Jury trials are expensive. They disrupt jurors’ lives for days or weeks,. They demand the complete attention of court personnel. They require witnesses to make time for court appearances and travel to and from the courthouse. And they cause the litigators to back-burner the concerns of other clients for the trial’s duration.
No wonder appellate courts are loathe to set aside a jury’s verdict – particularly when the claim of error is a pretrial discovery violation. Yet that’s just what happened in a recent Kentucky “slip and fall” lawsuit against the retailer Dollar General. The plaintiff alleged that Dollar General’s negligence caused her to slip and fall on a sticky substance on the floor of a Dollar General store in Russellville, Ky. Dollar General denied liability. The case was litigated for three days, resulting in a jury verdict of no negligence on Dollar General’s part.
The error that led the Kentucky Court of Appeals to overturn the verdict was the trial court’s entry of a protective order forbidding the plaintiff from conducting a “corporate representative” deposition of a witness designated by Dollar General. The appellate court, in Martin v. Dollar General Partners, No. 2023-CA-0268 (Ky. Ct. App., March 8, 2024), concluded that the trial court had, by preventing the deposition, had deprived the plaintiff of a fair trial.
In Kentucky, Rule of Civil Procedure 30.02(6) provides for the deposition of a “corporate representative” as follows:
A party may in his notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This paragraph (6) does not preclude taking a deposition by any other procedure authorized in these rules.
In Martin v. Dollar General, the plaintiff sent Dollar General’s counsel a detailed list of the subjects that it wanted to cover during the deposition. Dollar General’s counsel objected to the list of topics that the plaintiff listed in the deposition notice. The retailer took the position that, unless the plaintiff’s attorney revised the list of deposition topics, it would seek a protective order.
The error that led the Kentucky Court of Appeals to overturn the verdict was the trial court’s entry of a protective order forbidding the plaintiff from conducting a “corporate representative” deposition of a witness designated by Dollar General.
Dollar General argued that the topics listed in the deposition notice were “unnecessarily duplicative, harassing and unduly burdensome and would serve no legitimate purpose.” It also contended that the deposition topics were “insufficiently tailored,” “impermissibly broad,” and “inappropriate as worded.” The trial court granted the protective order, and the case was tried without the benefit of a CR 30.02(6) corporate representative deposition having been taken.
This was an error, the appellate court ruled. Both Dollar General and the trial court had concluded that the notice required by CR 30.02(6) was intended to place limits on the topics that could be covered in a corporate representative deposition. Instead, the purpose of CR 30.02(6)’s “reasonable particularity” requirement is to assist the corporation in selecting an appropriate representative to be deposed on behalf of the corporation.
Under Kentucky’s civil procedure rules, there is just one limit on discovery of matters not privileged: whether “the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Moreover, the court said, pretrial discovery depositions can address topics that would be inadmissible at trial. “Because of the wide latitude shared by litigants with respect to discovery efforts, entry of a protective order against discovery is proper only upon proof that it is being undertaken in bad faith,” the court said. “[A] mere showing that discovery may involve some repetition, inconvenience, and expense is insufficient to establish good cause to limit the discovery sought.”
The appellate court also rejected Dollar General’s contention that, if an error occurred, it was harmless and provided no grounds to overturn the jury’s verdict. The court said that the trial testimony from Dollar General employees during the trial was not an adequate substitute for the discovery that the plaintiff had been denied. Nor is it necessary for the plaintiff, in order to obtain relief on appeal, to be able to identify with particularity and precision the type of evidence that she hoped to discover in the deposition, the court said.
In civil litigation, gamesmanship and sharp-elbowed skirmishing take a back seat to the need for liberal discovery of any information that is, or might lead to, relevant evidence. Broad pretrial discovery simplifies and clarifies the issues for trial. It streamlines litigation, and in many cases leads parties to settle without the need for a litigated outcome. The harsh medicine prescribed here underlines the importance of liberal pretrial discovery in modern litigation.
