No Show At Rule 30(b)(6) Deposition Forms the Basis of Rule 37 Sanctions Award

Rule 30(b)(6) allows a party to take the deposition of an organization. The party sends a notice of deposition pursuant to Rule 30(b)(6) and lists the topics on which it wishes to depose the corporate representative. Here the responding party agreed to send a representative but was a “no show.” The District Court awarded sanctions under Rule 37(d).

Federal Rule of Civil Procedure 37(d)(“Rule 37(d)”) provides that a court has the power to order sanctions when “a party . . . or a person designated under Rule 30(b)(6) . . . fails, after being served with proper notice, to appear for that person’s deposition.” Fed. R. Civ. P. 37(d)(1)(A)(i). Pursuant to this rule, a court may award a variety of sanctions but “must” require the noncompliant party, its attorney, 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). Furthermore, “[a] failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).” Fed. R. Civ. P. 37(d)(2). Thus, where a party objects to attending a properly noticed Rule 30(b)(6) deposition, it must seek judicial protection from participation in advance of the date set for the discovery. See Mitsui & Co., Inc., 93 F.R.D. at 67.Here, there is no doubt that PRHTA’s conduct falls within the purview of Rule 37(d). As early as April 5, 2016, PRHTA had notice of TransCore’s intent to conduct a Rule 30(b)(6) deposition. (Docket No. 90-1 at p. 11.) During a June 6, 2016 teleconference, it agreed that June 30, 2016 would be an acceptable date for that deposition. (Docket No. 90-4 at p. 3-4.) On June 15, 2016 it not only confirmed that date but also informed TransCore that it had identified potential witnesses for the deposition. Despite this early notice and confirmatory correspondence with TransCore, PRHTA simply and suddenly decided not to appear at the scheduled deposition. Although PRHTA emphasized that its non-appearance was grounded in certain objections to the discoverability of the noticed topics, it did not bother to seek a protective order on the basis of those objections until July 7, 2016 — a full week after the deposition date had passed. In light of that — unnecessary — delay in seeking judicial protection, PRHTA’s stated objections cannot, pursuant to Rule 37(d)(2), justify its actions here.Because PRHTA’s uncooperative conduct triggers the proscriptions of Rule 37, sanctions are appropriately imposed. Accordingly, the Court ORDERS PRHTA to pay all reasonable expenses, including attorneys fees, incurred by TransCore in connection with the failed June 30, 2016 deposition. PRHTA is warned that, should it repeat its recalcitrant behavior at a future Rule 30(b)(6) deposition, the sanctions imposed against it by the Court will be much more severe in nature.

Comment: This is the first time I have ever heard of a party simply “blowing off” a Rule 30(b)(6) deposition. The district court’s reaction to this was appropriate and what I would expect were I to have done something of the kind.

Edward X. Clinton, Jr.

Source: AUTORIDAD DE CARRETERAS Y TRANSPORTACION v. TransCORE ATLANTIC, INC., Dist. Court, D. Puerto Rico 2016 – Google Scholar

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