Depo of Person or Category of Witness: FRCP 30[b][1]

David A. Szwak

Depo of Person or Category of Witness: FRCP 30[b][1]

Postby David A. Szwak » Mon Dec 05, 2005 8:35 am

Cadent Ltd. v. 3M Unitek Corp.,
--- F.R.D. ----, 2005 WL 2850103, C.D.Cal., Sep 21, 2005

Background: Motion was made to compel corporate party to produce witnesses for depositions in Los Angeles. Corporation sought protective order.

Holdings: The District Court, Chapman, Magistrate J., held that:
(1) proposed corporate deponent failed to adduce evidence sufficient to warrant protective order against requiring corporation's representatives to travel to Los Angeles for the depositions, as opposed to conducting depositions in New Jersey and Israel, where the individuals resided and worked, but
(2) reasonable costs of airfare and lodging for the deponents should be split between the parties.

Motion to compel granted; motion for protective order denied.



CHAPMAN, Magistrate J.
PROCEEDINGS: (IN CHAMBERS) (1) ORDER GRANTING DEFENDANTS' MOTION TO COMPEL PLAINTIFF TO PRODUCE WITNESSES FOR DEPOSITIONS IN LOS ANGELES AND (2) GRANTING, IN PART, PLAINTIFF'S REQUEST FOR PROTECTIVE ORDER
*1 On August 17, 2005, defendants filed a notice of motion and motion to compel plaintiff to produce witnesses for depositions in Los Angeles, a joint stipulation, and the supporting declaration of Valerie Y. Hung with exhibits, and plaintiff filed the declaration of William A. Molinski with exhibits in opposition to defendants' motion. On August 23, 2005, defendants filed their supplemental memorandum and the supplemental declaration of Valerie Y. Hung with exhibits, and on August 26, 2005, plaintiff filed its supplemental memorandum and the supplemental declaration of Yishai Boyarin with an exhibit. The matter is decided in Chambers without oral argument, pursuant to Local Rule 7-15.

BACKGROUND
On April 26, 2004, plaintiff Cadent, Ltd., an Israeli corporation, filed a complaint against 3M Unitek Corporation ("3M Unitek"), a California corporation with its principal place of business in this district, for breach of contract, breach of implied covenant of good faith and fair dealing, promissory estoppel, conversion and fraud. On July 22, 2004, defendant 3M Unitek answered the complaint, raised several affirmative defenses and filed a counterclaim for breach of contract, promissory estoppel and unjust enrichment, and on December 29, 2004, plaintiff replied to defendant 3M Unitek's counterclaim and raised affirmative defenses. On June 1, 2005, District Judge Gary A. Feess ordered defendant 3M Innovative Properties Company ("3M IPC") added as a defendant and counterclaimant in this action (since the patents at issue are owned by 3M IPC by virtue of an assignment from the inventors who had been employed by 3M Unitek). On June 7, 2005, defendant 3M IPC answered the complaint, raised several affirmative defenses and filed a counterclaim for correction of named inventor under 35 U.S.C. § 256 and conversion, and on July 7, 2005, plaintiff replied to defendant 3M IPC's counterclaim and raised affirmative defenses.
The gravamen of plaintiff's complaint is that defendants breached two written agreements entered into in 1995 and 1998 between plaintiff and defendants by unilaterally, without plaintiff's knowledge, deleting the name of plaintiff's employee, Baruch Nissenbaum, from among the inventors when applying to the United States Patent Office for patent nos. 6,152,731 (" '731 patent") and 6,322,359 (" '359 patent"). On the other hand, defendants claim plaintiff is improperly trying to expand its rights in an invention to acquire ownership and interests in patents it did not invent because plaintiff's employee did not contribute to the inception of any of the claims in the '731 and '359 patents. Defendants' counterclaims are based on plaintiff's failure to pay amounts owed under the 1998 agreement.

DISCUSSION
[1][2][3] The Federal Rules of Civil Procedure provide two methods by which a corporate party to a proceeding may be deposed: (1) Rule 30(b)(1) provides for the deposition by notice of a corporation through a particular officer, director or managing agent of the corporation; [FN1] and (2) Rule 30(b)(6) provides for the deposition of the corporation by notice setting forth "with reasonable particularity" the matters on which the examination of the corporation's most knowledgeable person will take place. [FN2] United States v. Afram Lines (USA), Ltd., 159 F.R.D. 408, 413 (S.D.N.Y.1994); GTE Prods. Corp. v. Gee, 115 F.R.D. 67, 68 (D.Mass.1987). When an employee named in a deposition notice "is a director, officer, or managing agent of [a corporate party], such employee will be regarded as a representative of the corporation." Moore v. Pyrotech Corp., 137 F.R.D. 356, 357 (D.Kan.1991); United States v. One Parcel of Real Estate at 5860 North Bay Rd., 121 F.R.D. 439, 440-41 (S.D.Fla.1988). This means that under Rule 32(a), depositions of corporate officers under Rule 30(b)(1), as well as Rule 30(b)(6) depositions, may be used at trial against the corporate party. Coletti v. Cudd Pressure Control, 165 F.3d 767, 773 (10th Cir.1999); Crimm v. Missouri Pac. R.R. Co. ., 750 F.2d 703, 708-09 (8th Cir.1984).
*2 The dispute between the parties to this action is fairly simple and straightforward. On July 28, 2005, defendants noticed the Rule 30(b)(6) deposition of plaintiff corporation and the depositions of three of plaintiff's officers and one of its employees: Eldad Taub, Chief Financial Officer; Avi Kopelman, Products Vice President; Edward J. Sitar, Executive Vice President and Chief Financial Officer; and Mr. Nissenbaum, an engineer, setting all depositions in Los Angeles, California, during the period between September 15 and September 29, 2005. Joint Stip. at 4:13-22; Hung Decl., ¶ 4, Exh. 3. Mr. Sitar resides and works in New Jersey and Messrs. Taub, Kopelman and Nissenbaum reside and work in Israel. Molinski Decl., ¶ 6. Plaintiff has refused to produce the deposition witnesses in Los Angeles, and it opposes defendants' motion to compel that the depositions be held in Los Angeles and seeks a protective order requiring the depositions be held in Israel, plaintiff's principal place of business, or alternatively in New York, and requiring defendants to share plaintiff's expenses for attending the depositions in New York, or pay all of plaintiff's expenses if the depositions are taken in Los Angeles.
[4][5] "A party may unilaterally choose the place for deposing an opposing party, subject to the granting of a protective order by the Court pursuant to Rule 26(c)(2), Fed.R.Civ.P., designating a different place." Turner v. Prudential Ins. Co. of America, 119 F.R.D. 381, 382 (M.D.N.C.1988) (citing 8 C. Wright & A. Miller, Federal Practice and Procedure, § 2112 at 403 (1970)). Nevertheless, the general rule for setting the location of a corporate party's deposition is:
The deposition of a corporation by its agents and officers should ordinarily be taken at its principal place of business. This is subject to modification, however, when justice requires. [¶] An important question in determining where to hold the examination is the matter of expense.... The protective order rule, now Rule 26(c), was amended in 1970 to include protection from "undue burden or expense" as a ground for a protective order.... [¶] In each case in which a motion [for a protective order] is made the court considers the facts, selects the place of examination, and determines what justice requires with regard to payment of expenses and attorneys' fees....
Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 2112 at 84-85 (1994 rev.) (footnotes omitted).
[6] "[A] number of factors serve to dissipate the presumption [that a corporate party's deposition should be held at its principal place of business] and may persuade the Court to require the deposition to be conducted in the forum district or some other place." Turner, 119 F.R.D. at 383; Rampoca Energy Co., L.P. v. AMCI Export Corp., 199 F.R.D. 191, 193 (W.D.Va.2001). "These factors include location of counsel for the parties in the forum district, the number of corporate representatives a party is seeking to depose, the likelihood of significant discovery disputes arising which would necessitate-resolution by the forum court; whether the persons sought to be deposed often engage in travel for business purposes; and the equities with regard to the nature of the claim and the parties' relationship." Armsey v. Medshares Mgmt. Servs., 184 F.R.D. 569, 571 (W.D.Va.1998); Resolution Trust Corp. v. Worldwide Ins. Management Corp., 147 F.R.D. 125, 127 (N.D.Tex.1992).
*3 [7] Accordingly, "[c]orporate defendants are frequently deposed in places other than the location of the principal place of business, especially in the forum [where the action is pending], for the convenience of all parties and in the general interests of judicial economy." Sugarhill Records Ltd. v. Motown Records Corp., 105 F.R.D. 166, 171 (S.D.N.Y.1985); Custom Form Mfg., Inc. v. Omron Corp., 196 F.R.D. 333, 338 (N.D.Ind.2000); see also Leist v. Union Oil Co. of California, 82 F.R.D. 203, 204 (E.D.Wis.1979) ("[It] is proper to consider the financial position of the deponent and that of the corporate party for which he works in designating the place for his deposition."); Baker v. Standard Indus., Inc., 55 F.R.D. 178, 179 (D.P.R.1972) (denying defendant corporation's motion for a protective order to require corporate officer's deposition at corporation's principal place of business because no showing corporate officer is "being put to unnecessary trouble and expense by being required to travel a great distance to give his deposition").
[8] Federal Rule of Civil Procedure 26(c) governs the discretionary granting of a protective order "to regulate the terms, conditions, time or place of discovery...." Pro Billiards Tour Ass'n, Inc. v. R.J. Reynolds Tobacco Co., 187 F.R.D. 229, 230 (M.D.N.C.1999). A protective order should be granted when the moving party establishes "good cause" for the order and "justice requires [a protective order] to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense...." Fed.R.Civ.P. 26(c). "For good cause to exist, the party seeking protection bears the burden of showing specific prejudice or harm will result if no protective order is granted." Phillips v. General Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir.2002); Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir.), cert. denied, 506 U.S. 868, 113 S.Ct. 197, 121 L.Ed.2d 140 (1992).
[9] Here, neither party has provided the Court with declarations from its corporate officers attesting to either the expense or undue burden associated with holding plaintiff's Rule 30(b)(6) deposition or the depositions of plaintiff's officers and an employee in Los Angeles, New York or Israel. Since plaintiff has the burden under Rule 26(c) to show good cause for the issuance of a protective order requiring the depositions not be held in Los Angeles, where they were noticed, and it has presented absolutely no evidence showing a specific and particular need for such protective order, its request is without merit. See Afram Export Corp. v. Metallurgiki Halyps, S .A., 772 F.2d 1358, 1365 (7th Cir.1985) (affirming district court's decision to depose Greek corporation's president in United States where corporation made no showing of hardship); South Seas Catamaran, Inc. v. Motor Vessel "Leeway", 120 F.R.D. 17, 21 n. 5 (D.N.J.1988) ("[C]ourts have often required corporate defendants to produce their officers or agents for depositions at locations other than the corporation's principal place of business where there has been no showing that the defendant will suffer any resulting financial hardship."), affirmed by, 993 F.2d 878 (3d Cir.1993) (Table); Tomingas v. Douglas Aircraft Co., 45 F.R.D. 94, 97 (S.D.N.Y.1968) (declining to vacate notice of deposition where "there has been no showing that any harm would result to defendant's business by virtue of the deponents' brief absence from their jobs"). [FN3]
*4 Other than the general presumption regarding the holding of corporate depositions in the corporation's principal place of business, plaintiff proffers absolutely no rationale for requiring the depositions in this case not be taken in Los Angeles. To the contrary, several common sense factors militate toward holding the depositions in Los Angeles. First, Israel may be a dangerous place to hold the depositions, [FN4] United States v. $160,066.98 From Bank of America, 202 F.R.D. 624, 627-28 (S.D.Cal.2001), and although plaintiff has an office in New Jersey, that is not plaintiff's principal place of business and does not provide a rationale for holding the depositions in New York--which is not New Jersey! Second, counsel for all parties reside in Los Angeles and have their offices in Los Angeles. Resolution Trust Corp., 147 F.R.D. at 127; Turner, 119 F.R.D. at 382. Third, defendants have shown that plaintiff does business in this district, cf. Hyde & Drath v. Baker, 24 F.3d 1162, 1166 (9th Cir.1994), and at least Mr. Taub periodically travels to this district on business. [FN5] Armsey, 184 F.R.D. at 571. Thus, it appears to be more convenient, less time consuming, and less expensive for the parties to hold plaintiff's Rule 30(b)(6) deposition and the depositions of plaintiff's corporate officers and an employee in this district. Resolution Trust Corp., 147 F.R.D. at 127-28; Turner, 119 F.R.D. at 383-84. Finally, this determination helps "secure[ ] the just, speedy and inexpensive determination of [this] action," as Rule 1 of the Federal Rules of Civil Procedure requires. Accordingly, defendants' motion to compel should be granted, and plaintiff's motion for a protective order should be denied.
[10] Since holding plaintiff's Rule 30(b)(6) and corporate officer depositions and an employee deposition in this district may save defendants considerable expense, the Court will partially shift plaintiff's travel costs to defendants. Huynh v. Werke, 90 F.R.D. 447, 449 (S.D.Oh.1981); Connell v. Biltmore Sec. Life Ins. Co., 41 F.R.D. 136, 137 (D.S.C.1966). Specifically, the parties should evenly split the costs of coach airfare from Israel to Los Angeles and the reasonable lodging costs for two to three nights in Los Angeles for those individuals traveling from Israel to attend their depositions (Messrs. Taub, Kopelman and Nissenbaum); however, Mr. Sitar's expenses need not be split between the parties. These costs are recoverable expenses for the party who prevails in this matter.

ORDER
1. The Court grants defendants' motion to compel the taking of plaintiff's Rule 30(b)(6) deposition and the depositions of plaintiff's corporate officers and an employee in Los Angeles, and those depositions shall be held no later than October 14, 2005. If plaintiff has not yet designated its person(s) most knowledgeable for the Rule 30(b)(6) deposition, it shall do so no later than three (3) days from the date of this Order. Counsel for the parties shall personally meet and confer to set the dates of the Rule 30(b)(6) deposition and the depositions of the corporate officers and employee, within five (5) days of the date of this Order.
*5 2. The Court denies plaintiff's request for a protective order regarding the location of the depositions; however, the Court grants, in part, plaintiff's request that reasonable costs for the depositions be split between the parties. The costs of the coach airfare for Messrs. Taub, Kopelman and Nissenbaum to travel from Israel to Los Angeles and their reasonable lodging costs for two to three nights while in Los Angeles attending their depositions shall be split evenly between plaintiff and defendants. Plaintiff shall bill defendants for these costs no later than November 14, 2005, and defendants shall reimburse plaintiff their 50% share no later than thirty (30) days after being billed.
3. To assure that the corporate officer and employee depositions go smoothly, defendants shall give written notice to each witness, no later than five (5) business days prior to each deposition, of the documents upon which the witness may be examined, identifying said documents by Bates numbers.

FN1. Under Rule 30(b)(1), it is well recognized that "if the corporation is a party, the notice compels it to produce any 'officer, director or managing agent' named in the deposition notice. It is not necessary to subpoena such individual. The corporation risks sanctions-- including default or dismissal--if the designated individual fails to appear." Schwarzer, Tashima & Wagstaffe, California Practice Guide: Fed. Civil Procedure Before Trial, §§ 11:1419, 11:2226 (2005 rev.) (emphasis in original); JSC Foreign Economic Ass'n Technostroyexport v. Int'l Dev. &
Trade Servs., Inc., 220 F.R.D. 235, 237 (S.D.N.Y.2004).

FN2. "Once served with a Rule 30(b)(6) notice, the corporation is compelled to comply, and it may be ordered to designate witnesses if it fails to do so." United States v. J.M. Taylor, 166 F.R.D. 356, 360 (M.D.N.C.1996). However, the Court has not been advised by the parties whether plaintiff has designated its Rule 30(b)(6) witness(es).

FN3. In fact, plaintiff has not even identified the individual(s) it would designate to appear for the Rule 30(b)(6) deposition, and, thus, has presented no evidence regarding the residency or work or travel schedules of that individual.

FN4. See Hung Decl., ¶ 7, Exh. 6.

FN5. See Hung Decl., ¶ 8, Exh. 7.

C.D.Cal.,2005.
Cadent Ltd. v. 3M Unitek Corp.
--- F.R.D. ----, 2005 WL 2850103 (C.D.Cal.)
Last edited by David A. Szwak on Thu May 11, 2006 6:28 am, edited 1 time in total.

David A. Szwak

Postby David A. Szwak » Thu Dec 08, 2005 8:25 am

 UNITED STATES DISTRICT COURT
IN AND FOR THE DISTRICT OF HAWAII

GARY CISNEROS,

v. Civil Action No. CV03-00200-PK-LEK

TRANS UNION, ET AL

AMENDED NOTICE OF ORAL DEPOSITION
To: CATEGORIES OF EXPERIAN INFORMATION SOLUTIONS, INC.
EMPLOYEES
through its attorneys of record:
Deborah K. Wright
Keith D. Kirschbraun
Wright & Kirschbraun
6 Central Avenue
Wailuka, Hawaii 96793
Counsel for EXPERIAN INFORMATION SOLUTIONS, INC.
Pursuant to the Federal Rules of Civil Procedure, Plaintiff announces that he will take the
deposition of CATEGORIES OF EXPERIAN INFORMATION SOLUTIONS, INC. EMPLOYEES AS LISTED BELOW, before a certified court reporter at the offices of Diana Friedman, Esq., 2301 Cedar Springs Rd., Ste. 330, Dallas, Texas 75201, on the 20th day of January, 2003, beginning at 12:00 p.m., or otherwise immediately following the FRCP 30[b][6] deposition of Experian, with video to likewise be taken, and continuing day to day until completed or concluded in accordance with court rules. The deposition will be taken for all purposes, including the perpetuation of testimony. The categories of witnesses who are sought to be deposed are the actual persons who performed any of the following transactions. Again, plaintiff designates categories of witnesses as Experian has not designated these persons nor identified them in disclosure or discovery responses. Plaintiff seeks to depose the actual persons who performed any of the following transactions: Experian’s employees identified by Badge Number in Experian’s complete disclosure log records for each and every data file, and PIN assigned, bearing any of plaintiff’s personal identifiers such that the file[s] would be returned as a possible file or partial match in response to an inquiry about plaintiff; Experian’s employees identified by Badge Number in Experian’s complete D/R log and dispute resolution log records for each and every data file, and PIN assigned, bearing any of plaintiff’s personal identifiers such that the file[s] would be returned as a possible file or partial match in response to an inquiry about plaintiff; Experian’s employees identified by Badge Number in Experian’s complete administrative report and 7X report records for each and every data file, and PIN assigned, bearing any of plaintiff’s personal identifiers such that the file[s] would be returned as a possible file or partial match in response to an inquiry about plaintiff; Experian’s employees identified by Badge Number in Experian’s complete reinvestigation and SuperCaps reinvestigation records involving the accounts made subject of this litigation and any account[s] bearing any of plaintiff’s personal identifiers; the Experian employee that backed up and archived credit data files for each and every data file bearing any of plaintiff’s personal identifiers such that the file[s] would be returned as a possible file or partial match in response to an inquiry about plaintiff, which were snapshotted and recorded during the period of four years predating the filing of this lawsuit; reinvestigation records and any non-computerized reinvestigation records for each and every data file bearing any of plaintiff’s personal identifiers such that the file[s] would be returned as a possible file or partial match in response to an inquiry about plaintiff, for a period of four years predating the filing of this lawsuit; Experian’s employees identified by Badge Number in Experian’s inquiries into plaintiff’s credit reports; Experian’s employees who handled dispute reinvestigations based on plaintiff’s disputes; Experian’s employees who handled or transacted CDVs, ACDVs, UDFs and AUDFs about or concerning plaintiff; Experian’s employees identified by Badge Number in Experian’s complete communications log and records which pertain to the accounts and reportings made subject of this litigation and any accounts bearing any of plaintiff’s personal identifiers; Experian’s employees who document the cost of a reinvestigation of a consumer’s dispute by Experian; Experian’s employees who document the cost incurred by Experian in reinvestigating plaintiff’s disputes; Experian’s employees who document audits by Experian to study and assess the cost of dispute reinvestigations; Experian’s employees who document the use of a production statistic [also called a quota system] at NCAC; Experian’s employees who document the each credit score, FICO or otherwise, which Experian published regarding plaintiff; Experian’s employees who document the adverse action codes [a/k/a risk factors a/k/a denial codes] Experian published regarding plaintiff.

Respectfully submitted:


By: _________________________________
David A. Szwak, LBR#21157
416 Travis St., Ste. 240
Mid South Tower
Shreveport, Louisiana 71101
(318) 424-1400
FAX 221-6555
ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing has been served upon all counsel of record by placing a copy of same in the United States Mail, properly addressed and first class postage pre-paid on this the ______ day of _________________, 2003.

__________________________________
OF COUNSEL

David A. Szwak

This Objection Was Sustained In Favor of Plaintiff by Judge

Postby David A. Szwak » Fri Dec 09, 2005 10:43 pm

UNITED STATES DISTRICT COURT
IN AND FOR THE WESTERN DISTRICT OF LOUISIANA



LARRY E. CARRIERE, II

v. Civil Action No. CV03-1340-S

EXPERIAN INFORMATION SOLUTIONS,


PLAINTIFF’S OBJECTION AND REQUEST FOR RELIEF FROM
MAGISTRATE-JUDGE’S RULING
IN CONFERENCE HEARING HELD ON JUNE 3, 2004
IN CONNECTION WITH DEPOSITIONS SET FOR JUNE 8, 2004

NOW INTO COURT, through undersigned counsel, comes plaintiff who respectfully objects to and seeks relief from the ruling of the Magistrate-Judge’s ruling in a conference hearing held this date in connection with depositions noticed and set for June 8, 2004, of the defendant.
1.
This matter was brought before the court based on defendant’s recent objection to a Rule 30[b][1] notice of deposition seeking to depose several persons working for Experian in connection with their roles in the matters forming the very basis of this lawsuit. Experian objected to the notice and plaintiff brought the issue before the court and Magistrate-Judge Payne permitted a conference with the parties this date, June 3, in an effort to resolve the dispute.
2.
Plaintiff has brought a Fair Credit Reporting Act and state law claims lawsuit against Experian based on Experian’s repeated blending of his credit file data together with one or more other persons, who are unknown to plaintiff and unrelated to plaintiff.
3.
Plaintiff sent written discovery to Experian but no responses have been received to date and Experian’s disclosure information in this case simply listed Experian’s legal liaison employees [Browne, a liaison who has testified, by his own admission, more than 71 times for his employer; Helm, Stafford and Hughes, who each are repeatedly offered as Rule 30[b][6] deponents and trial witnesses for Experian and who may collectively may have testified in excess of the number of times Browne has does so]. Experian’s disclosure does not list the actual employees who handled the transactions and events underlying the disputes and reinvestigation[s], if any, into plaintiff’s disputes. Experian’s disclosure makes no mention of any programmer or person handling the actual formulation of Experian’s front end data posting and data matching processes.
4.
It was not until after this dispute was first presented that Experian e-mailed counsel for plaintiff a listing of names of Experian employees [and a few former employees] which Experian’s counsel identified as those persons cryptically listed by Experian Badge Number in plaintiff’s internal Experian records as having handled the transactions and events involving plaintiff’s disputes and reinvestigation[s], if any.
5.
As further shown in the attached memo submitted by plaintiff with attachments to the court, on or about March 29, 2004, plaintiff sent Experian’s counsel two notices of depositions in blank and requested that Experian identify dates and places where the Rule 30[b][6] deposition and Rule 30[b][1] deposition[s] could take place. Only recently did Experian respond and provide the date of June 8. Plaintiff’s counsel noticed the depositions for June 8, 2004, next week.
6.
It should be noted that plaintiff’s written discovery asked for witness identities in several interrogatories, as shown in attached exhibits to the memo. No answers have been provided to date except for the very recent e-mails which listed 15 Experian current and former employees by name. After that, Experian merely supplied names and former addresses of three ex-employees.
7.
As shown, Experian recently advised counsel that it intended to object to the Rule 30[b][1] notice in this case.
8.
The conference today is to address Experian’s objection so as to avoid unnecessary problems in the deposition process set to take place on June 8.
9.
Experian has objected by stating that Rule 30[b][1] does not allow deposition notices of category or description of employees. Further, Experian further sought to count each of its responsive employees as a separate deposition and, due to the nature of Experian’s structure, it would exceed 10 persons and 10 depositions, as Experian counts the depositions.
10.
Plaintiff submits that Experian has not adequately identified its employee witnesses nor disclosed their identities in a manner conducive to discovery. Instead, like its many other cases, Experian seeks to conceal the identities of low level employees and to obstruct the discovery process.

11.
Plaintiff submits that Rule 30[b][1] permits the noticing of a defendant’s representative’s/employees’s deposition by category and description where the identities are not known or disclosed.
12.
In the hearing today, Magistrate-Judge Payne held that Rule 30[b][1] deals with the form of the notice but does not compel a defendant to produce a witness. He further held that Rule 30[b][1] was designed to permit, for ex., a party, plaintiff, to notice a deposition by category stating that the party seeks to depose eyewitnesses to an accident and then the defense must appear on the scheduled date and be prepared to defend the deposition of any witness the plaintiff must summon under that notice. Magistrate-Judge Payne acknowledged that plaintiff cited district court authority interpreting the statute differently but no one could cite Western District authority on the interpretation of Rule 30[b][1]. See, ex., Lake v. Orgulf Transport Co., 1993 WestLaw 194096 [U.S.D.C. W.D. Tenn. 1993]; U.S. v. American Tel. and Tel. Co., 88 F.R.D. 47 n.15 [U.S.D.C. D.C. 1980]. Magistrate-Judge Payne felt that plaintiff could proceed with the Rule 30[b][6] deposition and then simply schedule later the Experian employees via defense counsel but that those deposition must be counted each against the limit of ten.
13.
The problem with discovery limitations and use of other devices that exists is that plaintiff is burdened with having to develop his evidence to fend off the “always filed” motion for summary judgment by defendant. It is problematic as credit reporting cases involve computerized transmissions between lenders/collectors and the agencies, like Experian, who share a close, symbiotic relationship and plaintiff must foist from them the evidence and testimony to fend off hyper-technical evidentiary objections and obstructions in the process.
14.
Plaintiff submits that the plain language of Rule 30[b][1] permits him to “take the deposition of any person upon oral examination” and he “shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to, or included in, the notice.”
15.
Plaintiff further submits that the need to depose the employees at issue is clear too. These persons frequently conflict the Rule 30[b][6] witnesses and these 30[b][1] persons are the actual persons having authority to conduct and who do conduct the functions at issue in this case. They also enter the cryptic, shorthand notes and entries. The Rule 30[b][6] witnesses frequently cannot explain the details of the events beyond reciting the black letter procedures and policies. Unfortunately, there is a real disconnect between the black letter procedures and policies and the procedures and policies actually used.
16.
Courts have held that a corporate employee or agent who does not qualify as an officer, director, or managing agent is not subject to deposition by notice and that the burden is on the examining party to establish the status of the witness, but the burden is modest and any doubts are resolved in favor of the examining party.
17.
Courts have looked to certain factors in deciding if an employee is a managing agent. Those factors include: (1) whether the individual is invested with general powers allowing him to exercise judgment and discretion in corporate matters; (2) whether the individual can be relied upon to give testimony, at his employer's request, in response to the demands of the examining party; (3) whether any person or persons are employed by the corporate employer in positions of higher authority than the individual designated in the area regarding which the information is sought by the examination; (4) the general responsibilities of the individual respecting the matters involved in the litigation; and( 5) whether the individual can be expected to identify with the interests of the corporation.
18.
In this case, the employees at issue are low level reinvestigation persons however these persons are vested with broad general powers to conduct reinvestigations and decide whether to remove or remain seriously harmful credit data in the files of consumers, including plaintiff. Like other low level reinvestigation personnel, these persons have broad knowledge of the interpretation of records and the actual “procedures” and “policies” being used at Experian, not merely those espoused by the hand picked Rule 30[b][6] witnesses of Experian. These employees are vested with power to exercise judgment and discretion as to how to conduct their day-to-day routines and are subject to little oversight.
19.
These persons can be called by their employer to testify, with the exception of a few employees who have since left Experian’s employment. Experian is able to offer any of its Allen-based employees with little or no inconvenience to permit plaintiff’s counsel to discuss the functions those persons handled and few but necessary general topics regarding work quotas and the like.
20.
Experian does have persons higher in the company structure above these persons but Experian’s admitted management structure is somewhat “flat” as opposed to “vertical.” Thus, these persons are the best able to describe the actual events which took place and how to interpret the codes and shorthand notes inputted into the records.
21.
The general duties of those persons sought include the actual preparation of consumer disclosures [making them keenly aware of mixed file issues and problems, especially in this case], dispute processing, reinvestigations, Experian policies regarding leaving contested data in file, and the entry of notes and shorthand information into the records for later use in research.
22.
In terms of identifying with Experian’s interests, it must be assumed that an employee of the organization would identify with Experian’s interests and not necessarily plaintiff’s interests given the role of these employees. After all, the chief complaint here in the continued mixed file problem coupled with continued retention of disputed, inaccurate information.
23.
Plaintiff’s request for the deposition of Experian employees should be approved and Experian should be required to comply with the notice and their objections overruled. If the depositions are counted separately, it would greatly prejudice plaintiff’s ability to conduct discovery in a meaningful manner. Experian has so segregated the functions and roles of the various persons in its employ as to unnecessarily convolute the discovery process. Plaintiff would be left to accept the 30[b][6] deponent’s statement.
WHEREFORE PLAINTIFF PRAYS that this Honorable Court reverse the ruling of the Magistrate-Judge and overrule Experian’s objection and permit and enforce the Rule 30[b][1] notice of deposition as stated.
Respectfully submitted:


By: __________________________________
David A. Szwak, LBR#21157
416 Travis Street, Suite 1404
Mid South Tower
Shreveport, Louisiana 71101
(318) 424-1400
FAX 221-6555
ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing Interrogatories have been served upon defendant’s counsel of record by placing a copy of same in the United States Mail, properly addressed and first class postage pre-paid on this the ______ day of __________________, 2004.


________________________________________
OF COUNSEL



UNITED STATES DISTRICT COURT
IN AND FOR THE WESTERN DISTRICT OF LOUISIANA

LARRY E. CARRIERE, II

v. Civil Action No. CV03-1340-S

EXPERIAN INFORMATION SOLUTIONS

A F F I D A V I T
STATE OF LOUISIANA
PARISH OF CADDO

BEFORE ME, the undersigned Notary Public, personally came and appeared David A. Szwak, a major domiciliary of Bossier City, Bossier Parish, Louisiana, who after being duly sworn did depose and state, upon personal knowledge, as follows:

That he is the attorney of record for the plaintiff and is personally aware and knowledgeable about the matters sworn herein. That plaintiff’s credit file data has been repeatedly mixed with credit file data together with one or more other persons, who are unknown to plaintiff and unrelated to plaintiff. That he sent written discovery to Experian but no responses have been received to date and Experian’s disclosure information in this case simply listed Experian’s legal liaison employees. That he personally knows the witnesses listed in disclosure by defendant and that David Browne works as a legal liaison, under the guise of “compliance manager,” for Experian and he has testified, by his own admission, more than 71 times for his employer. That Carolyn Helm, Shannon Stafford and Kim Hughes are also repeatedly offered as Rule 30[b][6] deponents and trial witnesses for Experian. That these three ladies may collectively have testified in excess of the number of times Browne has. That Experian’s disclosure does not list the actual employees who handled the transactions and events underlying the disputes and reinvestigation[s], if any, into plaintiff’s disputes. That Experian’s disclosure makes no mention of any programmer or person handling the actual formulation of Experian’s front end data posting and data matching processes.

That it was not until after this dispute was first presented that Experian e-mailed him, as counsel for plaintiff, a listing of names of Experian employees [and a few former employees] which Experian’s counsel identified as those persons cryptically listed by Experian Badge Number in plaintiff’s internal Experian records as having handled the transactions and events involving plaintiff’s disputes and reinvestigation[s], if any.

__________________________________
David A. Szwak
Page 1 of 4

=======

Page 2 of 4

That on or about March 29, 2004, he sent Experian’s counsel two notices of depositions in blank and requested that Experian identify dates and places where the Rule 30[b][6] deposition and Rule 30[b][1] deposition[s] could take place. That only recently did Experian respond and provide the date of June 8. That he noticed the depositions for June 8, 2004, next week. That Experian’s counsel’s very recent e-mails listed 15 Experian current and former employees by name. That, thereafter, Experian’s counsel merely supplied names and former addresses of three ex-employees. That Experian recently advised counsel that it intended to object to the Rule 30[b][1] notice in this case.

That he requested a conference with the court over Experian’s objection to the Rule 30[b][1] notice and a conference was held today, June 3, 2004, to address Experian’s objection so as to avoid unnecessary problems in the deposition process set to take place on June 8, 2004. That Experian has objected by stating that Rule 30[b][1] does not allow deposition notices of category or description of employees. That Experian further sought to count each of its responsive employees as a separate deposition and, due to the nature of Experian’s structure, it would exceed 10 persons and 10 depositions, as Experian counts the depositions. That Experian has not adequately identified its employee witnesses nor disclosed their identities in a manner conducive to discovery. That, here, like its many other cases, Experian seeks to conceal the identities of low level employees and to obstruct the discovery process.

That, in the hearing today, Magistrate-Judge Payne held that Rule 30[b][1] deals with the form of the notice but does not compel a defendant to produce a witness. That Magistrate-Judge Payne further held that Rule 30[b][1] was designed to permit, for ex., a party, plaintiff, to notice a deposition by category stating that the party seeks to depose eyewitnesses to an accident and then the defense must appear on the scheduled date and be prepared to defend the deposition of any witness the plaintiff must summon under that notice. That Magistrate-Judge Payne acknowledged that plaintiff cited district court authority interpreting the statute differently but no one could cite Western District authority on the interpretation of Rule 30[b][1]. That Magistrate-Judge Payne felt that plaintiff could proceed with the Rule 30[b][6] deposition and then simply schedule later the Experian employees via defense counsel but that those deposition must be counted each against the limit of ten.

That the problem that has arisen in other cases involving Experian and its predecessor, TRW, with discovery limitations and use of other devices that exists is that plaintiff is burdened with having to develop his evidence to fend off the motion for summary
_______________________________
David A. Szwak

Page 3 of 4


judgment by Experian in every case regardless of the merits of the motion. That it is problematic as credit reporting cases involve computerized transmissions between lenders/collectors and the agencies, like Experian, who share a close, symbiotic relationship and plaintiff must foist from them the evidence and testimony to fend off hyper-technical evidentiary objections and obstructions in the process.

That he submits that the need to depose the employees at issue is clear too. That these persons frequently conflict the Rule 30[b][6] witnesses and these 30[b][1] persons are the actual persons having authority to conduct and who do conduct the functions at issue in this case. That these employees also enter the cryptic, shorthand notes and entries into Experian’s records. That the Rule 30[b][6] witnesses frequently cannot explain the details of the events beyond reciting the black letter procedures and policies. That there is a real disconnect between the black letter procedures and policies and the procedures and policies actually used.

That the employees at issue are low level reinvestigation persons however these persons are vested with broad general powers to conduct reinvestigations and decide whether to remove or remain seriously harmful credit data in the files of consumers, including plaintiff. That, like other low level reinvestigation personnel, these persons have broad knowledge of the interpretation of records and the actual “procedures” and “policies” being used at Experian, not merely those espoused by the hand picked Rule 30[b][6] witnesses of Experian. That these employees are vested with power to exercise judgment and discretion as to how to conduct their day-to-day routines and are subject to little oversight.

That these persons can be called by their employer to testify, with the exception of a few employees who have since left Experian’s employment. That Experian is able to offer any of its Allen, Texas-based employees with little or no inconvenience to permit plaintiff’s counsel to discuss the functions those persons handled and few but necessary general topics regarding work quotas and the like.

That Experian does have persons higher in the company structure above these persons but Experian’s admitted management structure is somewhat “flat” as opposed to “vertical.” That these persons are the best able to describe the actual events which took place and how to interpret the codes and shorthand notes inputted into the records.

_______________________________
David A. Szwak

Page 4 of 4


That the general duties of those persons sought include the actual preparation of consumer disclosures, making them keenly aware of mixed file issues and problems, dispute processing, reinvestigations, Experian policies regarding leaving contested data in file, and the entry of notes and shorthand information into the records for later use in research.

That in terms of identifying with Experian’s interests, it must be assumed that an employee of the organization would identify with Experian’s interests and not necessarily plaintiff’s interests given the role of these employees. That the chief complaint here in the continued mixed file problem coupled with continued retention of disputed, inaccurate information.

That plaintiff’s request for the deposition of Experian employees should be approved and Experian should be required to comply with the notice and their objections overruled. That if the depositions are counted separately, it would greatly prejudice plaintiff’s ability to conduct discovery in a meaningful manner. That Experian has so segregated the functions and roles of the various persons in its employ as to unnecessarily convolute the discovery process. That Plaintiff would be left to accept the 30[b][6] deponent’s statement.


__________________________________
David A. Szwak

SWORN TO AND SUBSCRIBED BEFORE ME this the 23rd day of May, 2000.

__________________________
NOTARY PUBLIC

David A. Szwak

IMPORTANT TO READ RE: 30[B][1]

Postby David A. Szwak » Wed Dec 14, 2005 9:28 pm

Carriere v. Experian Information Solutions,
Slip Copy, 2004 WL 3618260, W.D.La., Jun 04, 2004


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