EXHIBIT A
Case 1:04—cv—00593-Gl\/IS Document 62-2 Filed 08/29/2005 Page 2 of 4
V\@t;lratvtt;
Not Reported in F.Supp. Page l
Nor Reported in F.Supp., 1991 WL 158911 (E.D.Pa.)
(Cite as: 1991 WL $89}} {E.D.Pa.))
l>
1. Rule 30(bl(6l Designee for Iryfortrtatlon between
stations, Pteaatngs and rtttngs l 95l·l 957
Onty the Westlaw citation is ctirrentiy available. A· Lddf 0fKâ€0“’·’€d8€
Defendant argues that since H & V has "stated in
United Sgaigg Disgyict Crjuyte P€n1·]Syh,¤a¤ia_ SWOTH BHSWETS iD piHiI`Ii.iffS' iHl.€I°TOgZi.{OI`i€S [hilt HO
psig; IERARDI and Angela rel-ami current H 8; V employee has personal knowledge"
v_ (emphasis in originai) of any of the information
LQRILLARDQ INC; at EL which plaintiffs seek, H & V shouid not be required
(jiv_ A_ NG_ g{),7g4g_ to designate any witness to testify pursuant to @,1;;
30{b`>(6). Answers to interrogatories, however, are
Aug ig! ]Q91_ an inadequate substitute for deposition testimony
Lauygncg H Bmw]; Slavery _]_ Cgopgysmgm Hgwggr pursuant to Rule 3.0(b){6). Mor/ter ta Union Fidelity
K. Rosenberg, Brookrrian, Rosenberg, Brown 8; -]lâ€l~f· Ca U5 F-R-D l?l· U6- "[T]h€ §€`H€Y3i
Sangre; game] Q Chjgdg Thomas ]:_ Vinh]-,S(m_ rule is that a ctairned tack of knowledge does not
togmsmj gi Chgtdge pgqjjadgtpgjjg,5 pg, {Gy piajmgrg l provide sufficient grounds for a protective order: the
other side is allowed to test this claim by deposing
Matthew A_ whj;€_ Fyzmktgn POUIV David ;_ the witness." Amfzerst Leasing Corp. v. Emltort
Bgokspans vtrO]g{’ Bigcig gcnm; & gOtjS,gjUh€H’ Corps 65 ERD. 12}. 122 t`D.Conn.l974t (footnote
phiradelphkh Pa'! rptragwr L_ Cgfmx William gh omitted). Moreover, an individual en1ployee's lack
Ohicmeyeh Gaye R_ Long pmrgck M_ gimdgrg of personal knowledge is irretevant: the organization
Daytid Hafdvrt S§]OO}(_ I-Iaydy and Bacon, Kansas FDLISE pI`OVid€- 3 Wi{]}€SS to "l(?SEif>" HS iD ¥]'1H€E€¥`S k}'l`(}VJ['l
Cay, Mmggf Lmjgtarér gm; or reasonably available to the o.··gani;otion."
Fe.d.R.Civ.P. 30(b)t6; (emphasis added).
Robert V. Dell'osa, Kenneth C. Frazier. Drinker,
& R€a[h’ Tufgkye Mann, Ungar & UOUE of d€f€HdHBt’S €UIT€Hi employees has
specter, Philadelphia, ea., Anaiaw 1. Meiaimy. rr., Svffiviott knvwlsdas ta t>t¤~=i¤¤ rlalntlffs with the
Stephen J. Brake. Nutter, McClennen & Fish, Boston, fefiiiesmd lUii)Yma[iOH= d€f€“dam is Obiigamd ii}
Mass'? fgy Hgljingswgrth \fOS(=_· CCL upI*€pHI`€ [-OIEE Of YHOTC Wil.U€-SS€S] SO {i'}EH may
give compiete, knowledgeable and binding answers
name r. wrimaam,Pntiaae1pritt, na., rar one an behalf ef the <>¤a>¤r¤tl¤¤-" lll'<=rl<<¢r· at l26
(jOyp__ T ga N1 pLC_ (citations omitted).
MgMgRAAtDUM B. Cottientlon htt‘errogutr2t‘t`e.t
gxggwggmgg, Swim Djsgyjcg gudgg Additionally, defendant asks that the court grant a
protective order mandating that discovery of the
*1 oereaaam. rteittngswartii at vase company in information sto...ilFNl plaintiffs Seek may <>¤ly be had
8; is plreggnny mowing {hg QOH;-[ {U antler 3 ETIBHUS of CGHEEHHOH i}'II€§`FUg.HEOfi€S. D€f€HdGH{
protective order to prevent piaintiffs from deposing iifglms that Cmll-€miO“ im€i`f0£3l0fl‘$*S are 3 Simple
any of det`endant's current employees regarding H & and mmf? HPPYf’?flHi€ dl$C0‘~'€f}’ m€Ii*0é· This mufi
V's current awareness of the effects of asbestos and to fiOi€5» hO“’€"€f- ibm lime d€PO$lil0fl PWCGSS Pfmldgs
prevent plaintiffs from deposirig designee; of {-1 & V 3 1¥l€&l’1S to obtain more complete infornstation and is,
pursuant to time some; ar the reactor Rates or iiâ€*€f€i·0f€< f=l=r¤t€d·" M¤rl<€r- at l26· f’l¤i¤¤iffS’
civz11>meaa¤t·e. Aaattttmiry. qterenertritn asking rar
a clarification of this court's previous order denying infiiiimailim Fiainl-iff$ Wek with reasonable
c.o—defendant Loriliards motion for a protective Pilflicuiafii}? de Hm i"€Ci“€$[ WY imrOYmHmm
Order. rei the reasons that raiiaw. aereaaarrts tr=eatdi¤elt&V’S legal ¤t¤¤l-satltm bvttallrsrrstats
motion wif} be dcngcd I to H & V’s knowledge. of facts. Contention
© 2005 Thomson/West. No Ciaim to Orig. U.S. Govt. Works.
Case 1:O4—cv—OO593-GI\/IS Document 62-2 Filed 08/29/2005 Page 3 of 4
Not Reported in F.St1pp. Page 2
Not Reported in F.Supp., 1991 WL 158911 (E.D.Pa.)
{Cite as: 1993 WL 15891} (E.D.Pa.))
interrogatories are neither adequate nor appropriate in 8; V director who was an H & V employee involved
this situation. Defencianfs request for such an order with the development ofthe cigarette fiiter at issue in
is therefore denied. this case, would be an appropriate witness to serve as
H & V's 30(b)(6) designee. Defendant aiso
C. U:-u1tteBtiirdeit considers Dr. Knudsen to be knowledgeable about
the subgects regarding which plaintiff seeks binding
Defendant claims that it would be "subject to an answers. Defendant. argues, however, that because
undue burden" if it were to be required to designate Dr. Knodson has already been deposed at length as a
and prepare a witness to testify pursuant to _}_§ti§e fact witness, piaintiffs should not be allowed to
?>0(bt{6). The court. does not, however. so find. depose hirn again.
Defendant. admits that it possesses records which a
designee could study to formulate a response to The court notes that defendant is not required to
plaintiffs! inquiries. Although this task may be designate a retired employee to serve as at 30(b}(6)
somewhat difficuit., it is clear that if a eorporate designee, because "it cannot be supposed that
employee familiar with the structure and organization former employees would identify their interests with
of the corporation would find this task difficult. those of their former empioyers to such an extent that
plaintiffs, who have no such familiarity. likely would admissions by them should be held to bind the
find it impossible. eniployer." Pmseiis ia Aiieitor Line. Ltd., 26 PRD.
165. l67 (S.D.N.Y.l960). lf defendant is willing to
D. Prejudice to Dejei-tdaitt be bound by Dr. Knudsotfs testimony. however, H 8c
V may agree to produce Dr. Knudsen as its 30(l;>){6)
*2 Defendant claims that it "would be subject to witness. Defendants assertion that plaintiffs
an unreasonable risk of prejudice" if it were to be deposition of Dr. Knttdson as a fact witness makes it
bound by the testimony of any witness it would annecessary to depose hint is without merit.
designate pursuant to Rule 30gb;g6l. and that
therefore. a protective order should issue. As There are. of course, important advantages in
defendant itself notes. however, "documents can examining a prospective deponent as an officer or
always be interpreted in various ways." This court managing agent of the adverse party rather than as a
finds that piaiiztiffs are entitled to discover the witness. Admissions made by the deponent will be
interpretation H & V intends to assert at trial. binding on his principai. Furthermore, the party
Moreover, il`H&V adequateiy prepares its designee employing the deponent must bear both the
or éesignees for the 30(b)(6} deposition, defendant re-sponsibiiity for, and the expense of, producing him
will not suffer prejudice. for examination.
E. Ui1pr0duerivi`t)‘ of 30(b)( 6) Testimony Pmsetts, at l67.
Defendant contends that deposing any of its current *3 If defendant is unwilling to be bound by Dr.
ernptoyees would be irnitiess because "piaintiffs can Knudson’s testimony, if defendant would prefer to
secure better, more reliable inforrnation through designate a different witness, or if Dr. Knudsen is
other, more productive, discovery procedures." unvvifling to testify on behalf of H & V as a _]_§“gj<;
However, the court does not find defendants 30(b)§6t deponent. H & V must present another
unsubstantiated belief that plaintiffs will not discover designee. to testify concerning the subjects plaintiffs
new information to merit the imposition of a have outlined.
protective order. See Mirsiti & C0. (U.S.A.§. lite. v.
Puerto Rico Water Resources Attilwritv. 93 PRD. H. Ride 3(}{lJ)((J`g Desigi·1eejor Iiybrntaiion through
62. 65 gD.P.R.l98ll §"Rule. 30jbl56l is an the Present
additional, supplementary and eornpiirnentary
deposition process designed to aid in the efficient Defendant contends that the information plaintiffs
discovery of facts." citing Advisory Cornnzittee seek regarding whether H Sa V developed knowledge
Note to Ruie 30(bt(6), Atlantic Cape Fisheries tr. ofthe harmful effects of asbestos and whether it ever
Hm·t‘{m·d. 509 F.2d 577 { lst. Cir.l975 l.]. warned the public about such effects is irrelevant, and
that a protective order shouid issue for this reason.
F. Potential Desigizee As plaintiffs make clear, however, "[wlhat H & V
knew and when it knew it is at the heart ofthe case
Piaintiffs argue that Dr. Harold Knudson, a retired H against it." Plaintiffs are entitled to conduct
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works,
Case 1:04—cv—00593-Gl\/IS Document 62-2 Filed 08/29/2005 Page 4 of 4
Not Reported in F.Supp. Paar: 3
Not Reported in F-{Supp., 199E WL l5S9l1 {E.D.Pa.)
(Cite as: 1991 WL 158911 {E.}).Pa.))
discovery regarding this topic. and defendant is Motions. Pieadings and Filings (Back to top}
required to produce a witness to testify on this subject
pursuant to Rule 30tb3t6). • 2:90cv07049 ecard (Docket)
{Nov. 05. 2990)
ill. Request for Claryicnridn
OF DOCUMENT
Defendant requests clarification of this court`s April
15, 1991 order denying co-defendant Loriltards
motion for a similar protective order. Defendant
suggested interpretation would permit defendants to
profess ignorance of information the piaintiffs
request during a 30(b)(6) deposition, but then allow
H & V to present evidence on the same subject at
trial. Defendants interpretation, however, subverts
the purpose of Ruie 30tb;t6). Under Rule 30{b)g6t,
defendant has an obligation to prepare its designee to
be able to give binding answers on behalf of H & V.
if the designee testifies that H & V does not know the
answer to plaintiffs' questions, H & V will not be
allowed effectively to change its answer by
introducing evidence during trial. The very purpose
of discovery is "to avoid 'trial hy anibushf " Federal
Deposit ins. Corp. ta Butcher. 116 F.R.D. 196. 201
(`]E.D.Tenn.1986). The court further notes that Rule
26{e)(2) imposes a duty upon a party to amend its
response if:
(A) the party knows that the response was incorrect
when made, or (B) the party knows that the response
though correct when made is no longer true and the
circumstances are such that a failure to amend the
response. is in substance a knowing concealment.
An appropriate Order follows.
ORDER
AND NOW. this Sth day of August, i991. having
considered defendants Motion for Protective Order,
p§aintiffs` response thereto. and defendants reply
memorandum. it is hereby ORDERED that
defendants motion is DENIED. Defendant shall
promptly produce for deposition one or more
witnesses to testify pursuant to Ped.R.Civ.P. 30gb)t6)
regarding ali subiects outlined in p1aintiffs' deposition
notices.
AND IT IS SO ORDERED.
@ See Plaintiffs Notice of Depositions
(Defendants Exhibit A).
Not Reported in F.Supp., ]99l WL `l5e1l
(E.D.Pa.)
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