Diaz v. New York Paving Inc.

Background

The plaintiff asked the court to order a continuation of a deposition under Federal Rule of Civil Procedure 30(b)(6), which allows a party to question a corporation through a designated representative about information known or reasonably available to the corporation. The plaintiff requested that Robert Coletti serve as the defendant’s representative. New York Paving opposed the request, and the plaintiff replied.

Court’s analysis

The court concluded that New York Paving’s prior designee, Peter Micelli, was not adequately prepared to testify about four areas: steps taken to preserve electronically stored information; instructions to employees to preserve text messages; the company’s video-surveillance system and related data production; and the company’s document search, including whether the search found documents subject to a claim of attorney-client privilege or another privilege.

The court held that the inadequate preparation justified giving the plaintiff another opportunity to depose a properly educated Rule 30(b)(6) witness on those subjects. It rejected New York Paving’s arguments that the additional deposition would be disproportionate to the needs of the litigation and that it should be limited to one hour. The court instead limited the new deposition to three hours.

The court did not order New York Paving to designate Coletti as its Rule 30(b)(6) witness. It stated that the plaintiff could seek Coletti’s deposition under Rule 30(b)(1), which generally permits the deposition of an individual with relevant knowledge. The court denied New York Paving’s request for a protective order because Coletti had submitted factual declarations concerning the topics, Micelli had identified Coletti as the person most knowledgeable about relevant matters, and Coletti had performed nonlegal roles within the company. If a deposition question called for privileged information, the court said Coletti could assert the privilege as to that question. The court also recommended that the parties consider a written agreement and order under Federal Rule of Evidence 502(d) concerning possible privilege waiver.

Disposition

The court allowed the plaintiff to take a new, three-hour Rule 30(b)(6) deposition of a properly prepared witness, did not require Coletti to be that witness, and denied the defendant’s request for a protective order. If New York Paving agreed to have Coletti serve as the Rule 30(b)(6) witness, the court stated that a separate deposition of Coletti under Rule 30(b)(1) would presumably be unnecessary.

Magistrate Judge Gabriel W. Gorenstein issued the order.