Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01187-PSF-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1187-PSF-MJW SUSAN PENA, Plaintiff, v. TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, and SUZANNE LIENING, Defendants.

RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL RULE 30(b)(6) DEPOSITION

Defendant Travelers Property Casualty Company of America ("Travelers"), by and through its attorneys, Montgomery, Kolodny, Amatuzio & Dusbabek, L.L.P., respectfully submits its Response in Opposition to Plaintiff's Motion to Compel a Rule 30(b)(6) deposition, as follows: 1. Plaintiff fails to provide any legal authority for her contention that Travelers

cannot determine whom it will designate pursuant to Rule 30(b)(6). Indeed, Plaintiff's argument is contrary to the plain language Rule 30(b)(6). This rule provides, in relevant part: A party may in the party's notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization.

Case 1:04-cv-01187-PSF-MJW

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Rule 30(b)(6), Fed.R.Civ.P. (emphasis added). This rule requires only that Travelers designate one or more persons to testify on behalf of Travelers "as to all matters known or reasonably available to the organization." Id. 2. Given the plain language of Rule 30(b)(6), Travelers acted properly in designating

Suzanne Liening as the person to testify on behalf of Travelers. That Liening has previously testified in her capacity as a party defendant is of no consequence. Under Rule 30(b)(6), as Travelers' designated representative, Liening will testify as to all matters on which examination is requested by Plaintiff and as to all matters known or reasonably available to Travelers. To the extent Liening does not have knowledge of the matters set forth by Plaintiff in her Rule 30(b)(6) notice of examination, Travelers will ensure that she obtain such knowledge prior to the deposition. See e.g., Resolution Trust Corp. v. Southern Union Co., Inc., 985 F.2d 196, 197 (5th Cir. 1993) (upholding sanctions against corporation for failing to designate a person with knowledge relevant to the subject matters identified in the Rule 30(b)(6) notice); Id. ("Rule 30(b)(6) streamlines the discovery process. It places the burden of identifying responsive witnesses for a corporation on the corporation."). 3. Rule 30(b)(6), and the case law construing it, affords the corporation the

discretion to designate any person or persons it chooses. As a New York federal court observed: Notwithstanding the wording of the Rule 30(b)(6) notice, it is settled law that a party need not produce the organizational representative with the greatest knowledge about a subject; instead, it need only produce a person with knowledge whose testimony will be binding on the party. Rodriguez v. Pataki, 293 F. Supp. 2d 305, 311 (S.D. N.Y. 2003), aff'd, 293 F. Supp. 2d 315 (S.D. N.Y. 2003); see also PPM Finance, Inc. v. Norandal USA, Inc., 297 F.Supp.2d 1072, 1085-86

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(N.D. Ill. 2004) (stating that the witness need not have personal knowledge of the facts to which he testifies, because he testifies as to the corporation's position on the matters set forth in the Rule 30(b)(6), not his personal opinion."); United States v. Taylor, 166 F.R.D. 356, 360 (M.D.N.C. 1996) ("If the persons designated by the corporation do not possess personal knowledge of the matters set out in the deposition notice, the corporation is obliged to prepare the designees so that they may give knowledgeable and binding answers for the corporation."); Concerned Citizens of Belle Haven v. Belle Haven Club, 223 F.R.D. 39, 43 (D. Conn. 2004) (stating that a deponent designated to testify on behalf of a corporation has an affirmative obligation to educate herself as to the matters regarding the corporation). Accordingly, the Rule 30(b)(6) representative is not dictated by the Plaintiff's notice but, rather, by the corporation to which it is directed. 4. In designating Liening as Travelers' representative pursuant to the Rule 30(b)(6)

notice, Travelers complied with the rule and therefore Plaintiff's motion to compel should be denied. It is noteworthy that Plaintiff fails to provide any legal authority for her position. In this case, Plaintiff issued two Rule 30(b)(6) notices. See Exhibit A (Amended Notice dated April 7, 2005) and Exhibit B (letter dated April 19, 2005). In response to both notices, Travelers is required under Rule 30(b)(6) only to designate a person who has knowledge of, or acquires such knowledge regarding, the matters on which examination is required that are known or reasonably available to Travelers. See Rule 30(b)(6), Fed.R.Civ.P. The rule requires nothing further. WHEREFORE, Defendant Travelers respectfully requests that Plaintiff's Motion to Compel be denied and that the Court award Travelers reasonable attorney fees for responding to this motion.

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Respectfully submitted on August 10, 2005, MONTGOMERY, KOLODNY, AMATUZIO & DUSBABEK, L.L.P. s/ Erik Neusch Kevin F. Amatuzio Erik R. Neusch 475 17th Street, Suite 1600 Denver, Colorado 80202 Telephone: 303-592-6600 Facsimile: 303-592-666 e-mail [email protected] e-mail [email protected] ATTORNEYS FOR DEFENDANT TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA CERTIFICATE OF SERVICE I hereby certify that I did on the 10th day of August, 2005, serve a true and correct copy of the foregoing RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL RULE 30(b)(6) DEPOSITION, via the U.S. District Court ECF system to the following: Counsel for Plaintiff Marc Bendinelli, Esq. W. Joseph Lapham II Bendinelli Law Office, P.C. 11184 Huron Street, Suite 10 Denver, Colorado 80234

s/

Jacqueline Sims Barnes

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