United States District Court, W.D. Washington, Seattle
ORDER ON PLAINTIFF'S MOTION TO COMPEL, MOTION FOR
EXTENSION OF TIME AND MOTION FOR RECONSIDERATION
S. Lasnik United States District Judge
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.
Notice of Deposition
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.
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. Ex. E, Dkt. #36-5 at 2-3.
Deposition of Jennifer Baker
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.
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.
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.
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.
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.
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 ...