Horodner v. Midwestern University ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Mathew Horodner, No. CV-20-01800-PHX-JAT 10 Plaintiff, ORDER 11 v. 12 Midwestern University, 13 Defendant. 14 15 Pending before the Court is the parties’ joint request for a discovery dispute hearing. 16 (Doc. 57). The Court has reviewed the parties’ filing and finds that the Court does not 17 require argument on this issue. 18 The dispute arises over the deposition of Dr. Tennant, an Associate Dean at 19 Defendant. (Id). (The Court understands the parties’ filing to represent that they have 20 resolved any dispute they may have had over the deposition of Dr. Sesterhenn.) On 21 December 3, 2021, Plaintiff noticed Dr. Tennant’s deposition for December 16, 2021. 22 (Doc. 54). Discovery closes in this case on December 17, 2021. (Doc. 23). 23 Although a nonparty’s attendance generally can be compelled only by subpoena, [t]here are exceptions to this rule. If the party is a corporation or 24 other organization, its officers, directors, managing agents, and persons the organization designates to testify about the deposition’s subject matter can 25 be sanctioned for disobeying a court order to appear. See Fed. R. Civ. P. 30(b)(6), 37(b)(2)(A). Some courts have expanded this principle to include 26 witnesses who are effectively under the party’s control, such as family members, see Robbins v. Abrams, 79 F.R.D. 600, 602 (S.D.N.Y. 1978), and 27 officers of wholly owned subsidiaries, see Martin Eng'g Co. v. Vibrators, Inc., 20 Fed. R. Serv. 2d (Callaghan) 486 (E.D. Ark. 1975). See Moore et 28 al., supra § 30.21. 1 Sali v. Corona Reg'l Med. Ctr., 884 F.3d 1218, 1223 & n.4 (9th Cir. 2018). 2 Here, neither party disputes that notice was all that was required for Dr. Tennant’s 3 deposition. (See Doc. 57). Federal Rule of Civil Procedure 30(b)(1) requires that such 4 notice be reasonable. The Court finds that December 3, 2021 was reasonable notice of a 5 December 16, 2021 deposition particularly given that the parties discussed this issue on 6 December 1, 2021. (See id.); Zone Sports Ctr., LLC v. Nat’l Sur. Corp., No. 7 111CV00845LJOBAM, 2012 WL 13034350, at *1 (E.D. Cal. Mar. 7, 2012) (“Commonly, 8 courts find that notice of at least five business days’ notice is required to 9 constitute reasonable notice.”). 10 In the filing before the Court, it is noted that Defendant stated, “Dr. Tennant had 11 been deposed as a designated 30(b)(6) witness.” (Doc. 57 at 2). To the extent this is meant 12 to be an argument that Dr. Tennant cannot now be deposed as a fact witness, that argument 13 is rejected. 14 First, the court rejects the notion that taking a Rule 30(b)(6) deposition is necessarily duplicative of a fact witness deposition even if the same person is 15 being deposed in both instances. Rule 30(b)(6) expressly provides that “[t]his paragraph (6) does not preclude a deposition by any other procedure allowed 16 by these rules.” Fed. R. Civ. P. 30(b)(6). The deposition of an individual and the deposition of the same person as a representative of the organization are 17 two distinct matters and can be utilized as distinct forms of evidence. See Taylor v. Shaw, No. 2:04CV01668LDGLRL, 2007 WL 710186, at *2 18 (D. Nev. Mar. 7, 2007) (“Rule 30 allows depositions of a witness in his individual capacity and in an organizational capacity because the depositions 19 serve distinct purposes and impose different obligations.”). For example, a fact witness is generally limited to his or her own personal knowledge, 20 whereas a Rule 30(b)(6) deponent testifies on behalf of the organization. See Fed. R. Civ. P. 30(b)(6) (“The named organization must then designate 21 one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf....”). Thus, Plaintiffs are entitled 22 to seek both types of discovery from Defendants, and the court does not consider these forms of discovery “duplicative” even if they address similar 23 or overlapping subject matters. 24 Doe v. Trump, 329 F.R.D. 262, 273–74 (W.D. Wash. 2018). 25 Given that Dr. Tennant’s individual deposition as a fact witness was timely noticed, 26 and that the parties do not dispute that notice is all that was required, Dr. Tennant cannot 27 refuse to attend the deposition. Therefore, Dr. Tennant will be required to appear on 28 December 16, 2021 for the deposition. As a result, the Court finds that the parties’ dispute 1 || regarding whether the discovery deadline should be extended for purposes of taking Dr. 2|| Tennant’s deposition is moot. 3 Based on the foregoing, 4 IT IS ORDERED that Dr. Tennant shall appear for deposition as noticed at Doc. 54. 6 IT IS FURTHER ORDERED that the parties’ request for a discovery dispute 7\| hearing (Doc. 57) is denied for the reasons stated above and the request to extend the 8 || discovery deadline by Plaintiff (Doc. 57) is denied as moot. 9 Dated this 10th day of December, 2021. 10 11 A 12 James A. Teilborg 13 Senior United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-