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. 46) filed on January 4,
2018. The motion is opposed. (R. Doc. 48).
before the Court is Plaintiff's Motion for Leave of Court
to File Reply Memorandum (R. Doc. 49) and Defendant's
Motion for Leave to Substitute Memorandum in Opposition (R.
Doc. 50). The Court has considered the proposed briefs (R.
Doc. 49-2; R. Doc. 50-1) submitted with these motions.
originally noticed the deposition of Major Shannon 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). Plaintiff subsequently filed a
Motion to Have Allegations in Complaint Deemed Admitted on
the basis that Major Lessard and her counsel failed to appear
for the deposition. (R. Doc. 32).
October 26, 2017, the Court denied Plaintiff's motion,
finding no basis for awarding the relief sought. (R. Doc.
40). In its Order, however, the Court specifically stated
that if Plaintiff re-noticed the deposition, “Major
Lessard and her counsel must be present at the designated
deposition time and be prepared to commence the deposition at
the time noticed.” (R. Doc. 40 at 5).
represents that the deposition was reset for December 12,
2017, at 11:30 a.m. at EHCC. (R. Doc. 46 at 2). Plaintiff
further represents that on the day of the deposition, the
court reporter arrived at 11:00 a.m. and Plaintiff's
counsel arrived at 11:10 a.m. at the front gate of EHCC. (R.
Doc. 46 at 2). Plaintiff further represents that
Plaintiff's counsel was not allowed to enter the EHCC
until defense counsel arrived, and that at 11:33-11:34 a.m.,
Plaintiff's counsel confirmed at the guard shack that
defense counsel had not arrived. (R. Doc. 46 at 3). Plaintiff
further represents that at no time was Plaintiff's
counsel informed that defense counsel was on her way. (R.
Doc. 49-2 at 2). Plaintiff further represents that while
leaving EHCC, Plaintiff's counsel received a call from
her office at 11:42 a.m. informing her that defense counsel
wanted her to return to EHCC. (R. Doc. 46 at 3). Finally,
Plaintiff represents that on a three-way call with the court
reporter and defense counsel, Plaintiff's counsel offered
to take the deposition at 3:30 p.m. that same day but defense
counsel declined. (R. Doc. 46 at 3-4). Based on the foregoing
representations, Plaintiff argues that defendant Major
Lessard and her counsel failed to appear for the deposition,
and that the sanction of default judgment is warranted. (R.
Doc. 46 at 5).
opposition, Major Lessard, Major Kevin Durbin, and Former
Lieutenant Lindell Slater (collectively,
“Defendants”) state that defense counsel
“readily admits” that she was late for the
scheduled deposition. (R. Doc. 48 at 2; Doc. 50-1 at 2).
Defendants argue that while defense counsel “departed
with enough time to arrive at EHCC for the 11:30 [a.m.]
deposition, ” unexpected traffic caused a delay in her
arrival and her “late arrival was unavoidable.”
(R. Doc. 48 at 2-3; Doc. 50-1 at 2). Defendants argue that
given the lack of “willfulness, bad faith, or other
fault, ” the Court should not order the severe
sanctions sought by Plaintiff. (R. Doc. 48 at 4-7, R. Doc.
50-1 at 4-7). In their proposed revised opposition,
Defendants further suggest that Plaintiff should be
sanctioned pursuant to Rule 30(g) for failure to attend the
deposition. (R. Doc. 50-1 at 6 n.7).
Law and Analysis
37(d) provides, in pertinent part, that “[t]he court
where the action is pending may, on motion, order sanctions
if . . . a party . . . fails, after being served with proper
notice, to appear for that person's deposition.”
Fed.R.Civ.P. 37(d)(1)(A)(i). Sanctions for failure to appear
at a deposition “may include any of the orders listed
in Rule 37(b)(2)(A)(i)-(vi). Instead of or in addition to
these sanctions, the court must require the party failing to
act, the attorney advising that party, or both to pay the
reasonable expenses, including attorney's fees, caused by
the failure, unless the failure was substantially justified
or other circumstances make an award of expenses
unjust.” Fed.R.Civ.P. 37(d)(3). The Court may also
sanction a party for failing to obey an order to provide or
permit discovery. See Fed. R. Civ. P. 37(b)(2)(A).
in addition to awardable expenses, Plaintiff seeks sanctions
pursuant to Rule 37(b)(2)(A)(i) (“directing that the
matters embraced in the order or other designated facts be
taken as established for purposes of the action, as the
prevailing party claims”) and (vi) (“rendering a
default judgment against the disobedient party”). (R.
Doc. 46-2 at 1-2).
is no dispute that Plaintiff's counsel was not
“present at the designated deposition time and be
prepared to commence the deposition at the time
noticed” as required by the Court's October 26,
2017 Order. (R. Doc. 40 at 5). Contrary to Defendants'
assertions, defense counsel could have avoided the delays
caused by traffic by proper planning for the possibility of
traffic. Furthermore, in light of the Court's October 26,
2017 Order, defense counsel had a duty to take the
appropriate precautions to ensure her timely arrival for the
the record, the Court need not conclude whether Major Lessard
failed to attend the deposition for the purposes of Rule
37(d)(1)(A)(i). The same sanctions are available under Rule
37(b)(2)(A) on the basis that Major Lessard, through the
actions of her counsel, violated a discovery order of the
Court. That said, the specific sanctions sought by Plaintiff
are inappropriate given the discovery violation and the
record. The Court concludes that an appropriate sanction is
to require defense counsel and/or Defendant Lessard (1) to
pay the court reporter his or her incurred fees for attending
the deposition and (2) to pay Plaintiff's the amount of
$500.00 for Plaintiff's counsel's time in appearing
for the deposition and filing the instant motion.