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Harris v. State

August 21, 2007


The opinion of the court was delivered by: Joel Schneider United States Magistrate Judge

[Doc. No. 153]


This matter is before the Court on Plaintiff's "Motion for Sanctions" [Doc. No. 153] directed to defendants. In ruling on Plaintiff's Motion the Court has received and considered defendants' opposition [Doc. No. 155] and numerous discovery briefs the parties previously served in the case. Plaintiff's Motion not only asks for sanctions related to defendants' discovery responses, but it also asks the Court to Order additional discovery. For the reasons to be discussed plaintiff's Motion is GRANTED in part and DENIED in part. The Court exercised its discretion to decide plaintiff's Motion without oral argument. See Fed. R. Civ. P. 78 and L. Civ. R. 78.1.


Plaintiff filed his original complaint in this matter on May 1, 2003 [Doc. No. 1]. Plaintiff is employed as a New Jersey State Trooper and alleges that as early as December 2000, he complained about the promotional system in the New Jersey State Police ("NJSP"). Plaintiff alleges the process was discriminatory and permitted arbitrariness and favoritism. See id. at ¶19. Plaintiff also alleges that defendants attempted to intimidate and deter his testimony that could help another trooper who filed a lawsuit against the State Police. See id. at ¶¶21-23. In addition, plaintiff complains that he was retaliated against because of his complaints about witness intimidation. See id. at ¶29.

Throughout the history of this litigation, this Court, and the predecessor Magistrate Judge assigned the case, addressed the parties' numerous discovery disputes. One common theme running through plaintiff's written and oral arguments is that defendants did not produce all requested and relevant documents. Defendants counter that they produced all relevant discovery and that plaintiff's complaints are meritless. After this Court met with the parties on January 22, 2007 and addressed their outstanding discovery issues, it set a fact discovery deadline of February 28, 2007. See Amended Scheduling Order, Doc. No. 108 at ¶3. The Court also set a March 15, 2007 deadline for the parties to file dispositive motions. See id. at ¶5.

After the fact discovery deadline expired, defendants filed their Motion for Summary Judgment [Doc. No. 112] on March 15, 2007. Unfortunately, however, defendants' Motion gave rise to another round of discovery disputes which continue to the present. These disputes arose from the fact that defendants produced new relevant documents after the close of the fact discovery deadline, and relied in their Motion for Summary Judgment upon one new document that was not previously produced.*fn1 Despite defendants' arguments, there is no legitimate excuse for why the new documents were not produced earlier in the case. There also is no question that the late production raised a legitimate issue regarding whether the defendants performed a thorough search for documents and information responsive to plaintiff's discovery requests. On April 2, 2007, plaintiff filed his "Motion for Sanctions and Fees" related to the new documents [Doc. No. 127]. After the Court received defendants' opposition it heard oral argument on April 24, 2007. In order to address the inherent unfairness caused by defendants' late production of relevant documents, the Court granted in part and denied in part plaintiff's Motion [Doc. No. 134]. Although this Court denied plaintiff's request to bar defendants "from using any of the performance related [documents] ... recently supplied," the Court permitted plaintiff to depose defendants' Fed. R. Civ. 30(b)(6) witness to testify about, "who prepared the documents bates-stamped DEF 6685-6701, when the documents were prepared, why the documents were prepared, how, when and why the documents were used with regard to plaintiff, and the source of the information contained in the documents." See Doc. No. 134.*fn2 The Court made it perfectly clear at oral argument and in its April 26, 2007 Order that while it would address the prejudice caused by defendants' late document production, it would not permit plaintiff to use the production as an excuse to take discovery that should have been completed before the expiration of the fact discovery deadline. The Court could not have made it clearer that the defendants' Rule 30(b)(6) deposition was only intended to address new issues that arose from the late document production.

This Court Ordered defendants to produce a Rule 30 (b)(6) witness with the expectation that plaintiff would finally receive the assurances he needed that all relevant documents were produced. Subsequent to the issuance of the April 26 Order defendants produced notes authored by Lt. David B. Jillson that gave a diary account of his contacts and impressions of plaintiff from July 13, 2003 through January 1, 2007. Yet again, defendants produced relevant documents late and did not give an adequate explanation for why clearly relevant documents were not timely produced.

Defendants produced two Rule 30(b)(6) witnesses in response to this Court's Order. Defendants produced Detective Sgt. Christopher Nunziato to testify about document numbers DEF6686- 6701. Defendants also produced Lt. David B. Jillson to testify about document DEF6685. Plaintiff's current Motion complains that the witnesses were unprepared and that defense counsel improperly limited the scope of plaintiff's questioning.


Prior to addressing plaintiff's arguments it is important to appreciate the obligations imposed upon defendants pursuant to Fed. R. Civ. P. 30(b)(6). Pursuant to this Rule, a party may take a deposition of an individual who is designated to testify on behalf of a company, corporation or government agency. The testimony of a Rule 30(b)(6) witness is binding on the entity and goes beyond the individual's personal knowledge. A corporation has an affirmative duty to produce a representative who can answer questions that are within the scope of the matters described in the notice.*fn3 In Bracco Diagnostics Inc. v. Amersham Health Inc., C.A. No. 03-6025 (SRC), 2005 U.S. Dist. LEXIS 26854, at *3 (D.N.J. 2005)(citations omitted), the Court succinctly summarized the benefits of a Rule 30(b)(6) deposition:

A 30(b)(6) deposition more efficiently produces the most appropriate party for questioning, curbs the elusive behavior of corporate agents who, one after another, know nothing about facts clearly available within the organization and suggest someone else has the requested knowledge, and reduces the number of depositions for which an organization's counsel must prepare agents and employees.

Further, the Court stated "[t]his effect is achieved through the cessation of finger-pointing and endless buck-passing; a 30(b)(6) deponent is required to know the answers, and the bucks stops with him/her." Id. at *3-4. See also Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d, §2103 at pp. 30-31 (2d Ed. 1994)(the parties seeking discovery may name the corporation as a deponent and "it is then the duty of the corporation to name one or more persons who consent to testify on its behalf and these persons must testify as to matters known or reasonably available to the corporation"; Reichold, Inc. v. United States Metal Refining Company, et al., C.A. No. 03-453 (DRD), 2007 U.S. Dist. LEXIS 34284, at *3 (D.N.J. 2007)(Rule 30(b)(6) does not require that the corporate designee personally conduct interviews, but requires that he "testify as to matters known or reasonably available to the organization"). Rule 30(b)(6) places the burden upon the deponent to "make a conscientious good-faith endeavor to designate the persons having knowledge of the matters sought ... and to prepare those persons in order that they can answer fully, completely, unevasively, the questions posed ... as to the relevant subject matters." Mitsui & Co. (U.S.A.), Inc. v. Puerto Rico Water Resources Authority, 93. F.R.D. 62, 67 (D.P.R. 1981); see also Protection Nat. Ins. Co. of Omaha v. Commonwealth Ins. Co., 137 F.R.D. 267, 270 (D.C. Neb. 1989). The duty of preparation goes beyond matters personally known to the designee or to matters in which the designee was personally involved, and if necessary the deponent must use documents, past employees or other resources to obtain responsive information. United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996). See also Bank of N.Y. v. Meridien BIAO Bank Taz. Ltd., 171 F.R.D. 135, 151 (S.D.N.Y. 1997).

With this background the Court will address the arguments in Plaintiff's Motion. Plaintiff's Motion complains that defendants' Rule 30(b)(6) deponents were unprepared and unresponsive. The Court has read the defendants' ...

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