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Wesley v. CBS Radio Services, Inc.

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

June 17, 2019

JESSE WESLEY, Plaintiff,
v.
CBS RADIO SERVICES, INC. et al., Defendants.

          ORDER ON PLAINTIFF'S MOTION TO COMPEL, MOTION FOR EXTENSION OF TIME AND MOTION FOR RECONSIDERATION

          Robert S. Lasnik United States District Judge

         This matter comes before the Court on plaintiff Jesse Wesley's “Motion Regarding CBS's Failure to Designate Witnesses Pursuant to Rule 30(b)(6), ” Dkt. #25, “Motion to Extend Time to File Response to Defendants' Motion for Protective Order Relating to Rule 30(b)(6) Deposition of Defendant CBS Radio Stations, Inc., ” Dkt. #40, and “Motion for Reconsideration of Protective Order Re: Corporate Designee.” Dkt. #47.

         BACKGROUND

         A. Notice of Deposition

          These motions concern a discovery dispute between plaintiff and defendants CBS Radio Services, Inc., CBI Radio Stations (collectively, “CBS”), Michael Fashana and Cindy Johnson regarding the deposition of Jennifer Baker pursuant to Federal Rule of Civil Procedure 30(b)(6) on January 9, 2019. On August 25, 2018, plaintiff served CBS with his “First Amended Notice of Deposition and Schedule of Documents” (“the Notice”). Dkt. #25-1; Ex. A, Dkt. #36-1. Plaintiff requested CBS to “designate and fully prepare one or more officers, directors, managing agents, or other persons who consent to testify on behalf of [CBS], and whom [CBS] will fully prepare to testify regarding all information that is known or reasonably available to [CBS]” regarding certain topics. Id. Topic No. 13 stated, “All averments and/or pleadings made by [CBS] in the instant federal case.” Id. at 6. On October 30, 2018, CBS responded with its general and specific objections. Dkt. #25-2; Ex. B, Dkt. #36-2. It objected to Topic No. 13 inter alia claiming the topic “[was] not set forth with ‘reasonable particularity' as required by Rule 30(b)(6) to the extent ‘all averments' [was] not defined.” Id. at 13. CBS stated that it was unable to designate a Rule 30(b)(6) representative to testify regarding the topic as it was phrased. Id.

         Plaintiff responded on November 7, 2018. Dkt. #25-2; Ex. C, Dkt. #36-3; see Dkt. #36 (Silke Decl.) at ¶ 5. Regarding Topic No. 13, he stated, “without conceding that the phrase includes or constitutes a legal term of art or linguistic idiom, please read the phrase ‘all averments' as ‘any of the statements of fact.'” Id. at 7. On November 8, 2018, CBS indicated that Jennifer Baker, who was CBS's Human Resources Regional Director at the relevant time, would be designated as CBS's Rule 30(b)(6) witness. Dkt. #25 at 3. By emails exchanged on December 18 and December 21, 2018, counsel agreed to hold depositions for plaintiff on January 8 and January 9, 2019 and for defendants Michael Fashana and Cindy Johnson on January 23 and 24, 2019. Ex. D, Dkt. #36-4 at 2. On January 2, 2019, plaintiff sent a “Notice of Deposition of Jennifer Baker” to CBS and its attorneys.[1] Ex. E, Dkt. #36-5 at 2-3.

         B. Deposition of Jennifer Baker

          At the start of the deposition on January 9, 2019, defense counsel expressed his understanding that CBS had presented Ms. Baker to respond to the topics in the Notice, and that plaintiff's counsel would be conducting a Rule 30(b)(6) deposition based on those topics as well as a fact deposition. Dkt. #36-6 at 5:15-23. When asked, Ms. Baker responded that she was “prepared to answer on behalf of CBS as to [those] questions and topics.” Id. at 10:17-20. However, defense counsel noted that CBS had not designated anyone for certain of the topics because of the nature of those requests. Id. at 10:23-11:4. Plaintiff's counsel noted that plaintiff had responded to CBS's objections. Id. at 11:18-22. Defense counsel clarified that they “[stood] by their objections” and “[could] address them as necessary as they [came] up” in the deposition. Id. at 11:23-12:2.

         Following a question about plaintiff's shift from a base salary plus commission compensation model to a commission only compensation model, plaintiff's counsel clarified that he was asking Ms. Baker questions as a CBS designee, and would indicate when he switched to asking her questions in her individual capacity. Id. at 30:24-31:2. Defense counsel objected as follows: “I would just interject the same objections to the extent that these questions are not within the scope of the 30(b)(6) topics. So when she testifies, ‘I don't know,' that's not an admission that she's not properly prepared for the topics within the notice, but I believe she is fully prepared for the topics to the extent we've designated her for these topics.” Id. at 31:12-19. Counsel then agreed that plaintiff's counsel would indicate the topic from the Notice that a question pertained to for the remainder of the deposition. Id. at 32:13-33:19.

         Plaintiff's counsel moved on to Topic No. 13. Id. at 34:18-24. Defense counsel noted that CBS had already lodged objections because Topic No. 13 was too broad and had communicated to plaintiff that it was unable to designate a Rule 30(b)(6) representative for Topic No. 13. Id. at 35:4-21. Plaintiff's counsel stated that the parties would need to take the matter up with the Court and that CBS should have sought a protective order. Id. at 35:22-36:11. Plaintiff's counsel disagreed. Id. at 36:12-37:5. A discussion ensued about how to proceed with Ms. Baker's deposition. Id. at 37:6-39:9. Plaintiff's counsel suggested that, in the interest of moving forward, defense counsel could lodge his objection, Ms. Baker could continue to respond to questions, and they could “seek a protective order … or seek the court's guidance” afterward. Id. at 41:7-14. Defense counsel responded, “the problem with doing a combined fact witness deposition and 30(b)(6) deposition is that you're asking to bind her on behalf of the company on certain topics for which we have no clarification about the scope in order to find out if she actually has knowledge about them or prepare [sic] her for that topic.” Id. 43:14-20.

         Counsel conferred with their clients. Id. at 45:20-46:1. Defense counsel then proposed that Ms. Baker would answer questions to the extent she knew the answers, and “after the deposition if plaintiff's counsel believe[d] that the witness did not testify on certain topics on behalf of the company in a way that gives him the information he needs, [they] could address what to do about that, ” including filing a motion for protective order. Id. at 46:1-18. Defense counsel clarified again that Ms. Baker had not been designated for all topics. Id. at 47:5-9. He reiterated CBS's objections regarding the “definitions and nature of the particular topics.” Id. at 47:15-19. The deposition continued. Ms. Baker provided answers to some questions but indicated that she did not know the answers to others, like whether plaintiff was doing satisfactory work, the reasons for his demotion, alleged preferential treatment given to plaintiff's coworkers, and plaintiff's alleged failure to mitigate damages. See Dkt. #25-4.

         C. Procedural History

         According to defendants, the parties “disagreed on whether CBS was required to designate a corporate representative to Topic 13 and whether CBS would be legally bound to Ms. Baker's responses to certain factual questions that might fall within the purview of Topic 13” and “agreed to file counter motions on these issues.” Dkt. #35 at 4. Plaintiff filed his “Motion Regarding Defendant CBS's Failure to Designate Witnesses Pursuant to Rule 30(b)(6)” (“Motion to Compel”) on February 1, 2019. Dkt. #25. He requested that CBS be bound by Ms. Baker's testimony or be required to designate proper witnesses and be sanctioned for additional expenses and attorney's fees. Id. at 6. Defendants responded on February 15, 2019. Dkt. #35. Plaintiff filed a reply in support of his Motion to Compel on February 22, 2019. Dkt. #37.

         Defendants filed a “Motion for Protective Order Relating to Rule 30(b)(6) Deposition of Defendant CBS Radio Stations, Inc.” (“Motion for PO”) a week later, on February 28, 2019. Dkt. #38. They requested a Court order ruling that they was not required to produce a witness to testify on Topic No. 13 because the topic was not described with reasonable particularity pursuant to Rule 30(b)(6). Id. at 9. Plaintiff was required to respond by March 6, 2019. See LCR 7(d)(2). He failed to do so. Defendants accordingly filed a reply on March 8, 2019, requesting that the motion be granted. Dkt. #39. On March 21, 2019, plaintiff filed a “Motion to Extend Time to File Response to Defendants' Motion for Protective Order Relating to Rule 30(6)(B) Deposition of Defendant CBS Radio Stations, Inc.” (“Motion for Extension”) pursuant to Federal Rule of Civil Procedure 6(b)(1)(B). Dkt. #40. Plaintiff argued that he was entitled to an extension of time more than two weeks after the deadline because defendants' Motion for PO was untimely and did not list the date, manner ...


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