William Lund et al v. 3M Company et al, No. 2:2013cv02776 - Document 874 (C.D. Cal. 2016)
Court Description: ORDER GRANTING in part and DENYING in part Motion for Terminating Sanctions 867 by Judge Dean D. Pregerson, the Court GRANTS Plaintiffs Motion for Terminating Sanctions in part. Defendant General Dynamics shall make available Mr. Bradford Heil or a nother appropriate 30(b)(6) corporate representative qualified to testify on behalf of General Dynamics within fourteen days of this Order. Defendant General Dynamics shall also pay the expenses associated with this motion in the amount of $14,500 within fourteen days. (jp)
Download PDF
<![CDATA[
William Lund et al v. 3M Company et al Doc. 874 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 VICTORIA LUND, individually and as successor-in-interest to WILLIAM LUND, deceased; DAVID LUND, an individual; and SHEILA LUND, an individual, as legal heirs of WILLIAM LUND, Deceased, 15 16 17 Plaintiff, v. 18 3M COMPANY a/k/a MINNESOTA MINING & MANUFACTURING COMPANY, et al., 19 Defendants. 20 ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 13-02776 DDP (VBKx) ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR TERMINATING SANCTIONS [Dkt. 867] 21 Presently before the court is Plaintiffs Victoria Lund, 22 individually and as successor-in-interest to William Lund, 23 deceased, David Lund, and Shelia Lund’s Motion for Terminating 24 Sanctions Against Defendant General Dynamics Corporation. (Dkt. 25 867.) Having reviewed the parties arguments, the court GRANTS the 26 Motion in part and adopts the following Order. 27 I. BACKGROUND 28 Dockets.Justia.com 1 The court assumes the parties’ familiarity with the general 2 background of this case, which has been set forth more fully in 3 previous Orders. (See Dkts. 845, 864.) Briefly, this action arises 4 out of the injuries and eventual death of William Lund, allegedly 5 in connection with his employment as a Navy machinist mate 6 responsible for servicing ships containing asbestos. (See Compl.) 7 According to Plaintiffs, at least some of Mr. Lund’s exposure to 8 asbestos took place while working on Navy warships serviced at the 9 shipyards of Defendant General Dynamics and its former division 10 Electric Boat. (Id.) This particular motion relates to Plaintiffs’ 11 attempts to depose a Rule 30(b)(6) corporate representative from 12 Defendant General Dynamics. 13 In discovery responses, General Dynamics has represented that 14 what is now Electric Boat Corporation operated as a division of 15 General Dynamics from 1952 to 1995. (Exhibit A, attached to General 16 Dynamics Mot. Summ. J., at 1.) In 1995, the former Electric Boat 17 division registered as a separate corporate entity, the Electric 18 Boat Corporation, and assumed all the assets and liabilities of the 19 former division. (Id.) As Mr. Lund’s injuries arose prior to 1995, 20 Plaintiffs sought to depose a 30(b)(6) from both Defendant Electric 21 Boat Corporation and Defendant General Dynamics. As to the latter 22 party, Plaintiffs were particularly concerned with understanding 23 the specific activities of General Dynamics during the time period 24 at issue and the relationship between the company and its former 25 division. (Mot. Terminating Sanctions 2-3.) 26 Plaintiffs first noticed the deposition of General Dynamics’ 27 30(b)(6) representative in August 2014. (Ex. B, attached to Decl. 28 Tyler Stock in Support of Mot. Terminating Sanctions) According to 2 1 the notice, Plaintiffs sought testimony and documents regarding, 2 among other things, General Dynamics’ corporate structure. (Id.) 3 Defendants objected to this notice and failed to appear for the 4 depositions. (Id; Mot. Terminating Sanctions 4.) On October 1, 5 2014, Plaintiffs filed a Motion to Compel Defendant General 6 Dynamics’ 30(b)(6) witness. (Dkt. 516.) On December 19, 2014, the 7 district court judge handling this case for pre-trial purposes 8 issued an order that “[t]he deposition of an appropriate Rule 9 30(b)(6) witness shall be taken within 30 day of the date of this 10 order.” (Dkt. 580.) The parties then engaged in negotiations 11 regarding the terms of the deposition, which ultimately led to 12 Plaintiffs filing a Motion for Evidentiary and Monetary Sanctions 13 against Defendant General Dynamics. (Dkt. 590.) 14 On February 27, 2015, the court issued another order requiring 15 that “defendants General Dynamics and Electric Boat shall produce 16 their 30(b)(6) witnesses within 30 days of the date of this order 17 or be deemed liable in this action.” (Dkt. 693.) In response to 18 that Order, Defendant General Dynamics wrote to Plaintiffs’ counsel 19 on March 5, 2015, stating: “Pursuant to the Court’s order, we will 20 produce Mr. Bradford Heil for deposition on March 27, 2015 at 9:00 21 a.m. EST at the Mystic Marriott Hotel in Groton, CT.” (Ex. E., 22 attached to Stock Decl.) Plaintiffs agreed to the deposition. 23 As noted in General Dynamics March 5 letter, and confirmed in 24 subsequent representations to the court, Mr. Heil was being offered 25 as the 30(b)(6) corporate representative for both General Dynamics 26 and Electric Boat Corporation. (Ex E; Dkt. 767 at 1 (“Mr. Heil was 27 appearing on behalf of General Dynamics as well as Electric Boat 28 Corporation . . . .”).) Because Mr. Heil was produced on behalf of 3 1 two separate corporate entities, Plaintiffs’ counsel bifurcated 2 questioning and first questioned Mr. Heil as “General Dynamics’ 3 person most qualified under 30(b)(6).” (Ex. G (Deposition of Mr. 4 Bradford Heil), attached to Stock Decl. at 181:13-15.) Plaintiffs’ 5 counsel opened by asking Mr. Heil whether he understood that he had 6 “been designated and identified as defendant, General Dynamics 7 Corporation’s person most qualified under Rule 30(b)(6) in this 8 case.” (Heil Depo. at 183:14-17.) Defendants’ counsel objected and 9 clarified that he was “being produced as a witness for the former 10 Electric Boat Division of General Dynamics.” (Id. at 183:18-20.) 11 Despite numerous alternative formulations of the question, 12 Defendants’ counsel refused to concede that Mr. Heil was being 13 produced to testify as General Dynamics corporate representative or 14 allow Mr. Heil to testify to that fact. (Id. at 197:20-198:2 (“We 15 are producing Mr. Heil as a representative of Electric Boat, former 16 division of General Dynamics and Electric Boat Corporation. To the 17 extent that you believe you are entitled to a separate deposition 18 of General Dynamics, I’m not agreeing that you are, but . . . it 19 will have to be addressed with the Court.”).) Plaintiffs’ counsel 20 ultimately suspended the deposition as to General Dynamics and 21 instead proceeded to depose Mr. Heil as Electric Boat Corporation’s 22 30(b)(6) representative. This time, Mr. Heil acknowledged that he 23 was designated to testify on behalf of Electric Boat Corporation. 24 (Ex. L, attached to Stock Decl. at 258:2-5.) 25 Plaintiffs subsequently filed a Motion for Terminating 26 Sanctions against Defendant General Dynamics for failure to produce 27 a 30(b)(6) witness on April 6, 2015. (Dkt. 761.) Defendant General 28 Dynamics responded to the motion by explaining that the failure of 4 1 counsel to simply concede that Mr. Heil was being produced as 2 General Dynamics 30(b)(6) witness was an “error” that arose from a 3 “misunderstanding . . . over semantics.” (Id. at 2.) General 4 Dynamics also offered to make the totality of Mr. Heil’s remaining 5 March 27, 2015 testimony binding on General Dynamics and to make 6 Mr. Heil available to Plaintiffs’ for a new deposition within ten 7 days of hearing the termination motion. (Id.) 8 9 On March 1, 2016, the court issued an order denying Plaintiffs’ Motion for Terminating Sanctions. (Dkt. 829.) On July 10 5, 2016, Plaintiffs sent a letter to General Dynamics requesting a 11 new date to depose General Dynamics corporate representative. 12 Defendant General Dynamics’ responded that it would no longer agree 13 to make Mr. Heil available for a new deposition. (Ex. K, attached 14 to Stock Decl.) Plaintiffs have now filed a new motion for 15 terminating sanctions for Defendant General Dynamics’ failure to 16 produce a 30(b)(6) corporate representative. 17 II. LEGAL STANDARD 18 Where a party fails to appear for his properly noticed 19 deposition, Federal Rule of Civil Procedure 37(b) authorizes 20 sanctions. 21 of the orders listed in Rule 37(b)(2)(A)(i)-(vi).” Id. 37(d)(3). 22 Rule 37(b)(2)(A)(i)-(vi) authorizes sanctions directing certain 23 facts be established, prohibiting a party from supporting or 24 opposing certain claims or defenses, striking pleadings, staying 25 further proceedings until the party complies, rendering default 26 judgment against the disobedient party, or “dismissing the action 27 or proceeding in whole or in part.” Fed. R. Civ. P. 37(b)(2)(A)(i)- 28 (vi). Additionally, “[i]nstead of or in addition to these Fed. R. Civ. P. 37(d). Those sanctions “may include any 5 1 sanctions, the court must require the party failing to act . . . to 2 pay the reasonable expenses, including attorney’s fees, caused by 3 the failure, unless the failure was substantially justified or 4 other circumstances make an award of expenses unjust. Id. 5 37(b)(2)(C). 6 III. DISCUSSION 7 Based on Defendant General Dynamics’ repeated failure to make 8 available a 30(b)(6) corporate representative, Plaintiffs seek 9 terminating sanctions. Defendant General Dynamics responds that 10 sanctions are not merited in the present case. First, Defendant 11 notes that Plaintiffs have already raised this precise issue in 12 their prior motion for terminating sanctions. (Opp’n Mot. 13 Terminating Sanctions 10-11.) Because that motion was denied, 14 Defendant argues that Plaintiffs should not be allowed relitigate 15 their claims here. (Id.) Defendant also notes that it has acted in 16 good faith to comply with all relevant discovery requirements, 17 including offering to make Mr. Heil’s testimony binding on General 18 Dynamics. (Id. at 2, 14.) Defendant further explains that, in its 19 opposition to the prior sanctions motion, Defendant had offered to 20 make Mr. Heil available for a second deposition within ten days of 21 any hearing on that motion. In Defendant’s view, the fact that 22 Plaintiffs did not take up this offer and instead waited for more 23 than a year to raise this deposition issue counsels against 24 affording relief now. (Id. at 4.) 25 Having reviewed the record evidence and the procedural history 26 of this deposition dispute, the court concludes that sanctions are 27 warranted. Plaintiffs have attempted on numerous occasions to 28 depose a 30(b)(6) representative from General Dynamics who is 6 1 qualified to testify about the company’s activities and its 2 relationship with its former Electric Boat division. These issues 3 are within the scope of this litigation and pertain to Plaintiffs’ 4 theory of liability. Despite numerous court orders directing 5 Defendants to produce a 30(b)(6) witness, Plaintiffs have yet to be 6 able to depose a General Dynamics corporate representative. 7 Defendant cannot cure that failure by offering to make Mr. 8 Heil’s testimony as Electric Boat Corporation’s 30(b)(6) witness 9 binding on General Dynamics after the fact. Plaintiffs’ deposition 10 of Mr. Heil proceeded, understandably, on the assumption that he 11 would only testify in his capacity as Electric Boat Corporation’s 12 representative. It would prejudice Plaintiffs to equate that with 13 an opportunity to depose General Dynamics’ corporate 14 representative. Likewise, the fact that Plaintiffs did not take up 15 Defendant’s offer to re-depose Mr. Heil is also inapposite. As an 16 initial matter, Defendant offered to make Mr. Heil available within 17 ten days of any hearing on the prior terminating sanctions motion–a 18 motion that never had a hearing because it was taken under 19 submission by the court. Moreover, the offer only came after 20 Plaintiffs had filed a sanctions motion. Under these circumstances, 21 Plaintiffs were entitled to wait until a court ruling on their 22 motion before deciding whether to attempt to conduct any further 23 deposition. 24 While the court recognizes that a previous Order denied a 25 nearly identical motion, that ruling was presumably issued on the 26 assumption that, as Defendants represented in their previous 27 filings, the failure to offer a 30(b)(6) witness was a mistake and 28 Plaintiffs would eventually have an opportunity to properly depose 7 1 General Dynamics’ corporate representative. Having not been 2 afforded that opportunity, the court now finds that sanctions are 3 merited. See Great American Ins. Co. of New York v. Vegas Const. 4 Co. Inc., 251 F.R.D. 534, 540-41 (D. Nev. 2008) (holding that 5 plaintiffs are “entitled to the knowledge of the corporation and 6 the corporation’s position on matters clearly relevant and 7 discoverable in this case” and noting the duty defendants have “to 8 present a Rule 30(b)(6) witness to . . . address the noticed 9 topics, provide the corporation’s position, and provide answers to 10 11 bind the corporation”). Given that sanctions are merited, the only question is whether 12 terminating sanctions are justified. Dismissal “is authorized only 13 in extreme circumstances and only where the violation is due to 14 willfulness, bad faith, or fault of the party.” In re Exxon Valdez, 15 102 F.3d 429, 432 (9th Cir. 1996)(internal quotation marks 16 omitted). To establish that a party’s conduct rises to the level of 17 willfulness, bad faith, or fault, “all that is required” is 18 “disobedient conduct not shown to be outside the control of the 19 litigant.” Henry v. Gill Indus., Inc., 983 F.2d 943, 948 (9th Cir. 20 1993) (quoting Fjelstad v. Am. Honda Motor Co., Inc., 762 F.2d 21 1334, 1341 (9th Cir. 1985))(internal quotation marks omitted). 22 Even where a party’s failure to comply is willful, in determining 23 whether the circumstances warrant dismissal, the Court must 24 consider five factors: (1) the public’s interest in expeditious 25 resolution of litigation; (2) the court’s need to manage its 26 docket; (3) the risk of prejudice to the defendants; (4) the public 27 policy favoring disposition of cases on their merits; and (5) the 28 availability of less drastic sanctions. Id. at 433. The first and 8 1 second factors almost always weigh in favor of dismissal, while the 2 fourth factor almost always weighs against it. See Computer Task 3 Group, Inc. v. Brotby, 364 F.3d 1112, 1115 (9th Cir. 2004). 4 Here, the court concludes that dismissal is not warranted and 5 lesser sanctions would adequately remedy the prejudice suffered by 6 Plaintiffs. Accordingly, the court orders Defendant General 7 Dynamics to make either Mr. Heil or another appropriate 30(b)(6) 8 corporate representative available for deposition within fourteen 9 days of the date of this Order. The deposition shall take place at 10 a location of Plaintiffs’ choosing. Further the parties are 11 reminded of their obligation not to make bad faith objections that 12 would impede the orderly taking of the deposition. Given that this 13 court has already issued two other orders requiring General 14 Dynamics to produce a 30(b)(6) representative, willful failure to 15 comply with this Order shall result in a finding of liability in 16 this action against Defendant General Dynamics and may also lead to 17 a contempt proceeding. See Lew v. Kona Hosp., 754 F.2d 1420, 1426 18 (9th Cir. 1985) (collecting cases where the Ninth Circuit has 19 affirmed “a sanction as severe as dismissal for failure to comply 20 with discovery orders”). 21 Additionally, Rule 37(b)(2)(C) authorizes the court to order 22 the “disobedient party . . . to pay the reasonable expenses, 23 including attorney’s fees, caused by the failure, unless the 24 failure was substantially justified or other circumstances make an 25 award of expenses unjust.” Here, Plaintiffs claim that they have 26 incurred $23,000 in expenses as a result of Defendant’s failure to 27 make a 30(b)(6) corporate representative available for deposition. 28 Specifically, Plaintiffs state that they spent 30 hours preparing 9 1 the instant motion at a rate of $350.00 per hour for a total cost 2 of $10,500. (Stock Decl. ¶ 21.) Plaintiffs also state that their 3 trial attorney, whose rate of compensation is $500.00 per hour, 4 spent 25 hours meeting and conferring with Defendant’s counsel and 5 preparing for a deposition that did not occur for a total sum of 6 $12,500. (Id.) 7 General Dynamics responds that an award of expenses is not 8 justified in this case because the company did not violate any 9 court order. Specifically, General Dynamics explains that it could 10 not comply with directives to produce a 30(b)(6) representative 11 prior to February 17, 2015 because there were pending disputes over 12 a protective order that the court had to resolve. Moreover, 13 Defendant notes that, approximately two weeks after the court 14 resolved that dispute, Defendant offered Mr. Heil as a corporate 15 representative. 16 Even crediting Defendant’s concerns about the protective 17 order, the court unambiguously ordered General Dynamics to produce 18 a 30(b)(6) representative on February 27, 2015. (Dkt. 693.) While 19 Defendant produced Mr. Heil in response to that order, Defendant’s 20 objections to allow Mr. Heil to state he was General Dynamics’ 21 30(b)(6) representative prevented Plaintiffs from conducting a 22 meaningful deposition. Moreover, Defendant has not demonstrated 23 that it was substantially justified in making its objections. 24 Accordingly the court finds that an award of expenses is justified 25 under Rule 37. See Lew, 754 F.2d at 1420 (noting that attorneys’ 26 fees and costs can be awarded when the other party fails to appear 27 for deposition, as well as when the party appears but fails to 28 10 1 answer any questions) (citing Weigel v. Shapiro, 608 F.2d 268, 272 2 (7th Cir. 1979)). 3 Turning to the specific expenses requested by Plaintiffs, the 4 court finds that the rates requested are reasonable. The court 5 further finds that the full 30 hours spent on preparing this motion 6 were reasonably expended given the lengthy procedural history that 7 had to be catalogued. Accordingly, the court finds the request for 8 $10,500 in connection with filing the instant motion reasonable. 9 Further, the court finds that Plaintiffs’ counsel reasonably 10 expended 25 hours preparing for the deposition of Defendant’s 11 30(b)(6) representative given the lengthy history of this 12 litigation and the complexity of the record. See, e.g., Compass 13 Bank v. Morris Cerullo World Evangelism, No. 13-CV-0654-BAS WVG, 14 2015 WL 3442030, at *9 (S.D. Cal. May 28, 2015) (awarding fees for 15 time spent preparing for a deposition where deponent did not 16 appear). However, because Plaintiffs’ counsel would have had to 17 prepare for this deposition regardless of Defendant’s conduct, and 18 will not need to duplicate the entirety of their prior effort in 19 preparing for the newly-ordered deposition, the court finds that it 20 would be unjust to award Plaintiffs the full preparation expenses 21 they request. Instead, the court will award Plaintiffs’ counsel 22 eight hours of preparation expenses, which amounts to $4,000. 23 III. CONCLUSION 24 For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion 25 for Terminating Sanctions in part. Defendant General Dynamics shall 26 make available Mr. Bradford Heil or another appropriate 30(b)(6) 27 corporate representative qualified to testify on behalf of General 28 Dynamics within fourteen days of this Order. Defendant General 11 1 Dynamics shall also pay the expenses associated with this motion in 2 the amount of $14,500 within fourteen days. 3 4 IT IS SO ORDERED. 5 6 7 Dated: October 24, 2016 DEAN D. PREGERSON United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
