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Wartluft v. Milton Hershey School and School Trust

United States District Court, M.D. Pennsylvania

October 19, 2017

JULIE ELLEN WARTLUFT, et al., Plaintiffs



          Martin C. Carlson United States Magistrate Judge

         I. Introduction

         This case comes before us for consideration of a motion to compel filed by the defendant, Milton Hershey School, that seeks to compel a non-party Rule 30(b)(6) deponent, an advocacy group known as Protect Hershey's Children, Inc., (PHC) to designate a proper and fully informed witness to testify regarding the factual basis for certain allegations and claims made by PHC, allegations and claims which now form part of the foundation for this lawsuit. (Doc. 60.) While the motion raises discrete discovery issues in the context of a lawsuit brought by Julie Ellen Wartluft and Frederick Bartels in the wake of the death of their daughter who was a student at the Milton Hershey School, the parties' briefs and arguments reveal that the particular discovery dispute is part of a longstanding and intractable conflict between the Milton Hershey School and PHC. This conflict has spanned years and is marked by competing accusations, mutual recriminations and shared, profound, and unshakeable suspicions. For its part, the Milton Hershey School apparently views PHC, and its President, an attorney named Ric Fouad, as unscrupulous provocateurs, who disseminate baseless allegations against the Milton Hershey School, and then instigate grieving families to file meritless lawsuits in pursuit of their ideological goals. PHC and Fouad, in turn, identify themselves as public spirited whistle-blowers, who believe that they are the victims of a campaign of harassment, oppression and unwarranted calumny orchestrated by a multi-billion dollar corporate monolith.

         As they litigate this narrow discovery dispute each of these protagonists invites us to adopt their characterization of this on-going, and intractable conflict, and rule upon this motion through the prism of their very different perspectives regarding the broader motives and motivations they ascribe to one another. We will decline this invitation to foray deeply into the longstanding and mutual grudges that divide PHC and the Milton Hershey School. Instead, we choose to simply address the two specific legal questions raised by this motion to compel; namely: First, did PHC fail to properly designate an informed corporate official as a Rule 30(b)(6) deponent to respond to Milton Hershey's inquiries into the factual basis of that organization's allegations which form part of the foundation for this lawsuit? Second, should PHC now be compelled to re-designate a fully informed corporate Rule 30(b)(6) deponent to answer these questions?

         For the reasons set forth below we answer these two questions, yes and yes, and therefore will grant this motion to compel, in part.

         II. Factual Background

         On June 29, 2016, the plaintiffs, Julie Ellen Wartluft and Frederick Bartels, acting individually and on behalf of the estate of their deceased daughter, filed this lawsuit against the Milton Hershey School and the Hershey Trust. (Doc. 1.) This lawsuit arose out of a singular tragedy, the suicide of the plaintiffs' 14 year-old daughter in June of 2013, at about the time of her expulsion from the Milton Hershey School, following two episodes of hospitalization for severe depression. (Id.) The plaintiffs alleged that this suicide was a result of unlawful discriminatory practices by the defendants, and specifically alleged that the Milton Hershey School had a two-hospitalization policy which led to the expulsion of emotionally fragile students once those students underwent two hospitalizations for mental illness. These allegations formed one of the legal and factual pillars for this lawsuit. (Id.)

         The deposition of the plaintiff, Julie Ellen Wartluft, revealed that the primary basis for these allegations by Wartluft was information that was publicly disseminated by Protect Hershey's Children, Inc., (PHC), a non-profit corporation which engages in public education and advocacy aimed at highlighting what it believes to be malfeasance, misfeasance, and nonfeasance at the Milton Hershey School. PHC is a non-profit corporation, whose President is Ric Fouad, an attorney. According to the initial Rule 30(b)(6) deponent offered by PHC in this lawsuit, Fouad is also the principal author of many of the white papers, reports, and statements issued publicly by PHC, statements which describe and decry the alleged practices at the Milton Hershey School, including this alleged two-hospitalization expulsion policy which the plaintiffs allege led to their daughter's suicide.

         With Julie Ellen Wartluft having identified statements issued by PHC as the source and basis for many of the allegations contained in her complaint, the factual underpinning for these allegations has now become a relevant issue in this lawsuit. In an effort to explore the factual basis for PHC's statements concerning these alleged practices, the Milton Hershey School served subpoenas on Fouad individually, [1] and a Rule 30(b)(6) subpoena upon PHC which called for a knowledgeable corporate designee to appear and testify regarding matters relevant to this lawsuit.

         Appended to this Rule 30(b)(6) non-party corporate deposition subpoena was a notice which detailed some 19 specific subject matter areas into which the Milton Hershey School wished to inquire. (Doc. 60, Ex. 5.) This listing enumerated a number of matters relating to the plaintiffs, their daughter, her death, Fouad, PHC, and its involvement by disseminating information relating to this incident. (Id.) In our view this notice was sufficient to place PHC on notice that the Milton Hershey School wished to question a knowledgeable corporate deponent on those factual matters averred by the plaintiffs which were allegedly derived from PHC's own investigations, reports and white papers, all of which had been broadly disseminated by that organization as part of its advocacy mission. This subpoena was issued on June 20, 2017, and the Rule 30(b)(6) deposition of PHC's designated corporate deponent took place three weeks later, on July 13, 2017. (Doc. 60, Ex. 6.)

         At that time, PHC presented Michael Kronenberg, a member of the PHC board, and its newly appointed treasurer as the Rule 30(b)(6) deponent. (Id.) Given the apparent focus of the deposition, which sought to examine the factual underpinning for various statements publicly disseminated by PHC relating to the June 2013 death of the plaintiffs' daughter, and how Milton Hershey School policies may have contributed to that death, Kronenberg was a curious choice as a Rule 30(b)(6) deponent for several reasons.

         First, Kronenberg had only become a member of PHC in May of 2013 or 2014, and did not join the board of this organization until late 2015. (Doc. 60, Ex. 6, pp. 66, 72.) Thus, Kronenberg's participation in the governance of this organization began years after the events set forth in this lawsuit. Moreover, in the course of this deposition it became abundantly clear that as a corporate deponent Kronenberg completely lacked any knowledge regarding the factual basis for the assertions and allegations made by PHC that related to the matters encompassed in this lawsuit.

         In addition to being an ill-suited corporate designee, it was apparent that Kronenberg was ill-prepared to perform this function. According to Kronenberg's testimony at this deposition, he had learned of his proposed role in this litigation only a few days before the scheduled deposition. Further, the counsel who was retained to represent Kronenberg in this matter was also retained shortly before the deposition itself. Even more troubling, it appeared that Kronenberg was singularly uninformed regarding what he would be expected to testify to on behalf of PHC, and had only reviewed the Rule 30(b)(6) deposition notice immediately prior to the deposition itself. (Id. at 15:3-22.)

         During the course of this deposition, these shortcomings were cast in sharp relief as the Milton Hershey School sought information concerning the factual basis for a host of representations publicly disseminated by PHC, representations which formed many of the legal and factual grounds for the plaintiffs' complaint. In response to these inquiries, Kronenberg was repeatedly compelled to disclaim any knowledge of these factual matters reported by PHC. (Id. at 62:8-9, 62:23, 64:11, 79:3, 79:7, 81:15, 84:19-22, 114:24-115:3, 156:15, 193:13-17, 204:8, 207:4, 214:5-9, 215:4-5, 215:11, 215:18, 219:23-220:2, 222:16, 222:19, 222:22, 223:1, 223:4, 223:7, 255:5-6, 264:18, 281:2, 285:17.) Kronenberg's lack of personal knowledge regarding these relevant matters in the instant lawsuit was coupled with repeated assertions that PHC's President, Ric Fouad, was the source of this information, the author of these reports, and the corporate officer with personal knowledge of the matters which were the subject of the Milton Hershey School's inquiries. (Id. at 141:21-23, 147:3-6, 148:7-12, 154:17-18, 157:8-11, 162:16-18, 180:3-10, 184:4-6, 191:11-13, 192:13-18, 193:10-21, 201:4-5, 202:22-23, 214:5-9.) Indeed, according to Kronenberg, Fouad was the author of these documents and was responsible for the public postings and ...

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