govinfo:USCOURTS-ohsd-1_22-cv-00496-2

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IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF OHIO 
WESTERN DIVISION 
 
DEDRIC POWELL, 
Plaintiff, 
v. 
CBRE, INC., 
Defendant. 
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Case No. 1:22-cv- 496 
Judge Jeffery P. Hopkins 
 
 
ORDER 
 
This matter is before the Court on Mr. Powell’s (“ Plaintiff”) Motion to Strike the 
Affidavit of John Latessa (“Mr. Latessa”) and for Sanctions (“Motion for Sanctions”) (Doc. 
67) arising from CBRE’s (“CBRE” or “Defendant”)  failure to produce Mr. Latessa for his 
noticed deposition. Having considered the parties’ submissions and the record in this matter, 
and after being fully advised in the premises, for the reasons set forth below  the Court 
DENIES Plaintiff’s Motion for Sanctions. Doc. 67.  
I. BACKGROUND 
 
Beginning in the spring of 2025, Plaintiff sought to schedule depositions of witnesses 
Defendant had identified in its Fed. R. Civ. P. 26(f) Report disclosures  to Plaintiff. Doc. 67, 
PageID 1117. On April 15, 2025, Plaintiff made a written request for deposition availability 
for those witnesses, specifically including Mr. Latessa, who had been named by Defendant in 
its initial disclosures. Id. John Latessa’s title i s President of Advisory Services and his 
LinkedIn profile describes him as having oversight over fourteen of CBRE’s Midwest offices.  
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Id. at PageID 1122–23. Within days  of receiving that request, on April 17, 2025, CBRE 
declined to provide any deposition dates, insisting that no depositions would be scheduled 
until written discovery had concluded. Id.  The parties engaged in both written and verbal 
meet-and-confer efforts, but as of April 23, 2025, Defendant’ s counsel continued the 
company’s refusal to offer any deposition dates for CBRE’s disclosed witnesses. Id. 
The same pattern of delay and non- response persisted with regard to Mr.  Latessa in 
the months that followed. Then, on July 24, 2025, Plaintiff renewed its request for Mr. 
Latessa’s deposition availability. Id. Initially, CBRE’s counsel offered no response. Plaintiff’s 
counsel followed up a week later, on August 1, 2025, and while Defendant’s counsel replied 
on August 4, 2025, that response remain ed unchanged; CBRE continued its refusal to offer 
Plaintiff any available dates for conducting Mr. Latessa’s deposition. Id. 
On August 7, 2025, Plaintiff wrote to CBRE ’s counsel noting that this prolonged 
failure to propose available dates when Mr. Latessa could be deposed was at odds with 
representations CBRE’s counsel had made to this Court during a telephone status conference 
held on July 30, 2025. Id. Plaintiff advised that, given Defendant’s ongoing non-compliance, 
Plaintiff intended to notice Mr. Latessa’s deposition for August 20, 2025 — in advance of the 
mediation scheduled for August 29, 2025 — while remaining open to reasonable scheduling 
accommodations. Id. 
On August 8, 2025, Plaintiff filed a formal notice setting Mr. Latessa ’s deposition for 
August 20, 2025, at 10:00 a.m., in Cincinnati, Ohio. Id. at PageID 997. CBRE’s counsel did 
not respond until August 14, 2025, only to refuse to provide any available dates when Mr. 
Latessa could be deposed. Id. On August 18, 2025, as accommodation to Defendant, CBRE 
agreed to reschedule the depositions of two of Defendant’s other noticed witnesses but again 
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declined to do the same for Mr. Latessa; like in previous exchanges CBRE’s counsel refused 
to offer any dates when Mr. Latessa could be made available. Id. That same day, Defendant’s 
counsel wrote to advise that it would not provide available times for Mr. Latessa to be deposed 
until after the August 29 mediation had taken place, and that it would not produce him under 
the existing notice. Id. 
On August 19, 2025, Plaintiff responded that the deposition notice would stand.  Id. 
That same day, CBRE sent a reply again declining to provide pre-mediation availability for 
Mr. Latessa and re iterating the company’s refusal to comply with the notice. Id. Plaintiff 
responded in kind, confirming that the deposition would proceed as scheduled on August 20, 
2025. Id. Mr. Latessa did not appear for his deposition on August 20, 2025. Id. Despite having 
prevented Plaintiff from taking Mr. Latessa ’s deposition on October 10, 2025, CBRE  
submitted an affidavit executed by Mr. Latessa in support of its motion for summary 
judgment. Id. 
II. LAW AND ANALYSIS 
A. Rule 30: Depositions by Oral Examination 
Rule 30 of the Federal Rules of Civil Procedure governs depositions of a party by oral 
examination. The party seeking to depose “must give reasonable written notice to every other 
party.” Fed. R. Civ. P. 30(b)(1). The notice must state the time and place of the deposition 
and, if known, the deponent’s name and address; if the name is not known, the notice must 
provide a description “sufficient to identify the person or the particular class or group to which 
the person belongs. ” Fed. R. Civ. P. 30(b)(1). The  notice must also identify the method by 
which the deposition will be recorded. Fed. R. Civ. P. 30(b)(3)(A). 
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If the deponent is an entity, the entity named in the notice “must designate one or 
more officers, directors, or managing agents, or designate other persons who consent to testify 
on its behalf . . . ” Fed. R. Civ. P. 30(b)(6). The notice itself must “describe with reasonable 
particularity the matters for examination. ” Id. A Rule 30(b)(6) notice is directed to the 
organization, not to any particular individual; it is the organization’s obligation, upon receipt 
of that notice, to select and produce an appropriate designee or designees. See Fed. R. Civ. P. 
30(b)(6). 
The persons so designated “must testify about information known or reasonably 
available to the organization.” Fed. R. Civ. P. 30(b)(6). This is a substantive obligation: the 
organization “must make a conscientious good-faith endeavor to designate the persons having 
knowledge of the matters sought” and to prepare those persons to answer fully and completely 
the questions posed on the noticed topics. The duty to prepare extends beyond the designee’s 
personal knowledge and may require review of documents, conversations with current or 
former employees, or other reasonable inquiry. Importantly, the testimony of a Rule 30(b)(6) 
designee is not merely personal testimony —  it is the testimony of the organization itself, 
binding the entity on the matters covered during the deposition. 
B. Rule 37: Failure to Make Disclosure or Cooperate in Discovery; Sanctions 
 Federal Rule of Civil Procedure 37 governs the failure to make disclosures or 
otherwise fail to cooperate in discovery.  Fed. R. Civ. P. 37. Specifically, Rule 37(d)(1)(A)(i) 
empowers this Court to order sanctions if “a party or a party’s officer, director, or managing 
agent—or person designated under Rule 30(b)(6) or 31(a)(4) —fails, after being served with 
proper notice, to appear for that person’ s deposition. ” Fed. R. Civ. P. 37(d)(1)(A)(i).  
Sanctions available for a party’ s failure to appear include: (i) directing that the matters 
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embraced in the order or other designated facts be taken as established for purposes of the 
action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting 
or opposing designated claims or defenses, or from introducing designated matters in 
evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the 
order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a 
default judgment against the disobedient party; or (vii) treating as contempt of court the failure 
to obey any order except an order to submit to a physical or mental examination. 
“As a general rule, a party or person must seek a protective order from the court under 
Rule 26(c) if he [or she] desires not to appear or respond to a discovery request. ” Evenflo Co. 
v. Hantec Agents Ltd., No. 3:05 -cv-346, 2006 U.S. Dist. LEXIS 56269, at *9  (S.D. Ohio Aug. 
2, 2006) (quoting In re Air Crash Disaster At Detroit Metropolitan Airport On August 16, 1987, 130 
F.R.D. 627, 630 (E.D. Mich. 1989)). However, objections must generally be filed before the 
date of the deposition, and failure to seek relief prior to the date of the deposition precludes a 
later objection. Id.  Moreover, a  failure of Federal  Rule of Civil Procedure 37  cannot be 
excused on the grounds that the discovery sought was objectionable unless the party who has 
failed to act has a pending motion for a protective order under Federal Rule of Civil Procedure 
26(c). Fed. R. Civ. P. 37(d)(2).  
C. The Noticed Deposition to Mr. Latessa was Improper as are Sanctions  
At present,  as relates to Mr. Latessa, t wo issues remain in dispute. First, Plaintiff 
contends that the deposition notice was proper because Mr. Latessa qualifies as an officer, 
director, or managing agent of CBRE — and, second, that Rule 37(d)(1)(A)(i) of the Federal 
Rules of Civil Procedure authorizes sanctions for his failure to appear. Doc. 67, PageID 1121–
22; Doc. 79, PageID 1528–29. 
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A witness who is not an officer, director, or managing agent of a corporate party cannot 
be compelled to appear by deposition notice alone; instead, the examining party must serve a 
subpoena pursuant to Federal Rule of Civil Procedure 45, or, if the witness is located abroad, 
must employ the procedures of the Hague Convention or other applicable treaty. EEOC v. 
Honda of Am. Mfg., Inc., No. 2:06 -cv-0233, 2007 U.S. Dist.  LEXIS 14496, at *5  (S.D. Ohio 
Feb. 28, 2007) (citing Stone v. Morton Int’l, 170 F.R.D. 498, 503 (D. Utah 1997)). 
The relevant inquiry is whether the deponent holds the requisite status as a managing 
agent at the time the deposition is noticed — not at the time the underlying events occurred. 
Id. at *5–6 (citing In re Honda Motor Co., Inc., Dealership Relations Litig., 168 F.R.D. 535, 540 
(D. Md. 1996)). The party noticing the deposition bears the burden of establishing that status. 
Id. at *6. That burden, however, is modest: it is satisfied by a showing sufficient to 
demonstrate that there is at least a close question as to whether the individual qualifies as an 
officer, director, or managing agent of the corporate opponent. Id. (citing Boss Mfg. Co. v. Hugo 
Boss AG, No. 97 Civ. 8495, 1999 WL 20828, at *2 (S.D.N.Y. Jan. 13, 1999) ). Any doubt is 
resolved in favor of the examining party, with the ultimate determination of whether the 
witness’s testimony binds the corporation reserved for trial. 
Plaintiff argues that Mr. Latessa qualifies  as a managing agent of CBRE  and thus 
sanctions under Rule 37 are available  based on CBRE’s refusal to produce him at the 
scheduled deposition. Doc. 67, PageID 1122–23. In support of this, Plaintiff relies solely on 
Mr. Latessa’s title as President of Advisory Services and his LinkedIn profile’s description of 
oversight over fourteen Midwest offices  and his skills in management. Id. But the managing 
agent inquiry does not turn on title or general supervisory responsibility; rather it turns on the 
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individual’s “functions, responsibilities, and authority . . . respecting the subject matter of the 
litigation.” Libbey Glass v. Oneida Ltd., 197 F.R.D. 342, 350 (N.D. Ohio 1999).  
A frequently repeated set of factors for determining whether the deponent is a 
managing agent include: “a person invested by the corporation with general powers to 
exercise his judgment and discretion in dealing with corporate matters; he does not act ‘in an 
inferior capacity’ under close supervision or direction of ‘ superior authority.’ He must be a 
person who has ‘the interests of the corporation so close to his heart that he could be depended 
upon to carry out his employer’s direction to give testimony at the demand of a party engaged 
in litigation with the employer.’” Id. at 350 (quoting Krauss v. Erie R. Co., 16 F.R.D. 126, 127 
(S.D.N.Y 1954)). 
The Court concludes that Plaintiff has not met its burden of demonstrating  that there 
is a close question of whether Mr. Latessa is an officer, director, or managing agent of CBRE. 
Plaintiff has made no showing that Mr. Latessa ’s role overseeing advisory operations in the 
Midwest has any connection to the claims at issue here.  To the contrary, and looking ahead 
slightly to the summary judgment motion still pending, Mr. Latessa’s own affidavit reflects 
that his relevant knowledge is limited to Plaintiff’s failure to repay a $125,000 loan made by 
CBRE — a discrete financial matter that does not suggest the kind of general discretionary 
authority over the subject matter of this case  — Plaintiff’s 2021 employment contract with 
CBRE — that would qualify him as a managing agent. Latessa Aff., Doc. 52 , ¶ 3 . Even 
assuming Mr. Latessa exercises general discretion as President of Advisory Services and does 
not act in an “inferior capacity ” in the day -to-day sense, that showing is insufficient. The 
inquiry must focus on his authority “respecting the subject matter of the litigation, ” not his 
general corporate rank. Libbey,  197 F.R.D. at 349–350. Although Mr. Latessa concedes 
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knowing generally of Plaintiff’s previous 2015 employment with CBRE, and that he was being 
recruited again, Mr. Latessa had no capacity to recruit, hire, fire, or dictate the  terms of the 
employment contract at issue here when  Plaintiff returned to CBRE. Latessa Aff., Doc. 52, 
¶¶ 3, 11. The extent of Mr. Latessa ’s involvement with Plaintiff’s most recent employment 
was alerting Global Workplace Solutions to Plaintiff’s outstanding debt. Id. ¶ 12.  
Because Mr. Latessa is not an officer, director, or managing agent of CBRE, Plaintiff 
was required to secure his attendance at deposition by subpoena pursuant to Federal Rule of 
Civil Procedure 45, not by notice alone. EEOC, 2007 U.S. Dist.  LEXIS 14496, at *4 (citing 
Stone, 170 F.R.D. at 503). Having failed to do so, the deposition notice directed to Mr. Latessa 
was procedurally improper, and the predicate for sanctions under Rule 37(d)(1)(A)(i) — 
failure of “a party’s officer, director, or managing agent” to appear after proper notice — is 
absent. Fed. R. Civ. P. 37(d)(1)(A)(i). 
III. CONCLUSION 
Plaintiff’s argument impermissibly conflates, for purpos es of applying  Rule 
37(d)(1)(A)(i) sanctions, Mr. Latessa’s general corporate title  and rank at CBRE  with the 
litigation-specific authority that the managing agent standard requires. Libbey, 197 F.R.D. at 
349–50. His title as President of Advisory Services and his oversight of fourteen Midwest 
offices say nothing about his authority over the subject matter of this litigation — Plaintiff’s 
2021 employment contract with CBRE. The record reflects that Mr. Latessa played no role 
in recruiting Plaintiff, negotiating the terms of his return, or making any employment 
decisions connected to the claims at issue. See generally  Latessa Aff., Doc. 52. His sole 
involvement appears to have been the ministerial act he performed of alerting Global 
Workplace Solutions to Plaintiff’s outstanding debt — a function that reflects neither general 
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corporate discretion nor authority over the employment relationship at the heart of this case. 
Id. Because Plaintiff has not carried its burden of establishing that Mr. Latessa is an officer, 
director, or managing agent of CBRE, the deposition notice directed to him was procedurally 
deficient and the predicate for sanctions under Rule 37(d)(1)(A)(i), in this particular instance, 
is absent. EEOC, 2007 U.S. Dist. LEXIS 14496, at *4. Accordingly, Plaintiff ’s Motion to 
Strike the Affidavit of John Latessa and for Sanctions (Doc. 67) is DENIED .1 
IT IS SO ORDERED.  
June 8, 2026   
 Jeffery P. Hopkins 
 United States District Judge 
 
 
 
 
1  The parties and their attorneys, in particular, are  reminded of their ongoing obligations and responsibilities 
under S.D. Ohio Civ. R. 37.1. See Oro BRC4, LLC v. Silvertree Apartments, Inc., No. 2:19-CV-4907, 2022 WL 
19558082, at *3 (S.D. Ohio Mar. 18, 2022) (Local Rule 37.1 specifically provides that “[o]bjections, motions, 
applications, and requests relating to discovery shall not be filed in this Court under any provision in Fed. R. 
Civ. P. 26 or 37 unless the parties have first exhausted among themselves all extrajudicial means for resolving 
their differences.”) The rule continues: “After extrajudicial means for the resolution of differences about 
discovery have been exhausted, in lieu of  immediately filing a motion under Fed. R. Civ. P. 26 or 37, any 
party may first seek an informal telephone conference with the Judge assigned to supervise discovery in the 
case.” S.D. Ohio Civ. R. 37.1. The Court is of the opinion that the filing of the current Motion for Sanctions 
could have been avoided had counsel worked harder on the timing and sequence for conducting discovery, 
given that the deposition sought of Mr. Latessa was clearly obtainable under Federal Rule of Civil Procedure 
45. In any case, future nonadherence to the provisions of Local Rule 37.1, may result in sanctions against 
both parties and their attorneys. See also Fed. R. Civ. P. 37(a)(1) (“[A] party may move for an order 
compelling disclosure or discovery. The motion must include a certification that the movant has in good faith 
conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it 
without court action.”) (emphasis added). 
 
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