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Pogue v. Northwestern Mutual Life Insurance Co.

United States District Court, W.D. Kentucky, Louisville Division

July 17, 2017

JAMES H. POGUE, Plaintiff,


          Colin Lindsay, Magistrate Judge

         This matter is before the Court on a motion to reopen the Rule 30(b)(6) deposition of Defendant The Northwestern Mutual Life Insurance Company (“Northwestern Mutual”) (DN 114). Plaintiff James H. Pogue (“Pogue”) contends that he was unable to complete the deposition as planned due to a number of problems caused by Northwestern Mutual and its attorney. Northwestern Mutual filed a response and Pogue filed a reply. (DN 117, 120.) For the following reasons, Plaintiff's motion to reopen the 30(b)(6) deposition (DN 114) is denied.


         This action arises from Northwestern Mutual's denial of a disability insurance claim by Pogue, a physician. This case has been plagued by a series of discovery-related disputes, one of which related to Pogue's efforts to take the Rule 30(b)(6) deposition of Northwestern Mutual. Pogue sought to depose Northwestern Mutual in Louisville, Kentucky. Northwestern Mutual moved the Court for a protective order requiring the deposition to be conducted at its principal place of business in Milwaukee, Wisconsin. On May 3, 2016, the Court granted the motion for protective order, requiring that any 30(b)(6) deposition be conducted in Milwaukee. (DN 63.) In the alternative, the Court permitted the parties to agree to a video deposition. Pogue objected to that ruling (DN 68); Senior District Judge Charles R. Simpson, III overruled the objection on June 16, 2016 (DN 79, 80). The Magistrate Judge later entered an amended scheduling order requiring the 30(b)(6) deposition to be completed no later than September 30, 2016 (DN 96, 104). On September 28, 2016, Pogue deposed two individuals designated by Northwestern Mutual as Rule 30(b)(6) representatives, Andrew Gurlik (“Gurlik”) and Sharon Hyde (“Hyde”). (See DN 114-1 (Gurlik deposition transcript); DN 114-2 (Hyde deposition transcript).)

         On November 1, 2016, upon Pogue's request, the Court conducted an in-person status conference to address certain discovery-related disputes. At that conference, Pogue raised concerns regarding the 30(b)(6) deposition. The Court permitted Pogue to file a motion to reopen the 30(b)(6) deposition. (DN 113.) Thereafter, Pogue filed the motion to reopen the deposition that is now before the Court.

         A. Pogue's Motion to Reopen the Deposition

         Pogue asserts that he was unable to complete the September 28, 2016 30(b)(6) deposition for four reasons, all of which he attributes to the conduct of Northwestern Mutual and its counsel. First, argues Pogue, the deposition revealed that Northwestern Mutual has not produced all documents necessary for completion of the deposition. The motion contains a bulleted list of documents that, Pogue contends, the deponents identified as relevant to this action, but that Northwestern Mutual has not produced. Second, Pogue argues that Northwestern Mutual's witnesses were not prepared to testify as to all topics set forth in the deposition notice.[1] Pogue argues that Northwestern Mutual failed to object to any of the topics in the deposition notice after having received the notice as early as October 2015; rather, it objected only to the location of the deposition. Pogue's position is that Northwestern Mutual's 30(b)(6) representative was unable to answer questions without reviewing the claim file, despite claiming to have reviewed the file in preparation for the deposition. Pogue claims that he is prejudiced by this failure to adequately prepare a witness, “which is tantamount to a failure to appear for a deposition.” (DN 114 at 10.) Third, Pogue argues that Northwestern Mutual's attorney “obstructed the deposition with improper speaking and coaching objections” in violation of Rule 30(c)(2) of the Federal Rules of Civil Procedure. (DN 114 at 3.) Pogue cites several instances in Gurlik's deposition transcript which, he says, show that Northwestern Mutual's attorney interrupted and impeded the deposition by improperly objecting to Pogue's questioning and by coaching the witness. (Id. at 11-14.)

         Finally, Pogue contends that he was forced to terminate the deposition before questioning was completed, due to both Northwestern Mutual's actions and court reporter obligations. Pogue describes the situation as follows:

On the day of the deposition, the court reporters on both ends of the deposition (in Kentucky and in Wisconsin) had obligations requiring the deposition to adjourn at a specific time. The Wisconsin reporter indicated she had a prior commitment and could not continue much past 5 p.m. (central time). She did offer to see about calling in another reporter. However, given that the local reporter in Louisville was already overtime, Dr. Pogue elected not to inconvenience either the Wisconsin or the Louisville reporters any further. Further, given [Northwestern Mutual's] failure to produce necessary documents or a properly prepared witness, Dr. Pogue sought to avoid incurring any further expenses likely attributable to the court reporters working overtime. Therefore, he ended the deposition at that time so as to allow the parties time to work out the dispute, and if necessary (as now), to seek relief from the Court.

(DN 114 at 14.)

         Pogue requests that the Court order (1) that Northwestern Mutual appear for a second 30(b)(6) deposition; (2) that Pogue be allotted seven additional hours to conduct such deposition; and (3) that Northwestern Mutual reimburse Pogue for his attorney's fees and expenses associated with the first deposition. (Id. at 3.)

         B. Northwestern Mutual's Response

         In response, Northwestern Mutual frames the motion as an “attempt[] to fabricate a pretense for continuing the deposition” and argues that Pogue's arguments are not supported by the record. (DN 117 at 1.) First, with respect to Pogue's argument that it failed to produce all relevant documents, Northwestern Mutual argues that Pogue never requested many of the materials to which he claims to be entitled. (DN 117 at 7.) Additionally, it contends that it made valid relevancy objections to some of the documents that Pogue claims were never produced. (Id. at 9-10.) Northwestern Mutual further argues that some of the documents to which Pogue claims he is entitled relate solely to Pogue's bad faith claim, which was bifurcated from the breach of contract claim upon Pogue's own motion. (Id. at 2-3.) It argues that it objected to certain of Pogue's discovery requests, particularly requests related to materials possessed by Northwestern Mutual regarding “reserves” for Pogue's claim, on that basis. (Id. at 3.) With respect to its claims of confidentiality, Northwestern Mutual contends that it worked with Pogue's counsel to craft an agreed protective order, but that Pogue's counsel let the matter of a protective order drop and the materials in issue were never produced.

         Second, with respect to the alleged lack of preparation by Northwestern Mutual's witnesses, it argues that its witnesses were knowledgeable about and prepared to discuss the issues identified in the deposition notice, but that Pogue's counsel chose not to question the witnesses about the topics on which they were prepared to testify. Northwestern Mutual focuses its response on Hyde, noting that Pogue's motion does not discuss Gurlik's testimony with any specificity. (Id. at 10 n. 4.) It argues that Hyde was extensively involved in Pogue's claim evaluation and that Hyde thoroughly reviewed the claim file in preparation for the deposition. (Id. at 11.) It further argues that Hyde was prepared to testify regarding the claim file, but that Pogue's counsel instead questioned her for five hours regarding policy language, including many provisions that are not at issue in this action. (Id. at 5-6.)

         According to Northwestern Mutual, Pogue's counsel's conduct “suggests that counsel was attempting to create the appearance that Ms. Hyde was not prepared because she had not memorized the thousands of documents in the claims file.” (Id. at 11; id. at 12 (“Indeed, Pogue's counsel spent virtually no time on the topics listed in the deposition notice. Instead, he spent the majority of the five hours examining Ms. Hyde on the language of the policies, including many policy provisions that are not at issue in this action.”).) Northwestern Mutual cites a number of instances in the record that it contends illustrate Pogue's counsel's attempts to improperly question Hyde, by asking her questions beyond the scope of the deposition notice, refusing to allow her to reference any materials in order to answer questions, and repeatedly asking questions that she had already answered. (Id. at 13-15.)

         Third, regarding Northwestern Mutual's attorney's alleged disruption of the deposition, Northwestern Mutual argues that its attorney merely made objections that “were necessary and appropriate to note the improprieties in the examination and preserve objections that are required by the Rules.” (Id. at 19.) Moreover, it contends that Pogue fails to argue that Northwestern Mutual's counsel's objections prevented him from obtaining any information from the witnesses. (Id. at 20.)

         As to the circumstances surrounding the termination of the deposition, Northwestern Mutual states that the Milwaukee court reporter advised that a substitute could be found so that the deposition could go forward, and that Northwestern Mutual was willing to continue despite more than seven hours having elapsed. (DN 117 at 6.) According to Northwestern Mutual, Pogue's counsel simply refused to proceed. As to Pogue's discussion of two court reporters, Northwestern Mutual states as follows:

That statement [regarding one court reporter in each location] is puzzling inasmuch as the depositions were conducted by video conference and a Louisville court reporter does not appear on the video monitor and was not identified on the record. Moreover, the deposition notice did not indicate that the proceedings would be transcribed by a court reporter in Louisville in addition to the reporter in Milwaukee. The transcript does not reflect that a Louisville court reporter was present, was “on overtime, ” or was inconvenienced by proceeding past 5:00 p.m. as stated in Plaintiff's Motion [DN 114 at 14]. Finally, Northwestern Mutual's counsel was never advised that a court reporter was present in Louisville.

(DN 117 at 6 n.2.)

         Finally, Northwestern Mutual argues that Pogue's motion, while “replete with harsh language and requests for severe sanctions, ” lacks “substantive issue identification, factual support, and legal reasoning” that would create any real basis for sanctions. (DN 117 at 21.)

         C. Pogue's Reply

         Pogue filed a reply (DN 120). First, with respect to documents that Northwestern Mutual has not produced, Pogue argues that the “Guidelines Manual” he seeks is highly relevant to determining the meaning of policy terms that are subject to multiple interpretations. (DN 120 at 2.) As to Northwestern Mutual's argument that Pogue should have pursued the documents earlier, Pogue states that “[r]ather than go forward with a motion to compel, [he] decided it would be more economical for him to address the discovery issues during the 30(b)(6) deposition noticed for December 9, 2015 -- over three months before the close of discovery.” (Id. at 2-3 (citing DN 29).) He contends that had that deposition gone forward as scheduled, he would have had a great deal of time to seek relief, but “[u]nfortunately, [Northwestern Mutual] opposed the depositions, as well as [his] efforts to amend the schedule.” (Id. at 3.) He further argues that he agreed to keep confidential all documents so marked until Northwestern Mutual filed a motion for protective order, but that Northwestern Mutual ignored that offer. (Id.)

         Second, Pogue insists that Hyde was not adequately prepared for the deposition, and that his motion cites just a few instances in a pattern of answers showing the lack of preparation. (DN 120 at 3.) He rejects Northwestern Mutual's contentions that his counsel was combative and focused on matters beyond the scope of Hyde's knowledge. Third, Pogue provides additional argument regarding what he deems improper speaking objections and coaching by Northwestern Mutual's attorney, stating that counsel failed to make concise, nonargumentative and nonsuggestive objections, as required by Rule 30(c)(2).

         Finally, regarding the dual-court reporter issue, Pogue states that Northwestern Mutual attempts “to make an issue where none exists.” (DN 120 at 11.) He states that one court reporter was present in Wisconsin for purposes of “stenographic recording of the deposition, ” and another court reporter was present in Kentucky for purposes of “assisting Dr. Pogue's counsel in coordinating the video conference with the court reporter in Wisconsin.” (Id.) Pogue contends that when the Wisconsin court reporter indicated that she could not continue much past 5:00 p.m. Central time, the Kentucky court reporter, who was on Eastern time, was already working past her regular hours due to the time difference. Pogue asserts that he elected to end the deposition at that time in order to allow the parties more time to work out their “pending issues” and avoid increasing his own costs. (Id.) He states that this choice was “substantially justified and does not provide any reason for this Court to deny his requested relief.” (Id.)


         The Court has carefully reviewed the deposition transcripts and the parties' briefs. The Court's discussion is structured in the same manner as the parties' briefs, addressing the following four issues: (1) whether Northwestern Mutual failed to produce all documents necessary for completion of the deposition; (2) whether Northwestern Mutual's representatives were unprepared to testify; (3) whether Northwestern Mutual's attorney obstructed the deposition by making improper objections and coaching the deponents; and (4) whether the issue related to the dual court reporters has any bearing on Pogue's request to reopen the deposition.

         A. Legal Standard

         Rule 30 of the Federal Rules of Civil Procedure relates to depositions by oral examination. If a deponent “has already been deposed in [a] case, ” then “[a] party must obtain leave of court” in order to depose the person again. Fed.R.Civ.P. 30(a)(2)(A)(ii). “[T]he court must grant leave [to resume the deposition] to the extent consistent with Rule 26(b)(1) and (2).” Id. at (a)(2). Rule 30(b)(6) provides as follows:

(6) Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then 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. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.

Fed. R. Civ. P. 30(b)(6).

         Rule 26(b)(1) is the touchstone for the scope of civil discovery. It provides as follows:

(1) Scope in General. Unless 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 the scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). Relevance is to be “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter[s] that could bear on any party's claim or defense.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). The Court has wide discretion when dealing with discovery matters, including whether information might be relevant. See S.S. v. E. Ky. Univ., 532 F.3d 445, 451 (6th Cir. 2008); Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir. 1981). Rule 26 was recently amended to include a proportionality provision. Albritton v. CVS Caremark Corp., 2016 U.S. Dist. LEXIS 83606 at *4 (W.D. Ky. June 28, 2016) (“Proportionality is the touchstone of the revised Rule 26(b)(1)'s scope of discovery provisions.”).

         Rule 26(b)(2) addresses limitations on the frequency and extent of discovery. Subpart (b)(2)(A) gives the court discretion to alter limits on written discovery and the length of depositions under Rule 30, and subpart (b)(2)(B) sets forth limitations on electronically stored information. Id. at (b)(2)(A)-(B). Finally, subpart (b)(2)(C) provides that, “[o]n motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed . . . if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the ...

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