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Ellis v. Corizon, Inc.

United States District Court, D. Idaho

April 18, 2018

CORIZON, INC., et al, Defendant.


          B. Lynn Winmill Chief U.S. District Court Judge


         Pending before the Court are briefs by the Plaintiff (Dkt. 76) and the Corizon Defendants (Dkt. 75) regarding a dispute over the scope of Plaintiff's Rule 30(b)(6) deposition of Corizon, Inc.[1] Corizon seeks a protective order prohibiting, or at least limiting the scope of the deposition and the production of certain documents. For the reasons described below, the Court will deny Corizon's motion.


         Plaintiff Kent Ellis is a prisoner in the custody of the Idaho Department of Corrections (“IDOC”). IDOC has contracted with Corizon, LLC to provide medical care to its inmates. First. Am. Compl. ¶ 57, Dkt. 54. Plaintiff alleges that he suffered an injury to his right hip and back in 2006 while incarcerated in Texas. Id. ¶ 16. When he returned to Idaho, Plaintiff informed Corizon personnel of his injury, and continued to complain of pain in his right hip and back. Id. ¶ 17-18. Specifically, Plaintiff alleges that he was seen by Corizon personnel for his hip and back pain in the late summer and fall of 2008, and again in August of 2009. Id. ¶ 21-25. He further alleges that he underwent a health screening in September 2010, which touched upon his chronic back pain. Id. ¶ 29. Plaintiff alleges that he was treated for his hip and back pain again starting in May 2013, and underwent a diagnostic MRI in September 2014. Id. ¶ 38, 43. Plaintiff alleges that two previous requests for an MRI were denied by Corizon or its health care providers in 2014. Id. ¶ 41-42.

         Plaintiff alleges that Corizon has a “culture, policies, procedures, and processes that promote deliberate indifference to offenders' serious medical needs, ” in violation of the Eighth Amendment. Id. ¶ 63. Plaintiff further alleges that Defendants in this case “made medical decisions based upon non-medical factors.” Id. ¶ 65. In support of this allegation, Plaintiff alleges facts suggesting individuals employed by Corizon were discouraged, or even prohibited, from ordering diagnostic testing for prisoners. Id. ¶ 6, 8. Plaintiff alleges that this policy was motivated by financial incentives. Id. ¶ 8.

         Plaintiff noticed the deposition of Corizon pursuant to Rule 30(b)(6), Rule 34, and rule 30(b)(2). Corizon objected to the notice on several grounds. After satisfying the meet and confer requirements of L.R. 7.1 and the Amended CMO (Dkt. 62), the Court's clerk held a mediation session with counsel for the Plaintiff and Corizon. The parties resolved several of Corizon's objections to the notice, but Corizon maintained objections on two of the topics designated by Plaintiff.[2]

         First, Plaintiff designated as a topic of inquiry and requested documents related to Corizon's policies and procedures for diagnostic testing, referrals to outside providers, receiving medical records from outside providers, review of medical records, and any medical record retention policy during the period 2008-2015. Corizon does not object to this topic as to the time period from 2013-2015, but argues that the time period from 2008-2012 is irrelevant to Plaintiff's claim. Second, Plaintiff designated as a topic of inquiry financial information related to Corizon's compensation for providing care for IDOC prisoners, and requested the production of Corizon's contracts with IDOC. Corizon objects to this topic and request for documents in its entirety.[3]


         Federal Rule of Civil Procedure 26(b), as amended effective December 1, 2015, provides that:

[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

         Relevant information includes “any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fun Inc. v. Sanders, 437 U.S. 340, 351 (1978). While the moving party must make a threshold showing of relevance, see, e.g., id. at 352, the party resisting discovery carries the “heavy burden” of showing specifically why the discovery request is irrelevant, unduly burdensome, disproportional to the needs of the case, or otherwise improper. See Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975).

         Pursuant to Rule 30, a party may depose any person, including but not limited to a party, and that person's attendance may be compelled by subpoena. Fed.R.Civ.P. 30(a)(1). A party seeking to depose a person must give reasonable notice to every other party, and the notice must include any materials designated for production. Id. at 30(b)(2). Where a party seeks to depose a corporation or other entity, it may do so by notice or subpoena, and “must describe with reasonable particularity the matters for examination.” Id. at 30(b)(6). The named entity must then designate a representative or representatives, and the person or persons designated “must testify about information known or reasonably known to the organization.” Id.

         “The testimony of a Rule 30(b)(6) designee ‘represents the knowledge of the corporation, not of the individual deponents.'” Great American Ins. Co. of New York v. Vegas Const. Co., Inc., 251 F.R.D. 534, 538 (D. Nev. 2008) (quoting United States v. Taylor, 166 F.R.D. 356, 361 (M.D. N.C. 1996)). A 30(b)(6) designee testifies “on matters not only within his or her personal knowledge, but also on matters reasonably known by the responding entity.” Alliance v. District of Columbia, 437 F.Supp.2d 32, 37 (D.D.C. 2006). Thus, a corporation has “a duty to make a conscientious, good-faith effort to designate knowledgeable persons for Rule 30(b)(6) depositions and to prepare them to fully and unevasively answer questions about the designated subject matter.” Starlight International, Inc. v. Herlihy, 186 F.R.D. 626, 639 (D. Kan. 1999).

         The memory of a corporation extends beyond that of its present employees. Taylor, 166 F.R.D. at 361. Thus, “it is not uncommon to have a situation . . . where a corporation indicates that it no longer employs individuals who have memory of a distant event.” Id. This does not relieve the corporation of its obligation to prepare its designee to the extent reasonably possible. Id. See also Great American, 251 F.R.D. at 539 (“The fact that an organization no longer has a person with knowledge on the designated topics does not relieve the organization of the duty to prepare a Rule 30(b)(6) designee.”). Such preparation may include reviewing documents, speaking with past employees, reviewing prior fact witness deposition testimony, and reviewing deposition exhibits. Taylor, 166 F.R.D. at 361.

         Although a corporation, through its designee, may plead lack of institutional memory or knowledge as to a specific topic or topics, it may do so only after it reviews “all matters known or reasonably available to it” prior to the deposition. Taylor, 166 F.R.D. at 362. The corporation may not later argue “a contrary position at trial without introducing evidence explaining the reasons for the change.” Id.

         Preparing for a Rule 30(b)(6) deposition may be burdensome but “this is merely the result of the concomitant obligation from the privilege of being able to use the corporate form in order to conduct business.” Id. The mere fact that such preparation creates a burden on the responding entity does not render the request for a 30(b)(6) deposition disproportionate to the needs of the case. “[T]he burden upon the responding party, to prepare a knowledgeable Rule 30(b)(6) witness, may be an onerous one, but we are not aware of any less onerous means of assuring that the position of a corporation, that is involved in litigation, can be fully and fairly explored.” Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 639 (D. Minn. 2000).


         1. 30(b)(6) Deposition

         Corizon objects to Plaintiff's Notice on the grounds that a 30(b)(6) deposition is not proper. Corizon alleges that Plaintiff has failed to state a claim against the Corizon Defendants, that any care provided by the Corizon Defendants was proper, that Plaintiff failed to allege any improper care during the period 2008-2012, and that inquiry into Corizon's policies and procedures from before 2013 is barred by the statute of limitations. These arguments present legal ...

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