In Bierk v. Tango Mobile, LLC, et al., No. 19 C 5167 (N.D. Ill. Feb, 23, 2021), Illinois Magistrate Judge Jeffrey Cole resolved the dispute over defendant’s 30(b)(6) witness deposition by allowing the plaintiff two hours of additional deposition time with the defendant’s witness, with both counsel ordered to “have whatever documents are necessary available in order that the topics may be addressed without further glitches”.  Noting that “neither side followed the procedures they were instructed to follow multiple times”, Judge Cole awarded no fees and stated that “each side shall bear its own fees and costs”.

Case Background

In this contract dispute over sensor-based technology the plaintiff looked to exchange for a one-third partnership in defendants’ business, defendant CORT’s 30(b)(6) deposition was noticed back in January 2020, but wasn’t scheduled until April 2020, then postponed due to the pandemic (even though as Judge Cole noted “one presumes it would have been conducted virtually as most depositions were by that time”).  The parties didn’t next meet and confer over deposition dates until another five months later, on October 1, 2020, but the defendant still didn’t provide any potential dates for a 30(b)(6) deposition, and plaintiff finally filed a motion to compel the deposition on October 5, 2020, which led to the Court ordering defendant CORT to schedule a deposition, which it finally did for December 17, 2020.

However, when plaintiff emailed CORT three days before the deposition to ask who their 30(b)(6) witness was, CORT’s response was “TBD.”  Then, according to the plaintiff, CORT’s witness was unprepared to answer topic after topic during a period that spanned an entire afternoon, leading to the plaintiff filing a Motion to Compel and for Sanctions, arguing that the witness was not properly prepared and requesting either another opportunity to depose a 30(b)(6) witness at CORT’s expense, or an order barring CORT from presenting evidence at trial” on any topic the court finds it did not adequately prepare its witness.”

Judge’s Ruling

Judge Cole noted at the beginning of the order to resolve the dispute over defendant’s 30(b)(6) witness deposition: “At seemingly every turn, the parties in this case have struggled with discovery. In the last two months, the parties have done their best to monopolize the court’s attentions, filing motion after motion regarding their problems getting through rather routine matters in what appears to be a rather unexceptional contract dispute.”  He also noted: “Proportionality, like other concepts, requires a common sense and experiential assessment.”

While observing that “CORT’s delay and recalcitrance” in regard to scheduling the 30(b)(6) deposition, “obviously, was unacceptable”, Judge Cole also stated: “the blame for what went on at the deposition cannot be laid entirely at CORT’s doorstep…if plaintiff is taken at its word, several hours were wasted questioning the witness on timelines and contract formation with the witness claiming not to know or not remember. Yet, at no point did plaintiff avail itself of the remedy provided by the Federal Rules. Under Rule 30(d)(3), ‘“a party may move to terminate…[a deposition] on the ground that it is being conducted in bad faith….’ The fact that plaintiff made no such motion at any point during what it now claims was hours of bad faith conduct undermines its claim that it was so hard done by CORT and counsel that sanctions are warranted.”

Continuing, Judge Cole stated: “The same applies to CORT. In its response to plaintiff’s motion, CORT depicts plaintiff’s counsel as conducting the deposition in an abusive manner, challenging the witness to a memory contest and hoping he would fail…These are uniquely the kinds of matters that are easily resolved with a phone call. But, just like the plaintiff, CORT didn’t avail itself of the remedy provided by Rule 30(d)(3).”  And he also stated that for both parties: “Not once or twice, but four times over the course of the last few months, and twice recently, I instructed the parties in writing that, should disputes or difficulties arise during depositions, they were to contact me through my courtroom deputy, with a phone number that was provided.”

As a result, Judge Cole ruled that “the plaintiff is entitled to additional deposition time”, but noted that “[t]wo hours should suffice”.  He concluded with: “Both counsel should have whatever documents are necessary available in order that the topics may be addressed without further glitches. The additional deposition time must be scheduled not later than March 15, 2021. As neither side followed the procedures they were instructed to follow multiple times, the fee and costs awards the parties request are inappropriate and each side shall bear its own fees and costs.”

So, what do you think?  Did the plaintiff botch the opportunity for more consideration to resolve the dispute over defendant’s 30(b)(6) witness deposition by not terminating the deposition earlier?  Please share any comments you might have or if you’d like to know more about a particular topic.

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