Did the trial court act appropriately by ordering a Rule 30(b) representative to sit for a second deposition and by requiring that representative to come from Las Vegas, Nevada to Wheeling, West Virginia?
In this case, Respondent, Melissa Thompson, sues Petitioner, Credit Control, for consumer law violations involving Petitioner’s debt collection activities.
In 2013, Respondent experienced financial hardship and fell behind in making her credit card payments. Respondent began receiving telephone calls from Petitioner, a debt collector. Even after being notified that Respondent was represented by an attorney, Petitioner continued to make telephone calls and to send dunning letters directly to Respondent. In July, 2014, Respondent sued Petitioner alleging both statutory and common law claims.
The parties exchanged discovery. Respondent’s discovery asked if Petitioner was asserting any of the statutory defenses spelled out in W.Va. Code 46A-5-101(8). Among other things, this provision recognizes a defense in situations where the debt collector’s violation was “unintentional…notwithstanding the maintenance of procedures reasonably adapted to avoid such violation or error.” Petitioner’s answer stated that it was not asserting any defenses under §101(8) “at this time,” but that it would “supplement if necessary.”
Thereafter, Respondent noticed a deposition pursuant to Rule 30(b). After Respondent completed his examination of the witness, Petitioner’s attorney elicited testimony indicating that Petitioner was, in fact, asserting an unintentional error defense under §101(8). Petitioner then moved for summary judgment on that basis. Respondent filed a cross motion for summary judgment. The court found that Petitioner had not waived its defense by failing to timely supplement its discovery. However, the court expressed a willingness to continue the upcoming trial and permit Respondent to take a supplemental deposition of the Rule 30(b) witness if Respondent so desired.
Respondent filed a motion seeking a continuance, which the court granted. Respondent then served a supplemental Rule 30(b) notice requiring the witness to appear in Wheeling, West Virginia. Petitioner objected and filed a motion for a protective order. Petitioner’s motion was denied, and Petitioner now seeks relief in prohibition.
Petitioner (Credit Control):
According to Petitioner, Respondent “has never articulated a legitimate need to take a second deposition.” Petitioner already has explained that its continued telephone calls to Respondent were the result of a “coding” error on its part. Any discovery beyond that would simply be duplicative. Furthermore, the general rule is that a Rule 30(b) deposition should be taken where the witness resides. Respondent has not provided facts warranting a departure from the general rule.
The trial court correctly found that Petitioner violated the Rules of Civil Procedure by failing to supplement its discovery answer. Respondent was deprived of the opportunity to conduct a full and meaningful deposition. Consequently, a supplemental deposition is warranted. Furthermore, requiring the deposition to proceed in West Virginia was appropriate because Petitioner’s misconduct was the “root cause” of the matter and because “economic, logistical and equitable factors” weigh in favor of it.
Disputes over Rule 30(b) depositions are, unfortunately, commonplace. Because this case is set for a Rule 19 argument, we are unlikely to see the Court writing any new syllabus law. However, a recap of the law on time-and-place requirements for Rule 30(b) depositions would certainly be welcome.