In this case, the plaintiff sought to collect a Maryland judgment in the Virgin Islands. Defendants resisted the efforts to take discovery concerning their assets and walked out of a scheduled deposition. Rule 37 sanctions were awarded. The explanation:
Plaintiff seeks sanctions for Defendants’ failure to proceed with the noticed depositions. The Court agrees that sanctions are warranted under the circumstances here.
In Goodwin v. City of Boston, 118 F.R.D. 297 (D. Mass. 1988), a Massachusetts federal district court was faced with a situation similar to that in the instant matter. The court there stated:
The filing of a motion to quash or a motion for protective order does not automatically operate to stay a deposition or other discovery. When it appears that a Court is not going to be able to decide a motion to quash or a motion for protective order before the date set for a deposition, counsel for the movant should contact counsel for the party noticing the deposition and attempt to reach an agreement staying the deposition until after the court acts on the motion to quash and/or the motion for a protective order. If agreement cannot be reached, it is incumbent on counsel for the movant to file a motion to stay the deposition until the court acts on the motion to quash and/or for a protective order and to alert the clerk to the need for immediate action on the motion to stay.
Id. at 298 (emphasis added); see also Barnes v. Madison, 79 F. App’x 691, 707 (5th Cir. 2003) (“[T]he mere act of filing a motion for protective order does not relieve a party of the duty to appear; the party is obliged to appear until some order of the court excuses attendance.”); Hepperle v. Johnston, 590 F.2d 609, 613 (5th Cir. 1979) (“The court’s inaction on appellant’s motion [for a protective order] to postpone the taking of his deposition … did not relieve him of the duty to appear for his deposition); Unlimited Holdings, Inc. v. Bertram Yacht, Inc., 2008 WL 4642191, at *5 (D.V.I. Oct. 15, 2008) (denying defendant’s request for sanction of dismissal, but noting that “[i]n the absence of a protective order, [plaintiff] was obligated to attend the deposition. . . .”); Sutherland v. Mesa Air Group, Inc., 2003 WL 21402549, at *5 n.10 (S.D. Fla. June 6, 2003) (“[T]he filing of a motion for a protective order alone would still not have relieved defense counsel of his obligation to attend the depositions; only when the district court grants the motion does the obligation to comply with a notice of deposition dissipate.”).
Shortly before the depositions at issue here were to take place, Defendants appealed the Magistrate Judge’s ruling and filed a motion for a protective order, but did not seek and obtain a stay of the depositions pending a ruling by the Court. By relying on their 39-minute-old appeal of the Magistrate Judge’s Order instead of a stay by the Court, and choosing to walk out of the deposition—or not appear at all—instead of adopting the suggestion presented by Plaintiff’s counsel to contact the Magistrate Judge, Defendants and their counsel acted at their peril.
Judge Miller’s Order denying the motion to quash the notices of depositions did not bring the case—nor any of the pending deadlines or scheduled discovery—to a halt. Judge Miller’s Order—even if Defendants disagreed with it—did not obviate the need for their continued compliance with the pending depositions, in the absence of a stay or protective order. Nor did Defendants’ motion for a protective order have the effect of staying the depositions. Simply stated, in the absence of a stay entered by the Court, Defendants were not relieved of their obligation to proceed with the depositions. Thus, the Court finds that Defendants failed to comply with their discovery obligation without just cause.
The Court further finds that sanctions are appropriate for Defendants’ flagrant disregard of well-established legal principles regarding the need for a court-ordered stay under the circumstances here. While the Court concludes that it would be too severe a sanction to deem it established that Defendants do not have sufficient personal property to satisfy the judgment, the Court nonetheless finds that Plaintiff should be awarded reasonable attorneys’ fees and costs associated with Defendants’ unjustified failure to proceed with the depositions. Plaintiff will be required to submit to the Court an application for such attorneys’ fees and costs for a determination of an appropriate award by the Court.
Choice Hotels International, Inc. v. Special Spaces, Inc., 2013-MC-0023, June 3, 2020 (D. Virgin Islands).
fedcivilprocedure 