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Graham v. Dhar

United States District Court, S.D. West Virginia, Bluefield

December 19, 2019

JANET GRAHAM, Administratrix of The Estate of Edna Marie McNeely, Plaintiff,
v.
SUNIL KUMAR DHAR, M.D., BLUEFIELD CLINIC COMPANY, LLC, d/b/a BLUEFIELD CARDIOLOGY, and, BLUEFIELD HOSPITAL COMPANY, LLC, d/b/a BLUEFIELD REGIONAL MEDICAL CENTER, Defendants.

          MEMORANDUM OPINION AND ORDER

          DAVID A. FABER, SENIOR UNITED STATES DISTRICT JUDGE

         Pending before the court is plaintiff's Motion for Sanctions and Entry of Default Judgment against defendant Bluefield Hospital Company, LLC, d/b/a Bluefield Regional Medical Center (“BRMC”). ECF No. 76. For the reasons that follow, plaintiff's motion for sanctions and default judgment is DENIED.

         I. Factual and Procedural Background

         There are two primary grounds upon which plaintiff files her Motion for Sanctions and Entry of Default Judgment, alleging that BRMC violated Federal Rule of Civil Procedure 37(d)(1)(A)(i) in both respects: that BRMC failed to produce witnesses to answer Topics 11 and 12 of the 30(b)(6) Deposition Duces Tecum; and that BRMC produced unprepared witnesses for the 30(b)(6) deposition. BRMC counters that it properly objected to Topics 11 and 12; and that its witnesses were prepared, plus plaintiff failed to meet and confer before filing her motion for sanctions thereby not complying with Fed.R.Civ.P. 37(d)(1)(B) and L.R. Civ. P. 37.1(b).

         A. Failure to Produce Witnesses as to Topics 11 and 12

         On June 6, 2019, plaintiff filed her Notice of Rule 30(b)(6) Deposition Duces Tecum of defendant BRMC. See ECF No. 62. In her Notice, plaintiff outlined 12 topics and requested that a representative or representatives be designated to testify regarding the topics. On August 9, 2019, BRMC filed its Objection and Partial Designation to plaintiff's Notice of Rule 30(b)(6) Deposition Duces Tecum. See ECF No. 72. BRMC objected to Topics 11 and 12 of the Notice, and partially designated corporate representatives Rovanda Wills, David Rumley, and Stephen Ward, M.D., to discuss Topics 1 - 10. Plaintiff filed no response to BRMC's objection, and no communications were had between the parties regarding any issues related to the filed objection.[1]

         On September 5, 2019, BRMC's counsel Megan Bosak confirmed that all corporate representatives were available for September 27, 2019. See ECF No. 76, Exh. 8. At the start of the deposition of BRMC's corporate representatives on September 27, 2019, plaintiff's counsel Andrew Byrd inquired as to whether BRMC was refusing to produce any witnesses for Topics 11 and 12. Attorney Bosak confirmed on the record that BRMC had filed objections to plaintiff's Rule 30(b)(6) Notice and was not producing any witnesses for Topics 11 and 12 in light of its filed objections. See ECF No. 76, Exh. 9.

         B. Producing Unprepared Witnesses for 30(b)(6) Deposition

         Plaintiff alleges that BRMC produced unprepared 30(b)(6) witnesses. Specifically, plaintiff claims that Dr. Ward was unprepared to testify as to Topics 5, 6, 8, and 10, and that Mr. Rumley was unprepared to testify as to Topic 9. Plaintiff argues that Dr. Ward was unprepared as to Topics 5 and 6 because he had not calculated the exact number of cardiac catheterization procedures performed by defendant Sunil Dhar, M.D., and that Dr. Ward testified that another individual at BRMC was more qualified than him to testify as to Topic 8. As to Topic 10, plaintiff argues that Dr. Ward was unprepared because he had no knowledge of the communications Topic 10 was seeking information on. Plaintiff further argued that Mr. Rumley was unprepared as to Topic 9 because he neither reviewed nor brought any documents to facilitate his knowledge of the topic, and he would not have access to those documents or the conversations surrounding those documents. See ECF No. 76.

         BRMC responds that, as to Topics 5 and 6, Dr. Ward expressly testified he had prepared for the deposition by meeting with Attorney Bosak and reviewing Dr. Dhar's case logs, and that as to Topic 8, Dr. Ward was able to testify as to the non-existence of the documents sought. As to Topic 10, BRMC argues that Dr. Ward could testify to the information sought based upon the medical records provided, even if he did not have personal knowledge, and, moreover, that BRMC had already provided all documents related to the Topic 10 area of inquiry. BRMC also responds that as to Topic 9, Mr. Rumley expressly testified that he was the person at BRMC with the most knowledge on the topic, and that any gap in Mr. Rumley's knowledge asserted by plaintiff is due to plaintiff's Attorney Byrd asking questions to Mr. Rumley outside the scope of Topic 9's inquiry. See ECF No. 80.

         II. Analysis

         It is best to begin by stating the relevant federal and local rules of civil procedure at issue here. Fed.R.Civ.P. 37(d)(1)-(2) is as follows:

(1) In General.
(A) Motion; Grounds for Sanctions. The court where the action is pending may, on ...

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