Heartland Surgical Specialty Hospital, LLC v. Midwest Division, Inc

1. Heartland Surgical Specialty Hospital, LLC v. Midwest Division, Inc 2007 WL 1054279 (D. Kan. Apr. 9, 2007)

2. The Parties • Plaintiff: Heartland Surgical Specialty Hospital, LLC (“Heartland”) • Defendant: Midwest Division, Inc. • Joint motion to Compel Heartland to Produce a Rule 30(b)(6) Witness with Knowledge of Its Production of Documents and Data.

3. Facts • Defendants’ Rule 30(b)(6) deposition notice to Heartland identified 55 separate topics for the deposition. • Court split the notice deposition topics into two Rule 30(b)(6) depositions. • Allowed 11 hours over 2 days for topics 1 through 17 and 24 hours over 4 days for topics 18 through 55.

4. Facts • Motion to Compel concerns whether Heartland has complied with the requirements of Rule 30(b)(6) with respect to its designated representative’s responses to deposition questions on topics 8, 9, 10, 16 and 17

5. Facts • Topic 8 • The document retention policies applicable to any Financial Records, Patient Records, Financial Reports, or Plans and Forecasts. • Topic 9 • The destruction, alteration, or loss of any Financial Records, Patient Records, Financial Reports, or Plans and Forecasts. • Topic 10 • The capabilities of Heartland’s AdvantX, Great Plains and Softmed software, the data stored or used with that software and the reports that can be generated with that software.

6. Facts • Topic 16 • The capabilities of the computer systems and software that Heartland uses or has used to create, transmit, or store emails and other electronic documents, and the extent to which Heartland can identify and produce information responsive to discovery requests in this Lawsuit that are stored in those systems. • Topic 17 • Heartland’s search for, identification of and production of documents and information responsive to discovery requests in this lawsuit.

7. Rule 30(b)(6). Notice or Subpoena Directed to a Corporation • In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. • The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.

8. Rule 30(b)(6). Notice or Subpoena Directed to a Corporation • A subpoena must advise a nonparty organization of its duty to make this designation. • The persons designated must testify about information known or reasonably available to the organization.

9. Rule 30(b)(6) Deposition General Guidelines Set Forth In Starlight v. Herlihy • Corporation must designate and adequately prepare witnesses to address these matters set out in the deposition notice or subpoena. • Party need only designate, with reasonable particularity, the topics for examination. • Corporation must not only produce such person to satisfy the request, but prepare them so they may give complete, knowledgeable and binding answers.

10. Initial Question • Whether Defendants’ notice described with “reasonable particularity” the matters on which examination was requested.

11. Reasonable Particularity • Deposition topics are overbroad when the notice lists topics, but then indicates that the listed topics are not exclusive. • A notice is not overbroad when its plain language identifies the subject matter of the testimony sought.

12. Courts Finding • Deposition topics were exclusive and not overbroad since the Court limited the parties to the noticed topics 1 though 17. • Defendants’ notice as to topics 1 through 17 described matters with reasonable particularity and satisfied. • Topics 8 and 9 identify what is sought and while the phrase “including, but not limited to,” is used, there is an extensive example list of what is sought. • Topic 10 very specifically lists the information sought.

13. 6 Questions That Were Not Answered by Designee • 1. What computer servers does Heartland use and what data are stored in them? • 2. What computers, disk drives and databases were searched for responsive documents? • 3. What are Heartland’s document retention policies with respect to email and what was done to prevent deletion or destruction of of responsive email?

14. 6 Questions That Were Not Answered by Designee • 4. Who is Heartland’s e-discovery vendor, what was the vendor instructed to do and what did it do? • 5. What was done to eliminate non-responsive documents from Heartland’s production? • 6. What are the reporting capabilities of Heartland’s software and can Heartland export its databases to a file for production to defendants?

15. Designee’s Responses to Questions • Unable to identify some of the servers and did not know the storage or retention policies for some identified servers. • Did not know what network drivers were searched for responsive discovery documents, whether individual user drivers and hard drives of former employees, physician owner’s email, voicemail servers or whether the hard drives of individual computers were searched for responsive discovery documents.

16. Designee’s Responses to Questions • Did not know exactly how the e-discovery vendor searched the Heartland servers or what was on the CD database that was produced to Defendants. • Did not know whether Heartland’s counsel did anything to determine if the produced documents were responsive to discovery requests. • Did not know whether the computer systems could export data for varying means of production.

17. These responses showed that the designee was unprepared to answer questions on topics 10, 16 and 17.

18. Designee’s Response to Question 3 Addressing Document Retention • Defendants have failed to show that the designee was either unprepared or did not have the requisite knowledge to adequately answer the question raised by Topics 8 and 9. • Evidence offered by Defendants showed only that Heartland policies had been provided to Defendants, that they do not routinely delete email and that the designee did not have knowledge of whether a specific policy was regulated or enforced.

19. Courts Holding • Heartland failed to produce a knowledgeable representative with respect to topics 10, 16 and 17. • Numerous responses by the designee that another person would be able to answer is clear evidence that Plaintiff had other persons who could have been used as additional Rule 30(b)(6) witnesses.

20. Relief Available • If it becomes obvious during the course of a deposition that the designee is deficient, the organization is obligated to provide a substitute.

21. Relief Sought • Plaintiff argues that Defendants will have the opportunity to take fact witness depositions of other employees, including those referred to by the designee. • However, this is not the same as a Rule 30(b)(6) deposition which presents the testimony of the corporation rather than just personal knowledge of a witness.

22. Relief Granted • Additional Rule 30(b)(6) deposition on topics 10, 16 and 17. • Defendants are limited to questions 1, 2, 4, 5 and 6 and any follow-up questions that flow naturally and directly from the questions. • Deposition limited to 6 hours.

23. Questions • Should the scope of examination be limited to the subjects outlined in a Rule 30(b)(6) notice? • Is the relief available sufficient to prevent companies from producing witness with limited knowledge?