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IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

PAYCARGO FINANCE LP,

Plaintiff,

v. 

ASPEN AMERICAN INSURANCE 

COMPANY, 

Defendant, 

BAY MARITIMES INC., 

Nominal Defendant.

_____________________________________/

Case No. 1:22-cv-22707

DEFENDANT’S MOTION TO EXCLUDE PLAINTIFF’S WITNESS FROM 

TESTIFYING AT TRIAL AND INCORPORATED MEMORANDUM OF LAW

Defendant, Aspen American Insurance Company (“Aspen”), pursuant to Federal Rules of 

Civil Procedure 30(b)(6) and 37, hereby files this, its Motion to Exclude Plaintiff’s Witness from 

Testifying at Trial and Incorporated Memorandum of Law (“Motion”), and states:

1. On May 22, 2023, Aspen noticed the deposition of Plaintiff, PayCargo Finance LP 

(“PCF”) pursuant to Federal Rule of Civil Procedure 30(b)(6) (“First Deposition”). A true and 

correct copy of the notice for the First Deposition is attached hereto as Exhibit “A”. 

2. In the notice, Aspen identified deposition topics related to, among other things,

PCF’s alleged damages accounting.

1 See id. at 7-9 (identifying deposition topics, in pertinent part,

as: 

• PCF’s relationship with Nominal Defendant, Bay Maritimes, Inc. (“Bay 

Maritimes”); 

• PCF’s transactions with Bay Maritimes related to the Credit Agreement

1

 PCF did not object to the deposition topics Aspen identified. 

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between PCF and Bay Maritimes;

• “Any payments made by Bay Maritimes to [PCF] related to the Credit 

Agreement or the alleged default thereunder”;

• The State Court Action filed by PCF against Bay Maritimes;

• PCF’s alleged claim against the Bond; and,

• “[t]he alleged damages sought by [PCF] in this matter including how the 

alleged damages amount was calculated.”). 

3. PCF designated its chief executive officer, Mr. Philip Philliou, as its corporate 

representative. As such, Mr. Philliou was required to be prepared to testify regarding all the 

deposition topics identified by Aspen. Nevertheless, at the First Deposition, Mr. Philliou was 

unable to testify fully regarding certain topics including, without limitation, those related to PCF’s 

alleged damages accounting.

4. With leave of Court, on July 19, 2023, Aspen noticed a supplemental deposition of 

PCF’s corporate representative under Rule 30(b)(6) (“Second Deposition”). A true and correct 

copy of the deposition notice for the Second Deposition is attached hereto as Exhibit “B”. 

5. As it had for the First Deposition, Aspen identified deposition topics including, 

without limitation, related to PCF’s alleged damages accounting, and PCF did not object to 

Aspen’s topics. See id. Mr. Philliou was again the only individual PCF designated to testify as its 

corporate representative on all topics, and he was again unable to answer certain questions about 

PCF’s alleged damages accounting. See, e.g., Deposition of PCF, Vol. II (ECF No. 48-5), page 

128:21-25, 142:9-13, 143:4-14; cf. page 107:7-8 (“To prepare for today the only thing I did was 

read my deposition transcript from June.”). 

6. PCF twice presented Mr. Philliou as the only representative designated to testify 

regarding all of Aspen’s noticed topics including PCF’s alleged damages accounting. 

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Notwithstanding that, in its proposed trial witness list, which Aspen first received on September 

17, 2023, PCF now seeks to present testimony at trial on these topics from a different PCF 

employee, Ms. Amrita Ganguly. See PCF’s Witness List (ECF No. 62-1) (identifying Ms. Ganguly 

as a “PCF Commercial Director” who “may testify to accounting matters”). 

7. Rule 30(b)(6) requires a corporate entity to designate the representative or 

representatives who are able to “testify about [the] information known or reasonably available to 

the organization.”

8. PCF is bound by the testimony of its designated corporate representative, Mr. 

Philliou. See Reed v. Royal Caribbean Cruises, Ltd., No. 19-24668-CIV 

LENARD/O’SULLIVAN, 2021 WL 4990902, at *2 (S.D. Fla. Aug. 20, 2021) (“The deposition 

testimony of a Rule 30(b)(6) corporate representative is binding on the corporation.”). In both 

depositions, Mr. Philliou was unable to provide complete testimony regarding PCF’s alleged 

damages accounting.

9. PCF chose, twice, not to designate Ms. Ganguly as a corporate representative on 

any topic, and chose, twice, not to educate Mr. Philliou regarding her apparent knowledge so that 

he could provide complete testimony. See Deposition of PCF, Vol. II (ECF No. 48-5), page 107:7-

8.

10. Ms. Ganguly’s testimony at trial could only serve to improperly and prejudicially 

change or supplement PCF’s prior testimony, which binds PCF and on which Aspen is entitled to 

rely. To allow PCF to change or supplement its prior testimony at trial through Ms. Ganguly would 

unduly prejudice Aspen, and this Court should exercise its discretion to prohibit PCF from calling 

Ms. Ganguly as a witness at trial to testify as to any Rule 30(b)(6) topics noticed by Aspen 

including, without limitation, those pertaining to PCF’s alleged damages accounting. 

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INCORPORATED MEMORANDUM OF LAW

Federal Rule of Civil Procedure 30(b)(6) provides, in pertinent part:

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 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. 

(Emphasis added). 

A corporate entity is bound by the testimony of its designated corporate representative at a 

Rule 30(b)(6) deposition. See Reed v. Royal Caribbean Cruises, Ltd., No. 19-24668-CIV 

LENARD/O’SULLIVAN, 2021 WL 4990902, at *2 (S.D. Fla. Aug. 20, 2021) (“The deposition 

testimony of a Rule 30(b)(6) corporate representative is binding on the corporation.”) (citations 

omitted). Accordingly, courts have recognized that when a corporate representative is unable to 

provide complete testimony regarding a properly noticed deposition topic, the corporate entity

cannot subsequently introduce contrary or additional testimony on the topic at trial. See QBE Ins. 

Corp. v. Jorda Enters., Inc., 277 F.R.D. 676, 690 (S.D. Fla. 2012) (“[A] corporation which 

provides a 30(b)(6) designee who testifies that the corporation does not know the answers to the 

questions ‘will not be allowed effectively to change its answer by introducing evidence at trial.

[This rule] prevents sandbagging and prevents [the] corporation from making a half-hearted 

inquiry before the deposition but a thorough and vigorous one before the trial.”) (internal citations

and quotation marks omitted); Rainey v. American Forest and Paper Ass’n, Inc., 26 F. Supp. 2d 

82, 93-96 (D. D.C. 1998) (finding that corporate entity could not introduce new evidence from 

former employee on subject that was properly noticed for Rule 30(b)(6) deposition and noting 

“Rule 30(b)(6) [precludes a corporate entity] from adducing . . . a theory of the facts that differs 

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from that articulated by the designated representatives [of the entity]. . . . Unless it can prove that 

the information was not known or was inaccessible, a corporation cannot later proffer new or 

different allegations that could have been made at the time of the 30(b)(6) deposition”) (internal 

citations omitted); see also Wright v. Cleveland Clinic Fla., No. 21-60309-CIVDIMITROULEAS/SNOW, 2021 WL 8566739, at *3-4 (S.D. Fla. Oct. 12, 2021) (finding that, 

where designated corporate representative could not or would not answer certain questions 

regarding properly noticed deposition topics, corporate entity was barred from “later provid[ing] 

testimony [on the topics] which is contrary or in addition [to]” the deposition testimony of the 

corporate representative). 

Moreover, when there is an employee who has additional knowledge as to a deposition 

topic, the corporate entity cannot omit what the employee knows at a deposition and then later 

seek to introduce what the employee knows at trial. See Reilly v. Natwest Markets Group Inc., 181 

F.3d 253, 268-69 (2d Cir. 1999) (holding that, where corporate entity’s designated corporate 

representative had limited knowledge regarding deposition topic, trial court properly excluded 

testimony at trial of additional employees who were more “knowledgeable” regarding same topic); 

cf. Resolution Trust Corp. v. Southern Union Co., Inc., 985 F.2d 196, 197 (5th Cir. 1993) (“Rule 

30(b)(6) . . . places the burden of identifying responsive witnesses for a corporation on the 

corporation . . . . When a corporation or association designates a person to testify on its behalf, the 

corporation appears vicariously through that agent. If that agent is not knowledgeable about 

relevant facts, and the principal has failed to designate an available, knowledgeable, and readily 

identifiable witness, then the appearance is, for all practical purposes, no appearance at all.”). 

Here, after PCF’s corporate representative was twice deposed regarding properly noticed 

topics, PCF is now attempting to introduce new evidence pertaining to these topics through Ms. 

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Ganguly, another one of its employees who, according to PCF, has additional knowledge regarding

these topics. PCF could (and apparently should) have designated Ms. Ganguly as one of its 

corporate representatives at either the First or Second Deposition, but it did not. See QBE, 277 

F.R.D. at 690 (“If it becomes apparent during the deposition that the designee is unable to 

adequately respond to relevant questions on listed subjects, then the responding corporation has a 

duty to timely designate additional, supplemental witnesses as substitute deponents.”) (citation 

omitted). Therefore, PCF should be prohibited from introducing Ms. Ganguly’s testimony at trial

on any Rule 30(b)(6) topics noticed by Aspen. 

WHEREFORE, for the foregoing reasons, Defendant, Aspen American Insurance 

Company, respectfully requests that the Court: (a) grant the instant Motion; (b) exclude Plaintiff’s 

witness from testifying at trial; and, (c) award any such further relief as the Court deems just and 

proper. 

LOCAL RULE 7.1(A)(3) CERTIFICATION 

I hereby certify that counsel for the movant attempted to confer with counsel for Plaintiff 

on September 22, 2023, and conferred with counsel for Plaintiff on September 25, 2023, in a good 

faith effort to resolve the issues raised in the Motion and has been unable to do so. 

Dated: September 26, 2023. 

Respectfully submitted,

GURLEY FANT

/s/ David E. Gurley 

David E. Gurley 

(Fla. Bar No.: 0402214) 

dgurley@gurleyfant.com

Michael A. Fant

(Fla. Bar No.: 0100713) 

mfant@gurleyfant.com

Christopher C. Fiore

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(Fla. Bar No.: 1015669)

cfiore@gurleyfant.com

601 South Osprey Avenue 

Sarasota, FL 34236 

Telephone: (941) 365-4501 

Facsimile: (941) 365-2916 

eservice@gurleyfant.com

Attorneys for Defendant 

Aspen American Insurance Company

CERTIFICATE OF SERVICE

I hereby certify that on September 26, 2023, a copy of the foregoing was electronically 

filed with the Clerk of the Court via the Court’s CM/ECF system, which will send a notice of 

electronic filing to all counsel of record. 

/s/ David E. Gurley 

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