O.H. v. Secret Harbor

Opinion

1 2

3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 O.H., an individual; C.D., an individual, CASE NO. 2:23-cv-00060-JNW 8 Plaintiffs, ORDER ON PLAINTIFFS’ MOTION 9 TO COMPEL v. 10 SECRET HARBOR, a non-profit 11 corporation,

12 Defendant. 13 1. INTRODUCTION 14 Plaintiffs’ motion to compel and motion for sanctions is before the Court. Dkt. 15 No. 136. Plaintiffs argue that Secret Harbor violated its discovery obligations under 16 Federal Rule of Civil Procedure 30(b)(6), making it subject to sanctions under Rule 17 37(d). Plaintiffs also move to compel certain documents that Secret Harbor has 18 already been ordered to produce. For the reasons stated below, the Court GRANTS 19 Plaintiffs’ motion. 20 2. BACKGROUND 21 On June 14, 2024, Plaintiffs served a Rule 30(b)(6) notice on Secret Harbor. 22 Dkt. No. 137 at 38. Plaintiffs identified 27 topics covering a range of information 23 1 related to safety concerns, supervision, sexual contact, and sexual harassment that 2 occurred at Secret Harbor during the date ranges specified. See id. at 50–55. Secret

3 Harbor responded that same day, notifying Plaintiffs that its Rule-30(b)(6) designee 4 was available for a deposition on July 18, 2024. Id. at 57. They scheduled the 5 deposition for July 18. 6 On July 16, 2024, the Parties connected via email at Secret Harbor’s 7 prompting and arranged a meeting to discuss the planned deposition further. See 8 Dkt. No. 137 at 61–64. That same day, Secret Harbor also emailed Plaintiffs ten

9 pages of objections to the noticed Rule 30(b)(6) topics in a document titled, 10 “Defendant Secret Harbor’s Objections and Response to Plaintiffs’ Notice of the 11 Videotaped Deposition of Secret Harbor 30(b)(6) Representative(s).” Id. at 68–78. 12 Secret Harbor objected to nearly every topic, refusing to produce a designee on some 13 topics while narrowing the date ranges that Plaintiffs had specified on other topics. 14 Specifically, Secret Harbor refused to provide any testimony about Plaintiffs’ topics 10, 24, 25, and 26 and refused to provide testimony on topics 7-9, 11-22, and 27 outside the 15 period of 1987-1990. Id. at 70–78. 16 When it wanted to narrow the date ranges applicable to a noticed topic, 17 Secret Harbor gave the following objection and response: 18 Objections: Secret Harbor objects to this topic on the basis that it seeks 19 information that is not relevant to the claims and defenses of the parties. The Topic is not adequately specific, is open-ended, and does not 20 “describe with reasonable particularity the matters on which examination is requested.” Secret Harbor further objects to the proposed 21 time period as overly broad and unduly burdensome as the topic seeks information from outside of the relevant time period. Secret Harbor will 22 not present a witness to testify regarding the [insert noticed topic] that 23 1 occurred outside the relevant time period.

2 Response: Jenn Ryan will testify regarding the information requested by this topic from the time period Plaintiffs were residents at Secret 3 Harbor.

4 Dkt. No. 137 at 70–76 (objecting to topics 7–22), 78 (objecting to topic 27). When 5 Secret Harbor objected to the entire topic, it asserted the following objection and 6 refusal to appear on that topic: 7 Objections: Secret Harbor objects to this topic on the basis that it seeks information that is not relevant to the claims and defenses of the parties. 8 The Topic is not adequately specific, is open-ended, and does not “describe with reasonable particularity the matters on which 9 examination is requested.” Secret Harbor further objects to the proposed time period as overly broad and unduly burdensome as the topic seeks 10 information from outside of the relevant time period.

11 Response: Because this topic is irrelevant, overly broad, and unduly burdensome, Secret Harbor will not produce a witness to testify 12 regarding this topic for any time period.

13 Id. at 70, 76–78 (objecting to topics 10, 24–26). 14 Based on its objections, Secret Harbor expressly refused to prepare and 15 produce a witness on the noticed topics. It did not move for a protection order or 16 otherwise seek relief from the Court. 17 The deposition went forward on July 18, 2024, and lasted around 4.5 hours. 18 Dkt. No. 152 ¶¶ 6–7, 9. Plaintiffs allege that Secret Harbor’s Rule 30(b)(6) designee, 19 its Director and CEO Jennifer Ryan, was unprepared to testify. Dkt. No. 136 at 6. 20 During the deposition, Plaintiffs examined Ryan about certain documents, but she 21 could not provide complete testimony because the documents were shown to her, as 22 they have been produced by Secret Harbor, in excerpted form. Dkt. 137 at 87–88. 23 1 She testified that she would need to see complete documents to provide complete 2 testimony. Id.

3 3. DISCUSSION 4 3.1 Legal standard. 5 3.1.1 Rule 30(b)(6). 6 Federal Rule of Civil Procedure 30(b)(6) permits litigants to depose 7 corporations and other organizations and entities. Fed. R. Civ. P. 30(b)(6); Great 8 Am. Ins. Co. of N.Y. v. Vegas Const. Co., Inc., 251 F.R.D. 534, 538 (D. Nev. 2008) 9 (explaining that Rule 30(b)(6) “serves a unique function in allowing for a specialized 10 form of deposition”). To depose an organization, the deposing party must notify the 11 organization of the deposition topics beforehand, describing them with “reasonable 12 particularity.” Id. Then, “[b]efore or promptly after the notice or subpoena is served, 13 the serving party and the organization must confer in good faith about the matters 14 for examination.” Id. The organization must designate one or more people 15 (designees) “to testify about information known or reasonably available to the 16 organization” on the noticed topics. Id. 17 The testimony that a Rule 30(b)(6) designee gives is the testimony of the 18 organization. United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996). As one 19 district court put it: 20 In a Rule 30(b)(6) deposition, there is no distinction between the corporate representative and the corporation. The Rule 30(b)(6) 21 designee does not give his personal opinion. Rather, he presents the corporation's “position” on the topic. The designee testifies on behalf of 22 the corporation and thus holds it accountable.

23 1 Adidas Am., Inc. v. TRB Acquisitions LLC, 324 F.R.D. 389, 394 (D. Or. 2017) 2 (quoting Sprint Commc’ns co. v. Theglobe.com, Inc., 236 F.R.D. 524, 527 (D. Kan.

3 2006) (internal quote omitted)). 4 To comply with its Rule 30(b)(6) discovery obligations, an organization must 5 educate and prepare its designees with all the information “known or reasonably 6 available to the organization” on the designated topics. Fed. R. Civ. P. 30(b)(6); 7 Corker v. Costco Wholesale Corp., No. 19-cv-0290-RSL, 2022 WL 92979, at *2 (W.D. 8 Wash. Jan. 10, 2022). The organization has “a duty to make a conscientious, good-

9 faith effort to designate knowledgeable persons for Rule 30(b)(6) depositions and to 10 prepare them to fully and unevasively answer questions about the designated 11 subject matter.” Flowers v. Fred Hutchinson Cancer Rsch. Ctr., No. C17-0989-JCC, 12 2018 WL 6019276, at *3 (W.D. Wash. Nov. 16, 2018) (internal quote omitted). 13 Notably, the duty to educate and prepare Rule 30(b)(6) designees exists even 14 when “a corporation indicates that it no longer employs individuals who have 15 memory of a distant event or that such individuals are deceased.” Taylor, 166

16 F.R.D. at 361. Further, if a Rule 30(b)(6) designee cannot answer questions on the 17 designated topics fully and accurately, then the organization must promptly 18 designate a new witness who can satisfy the organization’s Rule 30(b)(6) 19 requirements. See Marker v. Union Fid. Life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C. 20 1989) (“Even if defendant in good faith thought that the [Rule 30(b)(6) designee] 21 would satisfy the deposition notice, it had a duty to substitute another person once

22 the deficiency of its Rule 30(b)(6) designation became apparent during the course of 23 the deposition.”). 1 3.1.2 Rule 37(d). Rule 37(d) imposes sanctions on a party who fails to attend its own 2 deposition. Fed. R. Civ. P. 37(d)(1)(A)(i). “Courts have held that when a witness is 3 designated by a corporate party to speak on its behalf pursuant to Rule 30(b)(6), 4 producing an unprepared witness is tantamount to a failure to appear that is 5 sanctionable under Rule 37(d).” Matson v. United Parcel Serv. Inc., 2012 WL 6 12941741, at *2 (W.D. Wash. March 28, 2012) (Jones, J.) (citing Black Horse Lane 7 Assoc., L.P. v. Dow Chem. Corp., 228 F.3d 275, 304 (3d Cir. 2000)). A failure to 8 appear “is not excused on the ground that the discovery sought was objectionable, 9 unless the party failing to act has a pending motion for a protective order under 10 Rule 26(c).” Fed. R. Civ. P. 37(d)(2). 11 Rule 37(d) requires the Court to order “the party failing to act, the attorney 12 advising that party, or both to pay the reasonable expenses, including attorney’s 13 fees, caused by the failure, unless the failure was substantially justified or other 14 circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(d)(3). 15 16 3.2 Secret Harbor must produce one or more designees to testify on the noticed topics. 17 After reviewing the briefing and supporting evidence, the Court finds that 18 Secret Harbor’s failure to provide witnesses to testify on the noticed topics 19 constitutes a failure to appear under Rule 37(d). See Matson, 2012 WL 12941741, at 20 *2; see also Fed. R. Civ. P. 37(d)(2). Indeed, Secret Harbor expressly refused to 21 appear on multiple topics without first obtaining a protective order. See Dkt. No. 22 23 1 137 at 76–78 (objecting to topics 24–26 and refusing to provide a designee to testify 2 on the basis of objections).

3 Secret Harbor also unilaterally limited its designee’s testimony so that she 4 was unable or unwilling to testify fully on the other topics. Secret Harbor concedes 5 that its designee only prepared to answer questions for a limited date that Secret 6 Harbor defines as the “relevant period” (three years)—not the date range actually 7 listed in the deposition notice. See Dkt. No. 151 at 6. And Secret Harbor does not 8 deny Plaintiffs’ contention that its designee reviewed redacted documents in

9 preparation for the deposition. See generally Dkt. No. 51. Accordingly, the designee’s 10 knowledge necessarily fell short of Secret Harbor’s knowledge on the noticed topics. 11 Secret Harbor’s argument regarding the difficulty of preparing a Rule 12 30(b)(6) designee is also unpersuasive. While “[t]he Court understands that 13 preparing for a Rule 30(b)(6) deposition can be burdensome[,] . . . this is merely the 14 result of the concomitant obligation from the privilege of being able to use the 15 corporate form in order to conduct business.” Taylor, 166 F.R.D. at 362. These

16 difficulties “do not relieve a corporation from preparing its Rule 30(b)(6) designee[s] 17 to the extent [that] matters are reasonably available, whether from documents, past 18 employees, or other sources.” Id. Further, Secret Harbor should have raised this 19 argument in a motion for protective order rather than violate Rule 30(b)(6). 20 Next, relying on Estrada v. Rowland, 69 F.3d 405 (9th Cir. 1995), Secret 21 Harbor maintains that Rule 37(d) sanctions cannot apply here because Secret

22 Harbor’s designee physically appeared for the deposition. Dkt. No. 151 at 7. To be 23 sure, in Estrada, the Ninth Circuit concluded that Rule 37(d) sanctions were 1 inappropriate when the plaintiff physically appeared at his deposition but refused 2 to answer any questions. 69 F.3d at 406. The court did not consider the plaintiff’s

3 actions as a failure to appear. Id. 4 But many courts have distinguished the rule from Estrada in the context of 5 Rule 30(b)(6) depositions, finding that an entity’s failure to prepare a Rule 30(b)(6) 6 designee is, in effect, a “no show” on the part of the entity. See Black Horse Lane 7 Assoc., L.P., 228 F.3d at 303–04, 304, n.18; Westover v. Provident Life and Accident 8 Ins. Co., Case No. 20–cv–5931–BHS 2021 WL 1208754, at *2 (W.D. Wash. March

9 31, 2021) (Settle, J.) Matson, 2012 WL 12941741, at *2 (Jones, J.); WRB, Inc. v. 10 Vision Mktg., LLC, Case No.: 2:16-CV-436-RMP, 2017 WL 9802622, at *1–2 (E.D. 11 Wash. Nov. 27, 2017) (Peterson, J.). As the Fifth Circuit has put it: 12 [Rule 30(b)(6)] places the burden of identifying responsive witnesses for a corporation on the corporation. Obviously, this presents a potential for 13 abuse which is not extant where the party noticing the deposition specifies the deponent. When a corporation or association designates a 14 person to testify on its behalf, the corporation appears vicariously through that agent. If that agent is not knowledgeable about relevant 15 facts, and the principal has failed to designate an available, knowledgeable, and readily identifiable witness, then the appearance is, 16 for all practical purposes, no appearance at all.

17 Resol. Trust Corp. v. S. Union Co., Inc., 985 F.2d 196, 197 (5th Cir. 1993). The Court 18 finds this reasoning persuasive and agrees. 19 In any event, Secret Harbor cannot rely on Estrada because Secret Harbor 20 actually failed to appear on noticed topics 24–26 when it stated the following for 21 each: “ . . . Secret Harbor will not produce a witness to testify regarding this topic 22 for any time period.” Id. at 76–78. 23 1 The Court also rejects Secret Harbor’s argument that it was not required to 2 move for a protective order and that it was justified in standing on its objections.

3 Dkt. No. 151 at 7 (arguing “[n]owhere in the Rule does it state that a Motion for 4 Protective Order or Motion to Stay must be filed to prevent certain topics from 5 being discussed at the deposition”). Rule 37(d) plainly requires a party to file a 6 motion for a protective order in this situation. It states that when an organization 7 fails to appear for a deposition under Rule 30(b)(6), that failure is “not excused on 8 the ground that the discovery sought was objectionable, unless the party failing to

9 act has a pending motion for a protective order under Rule 26(c).” Fed. R. Civ. P. 10 37(d)(2). 11 Moreover, while written objections may help the Parties prepare to meet and 12 confer about the upcoming deposition, Rule 30(b)(6) does not contemplate that the 13 responding party will serve formal, written objections. See Fed. R. Civ. P. 30(b)(6). 14 And it certainly does not allow a party to unilaterally limit the scope of the noticed 15 topics by objecting. See id.; cf. Great Am. Ins. Co. of N.Y., 251 F.R.D. at 539

16 (explaining that the Federal Rules do not permit a party served with a Rule 30(b)(6) 17 deposition notice to supply the answers in a written response or contend that 18 already-produced documents “speak for themselves”). By relying on its own 19 objections to evade its deposition, Secret Harbor effectively granted itself a 20 protective order, improperly assuming the Court’s role. 21 In short, the Court finds that Secret Harbor violated its discovery obligations

22 under Rule 30(b)(6) and that Rule 37(d) sanctions are appropriate because Secret 23 Harbor failed to appear for its noticed deposition. The Court also finds that Secret 1 Harbor’s failure to act was not “justified” and that no other circumstances make 2 sanctions unjust. See Fed. R. Civ. P. 37(d)(3).

3 3.3 Secret Harbor must produce the requested documents by November 6, 2024. 4 In January 2024, the Court ordered Secret Harbor to produce certain 5 documents. Dkt. No. 98. Secret Harbor agrees that it still has not produced these 6 documents. Dkt. No. 151 at 10–11. The Court orders Secret Harbor to produce the 7 documents no later than November 6, 2024. If Secret Harbor fails to produce the 8 documents by the deadline, it must file a brief by that day instead, showing cause as 9 to why it should not be held in contempt or otherwise sanctioned for failure to 10 comply with the Court’s Order dated January 26, 2024, Dkt. No. 98. 11 4. CONCLUSION 12 For all these reasons, the Court ORDERS: 13 • Plaintiffs’ motion to compel and for sanctions, Dkt. No. 136, is GRANTED. 14 The Court considers Secret Harbor’s Objections to Plaintiffs’ noticed topics 15 waived. Secret Harbor must produce one or more Rule 30(b)(6) designees 16 to testify on the noticed topics consistent with this Order. 17 • Having found that Secret Harbor’s failure was not substantially justified 18 and that no circumstances make an award of expenses unjust here, the 19 Court imposes sanctions under Fed. R. Civ. P. 37(d)(3). Secret Harbor and 20 its attorneys will pay the reasonable costs incurred by Plaintiffs for (1) 21 obtaining a court reporter for Secret Harbor’s first deposition in this 22 matter, (2) obtaining the transcript for that deposition, and (3) reasonable 23 1 attorney fees incurred in filing this motion and the corresponding reply 2 brief. Plaintiffs must submit a fee petition for the Court’s review by

3 November 6, 2024. 4 • Secret Harbor will produce the documents that this Court ordered it to 5 produce in its prior Order, Dkt. No. 98, by November 6, 2024. If Secret 6 Harbor fails to produce the documents by then, it must file a brief by 7 November 6, 2024, showing cause as to why it should not be held in 8 contempt or otherwise sanctioned for its failure to comply with the Court’s

9 prior Order, Dkt. No. 98. 10 Dated this 29th day of October, 2024. 11 a Jamal N. Whitehead 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23