United States District Court, W.D. Kentucky, Bowling Green Division
MEMORANDUM OPINION AND ORDER
BRENT BRENNENSTUHL, UNITED STATES MAGISTRATE JUDGE
the Court is the motion of Defendant Coventry Health and Life
Insurance Company for sanctions against Plaintiff PremierTox
2.0 Inc. related to PremierTox's presentment of an
unprepared corporate witness for deposition under
Fed.R.Civ.P. 30(b)(6) (DN 57). PremierTox has responded in
opposition at ¶ 58 and supplemented the response at
¶ 59. Coventry has replied at ¶ 60.
9, 2019, the undersigned conducted a hearing on the motion.
Anna S. White appeared on behalf of PremierTox and Robert J.
Fogarty and Todd P. Greer appeared on behalf of Coventry.
This matter is ripe for determination.
of the Case
initiated this litigation approximately three and a half
years ago (DN 1). It asserts that it provided drug testing
laboratory services for Coventry's Medicaid members
pursuant to a Medicaid provider agreement conferring
“in-network” status (DN 28 Second Amended
Complaint). PremierTox contends that Coventry has failed to
make payments for services rendered and is in breach of
contract (Id.). In the alternative, PremierTox
claims that Coventry was unjustly enriched by the drug
testing services and PremierTox should be compensated even in
the absence of a contract (Id.).
response, Coventry denies the existence of a Medicaid
provider agreement with PremierTox (DN 31). As to the unjust
enrichment claim, Coventry contends that PremierTox never
obtained necessary preauthorization for the tests, which
Coventry would have denied given PremierTox's
out-of-network provider status (Id.).
PremierTox's services for which it demands payment
encompasses a period between September 11, 2013 through
September 16, 2015 (DN 28).
issued a notice of deposition (DN 57-8) under Fed.R.Civ.P.
30(b)(6) identifying 31 topics of information upon which it
wished to question a PremierTox corporate representative. On
January 29, 2019 PremierTox produced Nathan Moore to testify
as its designated corporate representative. Moore is employed
by PremierTox as Senior Director of Operations. A complete
transcript of the deposition is filed at ¶ 63.
contends that Moore failed to perform any investigation or
otherwise prepare to address the topics identified in the
notice of deposition and was unable to offer any meaningful
testimony (DN 57). Coventry requests that PremierTox be
sanctioned by being precluded from offering evidence at trial
on topics which Coventry sought to examine the corporate
witness but was unable to do so because of the witness'
lack of preparation and knowledge (Id.). These
include matters related to PremierTox's claims for breach
of contract, unjust enrichment, damages claimed and
PremierTox's Medicaid investigations and suspensions
contends that Moore was not to be the only witness it would
present as a 30(b)(6) witness and that it had always planned
to have PremierTox's former President Steve Klipp
testify, and that Coventry was aware of this (DN 58). As to
Moore, PremierTox notes that he “is able to testify to
lab operations on a global level, to discuss individual
claims in many cases, and to discuss company management
during 2015-present. Mr. Moore also has knowledge of this
action in his capacity as a member of the senior management
team which runs the company and manages the litigation”
(DN 58, p. 2-3). To the extent there was limitation on
Moore's knowledge, PremierTox contends the information
was “made known to Coventry months prior to the
deposition and counsel for PremierTox made clear that
Coventry would also need to depose Mr. Klipp as a 30(b)(6)
witness” (Id. at p. 3).
contends that Moore “was extremely nervous and froze
initially, and made ridiculous misstatements such as saying
he hadn't talked to anyone about this case”
(Id. at p. 4). PremierTox criticizes the nature of
the questions posed to Moore, contending that Coventry should
have asked him about specific documents rather than broad
questions dealing with information contained in “two
huge excel spreadsheets and six long banker boxes”
(Id. at p. 5). PremierTox notes that all the
information about the nature of its claims can be derived
from documents it has provided in discovery and it is unable
to provide a witness to testify to some of the topics because
the events predate current management staff (Id. at
Civ. P. 30(b)(6) lies at the heart of this dispute. It
(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; at it may set out the
matters which each person designated will testify. A subpoena
must advise a nonparty organization of tis duty to make this
designation. The persons designated must testify about the
information known or reasonably available to the
organization. This paragraph (6) does not preclude a
deposition by any other procedure allowed by these rules.
Janko Enters. v. Long John Silver's, Inc., No.
3:12-CV-345-S, 2014 U.S. Dist. LEXIS 185334 (April 3, 2014
W.D. Ky.) Magistrate Judge Dave Whalin set forth a thorough
analysis of the duties imposed upon a corporation in
designating and preparing a witness for deposition under Rule
30(b)(6). As to the duty imposed on the party providing a
witness: “the representative witness must be adequately
prepared by the corporation, which has an affirmative duty to
provide a witness that is able to put forward binding answers
on behalf of the corporation.” Id. at *15
(citations omitted). “Rule 30(b)(6) does not require
that the corporate designee have personal knowledge as to all
relevant facts within the subject matter of the deposition. .
. . It is clearly required, however, that the Rule 30(b)(6)
designee be educated and gain the requested knowledge to the
extent that it is reasonably available to the
corporation.” Id. at *13 (citations omitted).
Education may be obtained from corporate documents, current
or prior corporate employees, or “any other sources
reasonably available to the corporation.” Id.
contends that Moore was unprepared to offer testimony on the
topics specified in the notice of deposition (filed at ¶
57-8). Moore's testimony bears this out.
he affirmed that he was designated to testify on the topics
identified in the Rule 30(b)(6) notice:
Q. Now I have in front of you what's been marked as
Exhibit Number 1 in your deposition which is a notice of
30(b)(6) video deposition of plaintiff PremierTox 2.0 Inc.
And do I understand that you have been selected as the
corporate representative to testify on the topics listed in
(DN 57-1, p. 3, Moore Depo. at p. 7 ln. 15-21).
testified that he had not made any preparations to address
the topics addressed in the notice of deposition.:
Q. Okay. What have you done to prepare yourself to testify as
the corporate representative PremierTox 2.0 on the topics
listed in Exhibit 1?
A. I haven't done anything.
Q. I'm sorry?
A. I haven't done anything to prepare ...