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Wild Fish Conservancy v. Cooke Aquaculture Pacific, LLC

United States District Court, W.D. Washington, Seattle

April 19, 2019




         This matter comes before the Court on Plaintiff's motion to compel, for sanctions, and to modify case schedule (Dkt. No. 46). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS in part and DENIES in part the motion for the reasons explained herein.

         I. BACKGROUND

         Plaintiff filed this citizen suit pursuant to the Clean Water Act (“CWA”), 33 U.S.C. § 1365, alleging, among other things, that Defendant failed to adequately inspect and maintain eight Atlantic salmon farms it operated across the Puget Sound, in violation of its National Pollutant Discharge Elimination System permits. (Dkt. No. 1 at 6-7.) On December 13, 2018, Plaintiff served Defendant with a deposition notice pursuant to Federal Rule of Civil Procedure 30(b)(6). (Dkt. No. 46-1 at 5.) Plaintiff identified 33 topics for which it sought testimony from Defendant. (Id. at 8-16.) As relevant to the present motion, topic 8 sought information regarding inspections Defendant conducted on the anchoring components at each of its facilities.[1] (Id. at 11.) Topic 10 sought information regarding any maintenance Defendant had undertaken at its facilities since 2012. (Id. at 12.) As part of its notice, Plaintiff also instructed Defendant to produce any documents related to inspections conducted during the relevant period. (Id. at 16- 17) (citing Fed.R.Civ.P. 34).

         After conferring, the parties agreed that Defendant would be deposed for two days on February 28 and March 1, 2019. (Id. at 186.) Defendant designated its General Manager, Jim Parsons, to testify on its behalf. (Id. at 25.) In the days leading up to the deposition, Defendant produced more than 30, 000 pages of documents, which were purportedly responsive to Plaintiff's Rule 34 request as well as to topics 8 and 10.[2] (Id. at 209-13.) These documents included, for example, dive logs that appear to show the removal of dead fish from Defendant's facilities. (Id. at 289-313.)

         Plaintiff asserts that Parsons was “unable and/or unwilling to testify on issues 8 and 10 identified in the deposition notice.” (Dkt. No. 46 at 8.) Plaintiff states that Parsons was unable to identify, with any specificity, who conducted the anchor inspections at Defendant's facilities or when the inspections occurred. (Id. at 9.) Plaintiff further asserts that Parsons was unable to testify about whether Defendant's anchor inspections revealed a need for maintenance or repair. (Id.) Instead, Parsons repeatedly stated that the relevant information could be found in the records Defendant produced to Plaintiff prior to the deposition. (Id.; see, e.g., Dkt. No. 46-1 at 126-27.)

         Plaintiff asks the Court to re-open Defendant's deposition so that it can fully respond to questions regarding topics 8 and 10. (Dkt. No. 46 at 2.) In addition, Plaintiff asks for an award of fees for bringing this motion and for its expenses incurred in having to conduct an additional deposition. (Id. at 11-12.) Plaintiff also asks for a 45-day trial continuance based on Defendant's delay in providing timely discovery responses. (Id. at 12-13.) Defendant argues that Parsons was adequately prepared for his deposition, that an award of fees is not warranted, and that the Court should keep the current trial schedule. (See Dkt. No. 49.)


         A. Motion to Compel Additional Rule 30(b)(6) Deposition

         Pursuant to Federal Rule of Civil Procedure 30(b)(6):

[A] party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify . . . . The persons so designated shall testify as to the matters known or reasonably available to the organization.

Fed. R. Civ. P. 30(b)(6). As one court has noted, a corporation has “a duty to make a conscientious, good-faith effort to designate knowledgeable persons for Rule 30(b)(6) depositions and to prepare them to fully and unevasively answer questions about the designated subject matter.” Starlight Int'l, Inc. v. Herlihy, 186 F.R.D. 626, 638 (D. Kan. 1999); see also Flowers v. Fred Hutchinson Cancer Research Ctr., Case No. C17-0989-JCC, Dkt. No. 75 at 7 (W.D. Wash. 2018) (holding that defendant failed to prepare a corporate designee who could not answer questions regarding one out of thirty topics). A party may move for an order compelling discovery where a Rule 30 deponent fails to answer questions. Fed.R.Civ.P. 37(a)(3)(B)(i). Rule 37 instructs courts to treat a deponent's “evasive or incomplete” answer as a failure to answer. Fed.R.Civ.P. 37(a)(4).

         The Court has read the relevant deposition transcript and concludes that Parsons was not adequately prepared to testify about the matters included in topics 8 and 10 of Plaintiff's deposition notice. (See Dkt. No. 46-1 at 64-150.) The following excerpt is characteristic of Parsons' answers to Plaintiff's questions concerning the inspection of anchoring components as described in topic 8:

Counsel: In 2018, did Cooke inspect all of the anchoring components at Hope Island?
Parsons: Yes.
Counsel: Did Cooke visually inspect those anchoring components in 2018 all the way down to ...

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