Opinion
Case No. 02-4067-JAR
December 5, 2002.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
On October 8, 2002, Defendant filed a motion to dismiss this case as a discovery sanction pursuant to Fed.R.Civ.P. 37(b)(2)(C). Defendant argues that such sanction is appropriate because Plaintiff failed to appear for his scheduled deposition on October 4, 2002. Plaintiff maintains that he did not appear for his scheduled deposition because Defendant repeatedly failed to respond to written discovery requests for its employment manual.
On the same day, Defendant filed a motion for a protective order that would postpone its obligation to respond to Plaintiff's written discovery requests until after Plaintiff is deposed. On November 22, 2002, the Magistrate granted Defendant's motion for a protective order. The order states that "Plaintiff was not entitled to decline to appear for his deposition on October 4, 2002, regardless of whether Defendant first produced the personnel policies." (Doc. 24 at 2). It orders, "Counsel for the parties shall confer and determine a date for defendant to take plaintiff's deposition . . . Defendant shall produce the subject documents to plaintiff on the day after plaintiff's deposition." (Doc. 24 at 3).
Fed.R.Civ.P. 37(b)(2)(C) allows a court to issue "[a]n order . . . dismissing the action or proceeding or any part thereof" for a party's failure to provide or permit discovery, including failure to attend their own deposition. Dismissal with prejudice, however, is an extreme sanction and the Tenth Circuit cautions district courts to consider certain factors before choosing dismissal as a just sanction. These factors include, "(1) the degree of actual prejudice to the defendant, (2) the amount of interference with the judicial process, (3) the culpability of the litigant, (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance, and (5) the efficacy of lesser sanctions."
See Fed.R.Civ.P. 37(d).
Jones v. Thompson, 996 F.2d 261, 264 (10th Cir. 1993); Ehrenhaus v. Reynolds, 965 F.2d 916, 920-21 (10th Cir. 1992).
Thompson, 996 F.2d at 264 (citing Ehrenhaus, 965 F.2d at 921).
As the Tenth Circuit emphasizes, dismissal is an extreme sanction, especially when the time for discovery has yet to expire. When applied to the instant case, the above factors weigh against dismissal as a just sanction for the discovery abuse. Because the protective order was granted, the degree of actual prejudice to the Defendant is low. In addition, there has been no warning by this or any other court to the plaintiff that dismissal of the action would be a likely sanction for failing to appear at his deposition. Finally, Defendant provides no reason why lesser sanctions would not accomplish the stated goals of penalizing the plaintiff and providing a deterrent against future discovery violations.
The protective order requires the plaintiff to submit to a deposition before receiving discovery requests from the Defendant. Furthermore, the order requires the defendant to produce the written discovery requests to the plaintiff on the day after plaintiff's deposition. Namely, Plaintiff is concerned with receiving an employment manual, or any form of IBP's employment policies. The parties dispute whether such a manual, or compilation of policies exists. If such a manual exists in any form, the defendant is on notice that it must produce it to the plaintiff following Plaintiff's deposition in compliance with the protective order. This Court will not tolerate misleading denials that such a document exists.
IT IS THEREFORE ORDERED that Defendant's motion to dismiss is denied.
IT IS SO ORDERED