United States District Court, S.D. Indiana, Indianapolis Division
J. DINSMORE UNITED STATES MAGISTRATE JUDGE.
personal injury matter is before the Court on Plaintiff's
objection, made at the end of the first day of trial and
renewed on the second day, to a portion of the trial
deposition of Tara Keck which recounts statements that
Plaintiff made to Ms. Keck immediately after her fall. Ms.
Keck was deposed seven days prior to trial due to her
inability to appear at trial as the result of a medical
issue. The essence of Plaintiff's objection is that Ms.
Keck's testimony contradicts a portion of Defendant's
Federal Rule of Civil Procedure 30(b)(6) deposition.
Defendant's Rule 30(b)(6) designee testified that he did
not know whether Plaintiff made any statements to Defendant
at the time of her fall at Defendant's store and/or that
there were no such statements. Plaintiff argues that
Defendant should be bound by such nonresponsive answers. The
Court overruled Plaintiff's objection, and this Entry
provides additional explanation for the Court's ruling.
while on the record and in support of her position, cited
three cases in support of her position: QBE Insurance
Corp. v. Jorda Enterprises, Inc, 277 F.R.D. 676, 690
(S.D. Fla. 2012); Great American Insurance Co. of N.Y. v.
Summit Exterior Works, LLC, No. 3:10-cv-1669, 2012 WL
459885 (D. Conn. Feb. 13, 2012); and Ierardi v.
Lorillard, Inc., No. 90-7049, 1991 WL 158911 (E.D. Pa.
Aug. 13, 1991). The Court finds these district court cases
from outside of this Circuit unpersuasive for two reasons.
while the cases to which Plaintiff cites evince a circuit
split on this issue, the Seventh Circuit's position is
crystal clear: A Rule 30(b)(6) deposition produces evidence,
not judicial admissions:
A Rule 30(b)(6) deponent testifies as if she is the
corporation, but Rule 30(b)(6) does not “absolutely
bind a corporate party to its designee's
recollection.” A.I. Credit Corp. v. Legion
Insurance Co., 265 F.3d 630, 637 (7th Cir. 2001). Rule
30(b)(6) testimony “can be contradicted and used for
impeachment purposes, ” but it “is not a judicial
admission that ultimately decides an issue.”
Industrial Hard Crome, Ltd. v. Hetran, Inc., 92
F.Supp.2d 786, 791 (N.D. Ill. 2000).
First Internet Bank of Indiana v. Lawyers Title Ins.
Co., No. 1:07-CV-0869-DFH-DML, 2009 WL 2092782, at *4
(S.D. Ind. July 13, 2009) (Hamilton, J.) (emphasis added)
(citation omitted); A.I. Credit Corp., 265 F.3d at
637 (“McPherson apparently construes the Rule as
absolutely binding a corporate party to its designee's
recollection unless the corporation shows that contrary
information was not known to it or was inaccessible. Nothing
in the advisory committee notes indicates that the Rule goes
so far.”). Thus, the Court rejects the nonbinding
authorities to which Plaintiff cites and concludes that
Defendant may present evidence at trial that contradicts,
supplements, or differs from the testimony of its Rule
Plaintiff's conduct is partially to blame for the
Court's inability to fashion any different remedy for the
allegedly insufficient Rule 30(b)(6)
deposition. Again, there is Seventh Circuit authority
directly on point:
Finally, although we in no way condone the defendants'
choice to provide Baucom, a largely unresponsive witness, as
their Rule 30(b)(6) deposition representative, we also note
that the plaintiffs made a tactical decision not to insist
that the defendants produce better witnesses after Baucom
proved inadequate. Such a request very likely would have been
viewed favorably had it been made prior to the close of
discovery, with possible sanctions levied against the
defendants for failing to provide an appropriate deponent in
the first instance. Yet, the plaintiffs raised their
dissatisfaction with Baucom after the close of discovery, in
the midst of summary-judgment briefing, and with prior
knowledge that better witnesses, like Ryczek, existed. The
district judge was not required to belatedly punish the
defendants . . . in such circumstances.
Gutierrez v. AT&T Broadband, LLC, 382 F.3d 725,
733 (7th Cir. 2004).
Plaintiff first raised her dissatisfaction with
Defendant's Rule 30(b)(6) designee at the end of the
first day of trial-far later, and thus far more prejudicial,
than when the issue was raised in Gutierrez.
Plaintiff knew of the designee's deficiencies the day of
that deposition and could have brought such issues before the
Court at any time. Moreover, just like in Gutierrez,
Plaintiff knew from the day of the incident that Plaintiff
interacted with Ms. Keck immediately following her fall. She
had “prior knowledge” of Ms. Keck, an undoubtedly
“better witness” than the Rule 30(b)(6) witness,
and had every opportunity to depose Ms. Keck at a date well
before trial. Id. Plaintiff engaged in apparently
strategic delay in not timely deposing Ms. Keck and in not
raising the issues with the Rule 30(b)(6) deposition before
the first day of trial. This Court is “not required to
belatedly punish the defendants, ” id., and
the Court will not now countenance Plaintiff's complaints
which she could have raised in such a manner as to allow for
a full evidentiary exploration of the dispute.
these reasons, and for those stated on the record, the Court
OVERRULES Plaintiffs objection to the deposition of Tara