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As of: January 20, 2015 10:30 AM EST

In re Brican Am. LLC Equip. Lease Litig.

United States District Court for the Southern District of Florida
October 1, 2013, Decided; October 1, 2013, Entered on Docket
CASE NO. 10-md-02183-SEITZ/SIMONTON
Reporter
2013 U.S. Dist. LEXIS 142841; 2013 WL 5519980

IN RE: Brican America LLC Equipment Lease Litigation,

Prior History: In re Brican Am. Llc Equip. Lease Litig.,
2013 U.S. Dist. LEXIS 109166 (S.D. Fla., Aug. 1, 2013)

Core Terms
Designated, deposition, Matters, corporate representative,
due diligence, deponent, undersigned, sanctions, prepare,
advertising, discovery, marketing agreement, Details,
Financing, deposition testimony, fail to disclose, fail to
produce, motion for sanctions, Notice, entity, marketing,
responses, prior testimony, employees, witnesses, lease
agreement, instant motion, trier of fact, documents, construe
Counsel: [*1] For Stephen G. Blank DDS, PA, a Florida
professional association, Plaintiff: Ronald Pendl Gossett,
Gossett & Gossett, Hollywood, FL.
For Roarke Miller, Jeffrey Klein, Duey Handy, Kenneth
Dobson, Fredrick Cloninger, Erick Gray, Marc Flesher,
Janiene Gresla, Paul Mormon, Angel Lopez, Pedro
Mora-Rosa, Robert Heinrich, Alan Baribeau, Francine
Camporeale, George Miffleton, Ross Palioca, Kenneth
Rasbornik, David Discher, Richard Norman, Joel David,
Philippe Morisseau, Frank Paletta, Ali Sarkarzadeh, Terry
Friedman, Paul Clark, Douglas Machiela, Enrico Core,
Jeffrey Riso, Justin Chien, John Brown, Fred Grimes,
Norman Dery, Gregory Hom, Rafael Palanganas, Daniel
Mashoof, Donald Newman, Adelaida Guarin, Albert Arcand,
Edward Chermol, Lisa Peters, Dirk Hagen, Barry Rosenberg,
Miguel Pulido, Nicholas Papapetros, Gilbert Principe,
Behdad Omrani, George Flugrad, Gerry Casazza, Aaron
Collins, Carmine Morreale, Plaintiffs: David H. Charlip,
Charlip Law Group, LLC, Aventura, FL.
For Michael W Wells, an individual, Plaintiff: Kenneth
Joseph Catanzarite, Catanzarite Law Corporation, Anaheim,
CA.

For Amir Khoshnevis, Plaintiff: Ronald Pendl Gossett,

LEAD ATTORNEY, Gossett & Gossett, Hollywood, FL.
For Peter [*2] M. Blauzvern DDS PC, a New York
professional corporation, Jeff E. Donnelly, John M.
Highsmith, DDS, PA, a North Carolina professional
association, Steven B Oken, Justin Chang, PC, a Georgia
professional corporation, David Alemar DMD, PC, a Georgia
professional corporation, Jeffrey S Thaller, Kenneth A.
Korpan DDS, PC, an Illinois professional corporation,
Michael S Burstein, Charles H Estelle, Stuart A Curry, Gary
Lederman, Brian A. McMurtry, DDS, PA, a North Carolina
professional association, Dr. Chandra R. Williams DMD,
LLC, a Georgia limited liability company, Geoffrey S.
Wozar, DMD, PC, a Pennsylvania professional corporation,
Jennifer Goldman, Amy Thu Tran, Mountain Lakes Dental
Associates, PA, a New Jersey professional association, Peter
K Eng, Eye-Deal Family Eye Care, Inc., a Florida
corporation, David Archibald, Paul Taylor DMD, Inc., a
California corporation, Arthur B. Silver DDS PC, a Georgia
professional corporation, John C. Sieweke DDS PC, a
Georgia professional corporation, John C Sieweke, Amarilis
Jacobo, Stephen R Kepley, Mark Margolies, George C.
Weeks DDS PA, a Florida professional association, George
C Weeks, Alan M Rapoport, Raymond Goodman, OD, PA,
an Idaho professional [*3] association, Raymond Goodman,
Cary Family Eye Care, OD, PA, a North Carolina
professional association, Dwight W Barnes, Steven J
Luccarelli, Stanely D. Halpern, DDS, PC, a Georgia
professional corporation, Stanley D Halpern, Webster
Cosmetic Dental Ltd., an Illinois limited company, d/b/a
Webster Cosmetic Dental, Barbara K. Webster, Eric Smith,
David S. Lee, DDS, Inc., a California corporation, David S
Lee, Stone Creek Dental, PC, an Idaho professional
corporation, Casey S Butterfield, Carolina Family Vision,
OD, PA, a North Carolina professional association, Adam B
Bryan, Kristy L Tart-Bryan, Peter Epstein DMD PA, a
Florida professional association, Peter Epstein, Christopher
Young DMD PA, a Florida professional association,
Christopher Young, Chadds Ford Dental Associates, Inc., a
Pennsylvania corporation, Andrew Pratt, J.M. Arrue DMD

Jim Garrity

Page 2 of 18
2013 U.S. Dist. LEXIS 142841, *4
LLC, a Georgia limited liability company, J M Arrue, Troy
R. Lindh DMD PA, a Florida professional association, Troy
R Lindh, Brian G DePetris, Gordon Bell, Benjamin Gamm,
Eyexam Associates, PA, a New Jersey professional
association, Elizabeth Lewis, Kelly L Kalmar, Kalmar
Family Dentistry, LLP, a New York limited liability
partnership, Henderson Mill [*4] Dental Care, PC, a
Georgia professional corporation, John H Mason, Eric S
Smith, Robert R Thousand, Lumberton Optometric
Associates, PLLC, a North Carolina professional limited
liability company, Charles E Scholler, Marc B Nelson,
Michael E. and Maria Domingoes, PA, a Florida professional
association, doing business as Anastasia Dental Associates,
Todd J Feddock, Visual Perceptions Eyecare, LLC, a
Connecticut limited liability company, Geoffrey A Banga,
Christine Nguyen, Han Hong, Dentistry at Vinings, PC, a
Georgia professional corporation, Peter D Maro, Daniel
Casel, Bruce Corbin, Sid Morse, Paul M Hertz, Larry J
Moray, Deogsoo Roh, Farid Hanachi DDS PA, a North
Carolina corporation, J Randall Glass, Richard E Sorkin,
Ginger Coley, Joseph R. Kenneally, DMD, PA, a Maine
professional association, Jason D Lewis, Ben Schultz,
Daniel Mirkin, Nathan J Bonilla-Warford, David C. Suh
DDS, Inc., a California corporation, Nathan W Tilman,
Visual Perceptions Vernon, LLC, a Connecticut limited
liability company, Delmar Gray, Brodedale Dental, PA, an
Idaho professional association, Robert Lustbader, David R
Lach, Luc E Kanicky, The Corbin Family Dental Arts, LLP,
a New York limited liability partnership, [*5] Jeremy R
Bayer, Eric Barney, Premier Dentistry, Inc., a Pennsylvania
corporation, Richard Bruce, Raymond C. Goodman, OD,
PA, an Idaho professional association, Beth Snyder, BW
Vision Care, PA, a Florida professional association, Asheville
Vision Associates OD PA, a North Carolina professional
association, Richard Bruce, PC, a Pennsylvania professional
corporation, Lucy S Lee, Michael W Domingoes, Adnan
Qayyum DDS LLC, a Pennsylvania limited liability
company, All About Smiles, Inc., a California corporation,
Leonard F Tau, Rodeffer, Garner & Minor Orthodontics,
LC, a Florida limited liability company, Debra Glassman,
Texarkan Vision Group, PLLC, a Texas company, Richard
Pyun, Fred R Shanks, J Philip Wiygul, Richard Corbin, Ira
D Koeppel, Peter D. Maro, Jr., DMD MS, PC, Lisa P
Howard, Steven A. Firshein DMD, Inc., a California
corporation, Stephen M Montaquila, Eric S. Smith, DDS,
PC, a Utah professional company, Raymond Lawrence,
North Shore Dental Arts, LLP, a New York limited liability
partnership, Joseph F Alvarez, Larry J. Moray DDS MS PA,
a New York professional association, Barry I Cohen, Laura
Vizzari, formerly known as, Laura Reilly represented by ,
Raymond K Martin, Gregory [*6] S Liss, Raymond K.
Martin DDS MAGD, PC, a Massachusetts professional

corporation, Michael J Barbieri, Gregg Fink DMD, Inc., a

Delaware corporation, John T Kalange, Sajini Shetty DMD
Dental Offices, PC, a New Hampshire professional company,
Mirkins Vision Care, PC, a New York professional
corporation, Robert R. Thousand, III, PA, a Florida
professional association, Samir K. Hanna & Associates, PA,
a Florida professional association, Gregory W Kalmar,
Signature Smiles, PC, a Georgia professional corporation,
Coley & Coley Family Eyecare, Inc., a Tennessee
corporation, David Alemar-Vincentry, Jason D. Lewis DDS
PA, a Florida professional corporation, Kevin P Ryan,
Benjamin W Dreksler, Handschumacher Enterprises, OD,
PA, a North Carolina professional association, Joseph R
Kenneally, Farid Hanachi, Kevin Wendell, Tod Garner,
Anthony LaTempa DMD LLC, a New Jersey limited
liability company, David R. Lach, D.D.S., M.S., P.A, a
Florida professional association, Value Vision of Tampa
Bay, Inc., a Florida corporation, Robert Aube, Randall B
Smith, John T Uetsuki, Catherine M Ferentin, Steven
Glassman, Z. Maali Dental, Inc., a Florida corporation, Ian
Sobler, R Marc Carozza, Lisa P. Howard, DDS, [*7] PC, a
Maine professional corporation, Atul M. Patel, BDS, Inc., a
California corporation, Charles Fitzpatrick, George Prattas,
Richard E. Sorkin OD, PA, a Florida professional association,
Unique Dental Center, PC, a Massachusetts professional
corporation, doing business as Unique Dental Care, Gregg
Fink, Anthony LaTempa, Nelson Eye Associates, PC, a New
Jersey professional corporation, Jeffrey Handschumacher,
Samir K Hanna, David Goldberg, Raymond C Goodman,
Treva Diane Lee, Adnan Qayyum, Lucy S. Lee OD, PLLC,
a Virginia professional limited liability company, Cedar
Bluff Family & Cosmetic Dentistry, PA, a South Carolina
professional association, David C Suh, Christine Nguyen,
D.D.S., P.A., a Florida professional association, Travis B
Bartschi, Paul M. Hertz DMD LLC, a New York limited
liability company, ATL Smiles, LLC, a Georgia limited
liability company, Consol Plaintiffs: Ronald Pendl Gossett,
Gossett & Gossett, Hollywood, FL.
For Michael Putt, Serena Tham, Atul M Patel, Ziyad Maali,
Ira D. Koeppel, PC, a New York professional corporation,
Jerry Strauss, Nathan W. Tilman DDS, PC, a Rhode Island
professional corporation, Sajini Shetty, Wanda Arden, Gray
and Smith Family Dental, [*8] PC, an Idaho professional
corporation, Fred R. Shanks OD, LLC, a Tennessee limited
liability company, Kevin P. Ryan DDS, PC, an Illinois
professional corporation, Lewis Family Dentistry, LLC,
Steven A Firshein, Consol Plaintiff: Ronald Pendl Gossett,
Gossett & Gossett, Hollywood, FL.
For Steven Wigdor O.D., P.A., a Florida Corporation, OD
Steven Wigdor, also known as, Steven Wigdor, Radzwill

Jim Garrity

Page 3 of 18
2013 U.S. Dist. LEXIS 142841, *8
Optometric Associates, Chartered, a florida Corporation,
Eric M Radzwill OD, individually, Coral Springs Eye
Center, Chartered, a florida corporation, Steven R
Koganovsky, O.D., individually, Beville Dental Care, a
corporation, Adriana Porter, individually, Eye Health &
Vision Center, P.A., a Florida corporation, David Rubin,
individually, Ivan Rosenthal, individually, Robert M. Easton
Jr. O.D., P.A., a Florida corporation, Robert Easton,
individually, Vision Arts Eyecare Center, corporation,
Edward Walker, individually, All Eyes Optical, Inc., a
Florida corporation, Vito Guario, individually, Marciano
Family Optometric, P.A., a Florida corporation, Brandee
Marciano, individually, Kaufman Eyecare Center,
corporation, Sandford Kaufman, individually, The Hour
Glass, Inc., a Florida Corporation, James [*9] Stephens,
individually, Mitchell A. Josephs, D.D.S., P.A., a Florida
corporation, Mitchell Josephs, individually, Sandra Barker,
individually, New View Optometric Center, corporation,
Melvin Kasanoff, individually, Jay Gelman, individually,
Palm Beach Eyes of Boynton Beach, corporation, Greg
Pientka, individually, Bethany Brenner, individually, Palm
Vision Center, Inc., a Florida corporation, Steven Anhalt,
individually, Barrera Optical, Inc., a Texas corporation,
Mario Barrera, individually, Lori J. Bende, O.D.,
Professional Optometric Corp., a California corporation,
Lori Bende, individually, Daniel Del Castillo, D.M.D., P.A.,
a Florida corporation, Daniel Del Castillo, individually,
Kenneth Gallinger, individually, Oakwood Dental Arts,
LLC, a New York Limited Liability Corporation, Emanuel
Graziano, individually, Alan Grossman, individually, Tad
Kosanovich, individually, Ragsdale & Martin Optical, Inc.,
a Texas corporation, Michael Martin, individually, Family
Vision Center, P.A., a Florida corporation, Lori Mazza,
individually, Advanced Dental Center of Summerville, PA,
a South Carolina corporation, James Muscott, individually,
Peter Scerbo DMD, P.A., a Florida corporation, Peter
[*10] Scerbo, individually, Raymond E. Schwartz, P.A., a
Florida corporation, Raymond E Schwartz, individually, E.
Wayne Simmons, D.M.D. Prosthodontist, P.C., a Texas
corporation, E. Wayne Simmons, individually, Barry Simon,
individually, Dr. Ronald N. Smith, Optometrist, Inc., a
Texas corporation, Ronald Smith, individually, Terry Van
Der Heyden, individually, Advantage Family Vision Center,
corporation, Charles Porch, individually, Fred Buettner,
individually, Michael L. Grace, O.D., P.A., a Texas
corporation, Michael Grace, individually, Blaisdell Dental
Center, P.A., an Idaho corporation, John Blaisdell, James L.
Carazola, D.M.D., P.A., a Florida corporation, James
Carazola, individually, Christopher S. Carroll, D.D.S., P.C.,
a Wisconsin corporation, Christopher Carroll, individually,
Tryphose Charles, DMD, M. Cowan & Associates, D.D.S.,
P.A., corporation, Michael J. Fernandez, D.M.D., P.A., a

Florida corporation, Michael Fernandez, individually,

Cedarhurst Dental Office, corporation, Howard Goldschein,
individually, Grayhills, Mohip Dental & Associates of
Wellington, corporation, Laurence Grayhills, individually,
Spex in the City, LLC, a Washington limited liability
company, Mark Hamilton, [*11] individually, Alan R. Heap,
D.M.D., P.A., a Florida corporation, Alan Heap, individually,
Emerald West Family Dentistry, PLLC, an Idaho limited
liability company, Chad Hess, individually, Richard M.
Kernagis, D.M.D., P.A., a Florida corporation, Richard
Kernagis, individually, East Lyme Family & Cosmetic
Dentistry, corporation, Joseph Palumbo, individually,
Lakeside Family Dentistry, P.L., a Florida Limited Liability
company, Christopher Seppi, Joel E. Vaccarezza, DDS,
P.A., a Florida corporation, Joel Vaccarezza, individually,
Eyad Shehadeh, individually, Eyad Shehadeh, DDS, PA, a
Florida corporation, Freedman & Haas, PA, a Florida
corporation, Sharon Haas, individually, Edward B. Busch,
DMD, PA, a Florida corporation, Edward Busch,
individually, also known as, Edward J. Bush, Keith A.
Colwell, DDS, PC, an Iowa corporation, Keith Colwell,
individually, Beautiful Smiles Dental Care, corporation,
Anthony Gulde, individually, Philip K. Haiman &
Associates, P.A., a Florida Corporation, other, Sunrise Eye
Care, Inc., Philip Haiman, individually, Roland Park Vision
Services, corporation, Bruce Hyatt, individually, Neelofar
Khan, individually, Stephen Obrochta, individually, Wesley
B. Smith, [*12] DDS, PA, a North Carolina corporation,
Wesley Smith, individually, Jeffrey Tweedy, individually,
Antonio Barcias, individually, Eyes On The Bay, PA, a
Florida corporation, Neil Elliot, individually, Rodrick
Keener, Premier Dental, corporation, Align Orthodontics,
corporation, Sanjeev Sharma, individually, Elliott Stupp,
individually, Family Dental Care, corporation, Chanbo Sim,
individually, Wade G. Winker, DDS, PA, a Florida
corporation, Wade Winker, individually, Countryside Dental
Associates, Inc., a Florida corporation, Michael Ancona,
individually, Dr. Matoss Growing Smiles, PA, a New
Jersey corporation, Manuel Gonzalez, individually, Thomas
Jacka, individually, Alfred Johnson, individually, Kenneth
A. Mogell, DMD, PA, a Florida corporation, Kenneth
Mogell, individually, John D. Sherer, DMD, PA, a Florida
corporation, John Sherer, individually, Katy Periodontics
Management, Inc., a Texas corporation, Timothy Hale,
individually, Stephen Allison, individually, Falls Cosmetic
Dental Center, corporation, Samuel Chandy, individually,
Behdad Omrani, individually, Consol Plaintiffs: David H.
Charlip, Charlip Law Group, Aventura, FL.
For 20/20 Vision Clinic, LLP, a Texas limited liability
[*13] partnership, Consol Plaintiff: Ronald Pendl Gossett,
LEAD ATTORNEY, Gossett & Gossett, Hollywood, FL;
David H. Charlip, Charlip Law Group, Aventura, FL.

Jim Garrity

Page 4 of 18
2013 U.S. Dist. LEXIS 142841, *13
For Vijay Patel, an individual, on behalf of himself and all
others similarly situated, Frantz Backer, an individual,
Advanced Dentistry of New York PLLC, New York
corporation, Benjamin Braziel, an individual, Reza M
Birjandi, an individual, Sekhar Chakka, an individual,
Timothy J Delaney, an individual, Timothy J Delaney DDS
Inc, a California corporation, Stanley Dintcho, an individual,
Rex E Grizzle, an individual, Ebenezer Johnson, an
individual, Drs Ebenezer and Rachel Johnson DDS Inc,
corporation, Jaikrishnan R Kakanar, an individual,
Jaikrishnan R Kakanar DDS Inc, a California corporation,
Ramesh Kothari, an individual, Harold C McClendon, an
individual, Gregory A Stainer, an individual, Gregory A
Stainer MD FACS, a Professional Medical Corporation,
organized in California, Charles Smurthwaite, an individual,
Krupakar Yeturu, an individual, on behalf of themselves and
all others similarly situated, Consol Plaintiffs: Kenneth
Joseph Catanzarite, Nicole M. Catanzarite-Woodward,
Catanzarite Law Corporation, Anaheim, CA; Robert S.
[*14] Green, Green & Noblin, P.C., Larkspur, CA.
For Reza M. Birjandi DDS, a Professional Dental
Corporation, David Browning, an individual, Michael W
Wells DDS Inc, a California Corporation, Eye Center
Optometrics, a Professional Corporation, William E Faulkner
DDS Inc, a California Corporation, Alfonzo D Gonzalez, an
individual, Alfonzo D. Gonzalez Dental Corporation, a
California Corporation, Sandhy A Hedge DDS Inc, a
California Corporation, Jose Lomboy, an individual,
Maricela Murillo, an Individual, Dennis E Shamlian, an
Individual, Valery Sweeny, an Individual, Valery Sweeny
DDS, a Professional Corporation, J Foster Weems, an
Individual, J Foster Weems DDS Inc, a California
Corporation, Paul J. Wesling OD, an Individual, Paul J
Wesling OD Inc, a California Corporation on behalf of
themselves and all others similarly situated, Consol Plaintiffs:
Kenneth
Joseph
Catanzarite,
Nicole
M.
Catanzarite-Woodward, Catanzarite Law Corporation,
Anaheim, CA.
For Lisa P. Howard, DDS, LLC, a Maine limited liability
company, Defendant: Ronald Pendl Gossett, Gossett &
Gossett, Hollywood, FL.
For Brican America, Inc., a Florida corporation, Brican
Financial Services, LLC, Jean Francois Vincens, also known
[*15] as, Jeff Vincens, Consol Defendants: Paul L. Orshan,
LEAD ATTORNEY, Paul L. Orshan, P.A., Coral Gables,
FL.
For Brican America, LLC, a Florida limited liability
company, Consol Defendant: Elior Daniel Shiloh, Ronald A.
Giller, Gordon & Rees, LLP, Florham Park, NJ.

Jacques Lemacon, Consol Defendant, Pro se, Saint-Lazare

QC, CANADA.
For Salvatore M DeCanio, Jr., Consol Defendant: Jeff
Tomberg, Jeff Tomberg, J.D., P.A., Boynton Beach, FL.
For Lifestyle of Vision, Inc., a Florida corporation, Consol
Defendant: Jeff Tomberg, Jeff Tomberg, J.D., P.A., Boynton
Beach, FL.
For NCMIC Finance Corporation, doing business as
Professional Solutions Financial Services, an Iowa
corporation authorized to do business in Florida, Consol
Defendant: Philip A. Nemecek, LEAD ATTORNEY, Michael
F. Gallagher, PRO HAC VICE, Michael I. Verde, PRO HAC
VICE, Katten Muchin Rosenman, LLP, New York, NY;
Bryan Arthur Powell, Lawrence J. Bracken, II, Hunton &
Williams LLP - Atlanta, Atlanta, GA; Catherine Magdalena
Rodriguez, Filler Rodriguez, LLP, Miami Beach, FL; John
Russell Kelso, Levey Filler Rodriguez Kelso & De Bianchi
LLP, Miami Beach, FL; Ryan J. Larsen, Katten Muchen
Rosenman LLP, Los Angeles, CA; Sara Karubian,
[*16] Katten Muchin LLP, Los Angeles, CA.
For Obrochta Center for Dental Health Stephen P. Obrochta
DDS, PA, a Florida corporation, Consol Defendant: David
H. Charlip, Charlip Law Group, LLC, Aventura, FL.
For PSFS 3 Corporation, an Iowa Corporation, Consol
Defendant: Philip A. Nemecek, LEAD ATTORNEY, Katten
Muchin Rosenman, LLP, New York, NY; Catherine
Magdalena Rodriguez, Filler Rodriguez, LLP, Miami Beach,
FL; Ryan J. Larsen, Katten Muchen Rosenman LLP, Los
Angeles, CA.
For NCMIC and PSFS 3, Consol Defendant: John Russell
Kelso, LEAD ATTORNEY, Levey Filler Rodriguez Kelso
& De Bianchi LLP, Miami Beach, FL; Catherine Magdalena
Rodriguez, Filler Rodriguez, LLP, Miami Beach, FL.
Viso Lasik Medspas LLC, a Florida limited liability
company, Consol Defendant, Pro se, Viso Lasik Medspas
LLC, Miami, FL.
For Professional Solutions Financial Services, Consol
Defendant: Scott A. Resnik, Katten, Muchin & Rosenman,
LLP, New York, NY.
For PSF 3 Corporation, an Iowa Corporation, Consol
Defendant: Ryan J. Larsen, Katten Muchen Rosenman LLP,
Los Angeles, CA; Sara Karubian, Katten Muchin LLP, Los
Angeles, CA.

Jim Garrity

Page 5 of 18
2013 U.S. Dist. LEXIS 142841, *16
For NCMIC Finance Corporation of California, a California
corporation doing business as Professional [*17] Solutions
Financial Services in California, Consol Defendant: Ryan J.
Larsen, Katten Muchen Rosenman LLP, Los Angeles, CA;
Sara Karubian, Katten Muchin LLP, Los Angeles, CA.
For De Lage Landen Financial Services Inc, a Michigan
corporation, Consol Defendant: C. Lawrence Holmes, Patrick
M. Northen, Dilworth Paxson LLP, Philadelphia, PA.
Brican America LLC, a Florida limited liability company,
Consol Defendant, Pro se, Miami, FL.
For Dr. Peter Blauzvern, ThirdParty Defendant: Ronald
Pendl Gossett, LEAD ATTORNEY, Gossett & Gossett,
Hollywood, FL.
For Dr. Michael Anacona, Dr. Lori Bende, Dr. John Brown,
Dr. Edward Chermal, Dr. Paul Clark, Dr. Kenneth Dobson,
Dr. Alfred Johnson, Dr. Kennth Mogell, Dr. Frank Paletta,
Dr. Christopher Seppi, Dr. Sanjeev Sharma, Dr. Alan
Baribeau, Dr. Sandra Barker, Dr. Bethany Brenner, Dr. Fred
Cloninger, Dr. Kenneth Gallinger, Dr. Emanuel Graziano,
Dr. Timothy Hale, Dr. Mitchell Josephs, Dr. Paul Mormon,
Dr. Darwin Mormon, Dr. Rafael Palanganas, Dr. Nicholas
Papapetros, Dr. Lisa M Peters, Dr. Barry Rosenberg, Dr.
David Rubin, Dr. Chandy Samuel, Dr. Peter Scerbo, Dr.
John Sherer, Dr. E. Wayne Simmons, Dr. Ronald Smith, Dr.
David Sweeney, Dr. Edward Walker, Dr. [*18] Michael
Williams, Dr. Wade Winker, ThirdParty Defendant: David
H. Charlip, Charlip Law Group, LLC, Aventura, FL.
For Dr. Ebenezer Johnson, Dr. Reza Birjandi, ThirdParty
Defendant: Kenneth Joseph Catanzarite, Catanzarite Law
Corporation, Anaheim, CA.
For Dr. David Weigle, ThirdParty Defendant: Robert Alan
Selig, LEAD ATTORNEY, Boone & Davis PA, Wilton
Manors, FL; Rowan Keenan, Keenan, Ciccitto & Associates,
Collegeville, PA.
For Dr. John Foore, ThirdParty Defendant: Robert Alan
Selig, LEAD ATTORNEY, Boone & Davis PA, Wilton
Manors, FL; Rowan Keenan, Keenan, Ciccitto & Associates,
Collegeville, PA.

For Dr. Uri Elias, ThirdParty Defendant: Harvey D. Rogers,

Miami, FL.
For Dr. Zalman Bacheikov, ThirdParty Defendant: Robert
L. Switkes, LEAD ATTORNEY, Robert L. Switkes &
Associates, P.A., Miami Beach, FL; Joshua Michael Entin,
Entin & Della Fera, P.A., Ft. Lauderdale, FL; Mendy
Halberstam, Jackson Lewis, LLP, Miami, FL; Regina
Franco-Murphey, Rosen Switkes & Entin PL, Miami Beach,
FL.
[*19] Charles
For Paul Wesling, Richard Boerner,
Smurthwaite, Ebenezer Johnson, Frantz Backer, J Foster
Weems, Reza Birjandi, Steve Aivazian, ThirdParty
Defendant: Kenneth Joseph Catanzarite, Catanzarite Law
Corporation, Anaheim, CA.

For NCMIC and PSFS 3, ThirdParty Plaintiff: Catherine

Magdalena Rodriguez, Filler Rodriguez, LLP, Miami Beach,
FL.
Judges: ANDREA M. SIMONTON, UNITED STATES
MAGISTRATE JUDGE.
Opinion by: ANDREA M. SIMONTON

Opinion
ORDER RE: PLAINTIFFS MOTION FOR SANCTIONS
INCLUDING STRIKING PLEADINGS AGAINST NCMIC
FINANCE CORP., RELATED TO NCMICS FAILURE
TO
PRODUCE
30(b)(6)
CORPORATE
REPRESENTATIVE FOR DEPOSITION
This matter is before the Court upon Plaintiffs Motion for
Sanctions (DE # 284) related to Defendant NCMICs
purported failure to produce a NCMIC corporate
representative for deposition pursuant to Federal Rule of
Civil Procedure 30(b)(6). Defendant NCMIC has filed a
Response to the Motion, and the Plaintiffs have filed a
Reply (DE ## 304, 306). All motions for sanctions have
been referred to the undersigned by the Honorable Patricia
A. Seitz, the District Judge assigned to the case (DE # 44).
For the following reasons, the undersigned recommends
that the Plaintiffs Motion for Sanctions be granted, in part.
I. BACKGROUND

For Dr. Ryan Estelle, ThirdParty Defendant: Robert Alan

Selig, LEAD ATTORNEY, Boone & Davis PA, Wilton
Manors, FL; Rowan Keenan, Keenan, Ciccitto & Associates,
Collegeville, PA.

This multi-district [*20] litigation involves claims by

various dentists and optometrists (Plaintiffs) against several
entities related to the purchase and financing of equipment,

Jim Garrity

Page 6 of 18
2013 U.S. Dist. LEXIS 142841, *20
comprised of a flat screen television, computer and software,
(Display System) used in the Plaintiffs offices to display
advertising to their patients. Plaintiffs purchased the Display
System from Defendants Brican America, LLC; Brican
America, Inc.; or Brican, Inc., (Brican) and financed the
purchases through an installment sales or loan agreement
(Financing Agreement).1 Plaintiffs contend that Brican
represented that the Plaintiffs could purchase the Display
System for effectively no cost, through the use of a
simultaneously-executed marketing agreement which
provided for a company related to the Brican entities to pay
a sum of money for advertising services on the Display
Systems. The sums paid under that marketing agreement
would be used to offset the monthly lease payments due
from Plaintiffs under the Financing Agreement. The
Financing Agreements all included non-cancellation clauses
which, in essence, stated that the purchaser/customer of the
equipment would be responsible for all payments due under
the lease under [*21] all circumstances. The Marketing
Agreements, however, which were executed between Brican
and the purchasers of the Display Systems, promised that
Brican Inc. or Brican, LLC would purchase a portion of
advertising space on the Plaintiffs Display Systems and, as
part of Bricans Return Policy/Guarantee would permit the
Purchaser Plaintiffs to request that Brican repurchase the
equipment from the Plaintiffs, if Brican failed to honor its
promise to purchase advertising space pursuant to the
Marketing Agreement.2
In July of 2005, Brican entered into a Vendor Agreement
with Defendant [*22] NCMIC Finance Corporation, doing
business as Professional Solutions Financial Services,
(NCMIC and PSFS) whereby NCMIC became the
lessor under the various Financing Agreements that Plaintiffs
had entered into for the purchase of the Display System, in
exchange for NCMIC making a lump sum payment of
approximately $22,000 to Brican for each Financing
Agreement. The Vendor Agreement was signed by Fred
Scott, NCMICs former Business Development Manager.
According to Gregory Cole, NCMICs president, around
Mid-April of 2009, he received a message from a Brican

salesman indicating that there was a problem with the

vendor relationship with Brican, including the fact that
unbeknownst to NCMIC, Brican had entered into Marketing
Agreements with virtually all of Bricans customers. As a
result of this information, on April 15, 2009, NCMIC
stopped funding the Brican leases. At a subsequent meeting
between Brican and NCMIC, NCMIC was informed that:
(1) Brican had used the Marketing Agreements in connection
with all sales financed by NCMIC; and, (2) Brican was
funding one of its related entities to cover the advertising
payments due from that entity to the Plaintiffs under the
executed Marketing [*23] Agreements.
In an effort to discover, among other things, whether
NCMIC was involved in, or had knowledge of the manner
in which Brican created and presented its Return Policy
and/or Marketing Agreements to the Plaintiffs prior to the
time that NCMIC stopped financing the Brican leases, the
Plaintiffs sought to depose a NCMIC corporate representative
pursuant to Federal Rule of Civil Procedure 30(b)(6). The
Plaintiffs contend that NCMIC failed to produce an
appropriate witness at the 30(b)(6) deposition, and seek
sanctions related to that failure.
II. THE POSITIONS OF THE PARTIES
In the Motion for Sanctions, the Plaintiffs contend that
NCMIC failed to produce an adequate corporate
representative deponent on various topics, after the Plaintiffs
issued a Notice of Taking Videotaped Deposition of NCMIC
Finance Corp. pursuant to Fed. R. Civ. P. 30(b)(6). The
Notice identified thirty-two separate Matters for
Examination which primarily related to obtaining
information about the relationship between NCMIC and the
Brican entities and the details of when NCMIC became
aware of certain marketing agreements and advertising
agreements between Brican and its customers (DE # 284-1).3
The Plaintiffs [*24] contend that NCMIC improperly
refused to provide a 30(b)(6) witness as to certain of those
topics and instead merely pointed the Plaintiffs to certain
deposition testimony of NCMICs former and current
employees in their individual capacities. In so doing,
NCMIC contended that the prior testimony provided

The background summary is taken from the Courts August 1, 2013, Omnibus Order on Cross-Motion for Summary Judgment on
the Jugular Issue (DE # 413), is only set forth to provide context for the instant Motion for Sanctions, and does not constitute findings
of fact by the undersigned.
2

There are a number of different versions of the Financing Agreements and Marketing Agreements that are discussed in length in the
August 1, 2013, Omnibus Order on Cross-Motion for Summary Judgment on the Jugular Issue (DE # 413). The variances in those
Agreements are not relevant for resolution of the instant Motion for Sanctions.
3

The Plaintiffs also requested through a Schedule of Documents to be Produced that NCMIC produce every document reviewed by
the designated witness in preparation for the deposition (DE # 284-1 at 7).

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Page 7 of 18
2013 U.S. Dist. LEXIS 142841, *24
responses to the Plaintiffs inquires and thus asserted that
NCMIC could rely on such testimony to represent NCMICs
responses to certain topics identified in the Notice.4 NCMIC
thus contended that the designation of the witnesses prior
testimony obviated the need for an additional deposition by
a NCMIC 30(b)(6) witness on those same issues. Therefore,
NCMIC only produced Greg Cole, President of NCMIC, to
testify as NCMICs 30(b)(6) corporate representative as to
those topics to which NCMIC asserted that no prior
deposition testimony had been given.5 The Plaintiffs contend
that such a method of designating prior testimony in lieu of
producing a proper 30(b)(6) witness is improper. In addition,
Plaintiffs contend that many, if not all, of the NCMIC
designations of prior witness testimony failed to provide

sufficient responses to the Plaintiffs specific areas of

inquiry, and failed [*25] to sufficiently provide NCMICs,
as a corporation, responses and/or knowledge as to those
areas. Further, the Plaintiffs contend that, as to those topics
that NCMIC produced Mr. Cole to testify as a corporate
representative, Mr. Cole was not adequately prepared.
The Plaintiffs request that NCMIC be sanctioned for its
failure to provide an adequate 30(b)(6) deponent in the form
of granting the Plaintiffs a beneficial inference for each
designated matter for which NCMIC failed to produce
[*26] an informed witness (DE # 284 at 3, 37-41).6 In
addition, the Plaintiffs request that additional sanctions in
the form of striking NCMICs pleadings be issued for

The designated topics for which NCMIC refused to produce a 30(b)(6) deponent are Plaintiffs Designated Matters Nos. 1, 2, 3, 4,
5, 6, 7, 8, 9, 10, 15, 16, 17, 19, 20, 21, 22 as set forth in the Amended Notice of Taking Videotaped Deposition of NCMIC Finance Corp.
Pursuant to Fed. R. Civ. P. 30(b)(6) (DE # 284-1). The topics are summarized below in the Analysis section of this Report.
5

NCMIC made Greg Cole available for a 30(b)(6) deposition as to Plaintiffs Designated Matters Nos. 11, 12, 13, 14, 27 and 28.

The specific beneficial inferences requested by the Plaintiffs as to those areas that Plaintiffs contend NCMIC has failed to produce
an adequate 30(b)(6) deponent are set forth in the Plaintiffs Motion (DE # 284 at 37-41), as follows:
Designated Matters Nos. 1 & 2: NCMIC performed no due diligence on Brican America, Inc., prior to July 15, 2005, [*27] and has failed
to explain why such due diligence was not performed by it.
Designated Matters Nos. 3, 4 & 5: NCMIC and PSFS 3 have failed to disclose when and how they first learned of the identities of the
owners of Brican America, Inc. Further, NCMIC Performed no due diligence on the owners of Brican America, Inc., and has failed to
explain why such due diligence was not performed by it.
Designated Matters Nos. 6, 7 & 8: NCMIC and PSFS 3 have failed to disclose when and how they first learned of the identities of the
owners of Brican America, LLC. Further, NCMIC performed no due diligence on the owners of Brican America, LLC, and has failed
to explain why such due diligence was not performed by it.
Designated Matter No. 9: The vendor set the price and NCMIC did nothing to determine the value of the equipment being financed.
Designated Matter No. 10: NCMIC first learned of the utilization of the marketing or advertising agreements by Brican America, Inc.,
between September, 2004 and September, 2005.
Designated Matter No. 11: Brican America, Inc., through one of its principals, Jean Francois Vincens, testified that Brican America, Inc.,
was given authority by NCMIC to utilize marketing or [*28] advertising agreements in late May to early June, 2006, and NCMIC has
presented no evidence to contradict this testimony. Further, NCMIC has presented no testimony that it ever advised Brican America, Inc.,
that Brican America, Inc., was not authorized to utilize marketing or advertising agreements.
Designated Matter No. 12: NCMIC has failed to disclose what, when, why, where and how NCMIC formulated what was descibted by
NCMICs employee, Fred Scott, as NCMICs program support[ing] Brican Americas return policy [i]f the Lease Agreement is
terminated by the customer due to Bricans return policy. Therfore, the trier of fact is authorized to construe whatever evidence is
admitted on this issue against NCMIC and in favor of Plaintiffs.
Designated Matter No. 13: NCMIC failed to disclose what, when, why, where and how NCMIC understood Brican Americas return
policy to be as of June 19, 2006. Therefore, the trier of fact is authorized to construe whatever evidence is admitted on this issue against
NCMIC and in favor of Plaintiffs. Further, by November 20, 2008, NCMIC understood that the return policy of Brican America was
contained in the agreement between Brican America and each [*29] doctor.
Designated Matter No. 14: NCMIC failed to disclose what, when, why, where and how NCMIC authorized Fred Scott to commit NCMIC
to NCMICs program support[ing] Brican Americas return policy [i]f the Lease Agreement is terminated by the customer due to
Bricans return policy. Therefore, the trier of fact is authorized to construe whatever evidence is admitted on this issue against NCMIC
and in favor of Plaintiffs. Further, Fred Scotts supervisor while both were employed by NCMIC, Bill Artino, testified that the intimation

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Page 8 of 18
2013 U.S. Dist. LEXIS 142841, *29
NCMICs conduct throughout the discovery process.7 In the
alternative, the Plaintiffs request that, if the Court directs
NCMIC to produce another 30(b)(6) deponent who can
testify as to the Plaintiffs designated topics, the Court order
that the deposition be taken in Fort Lauderdale, Florida and
that NCMIC bear all costs associated with the taking that
deposition, including airfare and hotel. The Plaintiffs further
request that the discovery deadlines be extended accordingly,
to conduct follow up discovery, if necessary, following the
second 30(b)(6) deposition. Finally, the Plaintiffs request
that NCMIC pay the attorneys fees associated with having
to bring the instant Motion.
In response, NCMIC first contends that the Plaintiffs
Motion is untimely because the Plaintiffs failed, in
compliance with the Local Rules, to bring this
discovery-related dispute before the Court within thirty days

of the dispute (DE # 304 at 1). NCMIC further contends that

the Plaintiffs request for sanctions is improper because the
Plaintiffs failed to first file a motion to compel seeking to
compel the production of a 30(b)(6) deponent. NCMIC
further asserts that it did not violate its obligations pursuant
to 30(b)(6) as it designated deposition testimony of current
and former NCMIC employees as to those issues identified
by the Plaintiffs to which testimony had already been
obtained in their individual depositions. NCMIC also
[*33] contends that it produced Gregory Cole, who had
already testified in his individual capacity, to testify as to the
designated topics where no deposition testimony had been
previously provided. NCMIC contends that there were no
more than ten current and former NCMIC employees who
had any significant involvement with or responsibility for
the Brican account, and that Plaintiff deposed all of them.
Thus, NCMIC argues that in this case, unlike the typical

[of email from Fred Scott to Bill Artino seeking assistance, followed by email from Fred Scott to Brican America] is that we discussed
it and [I] said, Okay. Go ahead and do this.
Designated Matter No. 15: NCMIC failed to disclose what, when, why, where and how NCMIC first received a copy of an advertising
or marketing agreement between Brican America, Inc., Brican America, LLC, or Viso Lasik Medspas, on the one part, and any of the
Plaintiffs on the other part. Therefore, the trier of fact is authorized to construe whatever evidence is admitted on this issue against
NCMIC and in favor of Plaintiffs.
Designated Matters Nos. 16 and 17: NCMIC failed to [*30] disclose what, when, why, where and how NCMIC inquired of Brican
America, Inc., concerning the copy of the advertising or marketing agreement it first received and has failed to disclose what, when, why,
where and how were any such inquiries by NCMIC of Brican America, Inc., answered by Brican America, Inc. Therefore, the trier of
fact is authorized to construe whatever evidence is admitted on this issue against NCMIC and in favor of Plaintiffs.
Designated Matters Nos. 19 and 20: NCMIC failed to disclose what, when, why, where and how NCMIC performed any due diligence
on Brican America, Inc., and its relationship to Recomm, and failed to disclose what, when why, where and how NCMIC performed any
due diligence on the owners of Brican America, Inc., and their relationship to Recomm. Therefore, the trier of fact is authorized to
construe whatever evidence is admitted on this issue against NCMIC and in favor of Plaintiffs.
Designated Matter No. 21: NCMIC failed to disclose what, when, why, where and how NCMIC took any action to make certain the
fraudulent activities reported about Recomm were not duplicated in the business of Brican America, Inc. Therefore, the trier of fact is
authorized [*31] to construe whatever evidence is admitted on this issue against NCMIC and in favor of Plaintiffs.
Designated Matter No. 22: NCMIC failed to disclose what, when, why, where and how NCMIC authorized Todd Cook to suggest to
Brican America, LLC, changes in the language of the marketing agreement used by Brican America, LLC to sell Exhibeo Systems to
Plaintiffs. Therefore, the trier of fact is authorized to construe whatever evidence is admitted on this issue against NCMIC and in favor
of Plaintiffs.
Designated Matter No. 26: NCMIC failed to disclose why and how was this response different than NCMICs response to the information
about the business of Recomm (owned by the same people sa Brican America, LLC,) provided to NCMIC by Harold Meredith in July,
2008. Therefore, the trier of fact is authorized to construe whatever evidence is admitted on this issue against NCMIC and in favor of
Plaintiffs.
Designated Matters Nos. 27 and 28: NCMIC failed to disclose all of its knowledge concerning what Brican salespeople were representing
concerning the NCMIC lease agreement, and failed to disclose all of its knowledge concerning what Brican salespeople were
representing concerning the Brican lease [*32] agreement subsequently assigned to NCMIC. Therefore, the trier of fact is authorized
to construe whatever evidence is admitted on this issue against NCMIC and in favor of Plaintiffs.
7

Plaintiffs also contend that NCMIC tampered with a witness and destroyed a file that NCMIC should have produced. The Plaintiffs
have filed two additional Motions for Sanctions related to those contentions (DE ## 290, 294). Those Motions are resolved by way of
separate orders.

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Page 9 of 18
2013 U.S. Dist. LEXIS 142841, *33
situation where a 30(b)(6) deposition is taken of one person
who has gathered all of the institutions knowledge, because
all of the persons with information regarding NCMICs
dealings with Brican were deposed, NCMIC has satisfied its
obligations under Rule 30(b)(6).
In Reply, the Plaintiffs reiterate that Defendant NCMIC
failed to properly prepare a corporate witness because the
testimony of the witnesses provided by NCMIC was based
solely on their memories and not based upon a review of
documents in NCMICs possession. Plaintiffs note that the
witnesses who were deposed in their individual capacity did
not have an obligation to review NCMIC documents because
they were not deposed in a corporate representative capacity.
Thus, Plaintiffs [*34] assert that NCMIC failed to provide a
corporate representative witness who was able to testify
fully to NCMICs institutional knowledge.
III. LEGAL FRAMEWORK
Federal Rule of Civil Procedure 30(b)(6) provides:
[A] party may name as the deponent a public or
private corporation. . . and must describe with
reasonable particularity the matters for examination.
The named organization must then designate one
or more officers, directors, or managing agents, or
designate other persons who consent to testify on
its behalf; and it may set out the matters on which
each person designated will testify. . . .The persons
designated must testify about information known
or reasonably available to the organization.
Fed.R.Civ.P. 30(b)(6). A corporation must make a
conscientious good-faith endeavor to designate the persons
having knowledge of the matters sought and to prepare
those persons in order that they can answer fully, completely,
unevasively, the questions posed as to the relevant subject
matters. Bank of New York v. Meridien BIAO Bank Tanzania
Ltd., 171 F.R.D. 135, 151 (S.D.N.Y. 1997) (citations and
quotations omitted)). As explained in Elan Microelectronics
Corp. v. Pixcir Microelectronics Co., Ltd., Case No.
2:10-cv-00014, 2013 U.S. Dist. LEXIS 114164, 2013 WL
4101811, at *1 (D. Nev. 2013): [*35]
The duty to prepare a Rule 30(b)(6) designee goes
beyond matters personally known to the witness or
to matters in which the designated witness was
personally involved. The duty to produce a

prepared witness on designated topics extends to

matters not only within the personal knowledge of
the witness but on matters reasonably known by
the responding party. By its very nature, a Rule
30(b)(6) deposition notice requires the responding
party to prepare a designated representative so that
he or she can testify on matters not only within his
or her personal knowledge, but also on matters
reasonably known by the responding entity.
(citations and quotations omitted).
2013 U.S. Dist. LEXIS 114164, [WL] at *5. Further, the fact
that an organization no longer has a person with knowledge
on the designated topics does not relieve the organization of
the duty to prepare a Rule 30(b)(6) designee. United States
v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C.), affd, 166 F.R.D.
367 (1996). Thus, a corporation must prepare its Rule
30(b)(6) designee to the extent matters are reasonably
available, whether from documents, past employees, or
other sources. Id. citing Ierardi v. Lorillard, Inc., No.
90-7049, 1991 U.S. Dist. LEXIS 11320, 1991 WL 158911, at
*1 (E.D. Pa. Aug. 13, 1991).
IV. [*36] ANALYSIS
A. The Plaintiffs Motion is Deemed Timely
As stated above, NCMIC first contends that the Plaintiffs
Motion for Sanctions is untimely because the deposition of
the 30(b)(6) representative was conducted on January 17,
2012, yet the Plaintiffs did not raise this issue before the
Court until March 5, 2012, nearly seven weeks after the
completion of the deposition. NCMIC contends that such
delay violates Local Rule 26.1(h)(1), which requires that all
motions related to discovery be filed within thirty (30) days
of the occurrence of the grounds for the motion.8
In response, the Plaintiffs contend that any delay in filing
the Motion was due to the Parties attempts to resolve the
issue prior to seeking court intervention, which were
commenced immediately after the conclusion of the 30(b)(6)
deposition.
Local Rule 26.1(h)(1) provides:
(1) Time for Filing. All motions related to discovery,
including but not limited to motions to compel
discovery and motions for protective order,
[*37] shall be filed within thirty (30) days of the

The undersigned notes that the Discovery Procedures attached to the Courts Scheduling Order require a Party to seek relief in
connection with a discovery dispute within 15 days rather than 30 days (DE # 44).

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Page 10 of 18
2013 U.S. Dist. LEXIS 142841, *37
occurrence of grounds for the motion. Failure to
file a discovery motion within thirty (30) days,
absent a showing of reasonable cause for a later
filing, may constitute a waiver of the relief sought.
Although the Rule by its plain language directs that motions
related to discovery shall be filed within thirty days of the
occurrence, and failure to do so may constitute a waiver of
the relief sought, the Rule also provides that the presumption
of waiver may be overcome upon a showing of reasonable
cause for a tardy filing.
In this case, it is undisputed that prior to the 30(b)(6)
deposition, the Plaintiffs made clear that they objected to
Defendant NCMICs intention to rely upon prior deposition
testimony instead of producing a corporate representative to
testify as to the topics designated by the Plaintiffs. In
addition, after the deposition of the 30(b)(6) representative
Gregory Cole, the Plaintiffs took additional depositions of
NCMIC employees, the last of which occurred January 23,
2012. On January 22, 2012, the Plaintiffs alerted the
Defendant that they intended to file a motion related to the
30(b)(6) deposition, and explained that, [*38] based upon
the relief sought in the Motion for Sanctions, the Plaintiffs
believed that the motion was actually more properly viewed
as a motion in limine. On January 27, 2013, Plaintiffs
received the official transcript from the 30(b)(6) deposition.
It is undisputed that thereafter, on February 23, 2013,
Plaintiffs served a draft of the Motion for Sanctions on
NCMIC. In an effort to comply with Local Rule 7.1, which
requires consultation between the parties prior to filing a
motion, the Plaintiffs requested that NCMIC indicate whether
NCMIC objected to the Motion to the extent that it
exceeded twenty (20) pages.9 NCMIC responded that it
would provide a written response to the Plaintiffs request
the week following February 25, 2012. On or about March

5, 2013, NCMIC responded that it objected to the Motion

exceeding twenty pages. That same day, the Plaintiffs filed
a Motion for Permission to File Motion in Excess of 20
Pages that attached the instant Motion seeking sanctions
based upon the 30(b)(6) deposition (DE # 271).10
Although Local Rule 26.1(h)(1) reflects a policy of
promoting the prompt resolution of discovery disputes by
requiring the parties to timely bring to the courts attention
matters that the parties cannot resolve amongst themselves,
Kendall Lakes Towers Condo. Assn, Inc. v. Pacific Ins. Co.,
Ltd., Case No. 10-24310-CIV, 2011 U.S. Dist. LEXIS 138953,
2011 WL 6190160, at *2 (S.D. Fla. Dec. 2, 2011), the Rule
does not expressly require the imposition of sanctions when
there is a failure to file such motion within the specified
time period. Id. Accord Kabula v. Southern Homes of
Homestead VIII, Inc., Case No. 08-20685-CIV, 2008 U.S.
Dist. LEXIS 84962, 2008 WL 4691983, at *1 (S.D. Fla.
October 22, 2008) (noting the permissive nature of Rule
26.1(h)); Sandalwood Estates Homeowners Assn, Inc. v.
Empire Indem. Ins. Co., No. 09-CV-80787, 2010 U.S. Dist.
LEXIS 12840, 2010 WL 411088, at *2 (S.D. Fla. Jan. 29,
2010) [*41] (stating Local Rule 26.1(h)(1) is permissive
and affords the Court discretion in whether to consider a
late-filed motion.).
In this case, NCMIC has not asserted that it has suffered any
prejudice as a result of the Plaintiffs filing the Motion more
than thirty days after the occurrence which gave rise to the
Motion. In this regard, the undersigned notes that the
Plaintiffs delay in filing the Motion, while greater than de
minimis, was a relatively short period of time, particularly
given the complex nature of this multi-district litigation
action. See e.g. Chen v. Cayman Arts, Inc., Case No.
10-80236-CIV, 2011 U.S. Dist. LEXIS 66423, 2011 WL
2491009, at *2 (S.D. Fla. June 22, 2011) (allowing tardy

NCMIC has not requested an opportunity to file a sur-reply to rebut the assertions by the Plaintiffs related to this issue, and the time
for doing so has long-expired. [*39] As such, the undersigned accepts the Plaintiffs assertions regarding the sequence of events and
the reasons for the delay in filing the instant Motion for Sanctions.
10

Initially, on March 5, 2012, the Plaintiffs filed the Motion for Permission to File a Motion and Incorporated Memorandum of Law
in Excess of 20 Pages (DE # 271). Attached to the Motion was a sixty-six (66) page proposed Motion in Limine seeking sanctions for
NCMICs conduct in discovery related NCMICs failure to produce an adequate (30)(b)(6) deponent, NCMICs failure to preserve and
produce a paper file purportedly maintained by one of its former employees, and NCMICs alleged witness tampering. The Motion
requesting leave to file in excess of twenty pages was granted, in part, by the District Judge who permitted the Plaintiffs to file a motion
that did not exceed forty pages in length (DE # 274). The Plaintiffs thereafter filed three separate Motions for Sanctions, one seeking
sanctions for violations of NCMICs 30(b)(6) obligations which totaled forty-three pages (DE # 284), one seeking sanctions for
spoliation of a paper file, which totaled eighteen pages (DE # 290), and one seeking sanctions for witness tampering [*40] related to
the testimony of Fred Scott, which totaled nineteen pages (DE # 308). Defendant NCMIC contends that the instant filing contravenes
the Courts order regarding the number of pages permitted to be filed with regard to the sanctions motion. However, the Defendant did
not file a Motion to Strike the instant Motion, but instead only raised this issue in its Response to this Motion. The undersigned declines
to deny the instant Motion on this basis.

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Page 11 of 18
2013 U.S. Dist. LEXIS 142841, *41
filing of discovery motion where length of time of delay
was de minimis where party filed notice five days beyond
the thirty day deadline set forth in the Local Rule). But see
Manno v. Healthcare Revenue Recovery Group, Case No.
11-61357-CIV, 2012 U.S. Dist. LEXIS 56272, 2012 WL
1409532 *1, (denying discovery related motion filed three
days after thirty day deadline date set forth in local rules).
Thus, the undersigned concludes that, given the permissive
nature of the Local Rule, and the fact that the Plaintiffs have
established reasonable cause [*42] for the relatively short
delay, the Plaintiffs have not waived the discovery dispute
and the undersigned will address the merits of the Motion.
B. Defendant NCMIC Failed to Produce an Adequate
30(b)(6) Deponent as to Certain Matters Identified in the
Plaintiffs Notice of Deposition and the Imposition of
Sanctions is Appropriate For That Failure
1. The Plaintiffs May Seek Sanctions for the Defendants
Failure to Produce an Adequate 30(b)(6) Deponent
Notwithstanding the Fact that the Plaintiffs Did Not First
File a Motion to Compel
The Court next dispenses with Defendant NCMICs
argument that it is improper for the Court to issue sanctions
for a failure to produce a 30(b)(6) deponent, where, as in
this case, the Plaintiff failed to file a motion to compel prior
to filing its motion for sanctions.
A district court has broad discretion to impose sanctions,
which is derived from the courts inherent power to manage
its own affairs and to achieve the orderly and expeditious
disposition of cases. Flury v. Daimler Chrysler Corp., 427
F.3d 939, 944 (11th Cir. 2005) (citing Chambers v. Nasco,
Inc., 501 U.S. 32, 43, 111 S. Ct. 2123, 115 L. Ed. 2d 27
(1991). Sanctions for discovery abuses are intended to
prevent unfair prejudice to [*43] litigants and to insure the
integrity of the discovery process. Id., citing Gratton v.
Great American Communications, 178 F.3d 1373, 1374
(11th Cir. 1999). Federal Rule of Civil Procedure 37(d)
permits the imposition of sanctions when a party or person
designated under Rule 30(b)(6) fails, after being served with
proper notice, to appear for that persons deposition.
Courts have held that producing an unprepared witness is
tantamount to a failure to appear at a deposition. United
States v. Taylor, 166 F.R.D. 356, 363 (M.D.N.C.), affd, 166
F.R.D. 367 (1996); Cherrington Asia Ltd. V. A&L
Underground, Inc. 263 F.R.D. 653, 658 (D. Kan. 2010)
(opining that if Rule 30(b)(6) witness is not adequately
prepared to testify about topics properly identified in a
notice to take the deposition, the court may impose various

types of sanctions, including the imposition of reasonable

attorneys fees and expenses caused by the failure); Rahman
v. The Smith & Wollensky Restaurant Group, Inc., Case No.
06 Civ. 6198LAKJCF, 2009 U.S. Dist. LEXIS 3510, 2009
WL 77334 *2, (S.D.N.Y. 2009) (same).
There is nothing in Rule 37(d) that requires the Plaintiffs to
file a motion to compel prior to seeking sanctions for the
conduct alleged in [*44] the instant Motion. Accordingly,
the Plaintiffs may seek sanctions related to NCMICs
alleged conduct.
2. Defendant NCMIC Improperly Designated Prior
Deposition Testimony in Lieu of Producing a 30(b)(6)
Corporate Representative for Deposition
As stated above, the Plaintiffs contend that NCMIC failed to
produce a corporate representative deponent who was
prepared to provide testimony as to the actions taken by
NCMIC related to the Brican entities. The Plaintiffs contend
that even assuming arguendo that it is permissible for an
entity to rely on prior deposition testimony of individuals to
satisfy the requirement under Fed. R. Civ. P. 30(b)(6),
NCMIC has failed to produce witnesses who are able to
provide such responsive testimony. According to the
Plaintiffs, none of the designated prior testimony from the
five witnesses sufficiently addresses NCMICs corporate
knowledge and/or actions relevant to the topics designated
by the Plaintiffs. In addition, the Plaintiffs assert that neither
Paula Nazum Barkley, Jean Thompson, Fred Scott, Todd
Cook or Greg Cole, upon whose prior deposition testimony
NCMIC relies, had access to all of the relevant NCMIC
records prior to their depositions from [*45] which they
could prepare, and further note that the each of the
individual deponents reviewed only a few documents prior
to their depositions. The Plaintiffs additionally note that
none of the witnesses prepared for their respective individual
depositions as a corporate representative in the manner
required by Rule 30(b)(6), and none testified that they
intended to provide testimony on behalf of the corporate
entity.
The undersigned has reviewed the deposition testimony of
each of the NCMIC witnesses who were deposed in their
individual capacity, as well as the deposition of Greg Cole,
who was deposed both in his individual and corporate
representative capacities. Based thereon, for the following
reasons, the undersigned concludes that Defendant NCMIC
has failed to fulfill its obligations pursuant to Rule 30(b)(6)
to provide an adequate corporate representative for the
deposition topics identified by the Plaintiff.
First, Defendant NCMIC suggests that the prior designated
testimony from the individual depositions of the five past

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Page 12 of 18
2013 U.S. Dist. LEXIS 142841, *45
and former NCMIC employees satisfies NCMICs obligation
to produce a witness, as their testimony will serve to bind
NCMIC as to those topic areas specifically [*46] identified
by the Plaintiffs. The flaw in NCMICs contention is that
none of the questions posed to the individual deponents, or
the answers given by those witnesses, describe what actions
NCMIC took, as a corporate entity, related to that specific
topic. By way of example, the Plaintiffs sought information
regarding the details of any due diligence performed by
NCMIC on Brican America, Inc., prior to July 15, 2005
(Designated Matter # 1).11 In the testimony designated by
NCMIC, Fred Scott testified that he did not recall
investigating the length of time that Brican America, Inc.,
had been in business, or the financial status of Brican
America Inc. prior to his signing of the general vendor
agreement (DE # 284 at 15). Mr. Scott did not offer any
testimony about what NCMIC did as a corporate entity and
did not even offer other testimony regarding what other
employees of NCMIC did related to performing due
diligence on the Brican entities.
In this same vein, in the deposition of Todd Cook, which
was also designated by [*47] NCMIC as responsive to the
due diligence topic, Mr. Cook was asked about the purpose
of his trip to South Florida in 2008 (DE # 284-20 at 93). In
response, Mr. Cook explained that the trip was . . . just a
trip-a due diligence type trip. Id. This answer in no way
suggests what type of due diligence that NCMIC as a
corporation performed regarding Brican. While the answer,
in fact, may be that NCMIC performed no due diligence
regarding Brican, the Plaintiffs are entitled to have a
representative from NCMIC state such a response rather
than have individuals testify about due diligence that they as
individuals may or may not have performed, particularly
where the responses are limited by the question of what that
particular witness did, as opposed to what NCMIC, as a
corporation, may or may not have done. This same defect

applies to the other inquiries related to the due diligence

performed by NCMIC.
Similarly, as to the topic related to determining the amount
of the loan to each Plaintiff which was secured by the
equipment purchased by Brican (Designated Matter No. 9),
NCMIC offered the testimony of Ms. Barkley, Mr.
Thompson, Mr. Scott and Mr. Cook. The Plaintiffs contend
that the testimony [*48] from those witnesses as to how the
amount of the loan was determined varies, and includes
extraneous testimony, and thus the Plaintiffs are unable to
determine NCMICs position on this particular issue. The
undersigned agrees. Again, the Plaintiffs are entitled to
understand, not what the employee witnesses in their
individual capacities believe that NCMIC did to determine
the amount of the loans, but to know what NCMICs
corporate position is on that issue.
Moreover, as argued by the Plaintiffs, the testimony
designated by NCMIC more often than not fails to provide
an adequate response to the substance of the inquiry. This
failure is made clear in the deposition testimony of Todd
Cook that was, as stated above, designated by NCMIC as
responsive to the inquiry of the due diligence performed by
NCMIC, prior to 2005. In Mr. Cooks individual deposition,
any inquiry about Mr. Cooks due diligence was limited to
questions about his trip to South Florida in 2008 (DE #
284-20 at 93). Thus, there is no way that his testimony
explains what, if any, type of due diligence that NCMIC
performed regarding Brican prior to July 15, 2005. In fact,
at the 30(b)(6) deposition, Mr. Cole, who was testifying
[*49] as NCMICs corporate representative, acknowledged
that there was nothing in Mr. Cooks testimony that was
designated by NCMIC that was responsive to any due
diligence performed by NCMIC prior to 2005 (DE # 284-15
at 13).12
As to topics related to when NCMIC first learned of the
identities of the Brican owners, NCMIC offered the prior

11

The undersigned refers to certain Designated Matters in the Plaintiffs Notice of 30(b)(6) deposition as they correspond to those
numbers in that Notice (DE # 284-1).
12

It is worth noting that it is unclear whether Mr. Cole was capable, based upon his own investigation and prior involvement in
litigation related to Brican, of providing comprehensive corporate representative testimony on behalf of NCMIC as to those topics
identified by the Plaintiffs. This is so because Counsel for NCMIC would only permit Mr. Cole to testify as to those topics that NCMIC
had determined had not already been sufficiently testified to by prior deponents. By way of example, although Mr. Cole was not
designated to testify as to the due diligence performed by NCMIC regarding Brican, at the 30(b)(6) deposition, when he was asked if
he had reviewed materials to prepare for inquiry about NCMICs due diligence efforts, Mr. Cole stated,
If youre asking me if I specifically looked in a much more global scope in preparation for this deposition in the last few
weeks since I received the subpoena notice, no; however, I have spent considerable time over the last [*50] approximately
three years looking under every rock possible for any additional information.
(DE # 284-15 at 21). Similarly, when asked about why no due diligence was performed, another topic for which Mr. Cole was not

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Page 13 of 18
2013 U.S. Dist. LEXIS 142841, *49
testimony of Fred Scott and Mr. Cook. However, the portion
of Mr. Scotts testimony designated by NCMIC does not
address when NCMIC first learned of the identities of
Bricans owners but rather speaks to whether Mr. Scott
investigated the [*51] background of those owners (DE #
284-17 at 12). The designated testimony of Mr. Cook also
fails to address the issue of when NCMIC discovered the
identities of Bricans owners (DE # 284-20 at 24).
These same or similar failures occur throughout almost all
of the topics for which Defendant designated prior testimony
in lieu of producing a corporate representative for a
deposition. Thus, based upon a review of each of the
Plaintiffs designated topics and the prior testimony cited by
the Defendant as providing adequate responses on behalf of
NCMIC for those topics, the undersigned concludes that
Defendant has failed to satisfy its obligations pursuant to
Rule 30(b)(6).
It is for these reasons that this case is distinguishable from
the cases cited by NCMIC where the designations of prior
testimony provided the information sought related to the
topic designated by a litigant. In Novartis Pharmaceuticals
Corp. v. Abbott Laboratories, 203 F.R.D. 159 (D. Del.
2001), for example, the court denied the plaintiffs request
to redepose a witness in his official capacity where the
witness in his individual capacity had already testified as to
the specific topic and the defendant corporation agreed
[*52] to be bound by that previous testimony. In so doing,
the court observed that the witness was the most
knowledgeable person about the particular topic and was the
same person who would have been designated under 30(b)(6)
to testify as to that subject, and that such testimony from the
witness would be cumulative to the testimony already
procured. Id. at 163. Such is not the case here. The Plaintiffs
are not requesting to redepose the deponents as to the same
subjects for which they have already testified, rather, the
Plaintiffs are seeking to have a witness produced by
NCMIC who will provide complete testimony as to
NCMICs positions on various issues. In this circumstance,
the testimony sought by the Plaintiffs can hardly be viewed
as cumulative.
In addition, although Defendant NCMIC correctly states
that in QBE Ins. Corp. v. Jorda Enterprises, Inc., 277 F.R.D.
676 (S.D. Fla. 2012), the Court acknowledged that there is

nothing in the rules to prohibit a corporation from adopting

the testimony or position of another witness in a case, the
Court noted that such a procedure would still require a
corporate designee to formally provide testimony that the
corporations position is that of [*53] another witness. Id.
at 691. Further, there is nothing in the Courts ruling in that
case that suggests that a corporation may avoid its obligation
to produce a Rule 30(b)(6) corporate representative for
deposition by citing to prior testimony that is not responsive
to the topics designated for testimony by the opposing party.
To reiterate, in this case, as discussed above, the testimony
designated by NCMIC simply fails to provide adequate and
clear information regarding NCMICs position as to the
topics specifically identified by the Plaintiffs. As such, the
undersigned concludes that the prior testimony designated
by NCMIC is insufficient to satisfy NCMICs obligation of
producing a 30(b)(6) deponent.
C. NCMIC Failed to Adequately Prepare Mr. Cole for his
30(b)(6) Deposition as to Certain Topics Designated by
Plaintiffs
The Plaintiffs also allege that Mr. Cole was not adequately
prepared to testify as to certain topics for which he was
designated as the 30(b)(6) witness. Specifically, the Plaintiffs
contend that Mr. Cole failed to prepare adequately for: 1)
Issues related to how NCMIC gave authorization to Brican
to utilize marketing or advertising agreements (Designated
Matter # 11); [*54] 2) Details of how NCMIC formulated a
program to support Bricans return policy (Designated
Matter # 12); 3) Details of how NCMIC understood
Bricans return policy (Designated Matter # 13); 4) Details
of how Fred Scott was authorized to commit NCMIC to a
program to support Bricans return policy (Designated
Matter # 14); and, 5) All knowledge concerning what Brican
salespeople were representing concerning the NCMIC lease
agreement and the Brican lease agreement subsequently
assigned to NCMIC (Designated Matters ## 27, 28).
Although the Plaintiffs arguments regarding the inadequate
preparation of Mr. Cole as to the topics testified to at the
30(b)(6) deposition are less persuasive than those advanced
regarding NCMICs reliance on the designation of former
testimony in lieu of producing a 30(b)(6) witness, the
undersigned concludes that there were, in fact, certain topics

designated to testify, Mr. Cole responded, Unfortunately, all of those individuals that were involved directly are no longer employed,
as you are well aware, by NCMIC. So anything that Ive been able to determine has been after the fact, based upon any records and
information available to me. What those individuals may or may not know I cant testify to. (DE # 284-15 at 23). Thus, it is unclear
why Defendant NCMIC refused to permit Mr. Cole to testify as to those issues related to due diligence on behalf of NCMIC as a
corporate representative based upon his endeavor to find all additional information related to that topic.

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Page 14 of 18
2013 U.S. Dist. LEXIS 142841, *54
for which Mr. Cole was not adequately prepared to testify
as NCMICs corporate representative. The undersigned
addresses those topics, in turn.
As to those issues related to NCMICs authorization to
Brican to utilize marketing and advertising agreements and
NCMICs program to support a Brican return policy, the
Plaintiffs [*55] contend that Mr. Coles review of the
depositions of Todd Cook, Paula Nuzum Barkley, Jean
Thompson and Fred Scott was insufficient to prepare him to
testify on this topic. The Plaintiffs assert that NCMIC
should have interviewed its former employees who were in
a position to authorize NCMICs actions regarding the
marketing and advertising agreements and any NCMIC
program used to support Bricans return policy.
The Plaintiffs argument is not convincing given the facts of
this case. Indeed, as to Designated Matters Nos. 11, 12 and
14, which relate to NCMICs authorization, through Fred
Scott, for Brican to use certain marketing and advertising
agreements to support Bricans return policy, NCMIC has
consistently denied that it gave any such authorization.
Specifically, in NCMICs 30(b)(6) deposition, Mr. Cole was
asked directly if it was NCMICs position that NCMIC gave
authorization to Brican America, Inc., to utilize marketing
or advertising agreements (DE # 284-15 at 28-29). Mr. Cole
answered that query in the negative and further explained
that he reviewed certain deposition testimony, which
included a review of an exhibit to Mr. Scotts deposition
which reflected communications [*56] between Mr. Scott
and the owners of Brican related to the marketing agreement
and NCMICs purported authorization to Brican related to
those agreements.13 Included in those communications was
an email that Mr. Scott allegedly sent to Mr. Artino, the
former vice-president of NCMIC, seeking his assistance
regarding Bricans return policy (DE # 294-6 at 1). It is
undisputed that Mr. Cole did not speak with Mr. Artino prior
to the 30(b)(6) deposition. However, Counsel for the
Plaintiffs acknowledged during Mr. Coles 30(b)(6)
deposition that it would be unlikely that Mr. Cole would
have spoken to Mr. Artino about any such correspondence
because of the litigious relationship between Mr. Artino

and NCMIC. (DE # 284-15 at 30). In addition, Mr. Artino

was deposed in his individual capacity the day after
NCMICs 30(b)(6) deposition (DE # 284-23). During that
deposition, Mr. Artino testified that he didnt remember
receiving the email at issue from Mr. Scott, did not
remember anything about an agreement with Brican to
support Bricans return guarantee conditions, couldnt recall
if Mr. Scott would need Mr. Artinos authorization to send
the correspondence at issue, and didnt recall speaking
[*57] to Mr. Scott about the issue (DE # 284-23 at 61-63).
Thus, it is unclear what additional interviews of former
employees who were in a position to authorize Brican
America to utilize marketing or advertising agreements,
that Mr. Cole should have conducted on this issue to
prepare for the deposition. In addition, unlike the concerns
regarding the individual deponents testimony with regard
to binding NCMIC to their answers, Mr. Coles answers
regarding NCMICs position on this issue are clear and
binding. This same analysis applies as to Plaintiffs request
for information about the details of the NCMIC program
described by Fred Scott as supporting Brican Americas
return policy (Designated Matter # 12), and the details of
how NCMIC authorized Mr. Scott to commit to the NCMIC
program which allegedly supported Brican Americas return
policy if the Lease Agreement was terminated by the
customer (Designated Matter #14). As such, the undersigned
concludes that NCMIC adequately prepared Mr. Cole for
these topics.
However, as to Designated Matter # 13, the Plaintiffs
request for information regarding the details of what NCMIC
understood Brican Americas return policy to be as of June
19, 2006, the Plaintiffs accurately point out that, according
[*59] to deposition testimony, there may have been, at least,
four NCMIC employees, Todd Cook, Jo Lynn Quick,
Lanette Henningsen and Jean Thompson, who possibly had
information regarding such a return policy. NCMIC, through
Mr. Coles testimony, failed to assert that interviews had
been conducted of these employees related to this issue, and
further Mr. Cole did not indicate that he reviewed the
depositions of Ms. Quick and Ms. Henningsen in preparation
for his deposition. It is of no moment that certain of those

13

The correspondence at issue relates to the alleged discussions that Mr. Scott, a NCMIC salesman/business development manager,
had with shareholders of Brican (Mr. Vincens and/or [*58] Mr. Briscoe) involving NCMICs support of the Brican return policy for
equipment returned by the customer to Brican prior to completion of payment under the lease agreement (DE # 294-6). The Plaintiffs
have cited to such correspondence as demonstrating that NCMIC authorized Bricans use of certain marketing and advertising
agreements. Further, Plaintiffs suggest that Bill Artino, the former vice-president and general manager of equipment finance of NCMIC,
received a copy of the letter sent by Fred Scott to Brican related to the return policy and thus suggest that Mr. Artino authorized Mr. Scott
to agree to Bricans use of certain marketing and advertising agreements which included Bricans return policy. The issue as to the
creation and circumstances related to this particular correspondence is further addressed in the Plaintiffs Motions for Sanctions for
destruction of a paper file, and witness tampering, which are resolved by way of separate orders.

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Page 15 of 18
2013 U.S. Dist. LEXIS 142841, *59
employees may no longer work for NCMIC. Indeed, when
[f]aced with such a scenario, a corporation with no current
knowledgeable employees must prepare its designees by
having them review available materials, such as fact witness
deposition testimony, exhibits to depositions, documents
produced in discovery, materials in former employees files
and, if necessary, interviews of former employees or others
with knowledge. QBE Ins. Corp. v. Jorda Enterprises, Inc.,
277 F.R.D. 676, 688 (S.D. Fla. 2012), citing Great Am. Ins.
Co. v. Vegas Constr. Co., Inc., 251 F.R.D. 534, 540 (D. Nev.
2008). Thus, in light of Mr. Coles testimony that he found
no evidence that there was ever such a return [*60] policy,
Mr. Cole was not adequately prepared as a corporate
representative deponent on behalf of NCMIC to testify as to
this issue.
Further, as to those topics related to NCMICs knowledge of
representations made by Brican salespeople (Designated
Matters ## 27 and 28), the Plaintiffs contend that the
deposition testimony of Mr. Cook indicates that NCMIC
received a thirty-page PowerPoint presentation which Mr.
Cook believed was presented to Brican customers by Brican
representatives (DE # 284 at 35). However, at the 30(b)(6)
deposition of Mr. Cole, he testified that he had not reviewed
that document prior to his deposition because he had
previously reviewed the PowerPoint presentation and it did
not mention either NCMIC or PSFS (DE # 284-15 at
58-59). In response to the Plaintiffs assertion that Mr. Cole
should have reviewed the presentation in preparation for his
30(b)(6) deposition, NCMIC merely states that, pursuant to
Greg Coles testimony as the 30(b)(6) representative,
NCMIC could not possibly have had either personal or
institutional knowledge of what each of the Brican
salespeople were representing to the individual customers
(DE # 304 at 19).
However, based upon a review of [*61] Mr. Coles 30(b)(6)
testimony, it is clear that Mr. Cole should have reviewed the
PowerPoint presentation prior to his deposition, as he
clearly knew prior to that time that the presentation received
by NCMIC in July of 2008 contained information regarding
what Brican sales people were representing in sales
transactions. The fact that the presentation may or may not
have mentioned NCMIC or PSFS does not negate the fact
that the presentation likely contained information regarding
the Brican lease agreement as requested in at least one of the
matters designated by the Plaintiffs. As such, Mr Cole failed
to adequately prepare to testify on behalf of NCMIC on
these issues.
Finally, Mr. Cole made clear in his deposition, that he
reviewed relatively few documents in preparation for the

30(b)(6) deposition. Specifically, Mr. Cole testified that he

reviewed depositions, including his own, and one or two
e-mails that were mentioned in those depositions (DE #
284-15 at 3). In addition, in response to the Schedule of
Documents to Be Produced, at the 30(b)(6) deposition, the
Plaintiffs assert, and NCMIC does not dispute, that Mr. Cole
only produced 92 pages of documents, 80 of which were
sales [*62] materials that did not come into Bricans
possession until after NCMIC stopped funding Brican
transactions (DE # 284 at 9). It is hard to fathom that a
30(b)(6) corporate representative would not review more
documents in preparation for a deposition, particularly in a
paper-intensive complex case like the one at bar.
Based on the foregoing, it is clear that NCMIC failed to
adequately prepare Mr. Cole as to several of the topics
specifically designated by the Plaintiffs.
D. Sanctions Are Appropriate For NCMICs Failure To
Produce an Adequate Rule 30(b)(6) Deponent
As stated above, Fed. R. Civ. P. 37(d) permits the imposition
of sanctions when a party or person designated under Rule
30(b)(6) is unprepared to testify in that capacity. In addition,
a court may impose sanctions for litigation misconduct
under its inherent power which derives from the courts
need to manage its own affairs so as to achieve the orderly
and expeditious disposition of cases. Eagle Hosp. Physicians,
LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1306 (11th Cir.
2009) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 43,
111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991)). This power,
however, must be exercised with restraint and discretion.
Id. citing Roadway Express, Inc. v. Piper, 447 U.S. 752, 764,
100 S. Ct. 2455, 65 L. Ed. 2d 488 (1980). [*63] Therefore,
generally, the severe sanction of a dismissal or default
judgment is appropriate only as a last resort, when less
drastic sanctions would not ensure compliance with the
courts orders. In re Sunshine Jr. Stores, Inc., 456 F.3d 1291,
1306 (11th Cir. 2006) (internal citation and quotation
omitted). Accordingly, because the undersigned has
concluded that NCMIC failed to fulfill its obligations
pursuant to Rule 30(b)(6) to produce an adequate corporate
representative for the deposition topics identified by the
Plaintiff, sanctions shall be imposed.
The Plaintiffs have requested that the Court, in imposing
sanctions, either strike NCMICs pleadings or, in the
alternative, permit the Plaintiffs to conduct a second
deposition of a 30(b)(6) NCMIC corporate representative
with NCMIC being taxed with all costs associated with
taking that deposition. Further, the Plaintiffs have requested
that the Court issue an Order in limine which establishes a

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Page 16 of 18
2013 U.S. Dist. LEXIS 142841, *63
beneficial inference for the Plaintiffs as to those topics for
which NCMIC failed to produce an adequate witness.
Plaintiffs also request that they be reimbursed from NCMIC
for fees and costs incurred in bringing this Motion.
Based upon a [*64] careful review of the circumstances
involving NCMICs failure to produce an adequate 30(b)(6)
deponent, the undersigned concludes that NCMICs conduct
related to this issue does not warrant the extreme sanction
of striking NCMICs pleadings. See e.g. Continental
Casualty Co. v. First Financial Employee Leasing, Inc., 716
F. Supp. 2d 1176, 1193 (M.D. Fla. 2010) (imposing sanctions
in the form of costs and attorneys fees but declining to
strike litigants pleading where corporate representative was
not fully prepared to speak for the corporation as to certain
topics).14 Rather, although NCMIC improperly designated
prior deposition testimony as to certain topics identified by
the Plaintiffs, the Court notes that NCMIC did produce
those deponents in their individual capacities for deposition
on issues related to NCMICs dealings with Brican and also
produced Mr. Cole to testify to certain other topics.
In addition, the undersigned further concludes that the
failure of Defendant NCMIC to produce an adequate
30(b)(6) deponent is not sufficiently egregious for the Court
to issue an order in limine as to beneficial inferences
requested by the Plaintiffs as set forth above in this Order.
In this regard, it bears noting that NCMIC has agreed, to
some extent, to be bound by the testimony of the designated
deponents. Specifically, in its Response to the Motion,
NCMIC states, If this matter proceeds to trial, Plaintiffs
will have the opportunity to make whatever inference about
these gaps that they wish . . . . and further states, For better
or worse, NCMIC is bound by the gaps in their memories of
its current and former employees. (DE # 304 at 10). Thus,
although NCMIC stops short of conceding that the Plaintiffs
are entitled to a beneficial inference for Plaintiffs as to those
topics for which NCMIC has failed to produce an adequate
30(b)(6) deponent, NCMIC implicitly acknowledges that it
will be unable to fill in any gaps related to those
omissions at trial.

Therefore, the undersigned [*66] has determined that the

appropriate remedy is that the Plaintiffs, at their choosing,
may either conduct a second Rule 30(b)(6) corporate
representative deposition as to those topics for which
NCMIC elected to designate prior testimony, and for those
topics where Mr. Coles preparation was incomplete; or, that
the Plaintiffs may serve additional interrogatories as to
those designated topics. If the Plaintiffs elect to re-depose
NCMICs corporate representative, the deposition should be
limited to those topics for which deposition testimony has
not been provided.15
Specifically, the Plaintiffs may inquire as to the following
[*67] topics:
1. The details of any due diligence that NCMIC
performed on Brican America, Inc., prior to July
15, 2005, and if no due diligence was performed on
Brican America, Inc., NCMICs reasons for not
doing so (Plaintiffs Designated Matters ##1, 2).
2. When NCMIC first learned the identities of the
owners of Brican America, Inc., and Brican
America, LLC, and any due diligence performed
on the owners. If no due diligence was conducted
on the owners, NCMICs reasons for not doing so
(Plaintiffs Designated Matter ## 3, 4, 5, 6, 7, 8).
3. Details of how NCMIC determined the amount
it would loan to each Plaintiff secured by the
equipment which was being purchased from Brican
America, Inc., or Brican America, LLC. (Plaintiffs
Designated Matter # 9).
4. Details of how NCMIC learned of the utilization
of any marketing or advertising agreements by
Brican America, Inc. (Plaintiffs Designated Matter
# 10).
5. Details of how NCMIC first received a copy of
an advertising or marketing agreement between
Brican America, Inc., Brican America, LLC, or
Viso Lasik Medspas, and any of the Plaintiffs
(Plaintiffs Designated Matter # 15).

14

To the extent that the Plaintiffs have requested in three motions for sanctions, (DE ## 284, 290, 294), including this one, that
NCMICs pleadings be stricken for NCMICs purported various discovery violations, that request is addressed in the undersigneds
Order on the Plaintiffs Motion [*65] for Sanctions for Witness Tampering (DE # 294), which is filed contemporaneously with the
instant Order.
15

The undersigned recognizes that although it appears from the record that NCMIC president, Gregory Cole, likely would be an
adequate 30(b)(6) deponent once he reviewed the relevant documents and spoke to the appropriate witnesses, the essence of a 30(b)(6)
deposition is to permit the corporation to designate an adequate corporate representative to testify. Thus, neither the Plaintiffs nor the
Court should specifically identify the witness(es) that NCMIC will present at the deposition to testify on the topics identified by the
Plaintiffs in the 30(b)(6) capacity.

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Page 17 of 18
2013 U.S. Dist. LEXIS 142841, *67
6. Details of how NCMIC inquired of Brican
America, Inc., concerning [*68] the copy of the
advertising or marketing agreement it first received
and Bricans responses to those inquiries (Plaintiffs
Designated Matters ## 16, 17).
7. Details of any due diligence by NCMIC on
Brican America, Inc., and its relationship to
Recomm and due diligence performed by NCMIC
on owners of Brican America, Inc., as to their
relationship to Recomm.16 (Plaintiffs Designated
Matters ## 19, 20).
8. Details of how NCMIC took any action to make
certain that fraudulent activities reported about
Recomm were not duplicated in the business of
Brican America, Inc. (Plaintiffs Designated Matter
# 21).
9. Details of how NCMIC authorized Todd Cook to
suggest to Brican America, LLC, changes in the
language of the marketing agreement used by
Brican America, LLC, to sell Exhibeo Systems to
Plaintiffs (Plaintiffs Designated Matter # 22).
10 Details of NCMICs response to information
provided about Recomm by Harold Meredith in
July, 2008 (Plaintiffs Designated Matter # 26).
11. Details of how NCMIC understood Brican
Americas return policy to be as of June 19, 2006
(Plaintiffs Designated Matter # 13).
12. All knowledge concerning what Brican
salespeople were representing concerning the
NCMIC [*69] lease agreement, and agreements
subsequently assigned to NCMIC (Plaintiffs
Designated Matters ## 27, 28).
Any 30(b)(6) deposition taken pursuant to this Order shall
be scheduled to occur on or before October 30, 2013, in Fort
Lauderdale, Florida, as requested by the Plaintiffs and shall
be limited to a total of four and one-half hours.
In addition, pursuant to Fed. R. Civ. P. 37(d), the undersigned
orders that the costs associated with scheduling and

facilitating the second deposition of NCMICs corporate

representative be borne by NCMIC for its failure to
adequately produce such a witness at the initial deposition.
However, the attorneys fees incurred [*70] during that
second deposition will be borne by the Plaintiffs, as those
costs would have been incurred in any event if Mr. Cole had
been permitted to testify as to all of the designated topics at
the first deposition.17 Nor will travel costs and hotel
expenses be awarded to Plaintiffs counsel since this
continued deposition will occur where Plaintiffs counsel is
located.
If the Plaintiffs elect to serve interrogatories on NCMIC as
set forth in Attachment A to this Order, those interrogatories
shall be responded to by NCMIC within fifteen (15) days of
service. The Plaintiffs shall serve such interrogatories on or
before October 15, 2013.
Finally, in addition to either producing to 30(b)(6) deponent
or answering interrogatories, NCMIC shall bear the
reasonable costs, including attorneys fees, associated with
preparing the instant Motion for Sanctions (DE # 294). The
Parties shall consult in an effort to agree upon the
[*71] amount of said costs. If the Parties are unable to reach
an agreement, the Plaintiffs may file an appropriate motion
requesting those costs, and shall submit detailed time
records and/or receipts to support the amount sought in that
request.
V. CONCLUSION
Therefore, for the reasons stated above, it is hereby
ORDERED AND ADJUDGED that Plaintiffs Motion for
Sanctions (DE # 284) related to Defendant NCMICs
purported failure to produce a NCMIC corporate
representative for deposition pursuant to Federal Rule of
Civil Procedure 30(b)(6), is GRANTED, in part. To the
extent that Plaintiffs request to be able to conduct additional
discovery related to the topics designated in the Plaintiffs
30(b)(6) Deposition Notice, the Motion is Granted. To the
extent that the Plaintiffs request to strike NCMICs
pleadings the Motion is Denied.
It is further

16

Recomm refers to another corporate entity purportedly owned by the owners of Brican that allegedly was the subject of allegations
of a ponzi scheme which was discussed in articles published in Tampa Bay Tribune. The articles were forwarded to NCMICs president
sometime in April 2009 and are significant to determining when NCMIC arguably should have been alerted to the possibility that the
Brican business model related to the financing the Plaintiffs leases through revenue generated from the Marketing Agreements was
unsustainable.
17

In this regard, the undersigned notes that the transcript of the 30(b)(6) deposition of Mr. Cole conducted on January 17, 2012, reflects
that the deposition commenced at 10:08 a.m., and concluded at 12:25 p.m. Thus, the time spent on the deposition was relatively brief.

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Page 18 of 18
2013 U.S. Dist. LEXIS 142841, *71
ORDERED AND ADJUDGED that Plaintiffs may either
conduct an additional Rule 30(b)(6) deposition subject to
the conditions set forth above or, that the Plaintiffs may
serve interrogatories as to those topics.
It is further

DONE [*72] AND ORDERED in chambers in Miami,

Florida on October 1, 2013.
/s/ Andrea M. Simonton
ANDREA M. SIMONTON

ORDERED AND ADJUDGED that NCMIC shall bear the

costs associated with preparing the instant Motion for
Sanctions (DE # 284), only.

UNITED STATES MAGISTRATE JUDGE

Jim Garrity