United States District Court, E.D. North Carolina, Western Division
CERTAIN INTERESTED UNDERWRITERS SUBSCRIBING TO POLICY NO. B1262PW0017013, Plaintiffs,
AMERICAN REALTY ADVISORS; SVF WESTON LAKESIDE, LLC; and DOES 1-25, Inclusive, Defendants. AMERICAN REALTY ADVISORS .and SVF WESTON LAKESIDE, LLC, Counter Claimants,
CERTAIN UNDERWRITERS AT LLOYD'S OF LONDON, Counter Defendants.
E. GATES, UNITED STATES MAGISTRATE JUDGE.
consolidated cases come before the court on the motion (D.E.
65) by defendants and counter claimants American Realty
Advisors and SVF Weston Lakeside, LLC ("ARA
parties") to compel discovery from plaintiffs Certain
Interested Underwriters Subscribing to Policy No.
B1262PW0017013 ("Underwriters") and for sanctions.
At a telephone conference with the court on 20 September
2017, the parties advised the court that they had resolved
all issues presented by the motion other than the issue of
whether Underwriters should be required to provide a Rule
30(b)(6) i deponent on the underwriting of the excess policy
at issue. The motion is now fully briefed, Underwriters
having filed with leave of court a memorandum in opposition
after the telephone conference. The court has carefully
reviewed the parties' filings, other relevant portions of
the record, and applicable law.
oppose the motion on the principal grounds that the
underwriting of the subject policy is not relevant because
the policy is unambiguous and that including underwriting as
a Rule 30(b)(6) topic would place an undue burden on them.
But the court has not yet made a determination on whether or
not the policy is ambiguous in any material respect. Further,
discovery on the issue of underwriting would help ensure that
the court has a complete record on which to make a
determination on the issue of ambiguity. To require a
determination by the court before the conduct of such
discovery would put the cart before the horse. Indeed,
further discovery on underwriting could conceivably help
establish the absence of any ambiguity as Underwriters
addition, Underwriters acquiesced in examination of
Underwriters' Rule 30(b)(6) designee Nick West on the
underwriting of the subject policy beyond the noticed topic
of the deposition, the choice of law provision. See,
e.g., Notice of Dep. on Choice of Law Issue (D.E. 65-1)
2; Case Manage. Ord. (D.E. 37) § I.D.2. Underwriters
cannot now justly be heard to deny the discoverability of the
underwriting of the subject policy beyond the choice of law
have not convincingly demonstrated that examination of a Rule
30(b)(6) deponent on the underwriting of the subject policy
beyond the choice of law provision would place an undue
burden on them on the grounds that the underwriter on the
policy, Mr. West, is no longer employed by Underwriters. Rule
30(b)(6) provides that the person designated to testify at a
Rule 30(b)(6) deposition "must testify about information
known or reasonably available to the organization."
Fed.R.Civ.P. 30(b)(6). The rule does not require the
organization to testify about information that is not
reasonably available to it. Thus, the rule does not require
Underwriters' designee to testify about information that
it cannot obtain, after a reasonable effort, from Mr. West or
have Underwriters convincingly shown that their designee at
the upcoming Rule 30(b)(6) deposition of them, Louisa
Chisholm, cannot be sufficiently prepared to testify on the
underwriting of the subject policy. It is, of course, not a
valid objection that Ms. Chisholm does not have personal
knowledge of the underwriting of the subject policy because
Rule 30(b)(6) does not require it.
parties' motion to compel is therefore ALLOWED IN PART
and DENIED IN PART on the following terms:
underwriting of the subject policy shall be included as a
topic at the Rule 30(b)(6) deposition of Ms. Chisholm,
provided that such topic shall not include the choice of law
provision, in accordance with § I.D.2 of the Case
Management Order, and matters regarding underwriting about
which Mr. West has already testified at his Rule 30(b)(6)
Pursuant to Rule 3 0(b)(6), Ms. Chisholm shall testify about
information concerning underwriting of the subject policy
known and reasonably available to Underwriters.
Counsel for the ARA parties shall confer in good faith with
counsel for Underwriters no later than 26 September 2017
regarding the specific matters about which the ARA parties
seek information regarding underwriting of the subject policy
at the Rule 30(b)(6) deposition of Ms. Chisholm.
ARA parties have not demonstrated that they are entitled to
Finding that circumstances would make an award of expenses
unjust, the court directs that each party bear its own costs
in connection with the present motion. See Fed. R.
Civ. P. 37(a)(5)(C).
ARA parties shall recover no relief on their motion to compel