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Listen to this articleWhere the plaintiff in a personal injury action has moved to compel each of the two defendants to designate a deponent to answer “state the basis” questions concerning affirmative defenses, the motion should be denied because the plaintiff’s inquiries into the defendants’ asserted affirmative defenses are more appropriately made through contention interrogatories.
“This case arises out of a slip and fall accident at TD Garden. Plaintiff is a concessions employee of TD Garden’s owner, Delaware North Boston Flight, LLC, and has sued two contractors of TD Garden for premises negligence in allegedly creating or contributing to the puddled floor conditions she claims to have caused her fall. The Defendants maintain, on a variety of theories, that they bear no legal responsibility for Plaintiff’s personal injuries.
“Presented for decision are a pair of discovery motions, by which Plaintiff seeks an order of the Court compelling each of the Defendants to designate a Rule 30(b)(6) deponent to answer ‘state the basis’ questions addressed to affirmative defenses set forth in their respective Answers. …
“Upon review of the parties’ submissions, the Court has determined that the Plaintiff’s motions to compel answers to ‘state the basis’ questions seek discovery more appropriately secured via contention interrogatories. … Numerous courts have thus recognized that calling upon a corporate designee to explain the factual rationale for asserted affirmative defenses (such as those recited ante) effectively asks a lay witness to reveal and comment upon attorney work product. Such courts have refused to allow precisely the kind of deposition questioning that Plaintiff urges the Court to order here. …
“Here, the Court agrees with Defendants that permitting Plaintiff to pose ‘state the basis’ for affirmative defense questions to a Rule 30(b)(6) deponent would effectively call upon a lay witness to share the intellectual work product of the company lawyers who interposed such defenses (and prepared the designated witness to testify regarding same). While it is certainly true, as Plaintiff emphasizes, that the facts which underlie affirmative defenses are not themselves off-limits in a Rule 30(b)(6) proceeding or in any other discovery format, Plaintiff’s ‘state the basis’ inquiries in the case at bar seek something very different. By these questions, Plaintiff would ask the Rule 30(b)(6) deponent to explain the factual rationale for the contention that the Defendant owed no ‘legal duty’ to her; or that the Defendant’s actions were not the ‘proximate cause’ of her injuries; or that Plaintiff was harmed by an ‘intervening and/or supervening event’ properly chargeable to a third party; that the Plaintiff failed to fulfill a ‘statutory duty’ to notify the Defendant promptly of her accident; and the like. This is unmistakably the stuff of legal reasoning — the application of principles of law to maters of evidentiary fact — that lay witnesses cannot properly be called upon to divulge.
“Consistent with the foregoing authorities, the Court concludes that Plaintiff’s inquiries into the grounds or bases for the Defendants’ asserted affirmative defenses are more appropriately made through contention interrogatories, where the corporate client can be assisted by legal counsel in framing its answers to these blended questions of fact and law. …
“For the foregoing reasons, the Plaintiff’s Motions to Compel the Rule 30(b)(6) Deposition of Defendants C.R.S. Commercial Refrigeration Specialists (Paper #37) and Sutherland Installation, Inc. (Paper # 44) shall be, and hereby are, denied.”
Jones v. Sutherland Inullation, Inc., et al. (Lawyers Weekly No. 12-028-25) (5 pages) (Gordon, J.) (Suffolk Superior Court) (Docket No. 2484CV02156-C) (July 17, 2025).
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