Unprepared 30(b)(6) Witness For Mining Company Leads To New Deposition But Not Costs

In response to a Rule 30(b)(6) deposition notice, a mining company designated one witness to testify on 10 topics, including the training and instruction of the company’s employees, citations or violations issued to the company by MSHA, engineering studies for the particular mine in question, and the operation of the particular mine.  After the deposition, the plaintiff brought a motion to compel the mining company to provide a new “witness who is prepared adequately to answer the questions based on the [designated] subject areas.”  After reviewing the deposition, a Magistrate Judge for the U.S. District Court for the Southern District of West Virginia granted the motion to compel and ordered the company to designate a new witness for deposition.  In making that ruling, the court noted that the designated witness was only able to identify two of the 75 employees involved, was unable to state whether the company conducted any investigations or internal meetings following the underlying incident, and that the questions he was able to answer lacked substance.

Rule 37 procedure provides that when a party’s motion to compel answers to previously unanswered Rule 30(b)(6) designations, 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 to the movant reasonable expenses incurred in making the motion, including attorney’s fees.”  The court, however, declined to impose costs here because the plaintiff failed to meet and confer with the mining company before filing the motion to compel.  Local Rule of Civil Procedure 37.1(b) provided, “Before filing any discovery motion, including any motion for sanctions or for a protective order, counsel for each party shall make a good faith effort to confer in person or by telephone to narrow the areas of disagreement to the greatest possible extent.”  Federal Rule 37(a)(1) also provides a certification that the movant has in good faith conferred or attempted to confer with the party failing to make disclosure/discovery.  Here, because the plaintiff admitted that it did not confer with the mining company before filing the motion (arguing that it was not necessary because it would have been fruitless), the court denied the plaintiff’s request for costs and fees despite granting the motion to compel.