The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
This case is before me for all purposes including trial. Currently pending and ready for resolution is Chatman Electric, Inc.'s Motion to Preclude Evidence at Trial ("Plains. Mot."). For the reasons stated below, plaintiff's motion will be denied.
Plaintiff, Chatman Electric, Inc., is suing defendant, Interior Systems, Inc., in this breach of contract action for failure to make payment for work performed by plaintiff on two building sites, the Reeves Building and the Department of Employment Services Building. Plaintiff is seeking total damages of $111,805 plus interest.
The gravamen of plaintiff's current motion is that, during discovery, defendant failed to identify and produce an appropriate 30(b)(6) witness to answer questions about plaintiff's performance on the Reeves project. Plaintiff thus claims unfair surprise and undue burden and seeks to have the court preclude defendant from offering any defenses relating to that topic.
Plaintiff filed the complaint in this case on December 7, 2004. On January 26, 2005, Judge Bates issued an initial scheduling order, which set the close of discovery for June 3, 2005. Prior to the close of discovery, on May 24, 2005, plaintiff served a 30(b)(6) notice of deposition on defendant. Also on May 24, 2005, counsel for the parties spoke about scheduling the 30(b)(6) deposition. Defendant's counsel indicated that he would be going away on vacation and so the parties jointly agreed to extend the discovery deadline to June 30, 2005, for the limited purpose of taking the 30(b)(6) deposition. Plains. Mot. at Exhibit 2. The deposition was then scheduled for June 30, 2005. Two days before the scheduled deposition, on June 28, 2005, defendant's counsel informed plaintiff's counsel that the 30(b)(6) designee would not be available on June 30. The parties then agreed once more to extend the discovery deadline to July 13, 2005, for the limited purpose of taking the 30(b)(6) deposition. Plains. Mot. at Exhibit 3. On July 13, 2005, defendant produced its Chief Financial Officer, Felix Yeoman, as its 30(b)(6) designee and Yeoman's deposition was taken.
Two days later, on July 15, 2005, the parties submitted their joint pretrial statement. On July 28, 2005, the court held a pretrial conference, during which the parties addressed certain issues raised by plaintiff in the joint pretrial statement. The court also asked plaintiff to file a formal motion, which plaintiff did on July 29, 2005. It is that motion that is currently before the court.
In the joint pretrial statement, plaintiff indicated the following:
Plaintiff objects to the introduction of any oral or written evidence by Defendant related to Defendant's assertion that Plaintiff did not successfully complete its work on the Reeves Building Project, that the additional work performed by Plaintiff was not authorized by Defendant and/or not performed, and that Defendant incurred costs to complete Plaintiff's scope of work based, in part, on ISI's failure to produce a knowledgeable 30(b)(6) witness.
Joint Pretrial Statement at 9.
Plaintiff's 30(b)(6) notice of deposition listed numerous topics relating to the Reeves building and to the parties' relationship generally.*fn1 Plains. Mot. at Exhibit 1. The record clearly indicates, however, that the one individual most capable of answering questions about the Reeves building was Mel Pulley, who, before his retirement, was defendant's project manager. Felix Yeoman Deposition ("Depo.") at 9-10. Thus, even while plaintiff sought to depose defendant's 30(b)(6) designee, the ...