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In Re: Asbestos Products Liability Litigation v. A.W. Chesterton

July 30, 2012


Transferor Court: GA-N 11-01407

The opinion of the court was delivered by: M. Faith Angell U.S. Magistrate Judge

Consolidated Under


Presently before this Court are a variety of motions all related to Plaintiffs' discovery requests addressed to Defendants Scapa Waycross, Warren Pumps, and Honeywell International.

Background Facts*fn1 .

The decedent, William H. Thurmon, Sr., was employed as a machine operator, and later as a production shift supervisor, at the Rayonier pulp mill located in Jessup, Georgia from 1954 until his retirement in 1985. He contracted mesothelioma and died on December 27, 2009. Plaintiffs, the decedent's children and the executor of his estate, filed this action in the State Court of Gwinnett County, Georgia on June 3, 2010, alleging, inter alia, that the decedent had been exposed to asbestos-containing products at the Rayonier mill. Plaintiffs named forty entities as defendants including Scapa Waycross, Warren Pumps and Honeywell International. Defendant General Electric removed the action to federal court on April 29, 2011. It was then transferred to MDL 875 on May 20, 2011.

On September 7, 2011, the Honorable Eduardo C. Robreno issued a Scheduling Order in this case which included a discovery deadline of January 5, 2012. During the discovery process, Plaintiffs offered testimony from five witnesses about the decedent's alleged exposure to asbestos at the Rayonier mill -- Ellis Shannon Copeland, Rhett Butler, Bobby Trull, Donald McGregor and William H. Thurmon, Jr.*fn2

On December 2, 2011, Plaintiffs' Counsel sent a letter to all counsel of record, requesting an opportunity to depose each defendant's corporate representative before the close of discovery or such other agreed-upon date prior to any deadline to respond to summary judgment motions. The letter requested that counsel provide the name of their client's corporate designee as well as available deposition dates. Counsel were advised that if no response was received by December 9, 2011, Plaintiffs would notice the corporate designee deposition on the first available date. General topics of testimony and types of documents requested were listed in an attachment to the letter. The information sought related to "any asbestos-containing products or materials dating from 1940 through the date of this notice." Counsel for two defendants responded with the names of their corporate representatives and proposed deposition dates. All other counsel either responded that they were unwilling to make a corporate designee available or did not respond. As to the defendants at issue here, Scapa Waycross and Honeywell International declined to produce a corporate designee while Warren Pumps did not respond.

On January 4, 2012, Plaintiffs noticed the depositions of 30 corporate designees, all to occur the following day in Plaintiffs' Counsel's Office in Atlanta, unless otherwise agreed upon by counsel. On January 5, 2012, Scapa Waycross, Honeywell International and Warren Pumps filed motions to quash the 30(b)(6) notice of deposition*fn3 . These three defendants argue that they had not been given reasonable notice prior to the deposition date, the scope and breadth of the depositions is unreasonable and unduly burdensome, and the deposition notices are improper because Plaintiffs had not produced any witness who identified specific products of the defendants to which the decedent had been exposed. On the same day, January 5, 2012, Plaintiffs filed a motion to extend discovery an additional ninety days "to provide Plaintiffs with the time needed to conduct the depositions of Defendants' corporate representatives."

In their opposition to Defendants' motions to quash the 30(b)(6) depositions, Plaintiffs argue that when they served the January 4, 2012 deposition notices, Counsel for Defendants were "fully informed that Plaintiffs would proceed with the depositions on January 5 as noticed if any Defendant wished to appear and present their witness, but would otherwise schedule the depositions at another mutually agreeable time." According to Plaintiffs, they have diligently pursued discovery and Defendants have summarily denied them the opportunity to depose their corporate representatives.

Consistent with Judge Robreno's Scheduling Order, motions for summary judgment were filed on April 19, 2012. These motions are now fully briefed and scheduled for oral argument on September 11, 2012.

Plaintiffs Are Not Entitled to Depositions of Corporate Representatives of Defendants Scapa Waycross, Honeywell International and Warren Pumps.

The 30(b)(6) Deposition Notices served by Plaintiffs on Defendants Scapa Waycross, Honeywell International and Warren Pumps for depositions scheduled on the following day did not provide reasonable notice as is required under F.R.C.P. 30(b)(1). The fact that Plaintiffs preceded these deposition notices with a December 2, 2011 letter asking for cooperation from Counsel for Defendants does not change this. Nor does the fact that Plaintiffs filed a motion to extend discovery on the discovery deadline, one day after serving the deposition notices.

In addition, discovery has closed and there is no evidence that the decedent was directly exposed to any asbestos-containing product of these Defendants. Plaintiffs are not entitled to testimony of a corporate representative without some evidence to connect a particular product/products of Defendants to the decedent's alleged asbestos exposure. Noticing a 30(b)(6) deposition to obtain testimony from a defendant identifying all asbestos products it supplied, sold or distributed over a sixty plus year period is not proper. See Fed.R.Civ.Pro. 30(b)(6) which requires a deposition notice to "describe with reasonable particularity the matters for examination." See also Appleton-Hultz v. Amcord, MDL 875, CA No. 09-64275, April 29, 2011 Order of the Honorable Thomas J. Rueter [Docket #167] at p. 1 (declining to require defendant to produce any witness or records where after ten months of discovery, plaintiffs had not produced sufficient evidence that the decedent worked on or was in close proximity to defendant's aircraft); and Unzicker v. A.W. Chesterton, MDL 875, CA No. 11-66288, May 31, 2012 Order of the Honorable David R. Strawbridge [Docket #182] at p. 13 (granting defendant's motion for protective order where 30(b)(6) deposition notice does not set forth the topics to be discussed ...

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