Collins v. Nissan N.A., 2:11cv428 (5/9/13)
Judge: Rodney Gilstrap
Holding: Motion to Compel GRANTED
I remember when Collins v. Nissan meant a product liability case. Not anymore.
Plaintiff sought an order in this patent case: (1) preventing defendant Nissan from presenting evidence and testimony at trial concerning certain topics (which were the subject of deposition of Nissan corporate reps); (2) ordering Nissan to provide substantive interrogatory responses; and (3) providing translations and a narrative response to one interrogatory. Judge Gilstrap heard arguments from both sides at an oral hearing, and issued this order, being "of the opinion that Nissan has failed to comply with its discovery obligations in good faith and that Plaintiffs are entitled to appropriate relief under Fed. R. Civ. P. 37."
“It is well settled,” Judge Gilstrap continued, “that the rules of discovery in the Eastern District of Texas are accorded a broad and liberal treatment to affect their stated purpose of adequately informing litigants in civil trials,” citing DDR Holdings, LLC v. Hotels.com, L.P., et al., 2012 WL 2935172, at *2 (E.D. Tex. July 18, 2012). As in DDR, the primary issue dealt with deposition notices.
Nissan may not ignore certain topics in a 30(b)(6) deposition notice simply because it believes the topics noted are ambiguous or otherwise addressed by its document production. The Court finds that Nissan did just that in this case. If Nissan’s true concern was ambiguity, procedural devices are available and known to Nissan to seek clarification of the noticed topics. Nissan never sought clarification from Plaintiffs or from the Court. This District’s local discovery rules are clear, and they do not excuse a failure to provide 30(b)(6) testimony simply because Nissan believes that its document production “speak for themselves.”
Here, Nissan unilaterally decided to block discovery into topics clearly identified in a 30(b)(6) deposition notice. This is not permitted under the Federal Rules of Civil Procedure or this Court’s Local Rules. Such unilateral action blatantly usurps the Court’s function as the gatekeeper in matters of discovery. Having been put on notice of Plaintiffs’ 30(b)(6) topics, Nissan was required to either (1) tender a witness on each topic; (2) confer with Plaintiffs’ counsel to discuss the scope of the deposition and resolve any disputes among themselves; or (3) seek relief from the Court once a meet-and-confer between the parties did not resolve the dispute. Instead, Nissan acted unilaterally, purposefully and with knowing disregard for these established steps by refusing to present a knowledgeable witness at all on these topics. Such conduct is precisely that for which Fed. R. Civ. P. 37 provides a remedy.
The Court also found that Nissan failed to act in good faith by objecting to Plaintiffs’ Second Set of Interrogatories as untimely and refusing to provide substantive responses just because its response deadline, with the three days added pursuant to L.R. cv-6(a), (oh no, they didn’t…) “would fall three days after the close of fact discovery.” (Yep, they did).
The Court believes that it should not have to remind the parties that a deadline does not prohibit or discourage a response prior to the last possible moment; rather, a deadline sets the outer limit for a timely response. Here, where the response deadline falls three days after the close of discovery (and only after Nissan chooses to take advantage of the additional three days offered by the Local Rules), the proper course of action for the responding party is to either meet and confer seeking to extend the discovery cutoff by three days, endeavor to respond in a timely manner, or seek direction from the Court. The Court cannot help but be persuaded that Nissan’s refusal to pursue none of the above options reveals a strategic but improper decision to consciously impede Plaintiffs’ discovery efforts. Again, Fed. R. Civ. P. 37 provides a remedy.
Accordingly, the Court granted Plaintiffs’ Motion to Compel and ordered that Nissan, within fourteen (14) days, provide to Plaintiffs at Nissan’s cost:
(1) substantive responses to Plaintiffs’ Second Set of Interrogatories,
(2) a narrative response to Plaintiffs’ Interrogatory No. 5, and
(3) certified English translations of Japanese documents (presently existing in whole or part in Japanese) referenced in Nissan’s Response to Interrogatory No. 5.
The Court found that Plaintiffs’ request to exclude Nissan from presenting evidence and testimony at trial from fact witnesses (and expert witnesses to the extent they rely on the testimony of fact witnesses) concerning the noticed 30(b)(6) topics 15 and 17 “has merit, but finds that now is not the most appropriate time to administer such relief. The Court believes that when it considers the various pretrial motions that the parties will present that it can then better consider extending such relief as justified by Nissan’s conduct at that time. Accordingly, the Court reserves the application of appropriate relief in this regard until such future date before the start of trial as the Court may determine.
As my dad used to say, the more things change, the more they stay the same…