United States District Court, S.D. Indiana, New Albany Division
DAVID J. BLEVENS, Plaintiff,
TRI-CAM INDUSTRIES, INC., WAL-MART STORES, INC., PRECISION PRODUCTS, INC., GLEASON CORPORATION, Defendants.
ORDER DENYING PLAINTIFF'S AND WAL-MART'S
Baker United States Magistrate Judge
Court's local rules come in handy. As this case
demonstrates, the rules can save lawyers and their clients
time and money. The Court denies Plaintiff David
Blevins's motion for sanctions and to compel discovery
[Filing No. 95] for failure to comply with Local
Rule 37-1, and denies Defendant Wal-Mart Stores,
Inc.'s motion to strike [Filing No. 107] for
failure to comply with Local Rule 7-1. In an effort
to salvage something beneficial from the mutual effort
expended on this matter, the Court offers some guidance
regarding the Fed. R. Civ. P. 30(b)(6) deposition at
filed a motion for sanctions and to compel discovery.
[Filing No. 95.] However, Local Rule 37-1
(a) Prior to involving the court in any discovery dispute,
including disputes involving depositions, counsel must confer
in a good faith attempt to resolve the dispute. If any such
dispute cannot be resolved in this manner, counsel are
encouraged to contact the chambers of the assigned Magistrate
Judge to determine whether the Magistrate Judge is available
to resolve the discovery dispute by way of a telephone
conference or other proceeding prior to counsel filing a
formal discovery motion. . . .
(b) In the event that the discovery dispute is not resolved
at the conference, counsel may file a motion to compel or
other motion raising the dispute. Any motion raising a
discovery dispute must contain a statement setting forth the
efforts taken to resolve the dispute, including the date,
time, and place of any discovery conference and the names of
all participating parties. The court may deny any motion
raising a discovery dispute that does not contain such a
efforts to resolve the dispute are the most important showing
a party must make under Rule 37-1(b), not merely the
date, time, etcetera. See Corre Opportunities
Fund, LP v. Emmis Commc'ns Corp., No.
1:12-cv-0491-SEB-TAB, 2013 WL 1500461, at *1 (S.D. Ind. Apr.
10, 2013) (“Although Plaintiffs have set forth the
dates, times, and parties to some of the communications . .
., no communications before the Court suggest that the
parties conferred in a good faith attempt to resolve the
dispute.”). Further, the Court is expressly prohibited
from granting motions for attorney's fees or sanctions
“unless the movant's attorney files with the motion
a statement showing that the attorney made reasonable efforts
to confer with opposing counsel and resolve the matters
raised in the motion.” Local Rule 7-1(g).
memorandum in support of his motion does not outline efforts
to resolve the dispute. [See generally Filing
No. 95-1.] In his reply, Blevins points to letters,
emails, and a single phone call, which are insufficient under
Rule 37-1. [Filing No. 115, at ECF pp.
1-3.] In an email, Wal-Mart's counsel describes the
phone call as containing a discussion to schedule a
meet-and-confer. [Filing No. 95-15, at ECF 1.] In a
follow-up email, Blevins's counsel describes that same
phone call as “our meet-and-confer.” [Filing
No. 95-16, at ECF p. 1.] On top of this discrepancy,
nowhere in Blevins's motion is there a description of
counsels' efforts, if any, to resolve the dispute during
that call. Without some discussion of what transpired during
the call, the Court has no basis to determine whether
Blevins's counsel and Wal-Mart's counsel sought to
resolve the dispute in good faith. Corre Opportunities,
2013 WL 1500461, at *2 (“While the Court suspects
that the parties met and conferred . . . prior to [filing],
there is insufficient evidence or explanation before the
Court to reach such a conclusion.”). Therefore,
Blevins's motion is denied, including his request for
fees and costs in preparing and filing his motion.
additional observation is in order. Blevins further argues
that “any further meet and confer process, without some
kind of Court intervention, would be futile.”
[Filing No. 115, at ECF p. 3.] To this point, the
Court emphasizes the encouragement contained in Local
Rule 37-1(a) for parties to informally involve the Court
by contacting the Magistrate Judge and requesting a
telephonic conference. The rule contemplates that parties
will take advantage of the opportunity to efficiently resolve
their disputes. Local Rule 37-1(b) (“In the
event that the discovery dispute is not resolved at the
conference . . .”) (emphasis added). Moving
forward, the best practice for ensuring full compliance with
Local Rule 37-1 is simple: if good faith efforts to
resolve the dispute fail, call the Magistrate Judge's
chambers and request a discovery conference.
Court now turns to Wal-Mart's motion to strike.
[Filing No. 107.] Again, this Court's local
rules, which have been ignored, guide the way. Local Rule
7-1(a), which requires motions to be filed separately,
states: “A motion must not be contained within a brief,
response, or reply to a previously filed motion, unless
ordered by the court.” Id.Wal-Mart improperly
inserted its motion to strike in its response to
Blevins's motion to compel. Therefore, the Court denies
Wal-Mart's motion to strike.
the parties' respective failures to follow the local
rules, the Court nonetheless has reviewed the substance of
the dispute that led to these motions. The dispute involves a
Rule 30(b)(6) deposition. Because a corporation
cannot literally be deposed, Rule 30(b)(6) allows
corporations to designate deponents to represent it.
“The persons designated must testify about information
known or reasonably available to the organization.”
Id.The parties cite to E.E.O.C. v. Celadon
Trucking Servs., Inc., No. 1:12-cv-275-SEB-TAB, 2013 WL
5915206 (S.D. Ind. Nov. 1, 2013), where the Court concluded
that “Rule 30(b)(6) does not promise a perfect
deponent, just a knowledgeable one under the
circumstances.” Id. at * 1. On one hand, the
designee must have made a good faith effort to find out
relevant facts. Id. But on the other, the designee
need not be able to answer every question asked. Id.
identifies basic questions that Wal-Mart's designee, Paul
Heilman, was unable to answer. For example, despite
Blevins's request for a deponent familiar with
Wal-Mart's relationship with the other defendants,
Heilman had “no knowledge of FEMCO, Inc., one of the
other defendants, and knew little about the other defendants.
[Filing No. 115, at ECF pp. 4-5; Filing No.
95-13, at ECF pp. 12-13, 15-16, and
33.] Further, Wal-Mart included an affidavit in its
response that addresses some of the questions to which
Blevins sought answers in its 30(b)(6) deposition of Heilman.
[Filing No. 115, at ECF p. 12; Filing No.
107-13.] The affidavit was from a different Wal-Mart
employee, suggesting that Heilman was underprepared or the
other employee should have also been designated. On the other
hand, Blevins sought information from more than a decade ago.
Blevins may have to accept that Wal-Mart simply does not have
answers to some of his questions.
this backdrop, the parties shall meet and confer to revisit
the issue of a continued Rule 30(b)(6) deposition.
Blevins's suggestion of having the Court appoint a
Special Master goes too far. However, Wal-Mart should