Judge: Martha K. Gooding, Case: 2020-01152818, Date: 2022-11-28 Tentative Ruling

Motion to Compel Deposition (Oral or Written)

Plaintiff Orange Unified School District (“Plaintiff”) has moved for an order (1) compelling Defendant MTGL Inc. (“Defendant”) and its Person Most Qualified (“PMQ”) to answer questions at a second deposition; (2) appointing a discovery referee to attend the deposition at Defendant’s expense; and (3) awarding monetary sanctions of $7,800 against Defendant MTGL and its counsel of record, Randall Koenig, of Koenig Law Firm.

As an initial matter, the Court notes that Plaintiff filed an Amended Declaration of Mr. Rossini and Amended Notice of Motion and Motion, which was not served with 16 court days’ notice. On Reply, Plaintiff advises that there were no substantive changes to the Amended Motion and it was provided simply to advise the Court of the parties’ continued meet and confer efforts. Thus, the Court considers the Amended Declaration solely for that purpose and finds the meet and confer requirement met.

The parties disagree on the nature and scope of an entity’s obligation to designate and prepare a PMQ for deposition. There appears to be no California decision that addresses the scope of that duty. 

Certain obligations, however, are clear and must be satisfied.  The Court finds that Defendant did not meet its obligations, as set forth below.

The Court therefore GRANTS the Motion to compel a further deposition of Defendant’s PMQ and orders Defendant to fully comply with the requirements of a PMQ deposition, as set forth below.  If a single person cannot serve as the PMQ on all of the noticed topics, Defendant must designate as many PMQs as necessary to ensure that it has provided the best information available to it on each of the designated topics.

Legal Standard

With respect to PMQ depositions, Code of Civil Procedure (“CCP”) section 2025.230 provides that, if a deposition notice describes matters on which examination is requested, “the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.” (Emphasis added).

When a deponent refuses to answer a deposition question or fails to produce information within his/her control as requested in a deposition notice or subpoena, the deposing party has two possible courses of action: (1) adjourn the deposition and seek an order compelling the deponent to answer or produce, or (2) continue to examine the deponent regarding other matters and subsequently move for an order compelling answers or production. (Civ. Proc. Code, section 2025.480, subd. (c).)

Merits

First, Defendant asserts, without evidentiary support, that all employees with direct knowledge of the events surrounding this case are no longer employed with Defendant.  An entity has no obligation to produce a PMQ for deposition who is no longer employed; the requesting party can subpoena that person to a deposition. (Maldonado v. Superior Court (2002) 94 Cal. App. 4th 1390, 1395-1396.)

But Defendant provides no evidentiary support – no sworn declaration – in support of its assertion that there is literally no one still employed at the company who has any knowledge of the contracts at issue and/or the performance of the construction project.  Moreover, this assertion appears to have been contradicted by the sworn testimony of the designated PMQ, Michelle Elliott (MTGL’s CEO and president) in her deposition.

For example, Ms. Elliot identified other employees at Defendant whomcould answer questions as to some of the categories identified in the Notice:

Q.   Do you know if there's anyone at MTGL who knows why percolation testing is performed?

A.    My team of engineers.

...

Q.   Is there anyone at MTGL who knows the purpose of that type of a test?

A.    My laboratory technicians and my engineering team.

Thus, Defendant’s argument in its papers that there are no other additional PMQs is unavailing.

Second, Defendant contends Ms. Elliot satisfied her obligations to both prepare for the PMQ deposition and to determine whether any responsive documents exist that have not previously been produced to Plaintiff.

The Court disagrees.

An organization must designate and produce witnesses with knowledge of information that is “reasonably available” to it or prepare its designated “person most qualified” witness to respond fully with such information in mind. (Code of Civil Procedure section 2025.230.)

At least one Court of Appeal has held that, when a deponent organization has had a large turnover in employees, the trial court erred by denying a motion to compel and that the trial court “should have . . . ordered [the deponent] to bring their witnesses back to the deposition . . . with proof that the witnesses had undertaken some effort to familiarize themselves with the areas of their supposed knowledge.” (Maldonado, supra, 94 Cal.App.4th at p. 1397.)

Further, a PMQ deponent must comply with document requests. (Code Civ. Proc., section 2025.450 (a), (h).)  When a request for documents is made, the witness or someone in authority is expected to make an inquiry of everyone who might have responsive documents or everyone likely to know where such responsive documents might be located.  

Here, Ms. Elliot stated several times in her deposition that she made no inquires to anyone at Defendant for purposes of preparing for her PMQ deposition.  For examples, see Elliott Depo, pp. 19:15 - 20:4, 53:22-54:6; 54:23 - 54:20; and 59:14-60:7 (emphases added):

Q.   Okay. Now, other than the meetings and discussion with your attorney, did you do anything to prepare for the deposition today.

A.   No, I did not.

…

Q. Did you make an inquiry with anyone at MTGL regarding the work MTGL performed at the project?

A. No, I did not.

…

Q. Did you speak to anyone at MTGL to determine if anyone at MTGL had knowledge relevant to area number 4?

…

A. I have not spoken to anyone at MTGL about this.

Q. Other than your attorney, did you make any inquiries to anyone regarding whether MTGL 14 performed its work on this project properly?

A. I made no inquiries.

This is plainly insufficient.  Witnesses are expected to make efforts to familiarize themselves with the areas of their supposed knowledge. (Maldonado, supra.)  Ms. Elliott failed to make any inquiry whatsoever as to any of the designated subject matters of inquiry, and she therefore was unprepared to testify regarding any institutional knowledge of MTGL of the designated subject matters.  In other words, MTGL made no attempt to produce one or more witnesses with knowledge of information “reasonably available” to MTGL. 

It also appears that Ms. Elliott did not take reasonable steps to search for, identify and locate responsive documents.

The Court concludes that Ms. Elliott should appear again for deposition after she has undertaken efforts to familiarize herself with the requested subject matters and has conducted a search for responsive documents – or that Defendant should designate some other PMQ(s) for a second PMQ deposition who have undertaken such efforts as to each category identified in the Notice of Deposition and as to the documents requested.

In addition, Plaintiff identifies in its Separate Statement a number of questions that it believes were not properly responded to in Ms. Elliott’s deposition and that it wants answered in the second PMQ deposition(s).  The problem is not that Defendant’s counsel instructed Ms. Elliott not to answer the questions; the problem was that she was unable to answer them, at least in part because she was not properly prepared as the designated PMQ and had not conducted a search for responsive documents.   It is appropriate for Plaintiff to pursue the same questions in the second PMQ deposition(s), when it is able to pose questions to one or more properly prepared, designated PMQ.

Finally, the Court does not find that a discovery referee is warranted. 

However, the Court admonishes defense counsel to refrain from answering for – or coaching – the witness(es); to let the witness(es) answer the questions posed (rather than counsel answering for the witness), unless there is a legitimate reason to instruct the witness not to answer; and to avoid making speaking objections.  Defense counsel’s conduct in the deposition of Ms. Elliott was inappropriate and should not be repeated.

Therefore, the Court orders Defendant to produce one or more properly prepared PMQ(s) for deposition at mutually agreeable dates, places, and times on or before January 15, 2023 to testify to the categories identified in the Notice of Deposition and to produce documents identified in the Notice of Deposition.  Among other things, the designated PMQ deponent(s) shall be prepared to discuss the specific efforts he/she/they undertook to search for all responsive documents.

Sanctions

Based on the facts here, the Court finds that sanctions are appropriate.  The conduct of Defendant and its counsel was not substantially justified, and there are no facts presented to the Court that would make imposition of a sanction against them unjust.  

That said, the Court finds the amount sought by Plaintiff to be excessive and unreasonable.  The Court orders MTGL and its counsel, Randall Koenig, to pay $5,000 in sanctions to Plaintiff within 30 days of the date of this order. 

Plaintiff is ordered to give notice.