Doug Austin

Defendant’s 30(b)(6) Depositions Cause Court to Reconsider Sanctions Sought by Plaintiff: eDiscovery Case Law

We started the week with a case law post.  So, why not end with one too?  😉

In Smith v. Forest River, Inc. et al., No. 19-14174-CIV-ROSENBERG/MAYNARD (S.D. Fla. Apr. 3, 2020), Florida Magistrate Judge Shaniek M. Maynard granted the plaintiff’s Motion for Reconsideration after the defendant’s 30(b)(6) depositions illustrated that sources of information were more readily available and easier to search than what the defendant explained in its response to the plaintiff’s original Motion for Sanctions.

Case Background

eDiscovery Assistant

In this case involving alleged defects of a “fifth wheel” type of travel trailer that were built and sold by the defendants, the plaintiff sent a set of Requests for Production to defendant Forest River on August 30, 2019.  In Request No. 7, the plaintiff asked for “complaints received by defendant from any person or entity about towable recreational vehicles commonly known as ‘fifth wheel’ travel trailers, including but not limited to those of the same model as the camper, from January 1, 2017 to the date of your response.”

On December 11, the Court ordered defendant Forest River to produce information responsive to Request No. 7, giving it until December 26 to do so, then extending the deadline to January 10, 2020.  On January 7, 2020 the defendant answered the request with its final production of documents.  The Plaintiff then moved to sanction the defendant for failing to produce a range of additional information, information that the Plaintiff had found on his own from a variety of sources, including:

  • 35 complaints about the Defendant’s fifth wheel campers in a database maintained by the Better Business Bureau (BBB);
  • 111 recalls (including 33 complaints) on file with the National Highway Transportation Safety Administration (“NHTSA”);
  • 43 Forest River dealerships in Florida alone (with presumably many more nationwide) that were potentially an additional source of customer complaints.

In its Response to the plaintiff’s Motion for Sanctions, the defendant’s attorney explained that “[a] search of Forest River’s email and communications database” was undertaken and denied the availability of any other databases that were searchable.  Based on the defendant’s response, while noting that the plaintiff “raises a legitimate concern” about BBB complaints and NHTSA recall notices and ordering the defendant to supplement its production to include those sources, still declined to award sanctions.

The plaintiff subsequently filed its Motion for Reconsideration, citing the 30(b)(6) deposition of the defendant’s Corporate Manager for Customer Service (Michael Coy) and the deposition of the defendant’s IT manager, where it became evident that BBB complaints and NHTSA recall notices were more readily available and easier to search than the defendant indicated in its reply to the Motion for Sanctions.  In a spreadsheet log, Coy’s office kept track of consumer complaints that the BBB, private attorneys, and attorneys general forward to the defendant. Also, the defendant’s warranty department and Office of Corporate Compliance tracked customer complaints, including compliance with NHTSA’s reporting requirements.  The defendant cited attorney-client privilege to prevent either deponent from explaining why they conducted the limited search that they did or to say under what instructions they acted.

Veritas

Judge’s Ruling

While the defendant contended that the Court knew about the depositions when she made her ruling, Judge Maynard stated: “this Court only knew that the depositions had taken place. The transcripts of those depositions were not yet available, and this Court did not know the content of their testimonies. Now this Court does. Moreover the Plaintiff proffers even more recent evidence that he on his own found after the briefing of the Motion for Sanctions. Taken altogether, this Court finds that the Plaintiff does now bring forth substantive new evidence that this Court should include in its consideration. Moreover it is new evidence that is directly relevant to the sanctions ruling. The new evidence shows that the Defendant had sources of responsive information more than what this Court initially understood it to have and which the Defendant did not access despite ample time to do so.”

As a result, Judge Maynard stated: “The Plaintiff meets the high standard for seeking reconsideration of a prior ruling. The information that the Plaintiff proffers through his Motion for Reconsideration adds clarity to the issue about the shortcomings in the Defendant’s production of information responsive to Request No. 7 and how the Defendant could have completed that production within the time frame as initially ordered.”  She ruled that “the Plaintiff is entitled to a fee and expense award” (determined by her to be $3,000), “not just for litigating that prior Motion for Sanctions but also for the effort expended since then and on the briefing of the instant Motion, too.”

So, what do you think?  Do you agree that the plaintiff met his burden for the Motion for Reconsideration to be granted?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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