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Applied Underwriters, Inc. v. Top's Personnel, Inc.

United States District Court, D. Nebraska

July 24, 2018

APPLIED UNDERWRITERS, INC., a Nebraska Corporation; Plaintiff,
v.
TOP'S PERSONNEL, INC., A New Jersey Corporation; Defendant.

          MEMORANDUM AND ORDER

          CHERYL R. ZWART UNITED STATES MAGISTRATE JUDGE

         This matter is currently before the court on Plaintiff Applied Underwriter's, Inc.'s motion to compel. (Filing No. 197).

         On January 16, 2018, Defendant Top's Personnel, Inc. (“Top's”) filed a motion for leave to 1) amend its answer to assert class action counterclaims; and 2) reopen discovery limited to class certification. (Filing No. 116). Applied Underwriter's (“Applied”) opposed the motion. (Filing No. 121). A hearing was held on January 26, 2018, and the court granted Top's' motion to amend and gave Top's leave to file an amended answer asserting the class claims. (Filing Nos. 124 & 127). In its ruling on the motion to amend, the court reopened discovery specifically related to the class certification, to commence when Top's' amended answer was filed of record. (Filing No. 127).

         After class certification discovery commenced, Applied served a Rule 30(b)(6) Notice of Deposition on Top's and subpoenaed documents and testimony from Top's' worker's compensation broker, Global Indemnity Insurance Agency, Inc. (“Global”). Top's and Global contested the relevancy of some of the deposition topics and document production requests. The court held a discovery dispute conference with the parties (Filing No. 192), after which the discovery issues remained unresolved.

         Applied then filed the instant motion to compel, (Filing No. 197), and the court stayed Applied's response to the class certification motion pending resolution of these discovery issues, (Filing No. 196). For the following reasons, the motion will be granted in part and denied in part, as follows.

         ANALYSIS

         Applied's motion to compel requests the following relief:

Defendant/Counterclaim Plaintiff Top's Personnel, Inc. (“Top's”) shall produce a witness to provide deposition testimony on all topics listed in the Notice of Rule 30(b)(6) Deposition of Top's dated March 21, 2018 (the “Notice”), including but not limited to topics Nos. 4-7 listed in the Notice that Top's has objected to as irrelevant and for which Top's refuses to produce a testifying witness;
Nonparty Global Indemnity Insurance Agency, Inc. “(Global, ” which is the workers' compensation insurance broker for Top's), shall produce a witness to provide deposition testimony on all topics listed in the Subpoena to testify at a deposition in a civil action and to produce documents, dated March 20, 2018, that was served on Global (the “Subpoena”), including but not limited to topics listed in the Subpoena as Nos. 3-4 that Global and Top's object to as irrelevant and for which Global refuses to produce a testifying witness; and
Global shall produce all documents sought by the Subpoena, including but not limited to the documents sought in Request Nos. 3-4 listed in the Subpoena that Global objects to producing and has not produced.

(Filing No. 197 at CM/ECF p. 1-2).

         I. 30(b)(6) Deposition Notice Directed at Defendant Top's Personnel.

         As indicated above, Top's has not produced a deponent in response to Applied's March 2018 Notice of Rule 30(b)(6) Deposition. Specifically, Top's contests the relevancy of four requested deposition topics:

4. The Company's [Top's'] history, process, procedure, and practice of considering and selecting workers' compensation insurance coverage before, during, ...

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