United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff's Motion to Have Allegations in
Complaint Deemed Admitted (R. Doc. 32) filed on September 28,
2017. Plaintiff seeks sanctions on the basis that Major
Shannon Lessard and her counsel “failed to
appear” for Major Lessard's deposition. The motion
is opposed. (R. Doc. 34). Plaintiff has filed a Reply. (R.
before the Court is Plaintiff's Motion to Strike Exhibits
(R. Doc. 37) filed on October 24, 2017. Plaintiff argues that
some of the evidence submitted in support of Major
Lessard's Opposition must be struck from the record on
the basis of lack of personal knowledge, speculation,
hearsay, and/or lack of authentication. The deadline for
filing an opposition to this motion has not expired. LR 7(f).
noticed the deposition of Major Lessard to take place on
September 27, 2017 at 2:30 p.m. at the Elayn Hunt
Correctional Center (“EHCC”) in St. Gabriel,
Louisiana. (R. Doc. 32-4). Major Lessard did not move for a
protective order with regard to the noticed deposition. The
day before the deposition was noticed to take place, defense
counsel confirmed that the deposition was to take place at
EHCC and would commence at 2:30 p.m. (R. Doc. 32-6 at 1).
asserts that at 2:30 p.m., Plaintiff's counsel, Ms. Donna
Grodner, “confirmed that the attorney from the AG's
Office was not present at EHCC” and, as she was leaving
the facility, again verified that no attorney from the
AG's Office was present at EHCC. (R. Doc. 32 at 1-2). In
support of the instant motion, Plaintiff's counsel,
certifies, in pertinent part, the following:
After 2:30 p.m., a process verbal was
conducted on both the depositions of Major Shannon Lessard
and on Lt. [Slater]. As both the undersigned and the Court
Reporter were leaving the parking lot, the gate sergeant
stopped us and, upon information and belief, they learned
that someone was now in route from the AG's Office, which
is located in Baton Rouge. EHCC is located in St. Gabriel,
Louisiana. The undersigned verified that no attorney from the
AG's Office was present inside EHCC and left.
(R. Doc. 32-2 at 2) (emphasis added). Plaintiff's counsel
further certifies that “Major Shannon Lessard and her
counsel failed to appear for the deposition.” (R. Doc.
32-2 at 2).
opposition, Major Lessard, Major Kevin Durbin, and Former
Lieutenant Lindell Slater (collectively,
“Defendants”) assert that Plaintiff's motion
contains misrepresentations and “should be denied as
frivolous and sanctions against counsel for Plaintiff should
be ordered.” (R. Doc. 34 at 2).
submit an affidavit of M. Sgt. Tekiley Adams stating that he
received a call from the EHCC Front Gate Security Officer at
approximately 2:11 p.m. notifying him that Plaintiff's
counsel had arrived for the deposition. (R. Doc. 34-1 at 3).
M. Sgt. Adams further asserts that he verified that the
deposition was scheduled and contacted the EHCC Front Gate
Security Officer to allow Plaintiff's counsel to enter
EHCC and to proceed on foot to the Administration Building
for the taking of the deposition. (R. Doc. 34-1 at 4). M.
Sgt. Adams asserts that upon receiving the foregoing
information at 2:21 p.m., Plaintiff's counsel informed
the EHCC Front Gate Security Officer that “she was
leaving” because Major Lessard's counsel had not
yet arrived for the deposition. (R. Doc. 34-1 at 4). M. Sgt.
Adams also represents that “Maj. Lessard was, in fact,
present at [the] EHCC Administrative Building and prepared to
give deposition testimony” when Plaintiff's counsel
left the facility. (R. Doc. 34-1 at 5).
“Contractor/Visitor Drive-In Register” for EHCC
marks Plaintiff's counsel as “in” at 2:11
p.m. and “out” at 2:21 p.m. (R. Doc. 34-1 at 12).
counsel also submitted an affidavit. (R. Doc. 34-2). Defense
counsel asserts, among other things, that she “arrived
at the EHCC Front Gate at approximately 2:28 p.m. and was
informed by the EHCC Front Gate Security Officer and M. Sgt.
Williams that Plaintiff's counsel had left the facility.
(R. Doc. 34-2 at 3). Defense counsel further asserts that M.
Sgt. Williams asked “Didn't you see the blue car
that just passed you?” in reference to Plaintiff's
counsel's car and, at that moment, she saw the blue
vehicle in her rear view mirror leaving the facility. (R.
Doc. 34-2 at 4).
“Contractor/Visitor Drive-In Register” for EHCC
marks Plaintiff's counsel as “in” at 2:29
p.m. and “out” at 2:30 p.m. (R. Doc. 34-1 at 12).
reply, Plaintiff argues, among other things, that the
deposition was not scheduled to be held at the front gate of
EHCC; there is no indication in the record that Major Lessard
was present at the Administrative Building or otherwise
available to have her deposition taken at 2:30 p.m. at EHCC;
the gate was not opened to provide Plaintiff's counsel
access to the prison; defense counsel was not inside EHCC at
2:30 p.m.; and there was no indication at 2:30 p.m. that a
deposition would take place. (R. Doc. 39 at 2-5). The
remainder of Plaintiff's Reply raises the same arguments
in Plaintiff's Motion to ...