Tundra Mountain Holdings, LLC v. Markel Insurance Company

WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
TUNDRA MOUNTAIN HOLDINGS, LLC, )
)
Plaintiff, )
)
vs. )
)
MARKEL INSURANCE COMPANY, )
) No. 4:20-cv-0023-HRH
Defendant. )
_______________________________________)
O R D E R
Motion to Compel Rule 30(b)(6) Depositions1
Defendant moves pursuant to Rule 37(a)(1), Federal Rules of Civil Procedure, for
an order compelling plaintiff Tundra Mountain Holdings, LLC, and its non-party affiliate,
Alaska Auto Rental, Inc., to appear for Rule 30(b)(6) depositions. The motion is opposed.2
Oral argument has not been requested and is not deemed necessary.
In March of 2021, defendant Markel Insurance deposed Peter Chapman, manager of
Tundra Mountain and director and president of Alaska Auto, in his individual capacity.
Beginning in August of 2022, defendant began its efforts to take Rule 30(b)(6) depositions
of defendant and Alaska Auto. The parties disagreed regarding whether Rule 30(b)(6) were
appropriate. Ultimately, Tundra Mountain and Alaska Auto refused to appear – despite the
1Docket No.70.
2Docket No. 72.
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issuance of Rule 30(b)(6) subpoenas – unless defendant agreed to conditions which were
unacceptable to defendant.
In its opposition to defendant’s motion to compel Rule 30(b)(6) depositions, plaintiff
relies upon Edwards v. Scripps Media, Inc., 331 F.R.D. 116 (E.D. Mich. Apr. 6, 2019), for
the proposition that a party may avoid Rule 30(b)(6) depositions if, when responding to a
deposition notice, “the party clearly states that it intends for its employee’s prior deposition
testimony to represent the testimony of the corporation.” Id. at 121. Tundra Mountain and
Alaska Auto argue that Mr. Chapman, by affidavit and in his capacity as manager of
Tundra and a director and president of Alaska Auto, affirmed that his testimony “would be
unchanged” if required to appeared for a second deposition.3
Tundra Mountain and Alaska Auto’s opposition and brief reference to Edwards fail
to identify the factors which must be met in order to foreclose a Rule 30(b)(6) deposition.
Woods v. Standard Fire Ins. Co., ___ F. Supp. 3d ___, 2022 WL 677567 at *3 (E.D. Ky.
Mar. 7, 2022), is more instructive than Edwards, providing:
Designating prior witness testimony in lieu of producing an
organizational representative in response to a Rule 30(b)(6)
deposition notice is permitted [only] if: (1) the organization
timely communicates the designated testimony to the noticing
party to permit a review of the designations; (2) the designated
testimony addresses the requested topic(s); and (3) a
[Rule 30(b)(6)] deposition of an organizational representative
would be unreasonably duplicative, cumulative, and dispro-
portionate to the needs of the case. In other words, is the
designation timely and on topic rendering another deposition
superfluous? [Emphasis supplied.]
Defendant argues that Tundra Mountain’s attempt to designate prior deposition testimony
in lieu of a Rule 30(b)(6) deposition was untimely, that Tundra Mountain has failed to
explain how Chapman’s prior testimony fully addresses the topics listed in defendant’s
3Affidavit of Peter Chapman, page 13 of 14, Docket No. 70-4.
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Rule 30(b)(6) deposition notices, and that Tundra Mountain and Alaska Auto have not
demonstrated that the organization depositions would be unreasonably duplicative, cumula-
tive, or disproportionate to the needs of the case.
The court is unpersuaded that Tundra Mountain and Alaska Auto’s attempt to desig-
nate Chapman’s testimony in lieu of organizational testimony was untimely. Rather,
Tundra Mountain and Alaska Auto’s efforts to avoid Rule 30(b)(6) depositions fail because
they have not shown that Chapman’s prior testimony addresses the requested Rule 30(b)(6)
topics. In his affidavit, Mr. Chapman says only that in a Rule 30(b)(6) deposition, his testi-
mony would be ‘unchanged.”4 Mr. Chapman’s affidavit is insufficient to permit defendant
Markel Insurance to “evaluate whether the prior testimony is sufficiently on point to make a
subsequent deposition superfluous.” See Edwards, 331 F.R.D. at 121.
The court concludes that Tundra Mountain and Alaska Auto should have provided
defendant with a topic-by-topic analysis or comparison of Chapman’s prior testimony and
defendant’s Rule (b)(6) deposition subjects. In the absence of that kind of showing by
Tundra Mountain and Alaska Auto, defendant was not in a position to evaluate whether
Chapman’s prior testimony sufficiently addressed defendant’s Rule 30(b)(6) topics. In the
absence of a topic-by-topic comparison of defendant’s Rule 30(b)(6) subjects and
Chapman’s prior testimony, the court is unable to say whether Rule 30(b)(6) depositions
would or would not be unreasonably duplicative, cumulative, or disproportionate to the
needs of the case.
Defendant’s motion to compel the Rule 30(b)(6) depositions noticed by defendant is
granted. On or before October 27, 2022, counsel shall confer and agree upon a date for the
Rule 30(b)(6) depositions.
4Id.
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Defendant seeks sanctions pursuant to Rule 30(d)(2), Federal Rules of Civil Proce-
dure and seeks expenses pursuant to Rule 37(a)(5)(A), Federal Rules of Civil Procedure.
This not a Rule 30(d)(2) situation. However, Rule 37(a)(5)(A) provides that where a
motion to compel discovery is granted, the court must:
after giving an opportunity to be heard, require the party or
deponent whose conduct necessitated the motion, the party or
attorney advising that conduct, or both to pay the movant’s
reasonable expenses incurred in making the motion, including
attorney’s fees.
Plaintiff opposes the imposition of expenses, relying upon Rule 37(a)(5)(A)(ii) which pro-
vides that “the opposing party’s nondisclosure, response, or objection was substantially
justified.”
The parties argued extensively over whether or not defendant was seeking an imper-
missible, second deposition of Chapman or a proper Rule 30(b)(6) deposition. It appears
that counsel for plaintiff Tundra Mountain never seriously researched the question of what
must be shown in order to avoid an otherwise proper Rule 30(b)(6) deposition. Counsel’s
contention that Chapman’s affidavit was sufficient was not substantially justified.
The court will entertain defendant’s application for expenses directly attributable to
the preparation and filing of defendant’s motion to compel and reply memorandum.
DATED at Anchorage, Alaska, this 20th day of October, 2022.
/s/ H. Russel Holland
United States District Judge
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