The opinion of the court was delivered by: Magistrate Judge Susan E. Cox
MEMORANDUM OPINION AND ORDER
This case involves claims of sex discrimination in the hiring of female deputies in the Lake County Sheriff's office and in creating and maintaining a hostile work environment for women. The present dispute, however, is that defendant has either failed to provide proper Federal Rule of Civil Procedure 30(b)(6) designees, or, that it did not adequately prepare its designees to testify on the designated topics. And now discovery is over. As a result, plaintiff is seeking sanctions in the form of attorneys' fees and the preclusion of certain testimony at trial. Plaintiff's motion is granted in part and denied in part [dkt. 37]. The issue for us is to what extent defendant was required to prepare its designees, and did not, and the proper relief for its conduct.
The pertinent background for this motion dates to March 2012 when defendant presented Chief David Godlewski as the sole designee in response to plaintiff's notice of deposition on 13 distinct topics. Plaintiff provides a detailed history of that first deposition with Chief Godlewski in her motion. But for brevity we note simply that, after plaintiff complained to defendant regarding the many ways that Chief Godlewski's deposition was deficient, defendant agreed to produce additional Rule 30(b)(6) designees. This second Rule 30(b)(6) deposition is at the heart of this dispute because, though it included six more individuals - including those that Chief Godlewski himself had testified would be more knowledgeable on certain topics - plaintiff still argues that she has insufficient information on the majority of her noticed topics.
A Rule 30(b)(6) witness may testify to matters within his or her
personal knowledge but also may testify to "matters known or
reasonably available to the organization."*fn1 Courts
have explained that to mean a witness "'testifies 'vicariously,' for
the corporation, as to its knowledge and perceptions.'"*fn2
This flexibility in the rule was designed to curb corporate
officers or managers from each disclaiming knowledge known to persons
within the organization but also to protect corporations from having
an unnecessarily large number of their officers or agents be
We agree that defendant itself admitted to the inadequacy of Chief Godlewski as its initial designee, which is why it attempted to cure the problem by presenting six more witnesses. What we have to sort through now is plaintiff's claim that though these additional designees covered some of the 13 topics that Chief Godlewski could not, they were not able to testify to all of the topics. Specifically, plaintiff argues inadequate production, or no Rule 30(b)(6) designee, for all topics except topic I (special duty K9 unit), topic VI (the practical and technical operation of the dispatch system), and topic X (the policies and procedures relating to Property Control). In response, defendant argues that: the rule does not require it to produce the "person most knowledgeable;" there were some questions that cannot be answered by any designee, and; as to certain topics, plaintiff had already obtained the information she sought through other depositions.
To better understand the testimony given, and the deficiencies, we review the five witnesses profiled in plaintiff's motion: (1) Robert Szarzynski; (2) Jeffrey Burklin; (3) Christopher Thompson; (4) Lisa Robin; and (5) Kevin Lyons.
Robert Szarzynski, the Assistant Director of Human Resources for defendant, was designated to testify on the "hard" copy of plaintiff's performance log (as plaintiff puts it), or, the electronic performance measurement tool (as described by defendant). Plaintiff argues that Mr. Szarzynski could not answer a series of questions about the workings of the system, whether records could be changed or deleted, or how certain individual's initials would appear on the hard copy of the log. Defendant admits that, in fact, Mr. Szarzynski could not answer those questions, among others. Defendant explains that the system was purchased in the early 2000s, the original vendor of the system was bought by another company that no longer supports the system and, therefore, defendant is left with an unsupported product. Apparently, no one in defendant's IT department understand the program or knows anyone who does.
"The mere fact that an organization no longer employs a person with
knowledge on the specified topics does not relieve the organization of
the duty to prepare and produce an appropriate designee."*fn3
A corporation in this scenario has an obligation to prepare
an individual by having him or her review available materials or talk
to others with knowledge.*fn4 A corporation,
therefore, must "create an appropriate witness" from information available.*fn5
But, conversely, if a corporation "genuinely cannot provide
an appropriate designee because it does not have the information,
cannot reasonably obtain it from other sources and still lacks
sufficient knowledge after reviewing all available information," its
obligations under the Rule cease.*fn6
We have no way of knowing to what extent defendant could, or could not, prepare an appropriate designee on the inner workings of a system that, from defendant's account, will soon be obsolete. But it does seem possible for defendant to have done some due diligence in obtaining answers to plaintiff's questions, for example, on how a specific person's initials came to be printed on plaintiff's performance log. In fact, the person whose initials were recorded on plaintiff's log, Deputy Chief Kevin Parker, was already deposed by plaintiff weeks prior. But defendant did not produce Deputy Parker in response to plaintiff's 30(b)(6) notice. And plaintiff correctly notes that defendant cannot claim that it has complied with Rule 30(b)(6) simply because other witnesses - not produced in response to plaintiff's Rule 30(b)(6) notice - could offer testimony on the noticed topics. Of course whether plaintiff actually obtained this information from Deputy Parker would go to any analysis of prejudice, which is relevant to this motion for sanctions.
Jeffrey Burklin, who is responsible for information technology for the Sheriff's Office, was designated to respond to questions regarding defendant's electronic record keeping, record retention, and back ups. Plaintiff explains that Mr. Burklin was able to testify to desktop units used by defendant and maintaining certain databases. But he could not speak to any document retention policies or provide information on data in certain electronic software systems. Mr. Burklin also could not ...