JENNIFER JONES, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF HER MOTHER, JEWEL WALKER, DECEASED v. ARCADIA NURSING AND REHABILITATION CENTER, L.L.C., ET AL CIVIL ACTION NO. 15-2910 United States District Court, W.D. Louisiana Filed September 27, 2018 Counsel Georgia P. Kosmitis, Law Office of Georgia "Gia" Kosmitis, Harry Stafford Johnson, Gordon McKernan Injury Attorneys, Shreveport, LA, for Jennifer Jones. Penny N. Nowell, Alexander John Mijalis, Ronald E. Raney, Ryan O. Goodwin, Lunn Irion et al., Shreveport, LA, Raymon E. Watts, Jr., Pro Hac Vice, Wicker Smith et al., Orlando, FL, for Arcadia Nursing & Rehabilitation LLC. Brady D. King, II, April Martin Hammett, McNew King et al., Monroe, LA, for Patients Compensation Fund. Hayes, Karen L., United States Magistrate Judge MEMORANDUM ORDER *1 Before the court are two overlapping discovery motions: 1) a motion for protective order filed by defendant, Arcadia Nursing and Rehabilitation Center, L.L.C. (“Arcadia”) [doc. # 107]; and 2) a motion to compel and for sanctions [doc. # 117] filed by plaintiff Jennifer Jones. The motions are opposed. For reasons that follow, the motions are granted-in-part and denied-in-part. Background On June 13, 2018 – in the wake of the court's ruling on one of the parties' myriad discovery disputes – plaintiff's counsel emailed a draft notice of deposition to her counterpart in this matter, stating that she intended to take Arcadia's deposition in accordance with Rules 30(b)(6) and 34 of the Federal Rules of Civil Procedure. (Pl. Notice of Depo; Def. M/Prot. Order, Exh. A). The notice included some 27 Matters of Inquiry (alternatively referred to herein as “Deposition Topics”), and required production of over 50 categories of documents. Id. The next day, defense counsel advised plaintiff's counsel that his client objected to the production of documents included with the Rule 30(b)(6) notice because the deadline for serving written discovery had passed. (June 14, 2018, Letter from D. Frye to G. Kosmitis; Def. Reply Brief, Exh.). On June 19, 2018, plaintiff filed a motion to extend the deadlines to serve written discovery and for discovery completion until July 18, and August 18, 2018, respectively. (M/Extend Disc. Deadlines [doc. # 100]). Defendants filed an opposition to the motion on June 22, 2018. [doc. # 103]. Meanwhile, on June 29, 2018, Arcadia served plaintiff with its responses and objections to plaintiff's notice of deposition, in which it formally objected to multiple topics of inquiry and to all requests for production of documents because they were propounded beyond the deadline for serving written discovery. (Pl. Notice of Depo.; Def. M/Prot. Order, Exh. B). On June 29, 2018, Arcadia also filed the instant motion for protective order to limit its Rule 30(b)(6) obligation to topic areas that conformed to its responses and objections. Arcadia's brief, however, identified and discussed only four specific topic areas for which it was unable to produce a representative to testify about at all. The pendency of the motion for protective order notwithstanding, and in light of the still-pending discovery deadline, plaintiff opted to go forward with Arcadia's Rule 30(b) deposition on July 3, 2018. On July 5, 2018, the court held a status conference to address the parties' various discovery and scheduling conflicts. Pursuant to the conference, the court, inter alia, granted plaintiff's motion to extend discovery deadlines, albeit specifying that “[n]o additional written discovery will be allowed, but motions to compel related to timely served written discovery will be allowed.” (Minutes [doc. # 109]). A new scheduling order issued, which duly noted that the deadline for serving written discovery had passed. (Sched. Order [doc. # 111]). On July 25, 2018, plaintiff filed her opposition to Arcadia's motion for protective order. (Pl. Opp. Memo. [doc. 115]). In her response, plaintiff disputed the grounds for the motion, and argued that the motion was procedurally deficient. She also asserted that her document requests were timely, in light of the court's alleged extension of the discovery completion deadline to include written discovery that was propounded within the preexisting deadline. Finally, plaintiff strongly contested the preparedness of the two witnesses that Arcadia designated to testify at its 30(b)(6) deposition. Plaintiff promised to raise this issue in an anticipated motion for sanctions and to compel. Plaintiff also asked the court to sanction Arcadia for its failure to comply with LR 37.1 *2 On August 1, 2018, Arcadia filed its reply brief in support of its motion for protective order. [doc. # 116]. On September 4, 2018, plaintiff filed the instant motion for an order compelling Arcadia to produce an authorized, knowledgeable agent(s) to appear at Arcadia's supplemental Rule 30(b)(6) deposition, and to produce the documents that were requested with the original notice of deposition. Plaintiff also asked the court to impose sanctions against Arcadia stemming from its failure to produce a knowledgeable witness at its initial Rule 30(b)(6) deposition on July 3, 2018. Pursuant to an expedited briefing schedule, Arcadia filed its opposition to plaintiff's motion to compel and for sanctions on September 13, 2018. (Def. Opp. Brief [doc. # 121]). In its response, Arcadia requested a hearing on the motion unless the court denied the motion outright. On September 17, 2018, plaintiff filed her reply brief. [doc. # 122]. The matter is ripe. Law[1] A party may, by oral questions, depose any person, including another party, but must provide reasonable written notice to every other party. Fed.R.Civ.P. 30(a) &(b)(1). In addition, a party may name an entity as a deponent so long as the party also describes with reasonable particularity the matters for examination. Fed.R.Civ.P. 30(b)(6). The named entity/deponent then must designate one or more persons or officials and the matters upon which each will testify. Id.[2] *3 A party seeking discovery may move for an order compelling a Rule 30(b)(6) designation if a corporation or other entity fails to do so. Fed.R.Civ.P. 37(a)(3)(B)(ii). Further, upon motion, a court may order sanctions “if a party or a party's officer, director, or managing agent – or a person designated under Rule 30(b)(6) or 31(a)(4) – fails, after being served with proper notice, to appear for that person's deposition ...” Fed.R.Civ.P. 37(d)(1)(A)(i). Sanctions may include, inter alia, reasonable expenses, including attorney's fees – unless the failure was justified or other circumstances make an award unjust. Fed.R.Civ.P. 37(d)(3). Failure to appear at a deposition is not excused on the basis that the discovery sought was objectionable – unless the party failing to appear had a pending motion for protective order under Rule 26(c). Fed.R.Civ.P. 37(d)(2). If the deponent, another person, or any other circumstance impedes or delays the deposition, the court must allow additional time, if needed, to fairly examine the deponent. Fed.R.Civ.P. 30(d)(1). Furthermore, the court may impose an appropriate sanction – including reasonable expenses and attorney's fees incurred by any party – on a person who impedes, delays, or frustrates the fair examination of the deponent. Fed.R.Civ.P. 30(d)(2). Upon a showing of good cause, a court may issue an order to “protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including [an order] ... (A) forbidding the disclosure or discovery; (B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery; (C) prescribing a discovery method other than the one selected by the party seeking discovery ... ” Fed.R.Civ.P. 26(c)(1)(A-C). The party seeking the protective order must establish good cause for the entry of the order by making a “particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.” Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16, 101 S.Ct. 2193 (1981); see also, In re Terra Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998). Furthermore, “Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36, 104 S.Ct. 2199 (1984). Finally, Rule 26(b) provides that, [u]nless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1). Analysis As an initial matter, both sides fault one another for failure to exhaust efforts to amicably resolve their disputes before filing their respective discovery motions. Rule 37 provides that [o]n notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action. FED. R. CIV. P. 37(a)(1). In addition, Local Rule 37.1 requires that the moving party certify that he or she has conferred in person or by telephone for the purpose of amicably resolving the discovery dispute: *4 [n]o motion relative to discovery shall be accepted for filing unless accompanied by a certificate of counsel for the moving party stating that counsel have conferred in person or by telephone for purposes of amicably resolving the issues and stating why they are unable to agree or stating that opposing counsel has refused to so confer after reasonable notice. W.D. LA. LOCAL RULE 37.1. Nevertheless, a party's failure to satisfy conference requirements does not necessarily mandate denial of the motion, as the court always retains discretion to waive absolute compliance with the conference requirements. Andra Grp., LP v. JDA Software Grp., Inc., No. 15-0011, 2015 WL 12731762, at *18 (N.D. Tex. Dec. 9, 2015) (citation omitted). Moreover, the court may deem a failure to confer excusable when the conference would prove “a waste of time.” Id. (citation omitted). Here, at minimum, given the parties' divergence regarding the timeliness of plaintiff's written discovery requests associated with its Rule 30(b)(6) deposition of Arcadia, it is apparent that further discussion would have proved futile. Further, although Arcadia adduced evidence that it told plaintiff's counsel that it was willing to work through any and all issues that plaintiff had concerning the testimony that Arcadia provided at its 30(b)(6) deposition, see Def. Opp. Memo, Exh. B, Arcadia nevertheless proceeded to maintain the sufficiency of its designees' preparation and testimony in its opposition to the motion to compel. Under these circumstances, Arcadia's offer of conciliation rings hollow. Turning to the merits of the interrelated motions, the court finds initially that Arcadia need not designate someone to respond to deposition Topic Nos. 8, 9, and 10 – as written. The court agrees with Arcadia that standard of care in the present context is a term of art that must be established by expert testimony. However, Arcadia certainly can designate someone to testify about its own practice and procedures pertaining to the treatment and care of patients/residents such as the decedent. Moreover, Arcadia can produce someone to discuss the actual care that it provided to Ms. Walker. Arcadia also maintains that it cannot reasonably comply with deposition Topic No. 13, which calls for the descriptions of the circumstances of any and all incidents at Willow Ridge during the years 2012-2015 involving the development of pressure sores and the like, because Arcadia would be required to research the charts of countless other residents. It further argues that the evidence is irrelevant to plaintiff's claims because the circumstances of each patient are different. In her opposition brief, plaintiff noted, and Arcadia's designee confirmed, that nursing homes are required to report to government agencies all pressure injuries and ulcer injuries that develop in short and long term stays. Therefore, Arcadia should have the information to readily identify those residents who suffered pressure sore injuries. However, Arcadia did not adduce evidence regarding the number of patients responsive to this topic of discussion, and thus, has not established that preparing a designee would prove unduly burdensome. Moreover, the requested information is relevant, not only potentially to show a disproportionate number of pressure injuries, but also to show a pattern of ineffective treatment or care procedures that Arcadia knew or should have known about. Arcadia's objection to deposition Topic No. 13 is overruled. *5 The court further finds that Arcadia's designated corporate representative(s) was not prepared to testify on the noticed topics at its July 3, Rule 30(b)(6) deposition. By way of example, the designee conceded that for Topic Nos. 4, 5, and 6, she made no effort to gather the requested information, and conducted no independent search for same. Similarly, for Topic No. 12, the designee admitted to plaintiff's counsel that she did not search for any reports made to any governmental agency or entity concerning Jewel Walker.[3] It also is patently obvious that Arcadia made no good faith effort to prepare its designees to testify regarding Topic Nos. 17-19, 23. Furthermore, it is disingenuous for defense counsel to represent to the court that its designees were properly prepared to testify on the noticed topics. The court takes a dim view of counsel's casual attitude vis à vis its obligation of candor to the tribunal. It is worth emphasizing, in this context, that [t]he overriding theme of recent amendments to the discovery rules has been open and forthright sharing of information by all parties to a case with the aim of expediting case progress, minimizing burden and expense, and removing contentiousness as much as practicable. Compliance with these changes has placed—on counsel—the affirmative duties to work with clients to make required disclosures; reduce oppression and burden; cooperatively plan discovery with opposing counsel; affirmatively certify accuracy and good faith in requesting and responding to discovery; and confer with opposing counsel to resolve disputes before filing certain motions ... If counsel fail in this responsibility—willfully or not—these principles of an open discovery process are undermined, coextensively inhibiting the courts' ability to objectively resolve their clients' disputes and the credibility of its resolution. Bd. of Regents of Univ. of Nebraska v. BASF Corp., 2007 WL 3342423, at *5 (D. Neb. Nov. 5, 2007) (internal citations omitted). Accordingly, the court will require Arcadia to produce at least one representative who is prepared to discuss all of the deposition matters noticed by plaintiffs (save for Topic Nos. 8, 9, and 10, as written) including the efforts made to research those matters. In light of the earlier deposition, however, plaintiff's counsel shall confer with defense counsel in a good faith attempt to focus the areas that remain to be discussed, which should lead to a better prepared designee(s) and thereby reduce the time and expense for all involved. The deposition shall be held at a place and date mutually agreeable to all parties,[4] but, in any event, no later than October 15, 2018. Further, within 14 days from the date of this order Arcadia shall reimburse plaintiff the total sum of $2,000 as reasonable attorney's fees and costs to help ameliorate some of the expenses, fees, and costs incurred by plaintiff in connection with the instant motion practice, and for the time spent at the materially unproductive deposition.[5] *6 Finally, the court will not compel Arcadia to produce the written discovery sought by plaintiff pursuant to the deposition notice. The deadline for serving written discovery lapsed on May 18, 2018. (May 18, 2018, Sched. Order [doc. # 89]). Moreover, the court declined to permit any additional written discovery. (July 5, 2018, Minutes [doc. # 109]). Plaintiff cannot circumvent the written discovery deadline that governs the parties in this case by attaching the otherwise dilatory document request to a different discovery device. Couch v. Harmony Sci. Acad.-El Paso, No. 08-0201, 2009 WL 10669392, at *5 (W.D. Tex. Feb. 10, 2009). The court emphasizes, however, that defendant is obliged to supplement its prior production if it uncovers any additional documents responsive to plaintiff's earlier, timely requests for production. Conclusion For the above-assigned reasons, IT IS ORDERED that Arcadia's motion for protective order [doc. # 107] is GRANTED-IN-PART, and that Arcadia need not produce a designee to answer Deposition Topic Nos. 8, 9, and 10 – as written, or produce documents sought via the deposition notice that are not otherwise responsive to earlier, timely request(s) for production. IT IS FURTHER ORDERED that the motion for protective order [doc. # 107], together with plaintiff's request for sanctions appended to her opposition memorandum [doc. # 115], are otherwise DENIED. IT IS FURTHER ORDERED that plaintiff's motion to compel and for sanctions [doc. # 117] is GRANTED-IN-PART and DENIED-IN-PART, as detailed in the body of this opinion, and in the succeeding paragraph. IT IS FURTHER ORDERED that, within 14 days from the date of this order, defendant, Arcadia, and/or its counsel shall remit the single sum of $2,000 to plaintiff Jennifer Jones, via her counsel, and file proof of payment in the record of these proceedings within 7 days thereafter. IT IS FURTHER ORDERED that Arcadia's request for a hearing [doc. # 121] on plaintiff's motion to compel and for sanctions is DENIED. In Chambers, at Monroe, Louisiana, this 27th day of September 2018. Footnotes [1] “Litigation is not a game, but rather is a search for the truth and an effort to obtain justice.” Todd v. Precision Boilers, Inc., Civ. Action No. 07-0112, 2008 WL 4722338, at *4 (W.D. La. Oct. 24, 2008) (citations omitted). [2] As the Fifth Circuit explained, Rule 30(b)(6) is designed to avoid the possibility that several officers and managing agents might be deposed in turn, with each disclaiming personal knowledge of facts that are clearly known to persons within the organization and thus to the organization itself. Therefore, the deponent must make a conscientious good-faith endeavor to designate the persons having knowledge of the matters sought by [the party noticing the deposition] and to prepare those persons in order that they can answer fully, completely, unevasively, the questions posed ... as to the relevant subject matters. [T]he duty to present and prepare a Rule 30(b)(6) designee goes beyond matters personally known to that designee or to matters in which that designee was personally involved. The deponent must prepare the designee to the extent matters are reasonably available, whether from documents, past employees, or other sources. * * * When a corporation produces an employee pursuant to a rule 30(b)(6) notice, it represents that the employee has the authority to speak on behalf of the corporation with respect to the areas within the notice of deposition. This extends not only to facts, but also to subjective beliefs and opinions. If it becomes obvious that the deposition representative designated by the corporation is deficient, the corporation is obligated to provide a substitute. Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 432–33 (5th Cir.2006) (internal quotation marks and citations omitted). [3] In its opposition brief, Arcadia cited a portion of the 30(b)(6) deposition where its designee, in response to a follow-up question from defense counsel, stated that there were no such reports. This testimony, however, does not ameliorate or excuse the witness's earlier admission that she made no effort to search for the reports. [4] In the absence of agreement, the deposition shall be held at Arcadia, Louisiana. [5] In arriving at this sum, the court has considered the affidavit submitted by plaintiff's counsel in which she requested fees, costs, and expenses of nearly $7,600. However, some of the expenses and fees would have been incurred regardless. Moreover, plaintiff obtained but mixed relief in her motion, and shares some responsibility for the ineffective deposition, e.g., her decision not to bring the decedent's medical chart. The court also acknowledges that Arcadia had a motion for protective order pending at the time of the July 3, deposition. The plain thrust of that motion, however, was four limited areas of discussion, which does not excuse Arcadia's failure to prepare its designees as to the remaining matters of inquiry.