United States District Court, W.D. Pennsylvania
ORDER DENYING PLAINTIFF'S MOTION FOR ATTORNEY
FEES AND COSTS AND GRANTING DEFENDANTS' MOTION TO
WITHDRAW AS ATTORNEY
BARBARA J. ROTHSTEIM UNITED STATES DISTRICT JUDGE.
the Court are two motions: (1) Plaintiff United States'
renewed motion for attorney fees and costs, Dkt. No. 169
(renewed from Dkt. No. 54), and (2) Defendants' motion to
withdraw as attorney, Dkt. No. 162. Having reviewed the
motions, the oppositions thereto, the record of the case, and
the relevant legal authorities, the Court will deny the
United States' motion and grant Defendants' motion.
The reasoning for the Court's decision follows.
Court laid out the background of this case in depth in its
recent order granting the United States' motion for
summary judgment on liability. See Dkt. No. 158.
relates to the current motions, the United States originally
submitted its motion for attorneys fees and costs in April
2018. Dkt. No. 54. The motion contends that Defendants'
counsel, the law firms of The Kogan Law Group, PC. and Knox
McLaughlin Gornall & Sennett, P.C., so ill-prepared
Defendants' Rule 30(b)(6) witness for a deposition held
on January 9, 2018 that the government was required to
conduct a second round of depositions between January 30 to
31, 2018. Dkt. No. 169 at 2. The United States avers that it
incurred additional costs of $5, 316.02 as a result of this
unpreparedness, and now seeks reimbursement. Id.
Court struck the United States' original motion,
"reserve[ing] ruling on matters relating to sanctions
and fees until [the Court had] ruled on dispositive
motions." Dkt. No. 141. On August 12, 2019, the Court
granted the United States' motion for summary judgment on
liability. Dkt. No. 158. Defendants' counsel, Lawrence
Kogan of The Kogan Law Group, P.C., informs the Court that,
in response to the adverse ruling, Defendants exercised the
termination clause in counsel's engagement agreement,
discharging him as legal representative in this matter. Dkt.
No. 162 at 1. Counsel then moved to withdraw from this
United States opposed Mr. Kogan's withdraw, stating that
it intended to renew their motion for motion for attorney
fees and costs, which it did on September 18, 2019. Dkt. No.
163; Dkt. No. 169. Both motions have been fully briefed.
Rule of Civil Procedure 30(b)(6) "sets forth the manner
in which a corporation may be deposed." State Farm
Mut. Auto. Ins. Co. v. New Horizont, Inc., 250 F.R.D.
203, 216 (E.D. Pa. 2008). It requires a noticed organization
to "designate one or more officers" or "other
persons" to "testify on its behalf."
Fed.R.Civ.P. 30(b)(6). The designate "must testify about
information known or reasonably available to the
organization." Id. "A Rule 30(b)(6)
designee," after all, '"is not simply
testifying about matters within his or her personal
knowledge, but rather is speaking for the corporation about
matters to which the corporation has reasonable access."
State Farm Mut. Auto. Ins., 250 F.R.D. at 216
(quoting In re Linerboard Antitrust Litig., 237
F.R.D. 373, 382 (E.D. Pa. 2006)).
have found that several duties arise from Rule 30(b)(6).
"The designated deponent has a duty of being
knowledgeable on the subject matter identified in the area of
inquiry," and "[a] corporation must prepare its
selected deponent to adequately testify not only on matters
known by the deponent, but also on subjects that the entity
should reasonably know." Ideal Aerosmith, Inc. v.
Acutronic USA, 7«c., No. 07-1029, 2008 WL 4693374,
at *2 (W.D. Pa. Oct. 23, 2008); see also Robinson v.
Countrywide Home Loans, Inc., No. 08-1563, 2010 WL
4225884, at *1 (W.D. Pa. Oct. 21, 2010). While the deponent
must be "properly prepared," however, they
'"need not have perfect responses to each question,
nor a clairvoyant ability to predict every single question
that may be posed.'" Oy v. Verizon Servs.
Corp., No. 12-715, 2013 WL 5675516, at *2 (D. Del. Oct.
15, 2013) (quoting Estrada v. Wass, No. 10-1560,
2012 WL 1268533, at *2 (M.D. Pa. Apr. 16, 2012)).
Additionally, "[i]f'the corporate designee lacks
sufficient knowledge of the relevant facts to provide
adequate responses to the discovering party's requests
... the onus falls on the corporation to present an
additional designee capable of providing sufficient answers
to the eluded requests.'" Colwell v. Rite Aid
Corp., No. 07-502, 2008 WL 11336789, at *2 (M.D. Pa.
Jan. 24, 2008) (quoting Barron v. Caterpillar, Inc.,
168 F.R.D. 175, 177 (E.D. Pa. 1996)).
"producing an unprepared witness is tantamount to a
failure to appear that is sanctionable under Rule
37(d)." State Farm Mut. Auto. Ins., 250 F.R.D.
at 217 (quoting Black Horse Lane Assoc, 228 F.3d at
304). Rule 37(d), in turn, empowers the Court to order
offenders of Rule 30(b)(6) to "pay the reasonable
expenses, including attorney's fees, caused by the
failure." Fed.R.Civ.P. 37(d)(3).
Court has reviewed the full transcript of the January 9, 2018
deposition. Dkt. No. 171-1. While Mr. Brace, Defendants'
Rule 30(b)(6) designee, certainly was not the picture of
preparedness, the Court finds that his responses at the
deposition were not tantamount to failing to appear. From the
Court's review of the transcript, Mr. Brace did not
appear to be abrasive, evasive, or purposefully ignorant. He
answered many questions ...