The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:21-cv-00333-MOC-WCM
JON D. BABB, )
GEORGE G. KITCHENS, )
CARL BAILEY, )
PAUL NEELY, )
MICHAEL F CORCORAN, )
THOMAS T. MCCOY TRUST, )
PHIL O. NELSON, ) ORDER
PATRICK G. RENN, )
EUGENE A. RICE, JR., )
GEORGE E. SUMMERS, )
WAYNE C. BECKNER, )
SAMUEL C. BOWYER )
)
)
, and )
MARK E. GRANTHAM, )
)
Plaintiffs, )
)
v. )
)
WADE HAMPTON GOLF CLUB, INC., )
)
Defendant. )
_______________________________ )
This matter is before the Court on a motion to compel filed by Plaintiffs
(the “First Motion to Compel,” Doc. 34) and a second motion to compel also filed
by Plaintiffs (the “Second Motion to Compel,” Doc. 43).
I. Background
The relevant procedural background appears in the undersigned’s Order
addressing Plaintiffs’ Motion to Amend, which Order is being filed
simultaneously herewith.
II. Discussion
The topics covered by the instant Motions were presented briefly during
discovery conferences with the undersigned. The Motions were subsequently
filed after the parties were not able to resolve those issues. Unfortunately, the
briefing of the Motions has not been robust. While brief descriptions of
discovery conflicts are often sufficient for the purposes of informal discovery
conferences, when discovery disputes are the subject of contested motions
practice, more is required. In this context, the Court has closely considered
whether to deny the Motions without prejudice subject to refiling. However, in
an effort to assist the parties in concluding this portion of the litigation, the
Court has addressed the merits of the Motions.
A. The First Motion to Compel
This Motion pertains to Plaintiffs’ objections to Defendant’s responses to
Plaintiffs’ document requests.
An initial challenge is determining the specific documents to which
Plaintiffs intend for this Motion—which is approximately three pages long and
does not include a supporting memorandum—to apply.
Beyond that, Plaintiffs request that the Court compel “the Club’s
document production without any redactions” and “the production of requested
financial documents.” Doc. 34 at 1. Plaintiffs, though, make references to
Defendant’s redactions only in general terms. Id. at 3. Further, Plaintiffs have
attached examples of documents that have been redacted, but do not discuss
them in detail. In addition, Plaintiffs have not provided the Court with a copy
of Defendant's responses to Plaintiffs’ document requests or identified the
specific requests they now ask the Court to enforce.
Defendant’s response focuses on two issues: 1) Defendant’s redaction of
the names of its members and 2) Defendant’s production of redacted financial
records.
On this record, the Court construes the First Motion to Amend as
presenting only these two (2) items.
1. Identity of Members
Plaintiffs state that Defendant responded to Plaintiffs’ document
requests on October 24, 2022, produced documents that contained numerous
redactions on November 3, 2022, and served a supplemental document
production with fewer redactions on April 4, 2023. Plaintiffs take issue with
the redactions, arguing that without the members’ names it is difficult to
analyze information about members’ movements between membership
categories, and that Plaintiffs cannot tell who they might wish to depose.
In response, Defendant states that on May 30, 2023 it “produced to
Plaintiffs a list of all current and former members of the Club, each identified
by a unique Member ID.” Doc. 37 at 2. Defendant also states that it has
“provided Plaintiffs with a copy of the Priority List with Member IDs inserted”
and that between these items, “Plaintiffs can see when a member joined, their
class of membership, and whether they received (or are still owed) a
redemption payment.” Id.
Plaintiffs reply that Defendant’s document production is unworkable—
for example, in some cases a name appears without an accompanying member
number—and requires Plaintiffs to attempt to cross reference member
numbers through 1500 pages of documents. See Doc. 39.
The undersigned is not entirely persuaded by Defendant’s position.
Defendant argues generally that it should not be required to disclose the names
of its members so that the members’ privacy can be protected but it does not
cite to any particular authority that would indicate the members’ names should
be considered confidential.
Also, Defendant has not filed a motion for a protective order, or taken
Plaintiffs up on their offer for the parties to present a joint consent protective
order under which this information may be produced.
In addition, one of the exemplar documents submitted by Plaintiffs, (Doc.
34-1) – consistent with Plaintiffs’ description that in some instances a name
appears in the documents without an accompanying member number –
appears to show a list of initiation fees sorted by date and the initials of the
associated members but does not include the members’ identification numbers.
Therefore, Defendant will not be required to disclose all of its members
but will be directed to produce a list of those members whose membership
interests are relevant to Plaintiffs’ breach of contract claim.
2. Financial Documents
Next, Plaintiffs argue that Defendant should be required to produce its
financial records without redactions.
Defendant responds that those materials, and how Defendant treated its
equity redemption obligations in its records, are irrelevant and, in the
alternative, that requiring Defendant to produce unredacted copies of its
financial records is not proportional to the needs of the case. Doc. 37.
The undersigned agrees that a complete and unredacted set of
Defendant’s financial records would not be proportional to the needs of this
matter. However, records reflecting Defendant’s treatment of its equity
redemption obligations are relevant to Plaintiffs’ existing claim.
B. The Second Motion to Compel
This Motion involves a dispute over testimony and materials associated
with a deposition of Defendant taken by Plaintiffs pursuant to Rule 30(b)(6) of
the Federal Rules of Civil Procedure.
1. Production of Past Versions of the Bylaws
On July 5, 2023, defense counsel filed a notice stating that, upon further
consideration, Defendant had produced, “all past versions of Bylaws,” such
that this issue has been resolved. Doc. 46. Plaintiffs have not challenged this
position, and therefore this portion of the Second Motion to Compel is moot.
2. Testimony as to Which Bylaws Apply to Each Plaintiff’s
Claim
Plaintiffs argue that Defendant, in conformity with Topic 9 in Plaintiffs’
Rule 30(b)(6) Deposition Notice, should be directed to identify the version of
the Bylaws that Defendant believes applies to each Plaintiff’s claims. Doc. 43
at 3.
Defendant responds that Plaintiffs are essentially, and improperly,
asking for Defendant’s work product. Doc. 44 at 3.
Defendant has not sufficiently explained why the information Plaintiffs
seek should be characterized as work product.
However, Plaintiffs’ request suffers from a more practical problem;
Plaintiffs have failed to provide the Court with a sufficient record upon which
it can determine if Defendant’s witnesses were asked to testify about this topic
and, if so, either refused to do so or gave inadequate answers. While Plaintiffs
have submitted various deposition excerpts in support of this Motion, Plaintiffs
do not cite to any of those excerpts in relation to this issue.
3. Production of Two Documents “Used” at the Deposition
Plaintiffs contend that one of Defendant’s 30(b)6) witnesses had two
documents – an alphabetized member list and a document prepared by counsel
that listed materials responsive to the deposition topics. Plaintiffs state that
these documents have not been produced and request that the Court order
their production. Doc. 43 at 3.
Defendant contends that Plaintiffs are not entitled to either document.
Defendant argues that producing the member list, which was a table that
matched a member to his or her unique member number, would reveal the
identity of every single member of the Club. Defendant contends that the
second document was prepared by defense counsel to assist Defendant’s
30(b)(6) designees in responding to the numerous deposition topics. Doc. 44 at
3-4.
When a witness uses a writing to refresh his or her memory
, Rule 612 of the Federal Rules of Evidence gives an adverse party
the opportunity to have the writing produced at the hearing, to inspect it, to
cross-examine the witness about it, and to introduce in evidence any portion
that relates to the witness’s testimony. Fed. R. Evid. 612(a)(1), (b).
These options are also available to an adverse party when a witness uses
a writing to refresh his or her memory , if the court decides
that justice so requires. Fed. R. Evid. 612(a)(2).
The production of documents can also implicate Rule 26(b) of the Federal
Rules of Civil Procedure, which permits “discovery regarding ... nonprivileged
matter that is relevant to any party's claim or defense ....” Johnson v. Baltimore
Police Dep't, No. ELH-19-698, 2021 WL 1985014, at *1 (D. Md. May 18, 2021)
quoting Fed. R. Civ. P. 26(b)(1)).
In this case, the entirety of Plaintiffs’ description of and argument about
this issue consists of five typed lines in their Motion and two typed lines in
their Reply. Plaintiffs cite no authority to support this request.
Further, while Plaintiffs have provided approximately three pages of
excerpts from the deposition testimony of Defendant’s witness John Foster,
Doc. 43-5, these excerpts do not show that Mr. Foster actually reviewed the
subject documents to refresh his recollection, either while testifying or before
testifying. Rather, Mr. Foster stated that he did not review the member list
and had not read the counsel prepared document.
The undersigned expresses no opinion about whether, on a different
record and with more complete argument by the parties, Defendant’s objection
to the production of these items would have been sustained, but Plaintiffs’
current showing does not provide a sufficient basis for the Court to order the
production of these materials.
4. Identification of Persons Defendant Knows Were Aware
that Equity Redemptions Were Not Paid Following
Conversions
Plaintiffs state that Defendant’s witness testified that Defendant did not
know, or could not identify, persons who knew prior to the filing of the
litigation that Defendant was not paying equity redemptions following
conversions. Plaintiffs contend that Defendant’s witness was not prepared to
testify as to this topic and request that the Court preclude Defendant’s
witnesses from testifying on this issue, or alternatively require Defendant to
prepare and produce a witness to answer this question in advance of trial. Doc.
43 at 3.
Defendant’s approximately four line response is essentially that a Rule
30(b)(6) designee must testify about information that is known or reasonably
available to the organization and that Defendant is unaware of any authority
obligating a designee to know things “which are, by definition, unknowable,….”
Doc. 44 at 4.
Defendant is correct, of course, that its witnesses cannot be expected to
testify regarding information that is “unknowable”; at the same time, the
witnesses could have testified, for example, as to whether the organization
advised other persons about equity redemptions.
However, again, the transcripts that have been provided do not indicate
that Plaintiffs attempted to explore that issue and the undersigned is not
persuaded that the deposition should be re-opened for that purpose.
5. Disclosure of Whether Defendant Notified its Members
that Equity Redemptions Were Paid after the Suspension
of Equity Redemptions Was Lifted
Plaintiffs argue that Defendant’s witness was not prepared to testify as
to Topic 12, which referenced “[a]ny communication or other notice to existing
or resigned members of the Club . . . informing the member of . . . the payment
of an equity redemption to a resigned member.” Doc. 43 at 4.
Defendant responds that “Plaintiffs are asking this Court to compel
Defendant to answer a question which Plaintiffs’ counsel never asked” and
contend that Plaintiffs have not met their burden of showing that Defendant’s
designee was unprepared on this topic. Doc. 44 at 4.
Having reviewed the deposition excerpts submitted by Plaintiffs, the
Court agrees with Defendant and will deny the Motion as to this issue.
6. Production of Documents and Information from
Defendant’s Board Members
Plaintiffs argue that Defendant failed to “search Board emails for
responsive documents to Plaintiffs’ discovery requests,” that such materials
were covered by Plaintiffs’ requests, and that documents should be produced
from Defendant’s representatives. See Doc. 43 at 4.
In response, Defendant argues, among other things, that Plaintiffs
improperly seek “to compel the production of documents based upon a notice of
30(b)(6) deposition.” Doc. 44 at 4-5.
This request will be denied. The Court agrees with Defendant that
Plaintiffs appear to be asking the Court to order Defendant to supplement its
responses to document requests that were propounded pursuant to Rule 34.
Plaintiffs have submitted copies of their First Set of Requests for Production
(Doc. 43-3) and First Set of Interrogatories and Second Set of Document
Requests (Doc. 43-4) but have not identified the specific requests they seek to
enforce or provided Defendant’s responses to those requests.
Further, if Plaintiffs wish to have documents produced pursuant to Rule
612 of the Rules of Evidence, they have not made any showing that Defendant’s
witness relied on those documents.
7. Disclosure of Non-Privileged Communications Made
During Executive Sessions
Topic 8 of the 30(b)(6) notice read as follows:
8. All documents and/or communications
establishing or relating to the Club's interpretation
and/or understanding of whether or not the Bylaws
required the payment of an equity redemption to a
resigned member when an existing member of the
Club transferred and/or converted his membership
to the class of Full Regular Member or Provisional
Regular Member.
Defendant’s witness testified as follows:
7 Q. Excluding all of those, is it possible that
8 there were ever executive sessions that discussed the
9 equity redemption issue as it relates to conversions?
10 A. Yes.
11 Q. Okay. You just told me it's possible. Now,
12 can you remember specifically if it ever happened,
13 excluding the Womble firm or Hall Booth Smith firm?
14 A. No.
15 Q. Okay, so at this point, you know it's
16 possible, you just can't remember specifically?
17 A. Correct.
Doc. 43-1 at 4.
Plaintiffs argue that this testimony is not sufficient, and that Defendant
must produce a witness who can testify about whether the issue of conversion-
triggered equity redemptions was discussed during executive sessions.
Defendant responds that its witness testified at first only that it was
“possible” certain communications took place during an executive session, that
Plaintiffs’ counsel failed to nail down whether, in fact, such communications
actually took place, and that Plaintiffs should not get a second bite at this
apple. Defendant also states that Rule 30(b)(6) does not require perfection. Doc.
44 at 5.
This issue does not pertain to communications that may be privileged;
Defendant’s witness recalled responsive communications taking place during
executive sessions where counsel was present, but counsel for both sides agreed
to exclude those from the scope of Plaintiffs’ inquiry. Also, Defendant does not
argue that testimony about communications made during executive sessions
while counsel was not present are beyond the scope of Topic 8.
While the excerpts submitted do not indicate that Plaintiffs’ counsel
asked the witness if a search had been made for these items, inquired about
the witness’ preparation on this topic, or made it clear that the witness was
being asked to testify on behalf of Defendant and not from only his personal
recollection, it is appropriate to give Plaintiffs a limited opportunity to explore
whether such communications—which the witness indicated could exist—were
in fact made.
8. Disclosure of Conversions that Occurred Before 2010 and
on Which Defendant Relies
Plaintiffs argue that Defendant “is relying upon Conversions before 2010
that did not trigger an equity redemption, but the Club could not identify these
Conversions” and that, while Defendant has said this information is included
in its document production, Defendant’s information only covers conversions
occurring on or after November 8, 2010, such that relevant information
concerning these earlier conversions must be provided. Doc. 43 at 5.
Defendant responds that it has provided this information and that
Norris, Defendant’s second 30(b)(6) designee, who has worked for Defendant
nearly since its inception, testified at length about events—including
conversions—prior to 2010. Doc. 44 at 5.
Plaintiffs reply that Defendant “completely ignores page 9 of the Norris
30(b)(6) deposition where she stated she could not remember conversions
between 2005 and 2010 and would need to research them.” Doc. 45 at 3.
The deposition excerpts Plaintiffs have submitted indicate that
Defendant’s witness testified that two conversions occurred in 1997 and two in
1998. Later, though, the witness testified she did not know when the first
conversion occurred and “would have to research to see when the conversions
after '97 and '98 took place,” though she didn’t “believe there was a conversion,
to [her] knowledge before 2005.” Doc. 43-2.
Given these somewhat equivocal answers, Plaintiffs should be given an
opportunity to follow up briefly.
IT IS THEREFORE ORDERED THAT:
A. With respect to the First Motion to Compel (Doc. 34):
1. The Motion is GRANTED IN PART as follows:
a. Defendant is directed to produce a list of those
members whose membership interests are
relevant to Plaintiffs’ breach of contract claim.
The list must show both the member’s name and
his or her membership number.
b. Defendant is directed to produce its financial
records that show how Defendant has treated its
equity redemption obligations.
2. Otherwise, the Motion is DENIED.
B. With respect to the Second Motion to Compel (Doc. 43):
1. The Motion is DENIED AS MOOT as it pertains to the
production of past versions of the Bylaws.
2. The Motion is GRANTED IN PART as follows:
a. Plaintiff is given leave to take additional
deposition testimony from Defendant pursuant
to Rule 30(b)(6), not to exceed one (1) hour (on
the record) regarding the following issues:
i. Any discussion of conversion-triggered
equity redemptions that occurred during
executive sessions outside the presence of
counsel; and
ii. conversions that were made before 2010.
3. Otherwise, the Motion is DENIED.
Signed: August 15, 2023
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W. Carleton Metcalf Pig
United States Magistrate Judge US □
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