30(b)(6) witness sanctioned for lack of Knowlege about ESI systems

October 25th, 2008   Filed Under E-discovery, Rule 30(b)(6)  

 Ideal Aerosmith, Inc. v. Acutronic USA, Inc., 2008 U.S. Dist. LEXIS 85619 (W.D. Pa. Oct. 23, 2008)

The defendant argued that information regarding ” [it’s] e-mail systems, other computer systems, and backup policies and procedures” was irrelevant even though defendant had only produced one relevant document when plaintiff had identified, through other documents produced during discovery, an additional 24 relevant emails. Defendant further argued that the only source of such information was an independent consultant in Switzerland who refused to testify.  The court opined that Rule 30(b)(6) requires that, “[t]he designated deponent has a duty of being knowledgeable on the subject matter identified in the area of inquiry. A corporation must prepare its selected deponent to adequately testify not only on matters known by the deponent, but also on subjects that the entity should reasonably know.” Id. at *7 (citation omitted). The court went on to to say:

In modern litigation, discovery almost always involves the production of documents stored on computers, servers and other electronic facilities. It is commonplace in litigation to inquire of a corporate defendant the steps it took to find and produce documents relating to the litigation, as well as the corporation’s electronic document storage and retrieval systems, in order to ensure that discovery was diligently completed. Where a defendant, like Acutronic Switzerland, has failed to produce any meaningful documents in response to Plaintiff’s discovery requests, the need for and relevance of this inquiry is unquestionable.

The court opined further that it could “see no reason why [the deponent] could not have prepared himself, either through documentation prepared by [the consultant] or conversations with him, to answer even the foundational questions posed by counsel for Plaintiff at the 30(b)(6) deposition.” Id. at *10-*11  The court concluded by sanctioning the defendant under Rule 37(d) and ordering him to pay one third of defendant’s expenses incurred preparing for and attending the 30(b)(6) deposition, produce a knowledgeable 30(b)(6) witness within 14 days, and pay defendant’s attorney fees and expenses incurred in connection with the instant motion.

Read the entire opinion here: Ideal Aerosmith, Inc. v. Acutronic USA, Inc., 2008 U.S. Dist. LEXIS 85619 (W.D. Pa. Oct. 23, 2008)

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