Corcoran et al v. CVS Health Corporation

Northern District of California, cand-4:2015-cv-03504

Memorandum in Support of CVS MIL # 8

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1 Enu Mainigi (admitted pro hac vice) Grant A. Geyerman (admitted pro hac vice) 2 WILLIAMS & CONNOLLY LLP 725 Twelfth Street, N.W. 3 Washington, DC 20005 4 Telephone: (202) 434-5000 Facsimile: (202) 434-5029 5 Edward W. Swanson (Cal. Bar No. 159859) 6 August Gugelmann (Cal. Bar No. 240544) 7 SWANSON & MCNAMARA LLP 300 Montgomery Street, Suite 1100 8 San Francisco, CA 94104 Telephone: (415) 477-3800 9 Facsimile: (415) 477-9010 10 Attorneys for Defendant CVS Pharmacy, Inc. 11 12 IN THE UNITED STATES DISTRICT COURT 13 FOR THE NORTHERN DISTRICT OF CALIFORNIA 14 OAKLAND DIVISION 15 16 Christopher Corcoran, et al., Case No. 15-cv-03504-YGR 17 Plaintiffs, CLASS ACTION 18 v. CVS'S MOTION IN LIMINE #8: 19 CONCERNING THE ROLE OF CVS'S CVS Pharmacy, Inc., CORPORATE REPRESENTATIVE AND 20 IN-HOUSE COUNSEL 21 Defendant. Date: May 13, 2020 22 Time: 9:30 a.m. 23 Courtroom: 1 Judge: Hon. Yvonne Gonzalez Rogers 24 25 26 27 28 CVS MIL #8: CONCERNING THE ROLE OF CASE NO. 15-CV-03504-YGR CVS'S CORPORATE REPRESENTATIVE AND IN-HOUSE COUNSEL 1 CVS moves in limine to clarify two issues about the scope of witness testimony at trial. First, 2 for any CVS employee who may attend the trial as the company's corporate representative, Plaintiffs 3 should not be permitted to examine that person concerning matters outside of his or her personal 4 knowledge. Second, Plaintiffs should not be permitted to call to the stand CVS's in-house lawyer who 5 will attend the trial solely for purposes of monitoring the proceedings. 6 I. Any Testimony by a "Corporate Representative" Should Be Confined to the Witness's Personal Knowledge 7 CVS has not yet decided whether to bring a corporate representative to trial. One factor 8 relevant to that decision is the potential scope of any examination of a corporate representative if that 9 individual testifies as a witness. 10 Under Federal Rule of Evidence 602, "[a] witness may testify to a matter only if evidence is 11 introduced sufficient to support a finding that the witness has personal knowledge of the matter." The 12 only exception to this requirement is for "expert testimony"; there is no similar exception for a witness 13 designated as a corporate party's representative at trial. 14 The clear majority rule is that Rule 602's "personal knowledge" requirement applies even for 15 the person designated as a party's corporate representative at trial. See, e.g., Brooks v. Caterpillar 16 Glob. Mining Am., LLC, 2017 WL 3426043, at *4–5 (W.D. Ky. Aug. 8, 2017) (stating "a corporate 17 representative may not testify to matters outside his own personal knowledge"); Indus. Eng'g & Dev., 18 Inc. v. Static Control Components, Inc., 2014 WL 4983912, at *3 (M.D. Fla. Oct. 6, 2014) ("While 19 Rule 30(b)(6) permits [a corporate representative's] deposition testimony to be based on matters 20 outside his personal knowledge, Rule 602 limits his trial testimony to matters that are within his 21 personal knowledge."); TIG Ins. Co. v. Tyco Int'l Ltd., 919 F. Supp. 2d 439, 454 (M.D. Pa. 2013) 22 ("[A]t trial the [corporate] designee may not testify to matters outside his own knowledge.").1 A 23 minority of courts, outside of this Circuit, have sometimes allowed a party's representative at trial to 24 25 1 This requirement makes a trial witness different from a Rule 30(b)(6) deposition witness. See 26 Cusack v. BendPak, Inc., 2018 WL 4390715, at *2 n.2 (D. Idaho Sept. 13, 2018) ("The mere fact that he was identified as a Rule 30(b)(6) deponent for purposes of discovery does not mean he can testify 27 at trial about matters within the 'corporate' knowledge but outside his personal knowledge."); Stryker Corp. v. Ridgeway, 2016 WL 6585007, at *3 (W.D. Mich. Feb. 1, 2016) ("[T]o the extent that [the 28 company's 30(b)(6) designee's] testimony is based not on her personal knowledge…the testimony will be inadmissible at trial."). CVS MIL #8: CONCERNING THE ROLE OF CASE NO. 15-CV-03504-YGR CVS'S CORPORATE REPRESENTATIVE 1 AND IN-HOUSE COUNSEL 1 testify on specified topics beyond his personal knowledge. See Brazos River Auth. v. GE Ionics, Inc., 2 469 F.3d 416, 434 (5th Cir. 2006) ("[I]f a rule 30(b)(6) witness is made available at trial, he should be 3 allowed to testify as to matters within corporate knowledge to which he testified in deposition."); Kirk 4 v. Schaeffler Grp. USA, Inc., 2016 WL 593813, at *1 (W.D. Mo. Feb. 12, 2016) ("[G]iven that she is a 5 corporate representative, she may testify about matters within Defendants' corporate knowledge, even 6 if she lacks first-hand knowledge of these matters."); Sciaretta v. Lincoln Nat'l Life Ins. Co., 2013 WL 7 11317858, at *6 (S.D. Fla. May 6, 2013) (applying Brazos to corporate representative of subpoenaed 8 non-party), aff'd, 778 F.3d 1205 (11th Cir. 2015). 9 CVS believes the majority rule is a correct statement of the law. Yet CVS has identified no 10 definitive holding from the Ninth Circuit, this Court, or another trial court in the Northern District 11 directly holding that a party's representative at trial may testify only to matters within the 12 representative's personal knowledge, whether on direct-examination or cross-examination. 13 Accordingly, CVS seeks clarification on the Court's practice on this issue, as the company decides 14 whether to bring a corporate representative to trial. 15 II. Plaintiffs Should Be Precluded from Calling CVS's In-House Litigation Counsel to Testify 16 Hilary Dudley is a Senior Litigation Counsel for CVS. She has been the supervising in-house 17 counsel on this case for the past five years and, therefore, intends to monitor the trial in-person. Ms. 18 Dudley testified as the company's Rule 30(b)(6) designee for purposes of a discovery deposition in 19 2016. CVS will not designate Ms. Dudley as its corporate representative for trial (if it designates 20 anyone for that role), nor will CVS be calling her to the witness stand to testify live. CVS wishes to 21 ensure that Plaintiffs will not call Ms. Dudley to the stand to testify. An order precluding Plaintiffs 22 from calling Ms. Dudley live to testify is appropriate for several reasons: 23 First, Ms. Dudley has no personal knowledge of the conduct at issue in this trial. She is a 24 litigation attorney, not a percipient witness involved in the events in the case. Plaintiffs affirmatively 25 argued as much during a dispute that arose in connection with the Rule 30(b)(6) deposition. Joint 26 Discovery Dispute Ltr. Br. ("Br.") at 1–2 & 7–8, Dkt. 188 (Nov. 22, 2016) (alleging Ms. Dudley had 27 "no direct business knowledge," was "not a percipient fact witness," and "her only knowledge of this 28 CVS MIL #8: CONCERNING THE ROLE OF CASE NO. 15-CV-03504-YGR CVS'S CORPORATE REPRESENTATIVE 2 AND IN-HOUSE COUNSEL 1 case came [] in 30(b)(6) preparation").2 Although Rule 30(b)(6) deposition witnesses may testify to 2 matters outside their personal knowledge, as a vehicle to allow the deposing party to gain information 3 about the corporation in discovery, that is not true of trial witnesses. See also Cusack v. BendPak, 4 Inc., 2018 WL 4390715, at *2 n.2 (D. Idaho Sept. 13, 2018) ("The mere fact that he was identified as a 5 Rule 30(b)(6) deponent for purposes of discovery does not mean he can testify at trial about matters 6 within the 'corporate' knowledge but outside his personal knowledge."); Stryker Corp. v. Ridgeway, 7 2016 WL 6585007, at *3 (W.D. Mich. Feb. 1, 2016) ("[T]o the extent that [the company's 30(b)(6) 8 designee's] testimony is based not on her personal knowledge. . . the testimony will be inadmissible at 9 trial."); Roundtree v. Chase Bank, 2014 WL 2480259, at *1 (W.D. Wash. June 3, 2014) ("FRCP 10 30(b)(6) is inapplicable to the issue of witness testimony at trial."). 11 Second, this Motion would not preclude either party from introducing by video deposition 12 testimony that Ms. Dudley gave as the Rule 30(b)(6) witness, to the extent that testimony is otherwise 13 admissible. This Motion only seeks to bar Plaintiffs from calling Ms. Dudley live to the stand, given 14 that she will be present in the courtroom. 15 Third, calling Ms. Dudley for live testimony also implicates two concerns under Rule 403— 16 confusing the jury and prolonging the trial. If Plaintiffs present the jury with testimony from the Rule 17 30(b)(6) deposition, the jury will identify Ms. Dudley with CVS and will understand her testimony to 18 be "company" testimony. Yet, if Ms. Dudley is also called to testify live on the stand, such testimony 19 would necessarily be "individual" testimony. The jury likely will be unable to separate these two 20 types of testimony given by the same witness.3 In addition, because Ms. Dudley has acquired most of 21 her (second-hand) knowledge concerning the facts through attorney-client privileged conversations, 22 any examination would likely draw many privilege objections, which will unnecessarily prolong the 23 trial and waste the jury's time. 24 25 2 26 Plaintiffs also have never identified Ms. Dudley in their disclosures as an individual in possession of information they may use to support their claims at trial. 3 27 The same concern would apply to presenting the jury with any excerpts from the Rule 30(b)(6) deposition that were outside the scope of the noticed deposition topics. Because the parties have not 28 yet exchanged deposition designations, CVS does not know whether Plaintiffs intend to offer any such testimony from the deposition. CVS MIL #8: CONCERNING THE ROLE OF CASE NO. 15-CV-03504-YGR CVS'S CORPORATE REPRESENTATIVE 3 AND IN-HOUSE COUNSEL 1 Fourth, permitting Plaintiffs to call Ms. Dudley to testify would conflict with the longstanding 2 policy against forcing litigation counsel to testify because it "disrupts the adversarial system," "lowers 3 the standards of the profession," and "adds to the already burdensome time and costs of litigation." 4 See, e.g., Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986) ("The practice of forcing 5 trial counsel to testify as a witness. . . has long been discouraged[.]"); Nocal, Inc. v. Sabercat 6 Ventures, Inc., 2004 WL 3174427, at *2 (N.D. Cal. Nov. 15, 2004) ("The Supreme Court of the 7 United States alluded to a presumption that trial counsel should not be forced to testify because doing 8 so compromises the standards of the legal profession." (citing Hickman v. Taylor, 329 U.S. 495, 513 9 (1947)). Permitting Plaintiffs to call Ms. Dudley at trial would, as in Shelton, cause delay "to resolve 10 work-product and attorney-client objections" and other "collateral issues" relating to her testimony. 11 Shelton, 805 F.2d at 1327. Even the prospect that Plaintiffs might call her to testify would distract Ms. 12 Dudley from her purpose for attending the proceedings. See id. at 1330 ("In-house counsel in this case 13 had nothing to do with this lawsuit except to represent her client. . . The harassing practice of 14 deposing opposing counsel (unless that counsel's testimony is crucial and unique) appears to be an 15 adversary trial tactic that does nothing for the administration of justice but rather prolongs and 16 increases the costs of litigation, demeans the profession, and constitutes an abuse of the discovery 17 process."); id. ("Counsel should be free to devote. . . her time and efforts to preparing the client's case 18 without fear of being interrogated by. . . her opponent."). 19 CONCLUSION 20 For the reasons described above, CVS enter an order (1) clarifying that a witness identified as 21 CVS's corporate representative at trial may not be examined based on information outside of his or her 22 personal knowledge, and (2) precluding Plaintiffs from calling Hilary Dudley, Esq. to testify live at 23 trial notwithstanding her presence in the courtroom. 24 25 Dated: April 15, 2020 Respectfully submitted, 26 27 By: /s/ Grant A. Geyerman ______________ 28 Enu Mainigi (admitted pro hac vice) Grant A. Geyerman (admitted pro hac vice) CVS MIL #8: CONCERNING THE ROLE OF CASE NO. 15-CV-03504-YGR CVS'S CORPORATE REPRESENTATIVE 4 AND IN-HOUSE COUNSEL 1 WILLIAMS & CONNOLLY LLP 725 Twelfth Street, N.W. 2 Washington, DC 20005 Telephone: (202) 434-5000 3 Facsimile: (202) 434-5029 4 5 Edward W. Swanson (Cal. Bar No. 159859) August Gugelmann (Cal. Bar No. 240544) 6 SWANSON & MCNAMARA LLP 300 Montgomery Street, Suite 1100 7 San Francisco, CA 94104 8 Telephone: (415) 477-3800 Facsimile: (415) 477-9010 9 10 Attorneys for Defendant CVS Pharmacy, Inc. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CVS MIL #8: CONCERNING THE ROLE OF CASE NO. 15-CV-03504-YGR CVS'S CORPORATE REPRESENTATIVE 5 AND IN-HOUSE COUNSEL