IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
May 31, 2012
A.W. CHESTERSTON COMPANY, ET AL.,
The opinion of the court was delivered by: David R. Strawbridge, Usmj
Before the Court, and resolved by our order of May 25, 21012 (Doc. 179), are the "Motion for Sanctions" (Doc. No. 136) ("Sanctions Mot.") and "Motion for Protective Order Concerning Plaintiff's Rule 30(b)(6) Deposition Notice" (Doc. No. 137) ("Mot. Protect.") filed by General Electric Company ("GE"). The motion for protective order has been granted and Plaintiff's April 18, 2012 Fed. R. Civ. P. 30(b)(6) deposition notice has been quashed. However, pursuant to the parties' earlier agreement and our February 17, 2012 order, GE shall produce a turbine witness pursuant to the parties' agreement under the original November 14, 2011 deposition notice. (See 01-MD-875, Doc. No. 8453.) Further, the motion for sanctions has been granted, and the unverified "supplemental" interrogatory answers, which are the subject of that motion, have been struck. By this memorandum, we now set out our explanation for the issuance of the May 25, 2012 order. I FACTUAL AND PROCEDURAL HISTORY
This case is one of approximately 630 cases remaining in MDL-875 in which Cascino Vaughan Law Offices ("CVLO") is acting as plaintiffs' counsel. It was referred to us by Judge Robreno on June 9, 2011. Mr. Unzicker was a career pipe fitter who testified that he worked on or around GE motors and controllers but could not say with particularity when or where he did so. (Mot. Protect., Exh. A, pp. 10-11, 14.) He alleges that exposure to GE and other asbestos containing products caused his lung cancer and non-malignant asbestos disease. (Sanctions Mot., Exh. A., Answer 3.)During discovery, he provided verified answers to GE's interrogatories (signed on September 14, 2011.) (Sanctions Mot., Exh. A.) He sat for deposition on October 4, 2011. (Id., Exh. B.) In this discovery, he stated that he had never filed a lawsuit other than the current one and denied knowledge of any statements which were relevant to this current lawsuit.*fn1 (Id., Exh. A, Answers 14 & 29.) He failed to identify any co-workers in his answers (Id., Answer 20), and identified fewer than ten by name at his deposition.*fn2 (Id., Exh. B., pp. 7-11.) He also disclosed ten relevant jobsites in his verified interrogatories. (Id., Exh. A, Answers 17 & 18.)*fn3
On November 14, 2011, CVLO noticed the deposition of a "turbine witness" to discuss GE's land-based steam turbines at the relevant jobsites pursuant to Fed. R. Civ. P. 30(b)(6.) (Mot. Protect. Ex I.) GE objected to the notice claiming, inter alia, that the topics in the notice were overly broad and that there was no evidence that Mr. Unzicker had ever worked around any GE products. (Id., Exh. J.) CVLO then filed a motion to compel. (01-MDL-875 Doc. No. 8435.) We denied the motion after being advised by the parties that they had reached a compromise and agreed to proceed with the deposition. (01-MD-875, Doc. No. 8453.) The deposition was scheduled for April 10, 2012. (Id.) On March 22, 2012, for reasons that are not clear to us, CVLO tendered a revised Rule 30(b)(6) notice, which greatly expanded the scope of the original notice. (Mot. Protect., Exh. M.) GE again objected based, inter alia, on its scope, lack of particularity, and lack of relevance to Mr. Unzicker's case. (Id., Exh. N.) GE did not, however, cancel the April 10, 2012 deposition. Regrettably, that deposition did not go forward on April 10, 2012 as Mr. McCoy, CVLO counsel, was late in arriving and GE, after a failed attempt to reach him by telephone, left the deposition site. After the court intervened, the parties rescheduled the deposition for April 25, 2012, agreeing that it could be completed after the April 20, 2012 close of fact discovery.
On April 18, 2012,*fn4 two days before the close of
discovery, CVLO served upon GE unverified "supplemental" answers to
GE's interrogatories. (Sanctions Mot., Exh. C1, p. 14.)*fn5
These unverified answers, for the first time, identified,
inter alia: (1) a list of approximately 180 deposition transcripts
allegedly containing statements relevant to Mr. Unzicker's
case*fn6 ; (2) the names and addresses of over 800 new
co-worker witnesses*fn7 ; and (3) 17 new jobsites where
Mr. Unzicker claims that he may have
been exposed to asbestos containing GE products.*fn8
(See Sanctions Mot., Exh. C1.) Further, while the "supplemental"
answers, like the original verified answers, provided that Mr.
Unzicker had not filed any other lawsuit other than the current suit.
(Sanctions Mot., Exh. C1, Answer 14.) A transcript of Mr. Unzicker's
deposition from his l988 lawsuit was attached to the "supplemental"
answers. (Sanctions Mot., Exh. C3.)
On April 18, 2012, CVLO also served upon GE a new Rule 30(b)(6) deposition notice for the April 25, 2012 deposition. (Mot. Protect., Exh. C.) It was materially identical to the March 22, 2012 notice. (Id. See also Exh. M.) It is this notice that is the subject of this motion for protective order. After GE received the unverified "supplemental" interrogatory answers, it objected to the notice, withdrew its agreement to proffer a Rule 30(b)(6) turbine witness (Id., Exh. O.) and, on April 20, 2012, filed the current motions for sanctions and a protective order. (Sanctions Mot., Mot. Protect.) Mr. Unzicker filed his combined response to both motions on April 30, 2012 (Doc. No. 143), and GE filed its reply on May 3, 2012. (Doc. No. 149.)
A. The Sanctions Motion
In response to GE's Motion, CVLO argues that the service of Mr. Unzicker's expanded and unverified "supplemental" interrogatory answers two days before the end of discovery was timely under Fed. R. Civ. P. 26(e) given that it was served before the end of discovery.*fn9 While acknowledging the importance of keeping to the discovery deadlines in advancing this argument, CVLO fails to acknowledge that the supplemental answers it served were unverified,contrary to the clear requirement of Fed. R. Civ. P. 33(b)(3) which states that "[e]ach interrogatory must . . . be answered . . . fully in writing under oath." Fed. R. Civ. P. 33(b)(3) (emphasis added.) This fundamental proposition is embodied in the August 4, 2011 Deposition Protocol which had been rigorously negotiated by the parties and ordered by the court to apply to all CVLO MDL-875 cases. (08-90330, Doc. No. 87, Exh. A.)*fn10 It is for this reason that we struck these unverified "supplemental" interrogatory answers.*fn11
In Bracey v. Grenoble, 494 F.2d 566 (3rd Cir. 1974), the district court concluded, after a non-jury trial, that the defendant, Major Grenoble, was liable for the beating of the prison inmate plaintiff given that he was in charge of the prison guards who where involved in the actual assault. Id. at 569. The Third Circuit reversed the district court's decision finding that the plaintiff had failed to establish that Grenoble had actual knowledge of and acquiesced in the unlawful acts of his subordinates. Id. at 570-72. While we recognize that this case arises out of a factual scenario quite distinct from our case, its secondary holding is of significance here. Citing Fed. R. Civ. P. 33(a), the predecessor to Rule 33(b)(3), the Third Circuit held, as an independently sufficient basis for its ruling, that the district court improperly relied upon Grenoble's unverified interrogatory responses. Id. at 570, n.7. See also U.S. v. $39,557.00, More or Less, in U.S. Currency, 683 F. Supp.2d 335, 340-341 (D.N.J. 2010) (concluding that a party's lack of compliance with Rule 33(b)(3) by, inter alia, failing to sign interrogatory answers, was sufficient grounds to strike its claim); Villareal v. El Chile, Inc., 266 F.R.D. 207, 211 (N.D. Ill. 2010) (acknowledging that "[r]equiring a party to sign interrogatory responses under oath serves the critical purpose of ensuring that the responding party attests to the truth of the responses"); Tokarz v. TRG Columbus Development Venture, Ltd., 08-60190, 2008 WL 4533917, at *2 (S.D. Fla. Oct. 6, 2008) (holding that by failing to sign interrogatory answers, the party was "deemed to have not responded at all" ); Overton v. City of Harvey, 29 F. Supp.2d 894, 901 (N.D. Ill. 1998) (striking as a summary judgment exhibit plaintiff's unverified answers to interrogatories signed only by the attorney); Cabales v. U.S., 51 F.R.D. 498, 499 (S.D.N.Y. 1970) (finding that unsigned, unverified interrogatory answers did not qualify as answers at all.)*fn12 Mr. Unzicker has not satisfied us that we should deviate from the protocol or this clear authority.
Having rested our determination of this motion upon Plaintiff's failure to comply with Fed. R. Civ. P. 33(b)(3), we choose to take the opportunity to address the question of prejudice raised by GE. Fed. R. Civ. P. 37(c) provides that a party who, inter alia, fails to timely supplement an earlier response "is not allowed to use that information or witness to supply evidence . . . unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1.) CVLO claims that their supplementation was timely simply because it was served before the end of discovery. Under the circumstances of this supplementation, we disagree.
This case was originally filed in the U.S. District Court for the Southern District of Illinois on March 21, 2011 (3:11-cv-00224, Doc. No. 13 (S.D. Il.).) ("Complaint"). By this filing, counsel has certified to the court, pursuant to Fed. R. Civ. P. 11(b)(3), that "to the best of the [Plaintiff's] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery." (emphasis added.) The Rule then requires the plaintiff and/or his counsel to have sufficiently investigated the supporting facts relating to his claim and to certify "after an inquiry reasonable under the circumstances" that those facts provide evidentiary support for the claim or if "specifically so identified" that the factual contentions will have support "after the reasonable opportunity for further investigation or discovery." Fed. R. Civ. P. 11(b)(3).
A review of Plaintiff's Complaint provides in its "General Allegations" that Mr. Unzicker worked "as a pipe fitter at various job sites" and "was exposed to asbestos dust or fibers emanating from the asbestos products and/or asbestos insulated equipment which was sold, manufactured, mined, distributed, packaged, installed or otherwise placed into commerce by defendants [including GE]." (See Complaint, p. 2, ¶6.)
The Complaint fails to identify, however, any specific GE products around which he worked and only makes broad, general reference to locations where he worked and times when he may have worked at those locations. These shortcomings raise significant questions about whether Mr. Unzicker has the evidentiary support necessary to show a causal relationship between GE products and his disease condition. It was under this circumstance that CVLO served upon defendants the extensive supplemental discovery just two days before the close of discovery.
The Third Circuit has identified four factors that we must consider as we evaluate whether to exclude evidence such as the untimely "supplemental" interrogatory answers:
(1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified, (2) the ability of that party to cure the prejudice, (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other cases in the court, and (4) bad faith or willfulness in failing to comply with the district court's order.
In re TMI Litigation, 193 F.3d 613, 721 (3d Cir. 1999) (quoting Meyers v. Pennypack Woods Home Ownership Ass'n., 559 F.2d 894, 904-05 (3d Cir. 1977).)
It would be difficult to imagine a circumstance where an untimely, non-specific information dump could be more prejudicial to defendants or more disruptive to the case management process than what has occurred here. Clearly, GE could not be expected to undertake any form of sensible due diligence with respect to the disclosure of some 800 alleged co-worker witnesses, divulged two days before the end of discovery, who might have information pertaining to the question of Mr. Unzicker's exposure. Similarly, GE could not reasonably be expected to undertake any due diligence with respect to alleged exposures at 17 additional job sites where Mr. Unzicker may have been exposed that are mentioned for the first time in the unverified "supplemental" interrogatory response.
Likewise, sorting through 180 deposition transcripts, in two days, cannot be considered compatible with any kind of sensible approach to dealing with discovery in this case.
Finally, we note that CVLO, or its predecessor, the Law Offices of Michael P. Cascino, Ltd., acted as Unzicker's counsel in what we understand to be an earlier 1988 asbestos case. Certainly it would be expected that CVLO, not to mention its client, would have had knowledge of, or at least some record of, the 1988 deposition transcript from that case which was among the materials disclosed two days before the end of discovery.
Upon balancing the four factors, it is clear that, even if his "supplemental" interrogatory answers had been verified, Mr. Unzicker would likely have been sanctioned by prohibiting the use of the "supplemental" answers given the prejudice to GE. CVLO has failed to convince us that its supplement was justified or should be excused.
B. The Motion for Protective Order Concerning Plaintiff's Rule 30(b)(6) Deposition Notice
We now turn to the April 18, 2012, Rule 30(b)(6) deposition notice, which is the notice at issue in GE's motion. CVLO first noticed the deposition of a turbine witness to discuss GE's land-based steam turbines at ten jobsites on November 14, 2011. (Mot. Protect., Exh. I.) GE objected and CVLO filed a motion to compel GE's cooperation, which we denied on February 17, 2012 in light of the parties agreement to depose the witness on April 10, 2012, subject to certain conditions of which the court was not made aware. (01-MD-875, Doc. No. 8453.)*fn13 On March 22, 2012, CVLO tendered a revised Rule 30(b)(6) notice, which greatly expanded the scope of the original notice.*fn14
GE again objected but did not seek to quash the notice. (Mot. Protect., Exh. J.) The deposition did not go forward on that date and the parties rescheduled it for April 25, 2012. On April 18, 2012, along with the unverified "supplemental" interrogatory responses, CVLO served on GE a further notice which was virtually identical to the March 22, 2012 notice. (Sanctions Mot. Exh. C1.) After receiving the unverified "supplemental" interrogatory responses, GE filed the two current motions and refused to provide its Rule 30(b)(6) turbine witness.
The original November 14, 2011 deposition notice is entitled "Notice of 30(b)(6) Deposition of General Electric Corporation - Turbine Witness - issued 11/14/2011." (Mot. Protect., Exh. I.) It lists 24 subjects to be covered at the deposition "with respect to turbines erected or serviced by deponent" at the listed jobsites for the years "1910 until 1990", including such topics as sales and customer service account representatives, contracts for erection and documentation of erections, engineering files and specifications for asbestos materials, service work, material suppliers, contractors hired for insulation work, the use and removal of asbestos materials, asbestos warnings and protective measures, and communications with various safety agencies. (Id..)
The April 18, 2012 deposition notice is entitled "Notice of 30(b)(6) Deposition of GE Corporation [for] April 25, 2012." (Id., Exh. C.) No longer is the notice limited to turbines. (Id.) Rather, in addition to turbine specific subjects, the notice also lists the broader subjects of covered or insulated electrical wire and cable, ballast, switching gear, motor winding, and arc shield "products manufactured or sold by GE from 1950 to 1983", "specifications for materials used in GE electrical products from 1950 to 1983" and, "asbestos content of GE electrical products from 1950 to 1983." (Id..)
Regarding the GE products that would be relevant during the Rule 30(b)(6) deposition under the April 18, 2012 deposition notice, Mr. Unzicker testified at his October 4, 2011 deposition that he replaced GE motors and re-wired GE controllers but was unable to say exactly when or where he performed such work. (Id., Exh. A, pp. 9-11, 13-14.) In his verified answers to GE's interrogatories (Sanctions Mot., Exh. A.) and during his deposition, Mr. Unzicker did not identify any other GE products to which he alleges exposure, including turbines.*fn15
As we recently reminded CVLO during a May 14, 2012 recorded telephone conference, Fed. R. Civ. P. 30(b)(6), requires that "[i]n its notice or subpoena, a party may name as a deponent a public or private corporation . . . or other entity and must describe with reasonable particularity the matters for examination." Fed. R. Civ. P. 30(b)(6) (emphasis added.) Even a cursory review of the April 18, 2012 notice demonstrates that it is seriously overbroad, unduly burdensome and fails to set out topics with reasonable particularity. The notice seeks testimony regarding products Mr. Unzicker never claimed to have worked around including covered or insulated electrical wires and cables, ballasts, switching gear, motor windings, and arc shields. (Mot. Protect., Exh. C.) Further, the notice calls for the production of a designee to provide information on electrical products for a thirty year period, regardless of whether they contained asbestos or not. (Id.) It is clear that the notice is not reasonably limited to products and time frames relevant to Mr. Unzicker's work history. See W.L. Gore & Associates, Inc. v. Tetratec Corp., 89--3995, 1989 WL 144178, at *3-4 (E.D. Pa. Nov. 28, 1989) (finding that plaintiffs' document request regarding "all documents relating to waterproof, breathable fabrics" was overbroad and too vague to be considered reasonably particular, regardless of whether the defendant knew the meaning of those terms); Constable v. Teledyne Indust., S86-654, 1988 WL 492337, at *2 (N.D. Ind. May 19, 1988) (concluding that a document request regarding "litigation and/or claim files" was simply too general under Rule 30(b)(6).)
We have concluded that this notice must be quashed. Not withstanding this order, however, in light of the GE's previous agreement to provide a Rule 30(b)(6) witness on turbines, and our February 17, 2012 order, GE must produce such a witness, per the parties' previous agreement which was based upon the November 14, 2011 Rule 30(b)(6) deposition notice.*fn16
Because Mr. Unzicker failed to verify his supplemental interrogatory answers before the end of discovery, those unverified answers have been struck. However, even if the supplementary answers had been verified we would have still been likely to strike them for being unduly prejudicial to GE, in light of their expansive nature and their submission to GE two days before the end of discovery. Therefore, GE's motion for sanctions has been granted. Mr. Unzicker's most recent Rule 30(b)(6) deposition notice does not set forth the topics to be discussed with reasonable particularity as is required by the rule and is overbroad since it relates to products about which there is no evidence of exposure to Mr. Unzicker. Thus, GE's motion for protective order has been granted and the deposition notice has been quashed. Nonetheless, pursuant to the parties' agreement and our February 17, 2012 order, GE shall produce a turbine witness pursuant to the original November 14, 2011 deposition notice to discuss the relevant jobsites listed in that notice, including the Abbott Power Plant.
An appropriate order was entered on May 25, 2011 (Doc. No. 179.)
BY THE COURT:
DAVID R. STRAWBRIDGE UNITED STATES MAGISTRATE JUDGE