United States District Court, D. Maryland
matter was referred to me for all discovery matters on
January 4, 2018. [ECF No. 51]. The EEOC's complaint,
brought on behalf of Ms. Candace McCollin, alleges that
M&T Bank (“M&T”) failed to reassign Ms.
McCollin into vacant positions for which she was minimally
qualified, and that it subsequently discharged her because of
her disability. [ECF No. 1]. The instant discovery dispute
revolves around the EEOC's Motion to Compel: (1)
documents pursuant to its Request for Production of Documents
(“RPD”) No. 9; and (2) M&T to designate a
30(b)(6) corporate representative to testify regarding Topic
No. 9. [ECF Nos. 49 & 50]. A telephone conference to
discuss the matter was held on January 9, 2018. For the
reasons set forth below, the EEOC's motion is GRANTED in
part and DENIED in part.
RPD No. 9
9 seeks “all documents . . . reflecting the
applications or expressions of interest, and qualifications
of individuals selected for M&T at Work Specialist,
Enhanced Due Diligence investigator, Assistant Branch
Manager, and Branch Manager positions in its Greater
Baltimore region from January 1, 2013 to present, including
complete personnel files for each individual.” [ECF No.
50-1 at 6]. M&T, believing the request was overbroad,
objected and only agreed to produce documents “relating
to the individuals selected for positions for which Ms.
McCollin actually applied - 10 specific job
requisitions.” [ECF No. 49 at 1]. In response, the EEOC
agreed to narrow the scope of RPD No. 9 to
“applications and performance appraisals and
disciplinary records of successful internal applicants who
applied to the same positions as [Ms.] McCollin.” [ECF
No. 36 at 1]. Subsequently, Judge Hollander also ordered
M&T to produce “all 2012 performance appraisals and
all 2012 disciplinary records for all of its successful
internal applicants with respect to any position for which
[Ms. McCollin] applied, as well as for the Ingleside branch
manager position, ” a position she only expressed
interest in pursuing. [ECF No. 41 at 1].
issue is whether M&T must also produce performance
appraisal and disciplinary documents for Ms. Jackie Jackson.
The EEOC contends that Ms. Jackson, an internal candidate,
“was selected for [the Brooklyn Park Shoppers] Branch
Manager position for which [Ms.] McCollin applied …
and was qualified.” [ECF No. 50 at 2]. M&T,
meanwhile, argues that Ms. McCollin could not have applied to
this position because “[t]he posting for that
requisition was cancelled [as] M&T decided to close that
branch.” [ECF No. 49 at 1]. Ms. Jackson testified
during her deposition that, because it was temporary, she
“didn't post” for the position, and that the
position was only for closing the branch. [ECF No. 49-1 at
7]. The EEOC admits that Ms. Jackson was selected
“without application.” [ECF No. 50 at 2].
Hollander's Order is clear - M&T was to produce
appraisals and disciplinary records “for all of its
successful internal applicants with respect to any position
for which Ms. McCollin applied . . . .” [ECF No. 41 at
1]. During the January 9, 2018 conference call, it became
clear that Ms. McCollin had applied (and interviewed) for the
Brooklyn Park Shoppers Branch Manager position prior to the
position posting being cancelled. Thus, because Ms. McCollin
expressed interest in, and applied for, the position prior to
its cancellation, M&T must produce the performance
appraisal and disciplinary documents for Ms. Jackie Jackson.
As such, the EEOC's request to compel these documents
will be granted.
Rule 30(b)(6) Deposition
August 21, 2017, the EEOC served on M&T a notice of
30(b)(6) Deposition, “seeking testimony about
individuals selected for vacant positions for which [Ms.]
McCollin was qualified in the Greater Baltimore region,
including the qualifications of the selected candidates, from
August 1, 2013 to present.” [ECF No. 50 at 1].
Specifically, M&T objects to designating an individual
regarding Topic No. 9 to the Notice of Deposition. Topic No.
9 requests that M&T designate someone who, for the
positions of Branch Manager, M&T at Work Specialist, and
Enhanced Due Diligence Investigator in the Greater Baltimore
region can testify to, from August 1, 2014 to March 30, 2014:
(1) the number of vacant positions; (2) the number of
positions filled; (3) the identities of the individuals
selected; (4) the qualifications of the individuals selected;
(4) whether the individuals were internal applicants; and (5)
the M&T employees involved in the selection process. [ECF
No. 50-1 at 3-4]. M&T argues that it need not designate
someone regarding Topic No. 9 because it “has [already]
produced all of that information in document form for the
positions that the EEOC has  agreed are relevant to this
litigation: those that Ms. McCollin applied for or expressed
interest in.” [ECF No. 49 at 2]. Thus, M&T contends
that a deposition seeking that data would be overly broad and
burdensome and an “end around to [its] objections to
the EEOC's RPD No. 12.” Id.
Federal Rules of Civil Procedure allow a party to name a
corporation as a deponent. Fed.R.Civ.P. 30(b)(6). “The
named corporation must then designate a witness or witnesses
to testify on its behalf, and those witnesses must testify
about information ‘known or reasonably available to the
organization.'” Beach Mart, Inc. v. L & L
Wings, Inc., 302 F.R.D. 396, 406 (E.D. N.C. 2014)
(quoting Fed.R.Civ.P. 30(b)(6)). Importantly, “[t]he
proper procedure to object to a Rule 30(b)(6) deposition
notice is not to serve objections on the opposing party, but
to move for a protective order. Id. (citing
Robinson v. Quicken Loans, Inc., No. 3:12-CV-00981,
2013 WL 1776100, at *3 (S.D. W.Va. Apr. 25, 2013)).
“Once the deposition notice is served, ‘the
corporation bears the burden of demonstrating to the
court that the notice is objectionable or
insufficient.'” Id. (quoting
Robinson, 2013 WL 1776100, at *3 (emphasis in
original)). Finally, “[i]f the corporation makes no
such showing, [it] must produce a witness prepared to testify
to the subject matter described in the notice . . . [it]
cannot make its objections and then provide a witness that
will testify only within the scope of its objections.”
Id. M&T has not moved for a protective order.
to Rule 30(b)(6), M&T must designate a witness to testify
on its behalf regarding Topic No. 9. However, Topic No. 9
shall be narrowed to match the parties' agreed upon scope
of RPD No. 9 and Judge Hollander's Order [ECF No. 41], so
that the information sought pertains only to positions to
which Ms. McCollin applied or expressed interest in pursuing.
As was the case with RPD No. 9, information regarding
positions in the Greater Baltimore region to which Ms.
McCollin did not apply, is not relevant. Orafunam v. AT
& T Mobility Servs., LLC, No. 3:12-CV-976-B BF, 2013
WL 2391522, at *2 (N.D. Tex. June 3, 2013) (stating that
“[a]ny evidence regarding positions for which Plaintiff
did not actually apply is not relevant to the claims alleged
and [is] not reasonabl[y] calculated to lead to the discovery
of admissible evidence.”). Further, the fact that
M&T may have produced much of this information in
document form does not preclude the EEOC from seeking it via
deposition. Dongguk Univ. v. Yale Univ., 270 F.R.D.
70, 74 (D. Conn. 2010) (“A party should not be
prevented from questioning a live corporate witness in a
deposition setting just because the topics proposed are
similar to those contained in documents provided or
interrogatory questions answered.”) (citing State
of New Jersey v. Sprint Corp., No. 03-2071-JWL, 2010 WL
610671, at *2 (D. Kan. Feb. 19, 2010). As such, the
EEOC's request to compel M&T to designate an employee
to appear for deposition is granted, but the designee need
only testify as to the information sought in Topic No. 9
regarding positions to which Ms. McCollin applied.
reasons discussed herein, the EEOC's Motion to Compel is
GRANTED in part and DENIED in part. Despite the informal
nature of this letter, it will be flagged as an Opinion and
docketed as an Order.
Stephanie A. Gallagher United ...