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Sanctions not warranted where no prejudice was found from corporate designeeís improper and inadequate preparation for deposition

Osborne v. Mountain Empire Operations LLC, et al
No. 1:2014cv00042 - Document 63 (W.D. Va. 2015)

by Gregory S. Emrick
Semmes, Bowen & Semmes (

Available at:

On July 7, 2012, Plaintiff fell out of her wheelchair, while in the care of Defendantís nursing home. The fall caused multiple facial fractures, and she allegedly developed pneumonia due to the aspiration of blood from her broken nose.

During the litigation, Plaintiff sought the deposition of the corporate Defendantís designee, pursuant to Fed. R. Civ. Proc. 30(b)(6). Plaintiff served a notice of deposition identifying the areas of inquiry to which Defendant did not object. According to the Motion for Sanctions, filed on May 11, 2015, the corporate designee testified that she had only reviewed the records, had not performed any investigation, and had only spoken with defense counsel. As a result, she responded approximately 163 times that she did not have personal knowledge and could not answer the questions. Plaintiffs also alleged that defense counsel instructed the witness not to answer properly raised questions, and otherwise coached the witness on how to respond and what particular questions to respond to.

Two (2) months after the deposition, Plaintiffs filed a Motion for Sanctions, which the Defendant opposed.

The parties shortly thereafter participated in mediation and settled the case, which included an agreement that Plaintiff would withdraw the motion.

Despite being informed of the settlement, Judge James Jones of the United States District Court of the Western District of Virginia determined that the settlement did not divest the Court of the discretion to render an opinion on the alleged violation of Federal Rules of Civil Procedure. Citing Perkins v. Gen. Motors Corp., 965 F.2d 597, 600 (8th Cir. 1992), Judge Jones noted that the Court had an independent obligation to enforce the Rules that the parties could not bargain away.

The Court concluded that the Rules had been violated in two (2) ways. First, the Defendantís corporate designee was not adequately prepared to respond to the identified areas of testimony, as required by Fed. R. Civ. Proc. 30(b)(6). The Court found that even though the answers were supplied by the client, not the attorney, defense counsel had failed to properly prepare the witness. The counsel had instructed the witness to only rely upon documents, not to talk to potentially knowledgeable employees or conduct any other investigation.

The Court also found that defense counsel improperly instructed the witness not to respond to certain properly trained questions during the deposition. The instructions were not properly raised to ďpreserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).Ē Citing Fed. R. Civ. Proc. 30(c)(2). While the Rules provided a procedure for terminating the deposition for objectionable questions and promptly receiving a ruling from the court, it did not permit the defense counsel to instruct the witness not to answer. The court also found that defense counsel improperly made speaking objections that had the effect of coaching the witnessís responses.

Despite the violations of the Rules, the Court noted that there was no prejudice to the Plaintiff. Further, the motion had been filed over two (2) months after the deposition and not long before trial, effectively precluding the court from constructing appropriate remedial sanctions, such as conducting the deposition at Defendantís cost. As such, the Court denied the motion.