Vehicle Market Research, Inc. v. Mitchell International, Inc.

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS October 25, 2016

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

VEHICLE MARKET RESEARCH, INC.,

Plaintiff - Appellant,
No. 15-3243
v.

MITCHELL INTERNATIONAL, INC.,

Defendant - Appellee.
_________________________________

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 2:09-CV-02518-JAR)
_________________________________

Submitted on the briefs:*

Nora M. Kane, Stinson Leonard Street, Omaha, Nebraska, for Plaintiff-Appellant.

Scott T. Schutte and Tedd M. Warden, Morgan Lewis & Bockius, LLP, Chicago, Illinois,
for Defendant-Appellee.
_________________________________

Before HARTZ, BACHARACH, and McHUGH, Circuit Judges.
_________________________________

McHUGH, Circuit Judge.
_________________________________

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
 I. INTRODUCTION

Vehicle Market Research, Inc. (VMR) sued Mitchell International, Inc. (Mitchell)

to recover royalties Mitchell allegedly owed pursuant to a software licensing agreement.

The jury returned a verdict for Mitchell, and VMR appeals. VMR first argues the district

court erred by allowing Mitchell, contrary to the law of the case doctrine, to cross-

examine VMR’s sole shareholder on the value of VMR as he stated in his personal

bankruptcy. Second, VMR contends the district court erred in omitting part of VMR’s

proposed jury instruction on Rule 30(b)(6) witnesses. We affirm.

II. BACKGROUND1

John Tagliapietra is the sole shareholder of VMR. In 1997, he developed the TLSS

Product, designed to “assist[] automobile insurers in providing a fair market value for a

vehicle that has been declared a total loss.” Vehicle Mkt. Research, Inc. v. Mitchell Int’l,

Inc., 767 F.3d 987, 989 (10th Cir. 2014) [hereinafter VMR I] (citation omitted). VMR

licensed this product exclusively to Mitchell, a company that provides products and

solutions for insurance companies and collision repair facilities. In return, Mitchell

agreed to pay a $1.00 royalty each time it used VMR’s product, up to a maximum of $4.5

million.2 Mitchell paid VMR royalties of between $200 and $3,300 monthly until

September 2005.

1
For a more detailed factual history, refer to our prior decision in Vehicle Market
Research, Inc. v. Mitchell International, Inc., 767 F.3d 987 (10th Cir. 2014) [hereinafter
VMR I].
2
The agreement initially specified $3.5 million, but the parties amended this
amount to $4.5 million in 2002. VMR I, 767 F.3d at 990.

2
 Although Mitchell never terminated the agreement with VMR, in November 2005,

it released its own product for assessing vehicle fair market value (the Mitchell Product)

and used it exclusively thereafter. Accordingly, Mitchell discontinued paying royalties to

VMR.

Mr. Tagliapietra filed Chapter 7 bankruptcy in October 2005. Id. at 991. On his

bankruptcy schedules, he listed the value of VMR’s stock as “0.00.” He did so because he

“was no longer receiving royalties from Mitchell; had no expectation of receiving

additional royalties from Mitchell; did not have possession or right to possess the

software developed for Mitchell because the Agreement was never terminated; and had

no other assets.” Id.

Approximately a year and half later, in mid-2007, Mr. Tagliapietra began to

suspect that Mitchell had used VMR’s intellectual property to develop the Mitchell

Product. After examining the Mitchell Product in 2009, Mr. Tagliapietra became

convinced it infringed on VMR’s proprietary rights.

On October 5, 2009, VMR filed a complaint against Mitchell claiming over $4

million in damages for breach of contract and other causes of action. Fifteen days later,

on October 20, 2009, the bankruptcy court approved the discharge of Mr. Tagliapietra’s

debts based on his insolvency. The Trustee valued Mr. Tagliapietra’s interest in VMR as

“unknown.” VMR I, 767 F.3d at 989.

Mitchell then moved for summary judgment under a theory of judicial estoppel

based on the inconsistency between Mr. Tagliapietra’s valuation of VMR at zero in his

personal bankruptcy proceedings and the allegation in the pending litigation that Mitchell

3
owed VMR over $4 million in royalties. Id. at 992. The district court granted Mitchell’s

motion for summary judgment, and VMR appealed.

This court reversed and remanded, acknowledging that

the near-simultaneous timing between Mr. Tagliapietra’s bankruptcy
discharge and the filing of this lawsuit is suspicious, and there is some
facial incongruity between Mr. Tagliapietra’s approving a valuation of
“unknown” for his VMR stock given his testimony that he believed at the
time he filed the lawsuit that VMR was entitled to “up to $4 million in
royalties” because of the legal claim.

Id. at 996–97. Nevertheless, we reasoned that judicial estoppel “would have to be based

on a duty by Mr. Tagliapietra to amend his bankruptcy pleadings to report a possible

increased value for his VMR stock.” Id. at 989. Because our precedent was unclear “on

whether a debtor has a continuing duty to amend his bankruptcy schedules when the

estate’s assets change in value,” we expressed “our reluctance to invoke judicial

estoppel.” Ultimately, we concluded Mitchell had “not met its burden of showing any

clearly inconsistent statements that would warrant that relief.” Id.

On remand and in anticipation of trial, both VMR and Mitchell filed motions in

limine relating to the bankruptcy valuation. Mitchell sought an order allowing use of Mr.

Tagliapietra’s “inconsistent sworn statements,” made during his bankruptcy, “in order to

examine Mr. Tagliapietra’s veracity and credibility as a witness, and for purposes of

impeachment.” Conversely, VMR moved to prohibit Mitchell from making any reference

to the bankruptcy or Mr. Tagliapietra’s statements in the bankruptcy. VMR argued that

VMR I “foreclose[d] even a suggestion that the statements made by [Mr. Tagliapietra]

4
. . . during his bankruptcy and the statements that he’s made to this court in his deposition

or during his live testimony” were inconsistent.

The district court denied VMR’s motion and granted, in part, Mitchell’s request to

use the bankruptcy valuation evidence at trial. It read our decision in VMR I as being

limited to the issue of judicial estoppel, which is “a very egregious and harsh remedy . . .

requir[ing] clearly inconsistent statements.” Concluding nothing in VMR I precluded it

from doing so, the court ruled Mitchell could impeach Mr. Tagliapietra on cross-

examination with prior inconsistent statements, including from the bankruptcy

proceeding. The court further instructed, however, that it would not allow “an affirmative

reveal . . . by [Mitchell’s counsel], whether that’s in opening statement or otherwise

through the testimony of another witness or whatever, any suggestion that Mr.

Tagliapietra filed bankruptcy and that he did what he did in the bankruptcy.”3

During discovery, VMR had noticed the deposition of Mitchell under Rule

30(b)(6), thereby compelling Mitchell to designate one or more persons to testify on

behalf of the company as to the subject matters identified. See Fed. R. Civ. P. 30(b)(6).

Mitchell designated Jim Lindner, its former CEO. At his 30(b)(6) deposition, Mr. Lindner

testified that he would not have allowed his employees to “use” the VMR work product

3
VMR mischaracterizes the district court’s ruling when it states that “[i]f the
lower court had ruled that Mitchell could only raise the bankruptcy if first introduced by
VMR, of course VMR would not have done so. Instead the district court gave Mitchell
carte blanche on this issue, and VMR was forced to defend a highly prejudicial and
irrelevant issue rejected by this Court.” This is incorrect. The district court specifically
stated it was prohibiting Mitchell from any “affirmative reveal” of the bankruptcy or Mr.
Tagliapietra’s bankruptcy valuation of VMR.

5
in developing the Mitchell Product because that would be a breach of his “ethics of

business conduct.”

The case proceeded to trial. During the direct examination of Mr. Tagliapietra,

VMR’s counsel approached the bench and outlined her plan to raise preemptively his

bankruptcy valuation statements, while preserving her argument that this court’s mandate

precluded the introduction of any evidence on that subject:

[I]n light of the Court’s ruling about . . . allowing Mitchell to attempt to
impeach my client with prior inconsistent statements, without waiving my
objection, I am going to introduce the issue. And I want it on the record that
it’s our vehement belief that [the Tenth Circuit opinion] precludes this—the
introduction of this testimony. It’s not material to this case. . . . And over
that objection, I’m going to elicit testimony about the statements made in
the bankruptcy court. But I—in no way, shape, or form am I waiving the
objection.

VMR’s counsel then questioned Mr. Tagliapietra about his bankruptcy valuation

of VMR.4 Mr. Tagliapietra admitted he “placed a zero value on VMR” in his personal

bankruptcy, that at the time of his bankruptcy discharge VMR’s value was “unknown,”

and that he acted as VMR’s representative in filing the operative complaint claiming

Mitchell owed VMR over $4 million in unpaid royalties. VMR’s counsel allowed Mr.

Tagliapietra to explain that the bankruptcy valuation and estimated royalty amount were

not inconsistent, because VMR was still worth “zero.”

Following this direct examination, Mitchell’s counsel cross-examined Mr.

Tagliapietra. The district court sustained several of VMR’s objections when Mitchell

4
VMR’s appellate brief does itself and this court a disservice by failing to mention
that its counsel strategically raised the issue of Mr. Tagliapietra’s bankruptcy during
direct examination in VMR’s case-in-chief.

6
attempted to explore the bankruptcy more generally. But consistent with its earlier

rulings, the district court allowed Mitchell to impeach Mr. Tagliapietra with the values he

had provided in the bankruptcy petition because “based on my limine ruling, it was clear

that anybody could go into the bankruptcy within the limitations that I had already set.”

Mitchell’s counsel elicited testimony from Mr. Tagliapietra about his prior valuation of

VMR in the bankruptcy during this cross-examination.

Also during its case-in-chief, VMR introduced Mr. Lindner’s videotaped

deposition. After VMR rested, Mitchell called Mr. Lindner as a witness to explain his

Rule 30(b)(6) testimony, specifically what he meant when he said he would not allow his

employees to “use” VMR work product. Mr. Lindner testified at trial that what he meant

in his Rule 30(b)(6) deposition was that he did not want Mitchell employees “copying

any of the [VMR] code.”

VMR argued that Mr. Lindner’s change in testimony violated Rule 30(b)(6) and

proposed the following jury instruction:

In a Rule 30(b)(6) deposition, there is no distinction between the corporate
representative and the corporation. The Rule 30(b)(6) designee does not
give his personal opinion. Rather, he presents the corporation’s “position”
on the topic. The designee testifies on behalf of the corporation and thus
holds it accountable. The corporation cannot present a theory of the facts
that differs from that articulated by the designated Rule 30(b)(6)
representative.

Following Mitchell’s objection, the district court deleted the last sentence (underlined)

from VMR’s proposed instruction and gave it to the jury as modified.

The jury found no liability and returned a verdict in favor of Mitchell. VMR filed

a timely appeal. We have jurisdiction under 28 U.S.C. § 1291.

7
 III. DISCUSSION

On appeal, VMR first contends the district court erred in admitting evidence of

Mr. Tagliapietra’s bankruptcy valuation statements in violation of this court’s mandate in

VMR I. “We review de novo [the district court’s] compliance with our mandate,

‘including whether the law-of-the-case doctrine or mandate rule forecloses any of the

[district court’s] actions on remand.’” Padilla-Caldera v. Holder, 637 F.3d 1140, 1145

(10th Cir. 2011) (citation omitted). In turn, we “review a district court’s determination

regarding the admissibility of evidence under an abuse of discretion standard.” United

States v. Contreras, 536 F.3d 1167, 1170 (10th Cir. 2008). We conclude that use of this

valuation evidence for impeachment purposes did not violate the mandate rule and that

VMR waived its right to appeal this issue because it first introduced the bankruptcy

valuation evidence on direct examination of Mr. Tagliapietra.

Second, VMR argues the district court erred by improperly instructing the jury on

30(b)(6) witnesses. This court reviews the district court’s refusal to give a proposed

instruction for abuse of discretion, but considers de novo whether the jury instructions, as

a whole, correctly state the law. See United States v. Sorensen, 801 F.3d 1217, 1228–29

(10th Cir. 2015). We conclude that the district court properly deleted the final sentence of

VMR’s proposed jury instruction on 30(b)(6) witnesses because it was an incorrect

statement of the law. We therefore reject VMR’s claims on appeal.

8
 A. The District Court Properly Allowed Mitchell to Cross-Examine
Mr. Tagliapietra on His Bankruptcy Valuation of VMR

1. The District Court Did Not Violate the Law of the Case Doctrine

The law of the case doctrine provides, “when a court rules on an issue of law, the

ruling ‘should continue to govern the same issues in subsequent stages in the same

case.’” United States v. Graham, 704 F.3d 1275, 1278 (10th Cir. 2013) (citation omitted).

After an appeal, “the decision of the appellate court establishes the law of the case and

ordinarily will be followed by both the trial court on remand and the appellate court in

any subsequent appeal. This principle applies to all ‘issues previously decided, either

explicitly or by necessary implication.’” Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183

(10th Cir. 1995) (citations omitted).

VMR argues the prior appeal of this case—VMR I—precluded Mitchell from

presenting evidence of or even mentioning Mr. Tagliapietra’s bankruptcy on remand. As

support for that position, VMR claims we held in VMR I that Mr. Tagliapietra’s

statements in his bankruptcy proceeding were consistent with his prayer for relief here.

We find no support for this position in VMR I.

The sole question before us in VMR I was “whether the statements by VMR and

Mr. Tagliapietra in the litigation against Mitchell were so clearly contrary to the

statements made by Mr. Tagliapietra in his bankruptcy proceeding that VMR should be

judicially estopped from proceeding with its suit against Mitchell.” VMR I, 767 F.3d at

988. Although we held they were not, nowhere in that decision do we indicate the

statements were consistent or that the bankruptcy valuation will be irrelevant on remand.

9
To the contrary, we expressly noted the availability of cross-examination on remand,

noting that it is a less harsh remedy than judicial estoppel:

Our rationale behind our cautious application of the doctrine is that judicial
estoppel is a powerful weapon to employ against a party seeking to
vindicate its rights, and there are often lesser weapons that can keep alleged
inconsistent statements in check while preserving a party’s option to have
its day in court. The most obvious of these lesser remedies is to allow the
opposing party to impeach at trial the party that has made the inconsistent
statement. Judicial estoppel is only appropriate when that technique or
other less forceful remedies are inadequate to protect the integrity of the
judicial system.

Id. at 993 (emphasis added) (citation omitted).

On remand, the district court ruled Mitchell could not present evidence of Mr.

Tagliapietra’s bankruptcy in its opening statement or through the testimony of other

witnesses, but allowed the evidence to be used for impeachment purposes. Nothing in our

VMR I decision precluded Mitchell from using the evidence as “appropriate impeachment

contemporaneous with [Mr. Tagliapietra’s] testimony.” The district court therefore did

not exceed the scope of the mandate.

2. VMR Waived Any Argument that the District Court Erred in Allowing Mitchell
to Cross-Examine Mr. Tagliapietra on the Bankruptcy Valuation

To the extent VMR contends the district court exceeded its discretion in admitting

the bankruptcy valuation evidence, the argument is waived. “Generally, a party

introducing evidence cannot complain on appeal that the evidence was erroneously

admitted.” Ohler v. United States, 529 U.S. 753, 755 (2000). This is true even if the party

introduces the evidence only to limit its impact on cross-examination. Id. In Ohler, the

defendant brought a motion in limine to exclude evidence of her prior conviction. When

10
the district court denied the motion, the defense introduced the prior conviction evidence

during the defendant’s direct examination in an effort to minimize the impact of the

government’s “possible elicitation of the conviction on cross-examination.” Id. at 758.

The defendant was convicted and then challenged the district court’s in limine ruling on

appeal. The Ninth Circuit affirmed, concluding the defendant had waived the objection

by introducing the evidence on direct examination. On certiorari, the Supreme Court

agreed. The Court held that a defendant cannot gain an advantage on direct examination

“by offering the conviction herself (and thereby removing the sting) and still preserve its

admission as a claim of error on appeal.” Id. at 758.

Under Ohler, the party introducing the evidence waives—rather than forfeits—any

objection to its admission, meaning “we do not consider the claim at all, even under the

forgiving plain-error standard.” Hancock v. Trammell, 798 F.3d 1002, 1011 n.3 (10th Cir.

2015). We apply the waiver doctrine “where a party has invited the error that it now

seeks to challenge, or where a party attempts to reassert an argument that it previously

raised and abandoned below.” United States v. Zubia-Torres, 550 F.3d 1202, 1205 (10th

Cir. 2008).5

5
Although Ohler was a criminal case, the same waiver rule applies in civil
proceedings. See United States v. Wagoner Cty. Real Estate, 278 F.3d 1091, 1098–99
(10th Cir. 2002) (applying Ohler in a civil proceeding where a party challenged the
admission of impeachment evidence of her prior conviction); Clarett v. Roberts, 657 F.3d
664, 670–71 (7th Cir. 2011) (“The logic of Ohler applies with equal force in both
criminal and civil cases. The tactical nature of each party’s decisions is the same; indeed,
the stakes are higher in a criminal case, and still the Supreme Court found waiver.”);
Canny v. Dr. Pepper/Seven-Up Bottling Grp., Inc., 439 F.3d 894, 904 (8th Cir. 2006)
(holding that “Dr. Pepper waived a challenge to the admission” of the evidence on appeal
after it introduced the evidence on direct examination of its witness).

11
 On direct examination in its case-in-chief, VMR introduced both the fact of the

bankruptcy and Mr. Tagliapietra’s valuation of VMR’s shares at zero in that proceeding.

VMR then provided Mr. Tagliapietra an opportunity to explain to the jury why the

bankruptcy valuation of zero was consistent with the complaint in this litigation seeking

over $4 million in unpaid royalties. VMR made the strategic choice to introduce this

evidence in an attempt to reduce its negative impact. And it did so despite the district

court’s ruling that Mitchell could not raise the evidence in the first instance, but could use

it only for impeachment.

VMR “cannot avoid the consequence of its own trial tactic by arguing it was

forced” by the district court’s in limine ruling “to introduce the evidence during the direct

examination . . . to diminish the prejudice” that might result from impeachment evidence

about the bankruptcy. Canny v. Dr. Pepper/Seven-Up Bottling Grp., Inc., 439 F.3d 894,

904 (8th Cir. 2006); see also Ohler, 529 U.S. at 758. Because VMR “preemptively

elicited” this testimony on direct examination, it cannot now appeal either the district

court’s ruling in limine or Mitchell’s impeachment of the direct testimony. Hancock, 798

F.3d at 1011 n.3.

B. The District Court Did Not Abuse Its Discretion by Rejecting the Last Sentence of
VMR’s Proposed Jury Instruction on 30(b)(6) Testimony

VMR next challenges the district court’s jury instruction on Rule 30(b)(6)

witnesses. Federal Rule of Civil Procedure 30(b)(6) provides a mechanism through which

a party can depose an artificial business entity. Under Rule 30(b)(6), the entity named in

the deposition notice must “designate one or more officers, directors, or managing

12
agents . . . to testify on its behalf.” Fed. R. Civ. P. 30(b)(6). The designee is required to

“testify about information known or reasonably available to the organization.” Id.

Mitchell designated Jim Lindner, its former CEO, as its designee in response to

VMR’s Rule 30(b)(6) notice of Mitchell. At his 30(b)(6) deposition, Mr. Lindner stated

he would not have allowed his employees to “use” the VMR work product in developing

its own product because that would be a breach of his business ethics. After VMR

introduced Mr. Lindner’s videotaped deposition at trial, Mitchell gave Mr. Lindner the

opportunity to explain that when he said “use” in his deposition, he meant Mitchell

employees were prohibited from “copying any of the [VMR] code.”

VMR contends the jury should have been instructed to reject Mr. Lindner’s trial

testimony as inconsistent with his deposition testimony under Rule 30(b)(6). Specifically,

VMR proposed a jury instruction that included the statement: “The corporation cannot

present a theory of the facts that differs from that articulated by the designated Rule

30(b)(6) representative.” The district court refused to include the quoted sentence, but

otherwise instructed the jury in accordance with VMR’s proposed instruction.6

VMR frames this as legal error subject to de novo review. As discussed, “[w]e

review de novo whether, as a whole, the district court’s jury instructions correctly stated

6
VMR’s proposed instruction stated, with our emphasis:

In a Rule 30(b)(6) deposition, there is no distinction between the corporate
representative and the corporation. The Rule 30(b)(6) designee does not
give his personal opinion. Rather, he presents the corporation’s “position”
on the topic. The designee testifies on behalf of the corporation and thus
holds it accountable. The corporation cannot present a theory of the facts
that differs from that articulated by the designated Rule 30(b)(6)
representative.

13
the governing law and provided the jury with an ample understanding of the issues and

applicable standards.” Martinez v. Caterpillar, Inc., 572 F.3d 1129, 1132 (10th Cir. 2009)

(internal quotation marks omitted). But we review a district court’s decision “on whether

to give a particular instruction for abuse of discretion.” Webb v. ABF Freight Sys., Inc.,

155 F.3d 1230, 1248 (10th Cir. 1998). “[W]e will find an abuse of discretion if the

challenged instruction incorrectly states the governing law. Furthermore, ‘[n]o particular

form of words is essential if the instruction as a whole conveys the correct statement of

the applicable law.’” Id. (alteration in original) (citations omitted); United States v.

Suntar Roofing, Inc., 897 F.2d 469, 473 (10th Cir. 1990) (“[S]o long as the charge as a

whole adequately states the law, the refusal to give a particular requested instruction is

not an abuse of discretion.”).

Here, the district court did not abuse its discretion in rejecting the last sentence of

VMR’s Rule 30(b)(6) instruction because the omitted sentence was an incorrect

statement of governing law.

1. The Proposed Sentence Incorrectly Stated the Law

VMR claims 30(b)(6) testimony should be treated as a judicial admission against

the corporation and not a standard evidentiary admission subject to impeachment and

clarification. The final sentence from its proposed jury instruction supports this view:

“The corporation cannot present a theory of the facts that differs from that articulated by

the designated Rule 30(b)(6) representative.” VMR argues this sentence is “a direct quote

from Moore’s Federal Practice.” See 7 James William Moore et al., Moore’s Federal

Practice—Civil § 30.25[3].

14
 Although Moore’s Federal Practice does say that “a corporation generally cannot

present a theory of the facts that differs from that articulated by the designated Rule

30(b)(6) representative,” id. (emphasis added), it clarifies that this rule is limited to the

summary judgment context, id § 30.25[3] n. 15.2 (“Conflicts with Rule 30(b)(6)

testimony generally will not defeat summary judgment,”); see also id. § 30.25 (“[C]ourts

have ruled that because a Rule 30(b)(6) designee testifies on behalf of the entity, the

entity is not allowed to defeat a motion for summary judgment based on an affidavit that

conflicts with its Rule 30(b)(6) deposition or contains information that the Rule 30(b)(6)

deponent professed not to know.”).

Moreover, the cases Moore’s cites as support for this proposition make clear that it

is limited to the context in which an affidavit conflicts with the Rule 30(b)(6) deposition

without good reason. See Keepers, Inc. v. City of Milford, 807 F.3d 24, 35 (2d Cir. 2015)

(“Some deponents will . . . try to abuse Rule 30(b)(6) by intentionally offering misleading

or incomplete responses, then seeking to ‘correct’ them by offering new evidence after

discovery.”); MKB Constructors v. Am. Zurich Ins. Co., 49 F. Supp. 3d 814, 829 (W.D.

Wash. 2014) (“[A] party cannot rebut the testimony of its Rule 30(b)(6) witness when, as

here, the opposing party has relied on the Rule 30(b)(6) testimony, and there is no

adequate explanation for the rebuttal.”); Hyde v. Stanley Tools, 107 F. Supp. 2d 992, 993

(E.D. La. 2000), aff’d, 31 F. App’x 151 (5th Cir. 2001) (striking an affidavit that “directly

contradict[ed]” the party’s Rule 30(b)(6) deposition when the party did not provide a

“reasonable explanation” for the inconsistency).VMR’s selective quotation from Moore’s

Federal Practice does not accurately present the treatise’s position on this issue.

15
 For example, VMR omits language from the same section of Moore’s Federal

Practice, which explains that

the testimony of a Rule 30(b)(6) deponent does not absolutely bind the
corporation in the sense of a judicial admission, but rather is evidence that,
like any other deposition testimony, can be contradicted and used for
impeachment purposes. The Rule 30(b)(6) testimony also is not binding
against the organization in the sense that the testimony can be corrected,
explained and supplemented, and the entity is not “irrevocably” bound to
what the fairly prepared and candid designated deponent happens to
remember during the testimony.

Id. (emphasis added). VMR attempts to pluck portions of the treatise’s discussion of Rule

30(b)(6), while wholly omitting sections that expressly refute its argument.

The Tenth Circuit has “not addressed whether the testimony of a Rule 30(b)(6)

representative qualifies as a judicial or evidentiary admission.” Templeton v. Catlin

Specialty Ins. Co., 612 F. App’x 940, 959 n. 19 (10th Cir. 2015) (unpublished) (declining

to decide the issue because the subject of the testimony was actually a question of law

and therefore the 30(b)(6) witness’s testimony did “not create a triable issue of fact”). We

have noted, however, that like Moore’s Federal Practice treatise, the “majority of courts

to reach the issue . . . treat the testimony of a Rule 30(b)(6) representative as merely an

evidentiary admission, and do not give the testimony conclusive effect.” Id.; see Keepers,

Inc., 807 F.3d 24, 34–35 (“[The plaintiff] rightly notes that an organization’s deposition

testimony is ‘binding’ in the sense that whatever its deponent says can be used against the

organization. But Rule 30(b)(6) testimony is not ‘binding’ in the sense that it precludes

the deponent from correcting, explaining, or supplementing its statements.” (footnote

omitted)); A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d 630, 637 (7th Cir. 2001)

16
(“[T]estimony given at a Rule 30(b)(6) deposition is evidence which, like any other

deposition testimony, can be contradicted and used for impeachment purposes.” (quoting

Indus. Hard Chrome, Ltd. v. Hetran, Inc., 92 F. Supp. 2d 786, 791 (N.D. Ill. 2000))); S.

Wine & Spirits of Am., Inc. v. Div. of Alcohol & Tobacco Control, 731 F.3d 799, 811 (8th

Cir. 2013) (“A 30(b)(6) witness’s legal conclusions are not binding on the party who

designated him, and a designee’s testimony likely does not bind [its employer] in the

sense of a judicial admission.” (citation omitted)).

We agree with our sister circuits that the testimony of a Rule 30(b)(6) witness is

merely an evidentiary admission, rather than a judicial admission. Accordingly, the jury

instruction given correctly states the governing law, and the district court did not abuse

its discretion in omitting VMR’s proposed final sentence. Suntar Roofing, Inc., 897 F.2d

at 473.

IV. CONCLUSION

The district court did not violate the law of the case doctrine by allowing Mitchell

to impeach Mr. Tagliapietra with his bankruptcy valuation of VMR, and VMR waived

any objection to the district court’s ruling in limine and the use of the evidence during

cross-examination because VMR first introduced the evidence on direct examination of

Mr. Tagliapietra. The district court did not abuse its discretion in rejecting the last

sentence of VMR’s proposed Rule 30(b)(6) jury instruction. We therefore AFFIRM.

17