Vanessa Dundon, et al., Plaintiffs, v. Kyle Kirchmeier, et al., Defendants Case No. 1:16-cv-406 United States District Court, D. North Dakota Filed July 13, 2021 Counsel Rachel Lederman, Alexsis C. Beach & Rachel Lederman, Attorneys, San Francisco, CA, Janine L. Hoft, People's Law Office, Chicago, IL, Mara Verheyden-Hilliard, Partnership for Civil Justice Fund, Washington, DC, Melinda Power, West Town Law Office, Chicago, IL, Natali Segovia, Water Protector Legal Collective, Albuquerque, NM, for Plaintiffs. Bradley Neuman Wiederholt, Grant Bakke, Randall J. Bakke, Shawn A. Grinolds, Bakke Grinolds Wiederholt, Bismarck, ND, for Defendants. Senechal, Alice R., United States Magistrate Judge ORDER *1 Plaintiffs allege they suffered personal injuries while engaged in protest activities against construction of the Dakota Access Pipeline (DAPL) on November 20-21, 2016, near the Backwater Bridge, in Morton County, North Dakota. They allege their injuries resulted from illegal acts of law enforcement agents. After converting motions to dismiss to motions for summary judgment, the presiding district judge allowed the parties to engage in limited discovery on discrete issues. This order addresses a dispute about a discovery matter. Plaintiffs allege a non-party, TigerSwan LLC, did not fully comply with its obligations under Federal Rule of Civil Procedure 30(b)(6), asserting TigerSwan's designated representative was not adequately prepared to testify at the entity's deposition. The parties and TigerSwan participated in an informal conference pursuant to Civil Local Rule 37.1, but the dispute was not resolved, so the court authorized plaintiffs to file the motion now under consideration. (Doc. 250). Both TigerSwan and the defendants filed responses in opposition to the motion. (Doc. 251; Doc. 252). Summary of Order An entity's responsibilities under Rule 30(b)(6) include adequately preparing its designee(s) to testify about each area specified in the notice of deposition. In this court's opinion, TigerSwan fulfilled its Rule 30(b)(6) obligations, and plaintiffs’ motion is therefore denied. Background TigerSwan, a security company, contracted with Energy Transfer LP, owner of the DAPL, during the DAPL protests. Plaintiffs noticed a Rule 30(b)(6) deposition of TigerSwan and described seven topic areas in the deposition notice: 1. TigerSwan's personnel and/or its agents’ and/or contractors’ role, participation, activities and/or presence at or near the Backwater Bridge, and in any and all events occurring on November 20-21, 2016 as referenced in the attached Complaint, including covert, undercover and/or infiltrator activities; 2. Identification of any and all TigerSwan personnel, agents and contractors present at the locations and time period referenced in Topic #1 by name and by visual identification in video or photographic images of activities; 3. TigerSwan and/or its agents and/or contractors and/or personnel's communications and interactions with local and/or federal law enforcement during the events of November 20-21, 2016 at issue, and during the period encompassing the period of October 22 - November 28, 2016, including through communications involving Energy Transfer Partners; 4. TigerSwan and/or its agents and/or contractors and/or personnel's communications with and/or presence and activities in the Unified Command Emergency Operations Center, Intelligence Center, Joint Operations Center, Tactical Operations Center, Tactical Command Post and Forward Operating Base in North Dakota on November 20-21, 2016; 5. TigerSwan's personnel and/or its agents’ and/or contractors’ role, participation, infiltration, activities, presence at, and/or monitoring of the Oceti Sakowin Camp, and/or the other water protector/DAPL protest camps near the northern border of the Standing Rock Sioux Reservation, and/or the Prairie Knights Casino and/or other Standing Rock Sioux Tribal facilities, from October 22, 2016, through November 21, 2016, including the installation and use of electronic surveillance and/or cell phone towers and/or monitoring equipment; *2 6. The provision of any information from TigerSwan and/or its agents and/or contractors and/or personnel to any law enforcement entity or journalist asserting, or referring to, any water protectors or DAPL protesters in North Dakota as having a propensity, likelihood or plan for unlawful activity or as being in possession of potentially dangerous material, from September, 2016, through November, 2016; 7. TigerSwan and/or its agents and/or contractors and/or personnel's creation, management or contribution to social media accounts purporting to report on, or to speak on behalf of, water protectors or protesters involved in the Oceti Sakowin Camp or DAPL protest movement, from September, 2016, through February, 2017. (Doc. 248-1). TigerSwan designated its vice president, Shawn Sweeny, to testify on its behalf. At the time of the events involved in this case, Sweeny was TigerSwan's program manager in North Dakota. (Doc. 248, p. 171). The designee testified TigerSwan's role with regard to the DAPL protests was to (1) provide consulting services to Energy Transfer for coordination of work of at least seven security companies that Energy Transfer had hired to protect Energy Transfer's assets and employees, and to (2) “fuse” together information concerning the protest activity and report that information to Energy Transfer. Id. at 31-32, 123, 148, 160-62. Plaintiffs contend TigerSwan did not adequately prepare its designee to testify on any of the seven topics included in the deposition notice. Law and Discussion Rule 30(b)(6) allows a party to name an entity as a deponent. The rule provides: The named organization must designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination. A subpoena must advise a nonparty organization of its duty to confer with the serving party and to designate each person who will testify. The persons designated must testify about information known or reasonably available to the organization. A Rule 30(b)(6) designee does not give his or her personal testimony; rather, the designee presents the entity's position on topics listed in the deposition notice. See, e.g., CitiMortgage, Inc. v. Chi. Bancorp, Inc., No. 4:12-CV-00246, 2013 WL 3946116, at *1 (E.D. Mo. July 31, 2013). “The testimony of a Rule 30(b)(6) witness represents the collective knowledge of the corporation, not of the specific individual deponents.” Exmark Mfg. Co., Inc. v. Briggs & Stratton Power Prods. Grp., LLC, No. 8:10CV187, 2015 WL 429964, at *8 (D. Neb. Feb. 2, 2015) (quoting QBE Ins. Corp. v. Jorda Enters., Inc., 277 F.R.D. 676, 688 (S.D. Fla. 2012)). An entity named as a Rule 30(b)(6) deponent must produce a knowledgeable witness. “A Rule 30(b)(6) witness is obligated to become educated to the extent possible about the identified topics, although perfection is not expected.” Edwards v. Scripps Media, Inc., 331 F.R.D. 116, 121 (E.D. Mich. 2019). If necessary to adequately respond to the noticed subject matter, the entity must produce multiple witnesses. The entity must “prepare the witness to testify on matters not only known by the deponent, but those that should be reasonably known by the designating party.” CitiMortgage, 2013 WL 3946116, at *1 (quoting Alexander v. F.B.I., 186 F.R.D. 137, 141 (D.D.C. 1998)). If it becomes apparent that a designated witness is unable to respond to relevant areas of inquiry, the entity has a duty to substitute an appropriate witness. Id. 1. Parties’ Obligation to Confer About Deposition Topics *3 Before or promptly after the notice or subpoena is served, Rule 30(b)(6) requires the serving party and the organization to confer in good faith about the topics of inquiry. Plaintiffs’ counsel and TigerSwan's counsel fulfilled that obligation. They resolved issues concerning TigerSwan's obligations of confidentiality under its contract with Energy Transfer but did not resolve TigerSwan's concerns that the designated topics were too broad and vague. 2. Adequacy of Preparation of Designee The designee was TigerSwan's project manager in North Dakota from mid-September to mid-October 2016 who had continued contact with TigerSwan's work on the Energy Transfer contract after he left North Dakota. (Doc. 248, pp. 33, 128-29). He testified he prepared for the deposition by conferring with two other individuals—the only other current TigerSwan employee who worked on the Energy Transfer contract in North Dakota and TigerSwan's chief executive officer. The designee testified TigerSwan had no contact information for its former employee who was the project manager in North Dakota in November 2016. Id. at 132-33. He testified he also reviewed “quite a few” documents in preparation for the deposition, though he reviewed some of them only cursorily. Id. at 20-22. The contract between TigerSwan and Energy Transfer included a confidentiality requirement and required that TigerSwan surrender all documents concerning its work to Energy Transfer when TigerSwan's work under the contract ended. The designee's document review was limited to publicly available documents. Id. at 90-91. Plaintiffs contend TigerSwan's lack of adequate preparation is evidenced by the designee frequently claiming lack of knowledge or memory and responding evasively. Further, plaintiffs assert some of the designee's responses were “explicitly contradicted” by publicly available documents TigerSwan itself had created. (Doc. 250, p. 3). Plaintiffs claim “TigerSwan was intentionally evasive and offered what appeared to be perjured testimony.” Id. at 4. Additionally, plaintiffs argue a conflict of interest in defendants’ counsel representing Energy Transfer in other litigation.[1] TigerSwan asserts its preparation was reasonable, considering the almost four-and-one-half years that passed between the events at issue and the deposition, TigerSwan's lack of access to its documents because it had returned them to Energy Transfer, there being only two current TigerSwan employees who had worked in North Dakota during the time at issue, and Tiger Swan having no contact information for a former employee who had acted in a supervisory capacity in North Dakota. In their response, defendants describe TigerSwan's testimony as unequivocal and consistent with defendants’ testimony. Topics One and Five requested information about TigerSwan personnel who may have “infiltrated” protester groups. The designee testified he viewed “infiltration” as a military term not applying in the context of the DAPL protest activities. (Doc. 248, p. 26). In response to questions about a TigerSwan document which discussed a TigerSwan employee traveling to North Dakota “with one to three Iowa-based protesters to gather information,” the designee testified the document described a proposed operation that was not approved by TigerSwan headquarters and which did not take place. Id. at 128-29. As to Topic One, the designee testified unequivocally that no TigerSwan personnel presented themselves as protesters at the Backwater Bridge on the dates in question and as to Topic Five, he testified that no TigerSwan personnel were present in any of the protester camps between October 22, 2016, and November 21, 2016. Id. at 100-02, 127-30. Further, he testified TigerSwan had no involvement in setting up any electronic surveillance or monitoring equipment. Id. at 126-27. *4 As to Topic Two, the designee testified no TigerSwan personnel were present at the Backwater Bridge during the time in question. Id. at 23-25, As to Topic Three, he testified about communications between TigerSwan personnel and law enforcement personnel during the two time periods identified. Id. at 110-11; 118-25. Topic Four asked about TigerSwan personnel who were present at several law enforcement centers on November 20 and 21, 2016, and the designee testified unequivocally that no TigerSwan personnel were present in those locations on those dates. Id. at 138-39. Topic Six asked about TigerSwan personnel having communication with law enforcement personnel or journalists about protesters possibly carrying out illegal acts or possessing dangerous materials, and the designee testified TigerSwan personnel had not received information that rose to a level that would have been passed on to law enforcement. Id. at 184-86. Finally, Topic Seven asked about TigerSwan personnel contributing to social media accounts that reported on or spoke on behalf of protesters, and the designee testified TigerSwan personnel had not done so. Id. at 193-94. Plaintiffs argue the testimony of TigerSwan's designee was contradicted by documents TigerSwan had created. Having read the entire deposition, at most, one could find some portions of the designee's testimony arguably contradicted those documents. But that does not lead the court to conclude the TigerSwan designee gave perjured testimony as plaintiffs suggest. Considering all of the circumstances, the court views TigerSwan's Rule 30(b)(6) designee as having been adequately prepared to testify about information known to or reasonably available to TigerSwan. Because of terms of its contract with Energy Transfer, TigerSwan did not have access to documents it had created concerning its DAPL protest work, other than documents which were publicly available. The designee reviewed documents available to TigerSwan and was familiar with documents presented to him during the deposition. The deposition notice had not identified specific documents about which plaintiffs intended to inquire. TigerSwan resolved the issue concerning its confidentiality obligations prior to the deposition. Considerable time has passed since the events at issue. Though TigerSwan could have attempted to contact former employees who worked on the Energy Transfer contract, the designee was personally familiar with the designated topics, had acted in a supervisory role, and consulted with the other current TigerSwan employee who had been in a supervisory role in North Dakota during the time in question. 3. Request for Energy Transfer LP's Records In addition to a request that TigerSwan be ordered to appear for a second Rule 30(b)(6) deposition, plaintiffs request an order requiring Energy Transfer to make the documents it received from TigerSwan available for plaintiffs’ review. Alternatively, plaintiffs request permission to serve an additional subpoena for the documents now held by Energy Transfer which reflect Tiger Swan's activities concerning the deposition topic areas. The court will neither issue an order for production by Energy Transfer nor allow plaintiffs to serve an additional subpoena to Energy Transfer. To issue the requested order to Energy Transfer without allowing it a voice in this matter would be extraordinary. Federal Rule of Civil Procedure 16(b)(4) provides that a pretrial schedule may be modified only for good cause and with the judge's consent. Application of the good cause standard is mandatory. Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716 (8th Cir. 2008). The primary factor considered in determining good cause is the movant's diligence in attempting to meet requirements of the scheduling order. Id.; Drydahl v. Matthys, No. 3:18-cv-124, 2019 WL 10894117, at *4 (D.N.D. July 30, 2019). Though the court has extended the time for completion of discovery several times, it will not do so again. Plaintiffs have been aware of TigerSwan's involvement in Energy Transfer's response to the DAPL protests for several years and have been aware of TigerSwan relinquishing its documents to Energy Transfer for some time. The court held multiple discovery conferences with the parties over a period of five months, but at no point prior to filing this motion did plaintiffs request permission to serve an additional subpoena on Energy Transfer. Plaintiffs have not established good cause to modify the scheduling order. Conclusion *5 In this court's opinion, TigerSwan's Rule 30(b)(6) designee was adequately prepared to testify about information known or reasonably available to TigerSwan. Plaintiffs’ motion to compel a second deposition, for sanctions against TigerSwan, and for an order requiring Energy Transfer LP to produce documents is therefore DENIED. IT IS SO ORDERED. Dated this 13th day of July, 2021. Footnotes [1] In a pending state court matter, Energy Transfer alleges TigerSwan breached its contracted confidentiality obligation. State court records confirm Energy Transfer is represented in that litigation by the attorneys representing the defendants in this action. Energy Transfer LP v. N.D. Priv. Investigative & Sec. Bd., 08-2020-CV-02788 (Burleigh Cnty. Oct. 14, 2020). The court does not view the question of defense counsel's possible conflicting interests as relevant to the question of TigerSwan being adequately prepared for its deposition.