In Akins v. Southern Glazers Wine & Spirits of Arkansas, LLC, 18-1957, the 8th Circuit vacated a case dismissed for a violation of Rule 37. Akins filed a pro se employment case against his former employer. The Defendant noticed his deposition for two days. Akins appeared both days but left the deposition on at 5:00 p.m. on the second day to go to work. Defendant claimed that it had 15 more minutes of questioning. Defendant moved for dismissal pursuant to Rule 37(b)(2)(A) and the district court granted the motion.
The 8th Circuit reversed on the ground that the district court abused its discretion in dismissing the case. The 8th Circuit faulted the district court for failing to determine whether Akins acted in bad faith and whether a lesser sanction would suffice.
Rule 37 authorizes dismissal as a sanction if there is (1) an order compelling discovery, (2) willful violation of that order, and (3) prejudice. Before dismissing a case as a discovery sanction, the court must investigate whether less extreme sanctions would suffice, unless the failure was deliberate or in bad faith. Fed. R. Civ. P. 37. Dismissals are reviewed for an abuse of discretion. Comstock v. UPS Ground Freight, Inc., 775 F.3d 990, 992 (8th Cir. 2014). Factual findings of willful or intentional failure to comply with a court order are reviewed for clear error. Smith v. Gold Dust Casino, 526 F.3d 402, 404 (8th Cir. 2008).
Akins did not violate the “fails to appear” discovery order, nor did he act in bad faith. He appeared for his deposition both days at the ordered time, and was deposed for nearly six hours over the two days. Both the discovery order and notice of deposition were silent about when the deposition would end. Akins had reason to believe the deposition would end at 5:00 because Southern’s counsel erroneously told him depositions must occur between 9 a.m. and 5 p.m., and he requested that his deposition be scheduled between 2 and 5 p.m. each day. Southern did not identify the additional questions counsel would ask if the deposition continued past 5 p.m. so Southern did not demonstrate prejudice. This court concludes that the dismissal of Akins’s complaint was an abuse of discretion because his conduct did not violate the district court’s discovery order, and the court erred when it failed to consider sanctions less severe than dismissal with prejudice.
Comment: this case, while unpublished, is very unusual for two reasons. First, the district court appears to have acted abruptly in dismissing the case and not ordering Akins to sit for a further deposition. Second, I have never seen a dismissal where the Plaintiff did what he was supposed to do – he sat for his deposition on the days he was told to be there.
Ed Clinton, Jr.