UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

TALLAHASSEE DIVISION 

DEBORAH and ROBERT HILL, 

Plaintiffs, 

v. 

DIEBOLD NIXDORF, INC., 

Defendant. 

CASE NO.: 4:20-00524-MW-MAF 

DEFENDANT DIEBOLD NIXDORF, INC.’S BRIEF IN OPPOSITION TO 

PLAINTIFFS’ MOTION TO COMPEL CORPORATE DESIGNEES FOR 

COMPLETING RULE 30(B)(6) DEPOSITION 

I. INTRODUCTION 

Defendant Diebold Nixdorf, Inc. produced two corporate representatives to 

testify about 10 of the 15 broad, wide-ranging topics contained in Plaintiffs’ 

Second Re-Notice of Taking Video Deposition of Defendant Pursuant to Fed. R. 

Civ. P. 30(b)(6). Plaintiffs withdrew two of the topics after receiving Diebold’s 

timely and proper objections. The remaining three topics are overbroad and are 

not stated “with reasonable particularity” as required by Rule 30(b)(6). Although 

Plaintiffs now attempt, through their Motion to Compel, to make these remaining 

topics sound reasonable by narrowing their scope, Plaintiffs never made such 

concessions prior to filing their Motion to Compel. To the contrary, Plaintiffs took 

a “take-it-or-leave-it” approach and did not engage in any substantive meet-andCase 4:20-cv-00524-MW-MAF Document 23 Filed 03/26/21 Page 1 of 12
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confer discussion prior to filing their Motion to Compel. Accordingly, Diebold 

respectfully requests that the Court deny Plaintiffs’ Motion to Compel or, in the 

alternative, order Plaintiffs to issue a revised Notice that describes any remaining 

appropriate topics with reasonable particularity. 

II. PROCEDURAL HISTORY

 This personal injury case arises from an incident that occurred on October 3, 

2017, when Plaintiff Deborah Hill slipped while walking out of her manager’s 

office at the Centennial Bank located at 22 Avenue East in Apalachicola, Florida. 

Plaintiffs allege that Ms. Hill slipped due to residue left on the floor by a Diebold 

technician who had been servicing the bank’s vault door the prior day. (ECF No. 

1-1 at ¶ 19). Plaintiffs assert negligence claims against Diebold alleging that it 

failed to create proper policies, train its employees, and protect others from areas 

where lubricants, cleaners, or other substances may have spilled.1

 (Id. at ¶ 39). 

 On February 22, 2021, Plaintiffs served Diebold with a Second Re-Notice of 

Taking Video Deposition of Defendant Pursuant to Fed. R. Civ. P. 30(b)(6). (ECF 

No. 21-1, Exhibit A to Pls.’ Motion to Compel). Despite the relatively 

straightforward nature of the claims, Plaintiffs’ Notice contained 15 broad topics of 

inquiry for the corporate representative(s). On February 24, 2021, Diebold timely 

1

 Plaintiffs’ contention that Diebold “does not have any policy and does not train its technicians on taking steps to 

prevent or eliminate the danger [created by residual or overspray of cleaners and lubricants] in the first place, nor 

does [Diebold] supervise its service technicians in terms of its clean up policy” (ECF No. 21, Pls.’ Motion to 

Compel at p. 2) misstates facts and is completely incorrect. 

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served its Objection and Response to Re-Notice of Taking Video Deposition 

agreeing to produce corporate representatives to address 10 of the 15 topics listed 

in the Notice. (ECF No. 21-3, Exhibit C to Pls.’ Motion to Compel). Diebold 

subsequently produced those witnesses for deposition on March 8, 2021. 

Diebold objected to the remaining five topics: 

• Request No. 1 (Insurance Policies) – Diebold objected on the 

ground that (a) it had already produced the Declarations Page for 

the applicable insurance policy (which speaks for itself); (b) the 

Request was vague and unclear as to what aspects of the insurance 

policy the witness was expected to address; and (c) many issues 

regarding insurance coverage extend beyond the realm of a fact 

witness. Plaintiffs subsequently withdrew this Request.

• Request No. 10 (Material Safety Data Sheets) – Diebold 

objected that this Request was overly broad and did not identify 

the topic with sufficient particularity. Importantly, Diebold 

expressly explained that “Diebold needs further clarification 

before it is able to identify a corporate representative on this 

topic.” 

• Request No. 13 (Agreements between Diebold and Centennial 

Bank) – Diebold objected on the ground that the 

Diebold/Centennial Bank Managed Services Agreement that 

Diebold produced speaks for itself and the content of that 

Agreement was not relevant to Plaintiffs’ claims against Diebold. 

Plaintiffs withdrew this Request. 

• Request No. 14 (Similar Incidents involving Diebold 

Employees) – Diebold objected on the ground that the term 

“similar incidents” was vague and that the Request did not describe 

with “sufficient particularity” what the Diebold representative was 

supposed to address with respect to any such “similar incidents.” 

• Request No. 15 (Similar Incidents involving Diebold 

Customers) – Diebold objected on the ground that the term 

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“similar incidents” was vague and that the Request did not describe 

with “sufficient particularity” what the Diebold representative was 

supposed to address with respect to any such “similar incidents.” 

Noticeably absent from Plaintiffs’ Motion to Compel is any substantive 

meet-and-confer efforts by Plaintiffs. When Diebold served its Objections and 

Response, it offered to discuss any questions. (See 2/23/21 email from S. Fox to 

D. Rash, attached hereto as Exhibit A). The earlier emails in the string (also 

included in Exhibit A) similarly offer to discuss these issues with Plaintiffs. 

Plaintiffs never contacted Diebold to confer on any of the objections despite 

Diebold’s objection to Request No. 10 expressly stating that Diebold needed 

further clarification. 

It was not until March 9, 2021, when the parties exchanged drafts of the 

Fourth Joint Discovery Status Report, that Plaintiffs raised these issues again. 

When Diebold objected to Plaintiffs’ proposed statement that Diebold had agreed 

to produce a third corporate representative to address Requests 10, 14, and 15, 

Diebold again offered to meet and confer: “We are willing to meet and confer 

regarding our objections and response to the Re-Notice of Rule 30(b)(6) deposition 

– that simply has not occurred yet. We have not heard from you regarding those 

objections until today.” (See 3/9/21 email string between S. Fox and D. Rash, 

attached hereto as Exhibit B). Plaintiffs’ counsel did not offer any of the clarifying 

points or specifics laid out for the first time in their Motion to Compel. Rather, 

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Plaintiffs’ counsel stated: “We do not think additional meet and confer is now 

necessary since you clearly said you did not agree to provide another corporate 

designee to testify on the topics. So, not sure what further is to be worked out 

unless you have a proposal since I believe we are entitled to discovery via a 

corporate designee deposition on No. 10 (the specifications of the product used by 

Mr. Trimmer on the job on the specified day), and Nos. 14 & 15 (other similar 

incidents before and after the subject incident).” (Id.). 

Plaintiffs, in other words, did not provide any clarification on the scope of 

the Requests or the information on which any corporate representative would need 

to be prepared. Plaintiffs essentially took an all-or-nothing approach to the issue. 

Perhaps realizing that this approach was not reasonable, however, Plaintiffs’ 

Motion to Compel raises many points never raised with Defendants prior to 

involving the Court. As such, not only are the remaining topics not stated with 

sufficient particularity, but Plaintiffs’ Motion to Compel is premature. 

III. LAW AND ARGUMENT

 Rule 30(b)(6) places obligations on both the noticing party and the 

organization being noticed for deposition: 

In its notice or subpoena, a party may name as the deponent a public 

or private corporation, a partnership, an association, a governmental 

agency, or other entity and must describe with reasonable 

particularity the matters for examination. The named organization 

must designate one or more officers, directors, or managing agents, or 

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designate other persons who consent to testify on its behalf; and it 

may set out the matters on which each person designated will testify. 

Before or promptly after the notice or subpoena is served, the 

serving party and the organization must confer in good faith 

about the matters for examination. A subpoena must advise a 

nonparty organization of its duty to confer with the serving party and 

to designate each person who will testify. The persons designated 

must testify about information known or reasonably available to 

the organization. This paragraph (6) does not preclude a deposition 

by any other procedure allowed by these rules.

Fed. R. Civ. P. 30(b)(6) (emphasis added). As set forth in the rule, the persons 

designated by the company have an obligation to testify about information known 

or reasonably available to the organization. This requires the corporation to make 

reasonable efforts to educate its witnesses on the topics of inquiry. “[U]pon receipt 

of the notice, the 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.” McPherson v. Wells Fargo Bank., N.A., 292 F.R.D. 695, 697 

(S.D. Fla. 2016) (internal citations omitted). 

Given the obligations placed on the corporation, it is only fair that the 

corporation and witness have notice, “with reasonable particularity,” of the areas of 

inquiry. The corporation and designated witness should not have to guess or 

speculate on the scope of the areas of inquiry. Indeed, the Rule requires the 

noticing party and the corporation to confer in good faith about the matters of 

examination. Fed. R. Civ. P. 30(b)(6). As explained in further detail below, 

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Plaintiffs did not state the remaining three areas of inquiry with “reasonable 

particularity” and did not confer about the matters in advance of filing their Motion 

to Compel. 

A. Request No. 10 (Material Safety Data Sheets)

A request to produce a corporate representative to testify about “all 

specification sheet/documents and/or material safety data sheets for all lubricants, 

cleaners and/or other substances used during the performance of any repairs, 

maintenance, or cleaning and/or lubrication” is indeed overbroad and vague. It 

does not identify what information within that very broad topic a witness should be 

prepared to answer “fully, completely, and unevasively.” Although it appears from 

their Motion to Compel that Plaintiffs intend to focus this topic on how Diebold 

conveyed information from safety data sheets to its employees, Plaintiffs never 

provided any of that context to Diebold despite Diebold’s request for more 

information and repeated efforts to meet and confer. Rather, Plaintiffs withheld 

this detail until bringing this matter to the Court’s attention. 

Moreover, the detail and context provided by Plaintiffs – for the first time – 

in their Motion to Compel demonstrates that an additional corporate representative 

on this topic is unnecessary. John Callen – one of Diebold’s corporate 

representatives – already testified that Diebold instructs its service technicians to 

(a) transport lubricants and cleaners in small containers; (b) carry and keep 

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lubricants and cleaners in a canvas bag when at a customer location; and (c) clean 

up any spills. Mr. Callen also testified about how Diebold trains its employees to 

apply the lubricants and cleaners, including the use of small amounts of the 

substances and applying the substances to rags and towels as opposed to directly 

on the equipment.2

 

Both in its document production and through the deposition testimony of 

Mr. Callen (corporate representative) and Bryan Trimmer (the technician who 

serviced the vault door on October 2, 2017), Diebold has also already identified the 

lubricants and cleaners used and/or potentially used on the vault door on October 

2, 2017. As demonstrated by the MSDS for WD-40 attached to Plaintiffs’ Motion 

to Compel, the MSDS for the subject cleaners and lubricants are publicly available 

and speak for themselves. Diebold is not the manufacturer or supplier of these 

substances, nor is it the author of the sheets. As such, its fact witnesses are in no 

better position than Plaintiffs, Plaintiffs’ counsel, or the jury to read and interpret 

the information in those sheets. 

In sum, Plaintiffs did not identify this topic with sufficient particularity, did 

not properly meet and confer to provide necessary detail, and the detail that it did 

provide for the first time in the context of its Motion to Compel demonstrates that 

Diebold’s witnesses have already provided the type of information that Plaintiffs 

2

 The transcript from Mr. Callen’s deposition is not yet available. Diebold is willing to supplement with specific 

testimony upon receipt if the Court desires. 

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are seeking. Accordingly, Diebold respectfully requests that the Court deny 

Plaintiffs’ Motion to Compel with respect to Request No. 10. 

B. Request Nos. 14 and 15 (Other Incidents)

Request Nos. 14 and 15 seek a corporate representative to testify about other 

incidents in which a Diebold employee (No. 14) or customer (No. 15) slipped due 

to Diebold’s use of cleaners or lubricants during a service call. Plaintiffs 

misunderstand Diebold’s objection about these requests being vague. First, 

Plaintiffs’ use of the term “similar incidents” is, in and of itself, vague and 

objectionable because the determination of “substantial similarity” is ultimately for 

the Court, not either of the parties. As a result, Diebold objected to the use of that 

term so there is no suggestion that Diebold is admitting what constitutes a “similar 

incident.” 

Second, setting aside the term “similar incident,” Diebold understands that 

Plaintiffs are seeking information about other incidents in which individuals have 

reported slipping on lubricants or cleaners used during a preventative maintenance 

service call. Diebold is not arguing that this component of the request is vague. 

However, it is not clear whether Plaintiffs expect a corporate representative to 

simply identify the existence and general background information (date, location, 

type of service job), or whether Plaintiffs expect and anticipate the witness to 

testify about details, such as the existence of any injury, the result of any 

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investigation, or the existence of any lawsuit or claim. To the extent it is the latter, 

such questioning could extend into areas of work product and attorney-client 

privilege such that Diebold and its witness are entitled to sufficient detail in 

advance so that they can be adequately prepared to provide Plaintiffs with any such 

discoverable information while protecting applicable privileges. Had Plaintiffs 

engaged in substantive meet and confer negotiations, the parties could have 

discussed these issues.3

 

Plaintiffs’ failure to provide more detailed information and, more 

importantly, their failure to confer with Diebold as contemplated by Rule 30(b)(6), 

justifies the denial of Plaintiffs’ Motion to Compel with respect to Request Nos. 14 

and 15. 

IV. CONCLUSION

 For the foregoing reasons, Diebold Nixdorf, Inc. respectfully requests that 

the Court deny Plaintiffs’ Motion to Compel. 

3

 Diebold’s arguments should not be interpreted to mean that “similar incidents” exist. Diebold has not yet located 

any such incidents, but its investigation is still ongoing. 

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DATED: March 26, 2021. Respectfully submitted, 

/s/ Jon J. Hernan 

Jon J. Hernan 

Florida Bar No.: 658588 

BOWMAN AND BROOKE LLP

Four Northpoint Center 

1064 Greenwood Blvd., Suite 212 

Lake Mary, FL 32746-5419 

Telephone: (407) 585-7600 

Facsimile: (407) 585-7610 

jon.hernan@bowmanandbrooke.com 

Clifford S. Mendelsohn 

(admitted pro hac vice) 

Savannah M. Fox 

(admitted pro hac vice) 

TUCKER ELLIS LLP

950 Main Avenue 

Suite 1100 

Cleveland, OH 44113-7213 

Telephone: (216) 592-5000 

Facsimile: (216) 592-5009 

clifford.mendelsohn@tuckerellis.com 

savannah.fox@tuckerellis.com 

Attorneys for Defendant, 

Diebold Nixdorf, Inc. 

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CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that a true and correct copy of the foregoing has 

been served via email on March 26, 2021 to the following: 

DAVID C. RASH, P.A. 

Attorneys for the Plaintiffs 

1655 North Commerce Parkway 

Suite 303 

Weston, Florida 

david@dcrashlaw.com 

jeff@dcrashlaw.com 

maileidys@dcrashlaw.com

Counsel for Plaintiffs Deborah and Robert Hill 

/s/ Jon J. Hernan 

Jon J. Hernan

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