In the Estate of Jackson v. Billingslea, No. 18-10400 (ED Michigan July 1, 2019), the plaintiff brought claims under 42 USC § 1983 arising out of the death of Jackson when he was killed in a crash with police vehicles. The complaint relied upon theories of excessive force, failure to supervise, failure to properly train and failure to intervene.
After the Defendants answered expert discovery and identified their expert, plaintiff attempted to serve a subpoena on the expert. The expert witness, identified only as “Eck” in the opinion, allegedly evaded service of the subpoena thus requiring his deposition to be cancelled several times.
Plaintiff sought to impose Rule 37 sanctions on the Defendants as a result of Eck’s failure to cooperate with discovery.
The court denied the motion and gave several reasons. First, “Eck” was not a party to the case so Rule 37 did not apply to him. Second, Plaintiff was not prejudiced. Third, plaintiff did not file a motion to compel – thus warning the defendants that there was a risk of sanctions. Fourth, the court was concerned that if the witness was stricken the Defendants would be left with no defense at all.
The court’s reasoning is quoted here:
First, the Court finds Defendants did not act willfully or in bad faith. There is no “clear record of delay or contumacious conduct.” Id. (citing Carter v. City of Memphis 636, F.2d, 159, 161 (6th Cir. 1980). Unlike Carter and Freeland, to cancel a deposition after filing a motion for a protective order is not “contumacious conduct.” E.g., Freeland, 103 F.3d at 1277-8.
Plaintiffs argue that Defendants delayed discovery when Eck avoided service of the subpoena for his deposition four times and when Defendants waited until only days before the deposition to challenge Plaintiffs’ subpoena. The Court disagrees. Rule 37(b)(2)(A) allows discovery sanctions for violations committed by parties—not by non-parties. See Powell v. State Farm Mutual Automobile Insurance Co.,No. 11-11280, 2012 WL 12930351, at *2 (E.D. Mich. 2012). The record does not indicate that Defendants had control over Eck or that they were responsible for his failure to be served. It would be improper to sanction Defendants if Eck— on his own—evaded service.
Second, the Court finds that Plaintiffs are not prejudiced. Defendants complied with all court rules pursuant to Rule 26(a)(2)(B). And there is no finding that Plaintiffs cannot prepare the case for trial by November 12, 2019. Carter, 636 F.2d at 161.
Third, “because [Plaintiffs] did not previously raise these issues with the Court before filing their motion to strike, [Defendants] never received warnings from the Court `that failure to cooperate could lead to the sanction.'” Brooks v. Skinner, No. 1:14-cv-412, 2015 WL 6964679, at *3 (S.D. Ohio 2015) (citing Freeland, 103 F.3d at 1277).
While the fourth factor regards the potential for dismissal, if the Court strikes Eck as an expert, the “litigation-ending sanction” the Plaintiffs request would be the potential for a default judgment against Defendants. The Court is not prepared to open the door to that.