Opinion
Civil No. SA 97-CA-440-RBO
March 6, 1998
ORDER
On this day, the Court considered plaintiffs second motion to compel discovery and for sanctions (docket no. 47) and defendants' response thereto (docket no. 48).
Plaintiff moves to compel defendants to produce Dr. Robert Longfield, Mr. Louis Hinojosa, and Mr. Joe Shimek for deposition and impose sanctions against defendants for failing to appear for a previously scheduled deposition. The Court has been advised that since plaintiff filed the motion, the depositions have taken place, therefore, the motion to compel is now moot. The motion for sanctions, however, remains pending.
Plaintiff contends that she noticed the depositions of the three deponents in issue, all of whom are employees of defendant the Texas Center for Infectious Disease, to occur on December 15, 1997. On December 12, 1997, however, plaintiff had to cancel the depositions because her counsel was unexpectedly called to trial in another case. The parties did not reach any agreement to reschedule the depositions.
Subsequently, on January 9, 1998, plaintiff filed a motion to compel defendants to produce the witnesses. On January 26, 1998, the Court granted the motion to compel and ordered that the three depositions be completed on or before March 2, 1998.
On January 29, 1998, plaintiff's counsel faxed and mailed a letter to defendant's counsel inquiring when would be a convenient date to reschedule the depositions. Defendant's paralegal, Ms. Sisler, contacted plaintiffs counsel and advised him that defendants would not reschedule the depositions until plaintiff responded to defendants' requests for production and interrogatories. Plaintiffs counsel agreed to answer the discovery, but did not agree that his right to depose the witnesses was in any way contingent upon him doing so.
Subsequently, on February 3, 1998, plaintiff noticed all three depositions to occur on Monday, February 16, 1998. The return receipts for the notices reflect that defendants' counsel received the notices on February 5, 1998. Then, on February 5, 1998, defendants' counsel's paralegal, Ms. Sisler, called plaintiff's counsel and advised him that the witnesses could not be produced on the February 16, 1998, and requested the depositions be rescheduled for Thursday, February 19, 1998, and February 22, 1998. Plaintiff's counsel did not agree.
On February 10, 1998, plaintiff's counsel served answers and responses to defendants' requests for production of documents and interrogatories. Later, on Monday, February 16, 1998, plaintiff, along with her counsel and a court reporter, appeared at plaintiffs counsel's office to begin the depositions. None of the three deponents appeared and a certificate of nonappearance was taken for each deposition. Two days later, on February 18, 1998, plaintiff's counsel filed the instant motion to compel and for sanctions. Plaintiff seeks (1) attorney's fees in the amount of $300.00; (2) plaintiff's lost wages for missing work for one day in the amount of $300.00; and (3) court reporter expenses.
On February 24, 1998, defendant responded. Defendant contends that it should not be sanctioned because it verbally advised plaintiff's counsel on February 5, 1998, that the witnesses would not be produced for deposition due to scheduling difficulties. Defendant's counsel claims that on February 12, 1998, Ms. Sisler, the paralegal, once again tried to bring up the topic of the depositions for a second time, but was unable to do so because plaintiff's counsel hung up the phone before she could bring up the topic. Defendants also note that the depositions were scheduled on February 16, 1998, which was a national holiday. Finally, defendants argue that this type of misunderstanding is not the type of conduct that merits sanctions.
Federal Rule of Civil Procedure 37(d) allows the court to impose sanctions, including expenses and reasonable attorney's fees, against a party who fails to (1) attend a duly noticed deposition; (2) to serve answers or objections to interrogatories; or (3) to serve a response to a properly submitted request for inspection. Under Rule 37, sanctions are mandatory for failure to attend a deposition unless the court finds the deponent was substantially justified or that other circumstances make an award of expenses unjust. FED.R.CIV.P. 37 (d); Lee v. Walters, 172 F.R.D. 421, 425 (D. Org. 1997). Furthermore, unlike Rule 37(b), Rule 37(d) does not require a finding of bad faith as a prerequisite for imposing sanctions.Lee, 172 F.R.D. at 425.
In the instant case, defendants failed to appear for depositions without filing a motion for protective order, therefore, Rule 37(d) was violated. Defendants merely allege that they had difficulty scheduling the depositions and advised plaintiff's counsel that they would not attend. According to the Federal Rules of Civil Procedure, however, defendants should have filed a motion for a protective order. Id. (holding belated compliance with discovery does not preclude imposition of sanctions); Henry v. Gill Indus. Inc., 983 F.2d 943, 947 (holding submitting to a deposition does not forgive prior failure to appear). Therefore, the Court finds that plaintiff's motion for sanctions should be GRANTED.
Under the circumstances, the Court finds that defendants should be required to pay plaintiff's reasonable attorney's fees for appearing for the depositions and preparing the motion to compel. The Court finds a reasonable amount to be One Hundred and Fifty dollars ($150.00). The Court does not, however, believe it has authority to award the plaintiff any compensation for her lost wages. The Court would also like to review the court reporter's costs before awarding such amounts to plaintiff.
It is, therefore, ORDERED that defendants pay plaintiff's counsel the sum of One Hundred and Fifty dollars ($150.00) by 5 p.m. on March 20, 1998.
It is further ORDERED that plaintiff file with the Court an advisory indicating the amount of court reporter costs she is seeking by March 20, 1998.
All other relief is DENIED.
It is so ORDERED.