The plaintiffs’ brought this action against Electric Boat and General Dynamics for their decedent’s alleged development of mesothelioma as a result of his work as a machinist at the defendants’ shipyards.
The plaintiffs sought depositions of the corporate representatives of both Electric Boat and General Dynamics since Electric Boat operated as a division of General Dynamics during the alleged exposure period. The plaintiffs noticed the deposition of General Dynamics’ corporate representative. General Dynamics objected to the notice and a hearing was promptly held. The court ordered that the deposition shall take place within 30 days of the court’s order. The parties then agreed to a date for the corporate representative deposition. Of note, General Dynamics confirmed in a letter to the plaintiff and in “subsequent representations to the Court” that Mr. Bradford Heil was being offered as a corporate representative for both General Dynamics and Electric Boat. At the deposition, counsel for the plaintiffs bifurcated questions as to the two defendants. Counsel for the defendant objected to the question of whether Heil understood that he had been designated and identified as General Dynamics Corporation’s person most qualified under Rule 30(b)(6). Counsel for General Dynamics would not agree to a separate deposition of General Dynamics and that Heil was testifying as a representative of Electric Boat, a former Division of General Dynamics and Electric Boat Corporation. The plaintiff suspended the deposition.
The plaintiffs moved for terminating sanctions. General Dynamics took the position that the issue was an “error” and “misunderstanding” over wording. General Dynamics offered to make the deposition of Heil binding on General Dynamics and to make him available for a new deposition after the hearing on the terminating motion.
The court noted that sanctions are authorized when a party fails to appear at a properly noticed deposition. General Dynamics argued that sanctions are unwarranted because the court had previously denied sanctions in an earlier similar motion. The plaintiffs should not be allowed to litigate that issue again according to General Dynamics. Further, it had offered Heil for a second deposition. The court disagreed and stated that sanctions were warranted. Here, the court noted that the order denying the similar previous motion was issued based on the understanding that the defendant would offer Heil for deposition as General Dynamics’ corporate representative.
The real question for the court was not whether sanctions were merited but rather to what extent. Terminating sanctions were denied as the standard set in In re Exxon Valdez was for extreme circumstances only. However, Rule 37(b)(2)(c) authorized the court to pay reasonable expenses. General Dynamics argued that an award of expenses was not warranted because it had not violated any Order. The court quickly dispensed of this argument by pointing out that General Dynamics had been ordered to produce a corporate representative on February 27, 2015 notwithstanding the prior protective orders.
In sum, the court ordered General Dynamics to make Heil or another corporate representative available for deposition and to pay expenses in the amount of $14,500 within 14 days.