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Jason Lee Nieman v. Grange Mutual Insurance Company

November 9, 2012

JASON LEE NIEMAN, PLAINTIFF,
v.
GRANGE MUTUAL INSURANCE COMPANY, AND INTEGRITY MUTUAL INSURANCE COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge:

E-FILED

Friday, 09 November, 2012 10:36:10 AM

Clerk, U.S. District Court, ILCD

OPINION

This matter comes before the Court on Plaintiff Jason Nieman's Supplemental Motion to Compel, and Motion for Sanctions Under Rule 37 (d/e 86) (Motion). Plaintiff Jason Nieman asks for several different types of relief. Nieman first asks for an extension of time to conduct fact discovery. Motions for extension of time must be filed before the original deadline. Local Rule 6.1. The deadline for fact discovery in this case was October 5, 2012. Scheduling Order entered July 10, 2012 (d/e 58), ¶ 4. The Motion was not filed until October 13, 2012. The request therefore is denied as untimely. Nieman's request to conduct additional depositions is also denied as untimely since fact discovery has closed. Nieman is ordered to withdraw any subpoenas he may have secured or served for his proposed additional depositions. See Plaintiff's Motion for Leave to File a Reply to Defendants' Response to Plaintiff's Supplemental Motion to Compel, For Discovery Sanctions Against Defendant Integrity and Grange, Requesting the Court Extend the Time Permitted for Discovery by 60 Days (d/e 91) (Reply), at 9-10. Nieman also asks the Court to compel certain discovery and to sanction the Defendants. For the reasons set forth below, these requests are also denied.

BACKGROUND

Plaintiff Nieman alleges that the Defendants Integrity Mutual Insurance Company (Integrity) and Grange Mutual Insurance Company (Grange) retaliated against him for exercising his rights under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. Nieman applied for a job with Integrity, but was not hired. Nieman alleges that the Defendants did not hire him because he previously engaged in protected activity by suing a prior employer for age discrimination. See Plaintiff's First Complaint at Law (d/e 1) (Complaint).*fn1

Nieman moves to compel discovery as follows: (1) compel Defendant Grange to produce a representative at a Rule 30(b)(6) deposition; (2) compel an amended response to Plaintiff's First Set of Admissions Request 13 addressed to Defendant Grange; and, (3) compel an amended response to Plaintiff's First Set of Admissions Request 8 addressed to Defendant Grange. Nieman seeks sanctions for spoilation of evidence. The Court addresses each issue separately.

Rule 30(b)(6) Deposition

On September 23, 2012, Nieman served a notice of deposition for a deposition of Defendant Grange. The Notice set the deposition for October 5, 2012, the deadline for completion of fact discovery. On September 26, 2012, Nieman served an amended notice. Motion, Exhibit B, Plaintiff's Amended Notice of F.R.C.P. 30(b)(6) Corporate Deposition of Defendant Grange Mutual Insurance Company (Amended Notice). Nieman again set the deposition for October 5, 2012. Nieman did not attempt to coordinate the date for the deposition with opposing counsel, as required by Local Rule 30.1. Defendant Grange objected to the Notice of Deposition on various grounds, including Nieman's unilateral setting of the date and time of the deposition and the lack of time to prepare for the deposition. Grange, however, did not file a motion for a protective order. Instead, Grange did not appear at the deposition, but attempted to negotiate further with Nieman past the discovery deadline. Nieman ultimately filed the Motion.

Both parties committed procedural violations in connection with Nieman's Amended Notice. Nieman violated Local Rule 30.1. He did not attempt to coordinate the date and time for the deposition with opposing counsel. Grange, however, did not file a motion for protective order. Rule 30(b)(6) obligates the corporation subject to the notice of deposition to designate a representative who must appear and testify. Fed. R. Civ. P. 30(b)(6). The correct remedy if the corporation objects to the notice is to seek a protective order. Fed. R. Civ. P. 26(c) and 37(d)(2). Grange did not do so. The Court will not resolve the motion based on these violations since both parties violated the rules.

Grange objects to the Amended Notice because the Amended Notice did not allow sufficient time to designate and prepare a Rule 30(b)(6) witness. The Court agrees. Rule 30(b)(1) requires giving reasonable notice of a deposition. The determination of the reasonableness of the notice for a deposition is case-specific and fact-intensive. Peterson v. Union Pacific R. Co., 2007 WL 2701268, at *2 (C.D. Ill. August 23, 2007). A relevant factor is the time between the notice and the deposition in comparison to the time required for preparation and travel. Id. A Rule 30(b)(6) witness often requires additional preparation because the witness is not testifying as to his personal knowledge, but is testifying on behalf of the corporation as to matters known or reasonably available to the corporation. See Brazos River Authority v. GE Ionics, Inc., 469 F.3d 762, 432-33 (5th Cir. 2006); see also PPM Finance, Inc. v. Norandal USA, Inc., 392 F.3d 889, 894-95 (7th Cir. 2004).

The Amended Notice gave Grange seven business days to designate and prepare the witness. The Amended Notice listed fourteen topics and thirteen sub-topics on which the witness would be called to testify. The topics covered computer technology used by the Defendants; policies and procedures for storing electronic information; policies for managing electronic information; policies and procedures for use of computers by employees; information regarding current and former employees with access to computer technology resources, assets, and information; information regarding employees who have ever conducted a computer search of any version of Nieman's name; information regarding employees who searched Nieman's Linkedin profile; policies for document retention or destruction; information regarding Internet browsing search histories contained on specific computers used by certain individuals; information regarding any searches conducted by John Kuchel on behalf of Cindy Heindel; the results of any searches done by Kuchel or his designee referenced in a document produced in discovery; information regarding a settlement counteroffer made by Defendants in which they offered to settle if Nieman would pay them $200,000.00; information regarding the nature and justification for Defendants' answer to the Complaint and their affirmative defenses; and information regarding any background checks conducted on any applicant for employment or promotion. Amended Notice at 2-3.

Seven business days is not reasonable notice to prepare a witness to testify on all of these topics. The witness would be required to conduct extensive research to be able to testify about matters such as specific computer search results, search histories, backgrounds checks on job applicants and applicants for promotion, and lists of employees with access to certain types of information. Seven business days was not enough time to prepare for such an extensive deposition. Even the nine business days from the original notice was not sufficient under these ...


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