendants' store in Mount Vernon, New York. Plaintiff
claims that her foot got caught in the base of shelving due
to the absence of what plaintiff's counsel describes as
an "end cap" which appears to be something that
would, according to plaintiff, ordinarily cover the opening
in which plaintiff's foot got caught. Plaintiff claims
that she fell as a result of her foot getting caught,
suffered a broken hip and required hip replacement surgery.
current dispute arises out of a deposition notice plaintiff
served seeking a 30(b)(6) deposition of Target Corporation
("Target"). The notice of deposition attaches a
list of 43 topics, at least one of which includes 22
sub-topics. Defendants have served objections to the notice,
claiming that it is premature, that Target will produce the
witness with the most knowledge of the accident and that
Target will consider producing a 30(b) (6) witness after the
most knowledgeable witness is deposed. In its letter in
response to plaintiff's motion to compel, Target also
makes the conclusory assertion that the notice is over broad,
but does not cite any specific examples in support of this
contention. Plaintiff seeks to compel Target to produce a
30(b)(6) witness in response to her notice.
other things, Rule 30(b)(6) was intended to address the
problem that arises when the party seeking discovery from an
entity does not know which individuals within the entity have
knowledge of the relevant facts. It addresses the problem by
permitting the party seeking discovery to identify the topics
with respect to which discovery is sought and then imposing
an obligation on the party from which discovery is sought to
produce a witness or witnesses prepared to testify with the
knowledge of the entity concerning the specified topics. 8A
Charles Wright, Arthur Miller, Richard Marcus, Federal
Practice & Procedure § 2103 at 452-53 (3rd ed.
2010); 2 Michael Silberberg, Edward M. Spiro, Judith L.
Mogul, Civil Practice in the Southern District
of New York 16:5 at 142-43 (2016-2017 ed.).
"Under Rule 30(b)(6), when a party seeking to depose a
corporation announces the subject matter of the proposed
deposition, the corporation must produce someone familiar
with that subject." Reillv v. Natwest Markets Grp.
Inc., 181 F.3d 253, 268 (2d Cir. 1999). "To satisfy
Rule 30(b)(6), the corporate deponent has an affirmative duty
to make available such number of persons as will be able to
give complete, knowledgeable and binding answers on its
behalf." Id. (internal quotation marks
omitted). After a deposing party serves a "satisfactory
notice, " the responding party must "make a
conscientious good-faith endeavor to designate the persons
having knowledge of the matters sought by the party noticing
the deposition and to prepare those persons in order that
they can answer fully, completely, unevasively, the questions
posed as to the relevant subject matters." Soroof
Trading Dev. Co. v. GE Fuel Cell Svs., LLC, No.
lO-cv-1391 (LGS) (JCF), 2013 WL 1286078 at *2 (S.D.N.Y. Mar.
28, 2013) (internal quotation marks omitted). It is well
settled, therefore, that "Rule 30(b)(6) deponents need
not have personal knowledge concerning the matters set out in
the deposition notice, " and "if they do not
possess such personal knowledge . . . the corporation is
obligated to prepare them so that they may give knowledgeable
answers." Spanski Enters., Inc. v. Telewizia Polska,
S.A., No. 07-CV-930 (GEL), 2009 WL 3270794, at *3
(S.D.N.Y. Oct. 13, 2009); see also Rahman v. Smith &
Wollensky Rest. Grp., Inc., No. 06-cv-6198 (LAK) (JCF),
2009 WL 773344, at *1 (S.D.N.Y. Mar. 18, 2009) ("A
corporation has an affirmative duty to prepare the designee
to the extent matters are reasonably available, whether from
documents, past employees, or other sources." (internal
quotation marks omitted)). "Producing an unprepared
witness is tantamount to a failure to appear."
Rahman, 2009 WL 773344 at *1.
Bush v. Element Fin. Corp., 16 Civ. 1007 (RJS), 2016
WL 8814347 at *2 (S.D.N.Y. Dec. 13, 2016) (Sullivan, D.J.).
The testimony of a 30(b)(6) witness with respect to the
topics in the notice of deposition is binding on the entity,
although the corporation may offer the testimony of other
witnesses to correct, explain or supplement the testimony of
the 30(b)(6) witness. Keepers, Inc. v. City of
Milford. 807 F.3d 24, 34-35 (2d Cir. 2015). Where a
30(b)(6) deposition seeks facts, as opposed to contentions,
there is no requirement in the Federal Rules of Civil
Procedure or the case law that the party seeking discovery
first resort to other discovery vehicles.
support of their contention that plaintiff must pursue
discovery through other means before seeking a Rule 30(b)(6)
deposition, defendants cite the following language from
JPMorgan Chase Bank v. Liberty Mut. Ins. Co., 209
F.R.D. 361, 362 (S.D.N.Y. 2002) (Rakoff, D.J.): "In a
nutshell, depositions, including 30(b)(6) depositions, are
designed to discover facts, not contentions or legal
theories, which, to the extent discoverable at all prior to
trial, must be discovered by other means." Defendants
are clearly misinterpreting the foregoing language. The
phrase "which, to the extent discoverable at all prior
to trial, must be discovered by other means" modifies
"contentions and legal theories" -- not
"facts." Judge Rakoff's subsequent discussion
of the 30(b) (6) notice at issue clearly states that the
deficiency with the notice was that it was seeking work
product and contentions, not facts. He nowhere suggested that
other discovery methods had to be exhausted before a party
sought a 30(b)(6) deposition. See also Liveperson, Inc.
v. 24/7 Customer, Inc., 14 Civ. 1559 (RWS), 2015 WL
4597546 at *7 (S.D.N.Y. July 30, 2015) (Sweet, D.J.) (citing
JPMorqan to sustain objections to a 30(b)(6) notice
seeking, among other things, a witness to testify to
"facts supporting contention of patent infringement . .
. facts supporting contention of violation of intellectual
property . . . facts supporting contention of spyware
deployment and system disruption").
contrast to the notices in JPMorqan and
Liveperson, with three exceptions,  the
30(b)(6) notice does not seek defendants' contentions or
their work product. The notice does not seek to have
defendants identify the facts that support their contentions,
rather it seeks only facts.
extent defendants suggest that they are entitled to take
plaintiff's deposition before plaintiff deposes
defendants, defendants' objection is frivolous. There is
no priority of depositions in federal practice. Demarco
v. Stony Brook Clinical Practice Mqm't Plan,
CV-06-4305 (JG)(ARL), 2007 WL 1839823 at *1 (E.D.N.Y. June
26, 2007) (collecting authorities). Because it appears that
plaintiff noticed defendants' deposition first, that
deposition should proceed first. Boxer v. Smith, Kline
& French Labs., 43 F.R.D. 25, 27 & n.l (S.D.N.Y.
1967) (Motley, D.J.).
except with respect to over breadth and Topics 1, 20 and 21,
defendants' objections to plaintiff's 30(b)(6) notice
the topics in plaintiff's notice are plainly overly
broad. For example, Topic 24 seeks a witness prepared with
knowledge of "Defendant's Store Manager Training
Policies for the five year period preceding Plaintiff's
fall in the store." This topic appears to have little to
do with determining whether there was an unreasonably
dangerous condition in defendants' Mount Vernon store
that was a proximate cause of plaintiff's fall.
Accordingly, the parties are directed to have a viva
voce conversation, either in person or by telephone, in
an effort to narrow the topics in dispute; an exchange of
emails or other correspondence does not comply with this
Order. If the parties are unable to resolve their disputes
concerning the breadth of the topics, they are to report for
a discovery conference on September 11, 2018 at 2:00 p.m. in
Courtroom 18A, United States Courthouse, 500 Pearl Street,
New York, New York. No later than 5:00 p.m. on September 8,
2017, counsel are directed to send a fax to my chambers
((212) 805-6111) either advising that they have resolved
their remaining disputes or identifying the deposition topics
that remain in dispute.