In Ansley v. Wetzel, 21 cv 528 M.D. Pennsylvania, the plaintiff filed suit against prison guards for violations of his civil rights. Plaintiff sought to obtain video evidence of the incident but the video was lost. He moved for sanctions under 37, but his motion was denied because the tapes of the incident were lost prior to suit being filed.

The Defendants argued that there was no spoliation because they had no reason to retain the tapes because there was no use of force. The District court agreed with their argument:

Defendants submitted the declarations of Captain Jeffrey Madden and Captain Robert Bookheimer wherein they explain when video footage is retained at state correctional institutions. (Doc. 91-2 at 10-11, Madden Declaration ¶¶ 3-4; Doc. 91-2 at 12-13, Bookheimer Declaration ¶ 3). Captain Madden explained that video footage is typically recorded over when a camera’s memory capacity has been met, unless the video involved a planned or unplanned use of force. (Doc. 91-2 at 10-11, Madden Decl. ¶¶ 3-4). Captain Bookheimer further declared that video footage of an inmate’s escort to the RHU is generally not retained, unless in the event of an extraordinary occurrence report or other event deemed necessary by the Facility Manager. (Doc. 91-2 at 12-13, Bookheimer Decl. ¶ 3). The video footage at issue was not retained because the incidents did not involve either a planned or unplanned use of force, and there is no evidence that Ansley’s escort to the RHU involved an event triggering retention of the video.

“When a party argues that spoliation occurred before the complaint was filed, the court must conduct a fact-sensitive inquiry to determine at what point the spoliating party reasonably should have anticipated the litigation.” Bistrian, 448 F. Supp. 3d at 468. Ansley states that defendants should have been aware of impending litigation based on two grievances he filed on October 9, 2020, related to a “rape plot” fabricated by defendants. (Doc. 89 at 10; Doc. 89-1 at 38). However, the filing of these grievances does not support a pre-litigation duty to preserve recordings. Such an obligation arises when a party reasonably should have anticipated litigation concerning the grieved incidents. Bistrian, 448 F. Supp. 3d at 468 (“A party `is under a duty to preserve what it knows, or reasonably should know, will likely be requested in reasonably foreseeable litigation.”). Based on the filing of grievances related to a rape plot, defendants could not have reasonably anticipated litigation concerning the escort to the RHU on June 25, 2020, an incident involving masturbation on January 10, 2021, and the escort to the psychiatric observation cell on March 18, 2021. Because defendants could not reasonably foresee litigation and appreciate that the video footage at issue should be preserved for possible use in that litigation, they were not under a duty to preserve the video footage.

Conclusion: there as no duty to preserve evidence under Rule 37(e) before the lawsuit was brought.

Ed Clinton, Jr.

A district court in Florida has utilized Rule 37 to enter judgment in favor of an insurance company against a defendant accused of engaging in wrongful billing practices. Government Employees Insurance Co. v. DeJesus, No. 20-21558 (S.D. Florida 2022). The defendant’s refusal to appear for his deposition was the deciding factor in the grant of the Rule 37 sanctions motion. The court explained in part that:

“The Defendants initially agreed to appear for a deposition on October 14, 2021. However, on October 8, 2021, Defendants’ counsel, Christian Carrazana, Esq., informed Plaintiffs of his intent to file a motion to withdraw as counsel for Defendants. Plaintiffs indicated that they would consent, but informed Mr. Carrazana that they intended to proceed with the Defendants’ depositions on October 14, 2021, should the motion to withdraw not be decided by then. Mr. Carrazana did not move to withdraw until November 30, 2021, and the Defendants did not appear at their October 14, 2021, depositions. Thereafter, Plaintiffs requested a discovery hearing seeking Rule 37 sanctions and an order compelling Defendants to appear for their depositions. See [D.E. 164 and 165].

The Court held a discovery hearing on December 2, 2021, and entered an Order compelling Defendants to appear for depositions to be held on December 20, 2021. [D.E 186]. The Order also warned Defendants that additional violations of the Court’s directives could subject them more severe sanctions:

Defendants’ failure to comply with this Order may result in further sanctions under Rule 37(b) of the Federal Rules, which can include further monetary sanctions, fines, or even entry of default judgment against Defendants on all claims and for all damages sought in the pending complaint. Defendants’ failure to comply may also result in their being found in contempt of court, which finding may result in the entry of any Order necessary for the enforcement of the Court’s jurisdiction to coerce compliance.

Id. at ¶ 5. The Court also granted Mr. Carrazana’s motion to withdraw that same day, ordering Defendants to retain new counsel by December 16, 2021,^[2] and explaining that “[f]ailure to retain substitute counsel for the corporate entity Defendant, or failure to file the notice of intention to defend the case on a pro se basis by the individual Defendant, may be deemed a waiver of the right to defend the action and result in entry of default judgment(s).” [D.E. 187].

Contrary to the Court’s Orders, Defendants never retained new counsel, and Mr. Collazo never informed the Court of his intention to proceed with his defense on a pro se basis. Further, as prescribed by the December 2, 2021, Order, Plaintiff’s’ counsel shared with Mr. Carranza the link to Defendants’ virtual depositions taking place on December 20, 2021, but Defendants did not appear, nor did they provide any justification to Plaintiff for their absence. [D.E. 195-1, ¶¶ 5-7].

Defendants’ willful and unjustified disregard for this Court’s Orders makes the sanction of default judgment appropriate here. Not only have Defendants failed to pursue their defense in this action, but they have also failed to comply with this Court’s instructions on repeated occasions and without any explanation.”

In NPF Franchising, LLC v. Sy Dawgs, LLC 37 F.4th 369 (6th Cir. 2022), the Sixth Circuit affirmed a Rule 37 sanctions award against the lawyers for NPF Franchising. The fees were awarded against NPF and the individual lawyers because the lawyers failed to comply with discovery obligations in the case, a dispute between an franchisor and a franchisee. I have quoted from the relevant portions of the opinion below.

“This case began in February 2018 with NPF’s complaint against SY Dawgs for breach of their franchise agreement and non-competition and non-disclosure agreement. About a week later, NPF amended its complaint. After the district court denied NPF’s motion for a preliminary injunction, NPF amended the complaint for a second time. SY Dawgs then moved for attorneys’ fees, costs, and expenses, pursuant to a contractual fee-shifting provision.^[1] SY Dawgs argued that it was entitled to monetary compensation because NPF was the “unsuccessful party” on its claim for injunctive relief. The district court denied the motion without prejudice as premature.

374*374 Around this time, in August 2018, NPF failed to appear at a status conference. At that conference, the district court noted that despite SY Dawgs having issued multiple subpoenas and responded to NPF’s discovery requests, NPF had thus far refused to respond to SY Dawgs’s discovery requests, with the discovery deadline two months away. SY Dawgs again moved for costs and fees, this time over NPF’s non-attendance at the status conference. At the next status conference, on September 4, 2018, new counsel, the Buchalter Law Firm, appeared for NPF and vowed to produce all outstanding discovery. The district court granted motions to appear pro hac vice on behalf of NPF filed by Buchalter Law Firm attorneys Tracy Warren and Kathryn Fox around this time.

Later in September, SY Dawgs again moved to compel discovery and for sanctions. It stated that NPF had provided no interrogatory answers or documents in response to the requests that it served on June 20, 2018. SY Dawgs also noted that NPF refused to designate a representative for corporate representative depositions. The parties then had a status conference in early October, where NPF represented to the district court that it had turned over all the requested discovery. Relying on this representation, the district court denied SY Dawgs’s motion for costs and fees but also expressed willingness to revisit the issue later. The district court also granted SY Dawgs’s motion to compel discovery “inasmuch as [NPF]’s counsel has represented to Court and counsel that all requested information has been disclosed.”

SY Dawgs moved for discovery sanctions yet again on October 25, 2018. It stated that NPF had failed to appear for a properly noticed deposition or produce any documents related to a subpoena. SY Dawgs also accused NPF of misrepresenting to the district court that it had produced all documents, given that it had later produced several hundred more documents. The district court then granted a motion by NPF to extend discovery, held another status conference at which it noted that SY Dawgs’s motion for sanctions was fully briefed, and asked the parties to confer and prepare a list of documents still needed. Soon after, it extended discovery again, this time until March 1, 2019.

The new discovery deadline brought yet another motion from SY Dawgs to compel discovery, filed at the end of December. In addition to alleging that NPF had provided insufficient or incomplete responses to several of SY Dawgs’s requests, SY Dawgs argued that NPF had provided no documents responsive to the 45 other requests. That same day, Buchalter Law Firm attorneys Rick Waltman and J. Patrick Allen were admitted pro hac vice to represent NPF. And NPF made its own motion to compel discovery and sanction SY Dawgs. It alleged that SY Dawgs had failed to supplement its prior discovery responses and that doing so was a “willful and concerted effort to avoid the discovery process.” The district court denied both parties’ motions for discovery sanctions, but it left the sanctions issue open for revisitation after litigation concluded. And, yet again, the court granted SY Dawgs’s motion to compel discovery. It also instructed NPF to respond to the discovery requests within 14 days or, in the alternative, certify to the district court that there is nothing responsive left to produce.

The 14-day deadline passed with no such certification from NPF. In February 2019, SY Dawgs renewed its motion for sanctions. It stated that “NPF and its pro hac vice-admitted counsel” had a “pattern of ignoring discovery obligations” and “flagrantly” ignoring both court orders compelling discovery. Def.’s Renewed Mot. for Sanctions, R. 161, PageID 3606. The district 375*375 court granted the motion, ordering NPF to file an affidavit certifying that it had fully complied with the discovery request and also ordering NPF’s counsel to file a “similar certification of compliance by counsel.” The district court warned that “[f]ailure to comply with this Order will result in sanctions, up to and including dismissal of Plaintiff’s action.” And it warned yet again that “any monetary sanctions for Plaintiff’s repeated discovery intransigence will be addressed at the conclusion of this action.”

Despite that admonition, NPF never complied. So, SY Dawgs moved for the ultimate sanction—to dismiss the case under Federal Rule of Civil Procedure 37. In the meantime, NPF moved for an interlocutory appeal of the sanctions order before our court. But NPF later voluntarily dismissed the appeal, and SY Dawgs renewed its motion to dismiss. NPF also sought a writ of mandamus from our circuit, stating that it would be “irreparably harmed” by “fully respond[ing] to all of Respondents’ discovery requests.” Pet. for Writ of Mandamus, R. 180, PageID 4054.^[2] Yet no protective order regarding these documents was sought by NPF from the district court, nor did the franchisor ever produce a privilege log. We denied the petition for mandamus. Finally, NPF moved for default judgment, stating that SY Dawgs was misrepresenting its efforts to cooperate with the court’s orders and communicate.

After this last flurry of motions, NPF moved to voluntarily dismiss the case with prejudice in July 2019. The district court granted its request. But just before the dismissal, SY Dawgs moved again for attorneys’ fees and costs.”

The District Court sanctioned four individual lawyers, their law firm and the client.

Because Rule 37 does not allow sanctions against a law firm, that portion of the sanctions award was reversed. However, the sanctions were upheld against the individual lawyers.

The lawyers argued on appeal that they had not received sufficient notice of the sanctions and had not had an opportunity to respond. The Sixth Circuit rejected both arguments. The lawyers argued that their position was “substantially justified” but the court did not accept that argument either.

Comment: In my opinion, this is a case where emotions got the better of the lawyers for NPF. No matter how you may feel about a case or the position of the other side, you must comply with court orders to answer discovery requests. If you work for a firm that appears to be headed down this path, consult ethics counsel before engaging in this behavior. It is unfortunate that the junior lawyers did not engage counsel to defend themselves. Their defense might have been different than the defense offered by their more senior colleagues.

If you have a question about ethics or discovery obligations and you do not know what to do, please call us. We can often help resolve messy situations if we have time to give advice.

Ed Clinton, Jr.

The Clinton Law Firm, LLC

Chicago, Illinois 60602

312.357.1515

This is a case where the plaintiff allegedly deleted some text messages from his phone that were relevant to this case. The Defendant moved for Rule 37(e) sanctions, but the motion was denied because the messages were obtained from other sources.

First, sanctions under Rule 37(e) are available “only where ESI has been `lost’ and `cannot be restored or replaced through additional discovery.'” Goldman v. Sol Goldman Invs. LLC, No. 20CV06727MKVSN, 2022 WL 2118199, at *3 (S.D.N.Y. June 11, 2022) (quoting Fed. R. Civ. P. 37(e)). Thus even if a party himself has deleted messages, there can be no sanctions if the messages are provided from another source, because they are not “lost.” Id. at *4 (holding sanctions are not available where Plaintiff deleted an email that was subsequently produced from another source: “The email was not lost because [the recipient] produced it at his deposition. Therefore, spoliation sanctions may not be awarded for Plaintiff’s failure to produce the May 28 email, and the Court need not inquire into Plaintiff’s state of mind.”); CBF Industria de Gusa S/A v. AMCI Holdings, Inc., No. 13CV2581PKCJLC, 2021 WL 4190628, at *11 (S.D.N.Y. Aug. 18, 2021) (noting that deleted messages that can be obtained from the other parties are not permanently lost or unrecoverable under Rule 37); Morgan Art Found. Ltd. v. McKenzie, No. 18CV4438ATBCM, 2020 WL 5836438, at *19 (S.D.N.Y. Sept. 30, 2020) (holding Rule 37 sanctions were not available because deleted messages which still exist in another account “are not permanently lost, and in fact they have already been produced”).

That is precisely the circumstance here; although Mr. Rosario deleted the text message chains from his own phone, they have been obtained from other participants: Plaintiff’s counsel and John Torres. Because Defendants have not and cannot establish that any relevant messages are “lost” and “cannot be restored or replaced through additional discovery,” their request for sanctions fails at the first step.^[2] See Watkins v. New York City Transit Auth., No. 16 CIV. 4161 (LGS), 2018 WL 895624, at *10 (S.D.N.Y. Feb. 13, 2018) (Defendants have “the burden of establishing the elements of a spoliation claim by a preponderance of the evidence.”).

Source: Rosario v. City of New York, S.D. N.Y. 18 civ 4023, July 27, 2022.

In Tucker v. BMW of North America, LLC, No. C20-5050 (Western District of Washington, Tacoma) the court granted plaintiff’s motion for rule 37 sanctions against BMW. The court held that BMW had unilaterally narrowed the scope of discovery and had not complied with orders to produce documents. This is a minor sanction as the Defendant lost no right to defend itself in the litigation.

“Rule 37(b) allows for sanctions for not obeying a discovery order. Fed. R. Civ. P. 37(b)(2). It is well established in the Ninth Circuit that this rule “provides a wide range of sanctions for a party’s failure to comply with court discovery orders.” United States v. Sumitomo Marine & Fire Ins. Co., 617 F.2d 1365, 1369 (9th Cir. 1980). While Defendant did engage in some discovery, it unilaterally narrowed the scope of discovery and the Court’s order. Defendant failed to comply with the Court’s November 1 order, which has resulted in Plaintiff having to move to extend the time to complete discovery twice, Dkts. 71, 84, the instant motion for sanctions, Dkt. 86, and a stipulated extension of the trial date, Dkt. 94. Sanctions are therefore warranted, though not to the extent of Plaintiff’s request.

Defendant is hereby ORDERED to pay the fees and costs Plaintiff’s counsel incurred in bringing the motions for extension of time and this motion for contempt and sanctions. If necessary, Plaintiff shall submit a motion for such fees within 14 days of this order. Alternatively, and preferably, the parties shall notify the Court that the sanction has been paid.”

The federal rules of civil procedure require each party to make initial disclosures. In Doe v. Coomes, No. 21-cv-67 (N.D. Oklahoma January 18, 2022), the plaintiff failed to serve initial disclosures. The defendant moved for Rule 37 sanctions. The motion was denied because the failure to serve timely disclosures was “harmless.”

However, Rule 37 calls for use-exclusion or other sanctions only if the failure to disclose harmed the receiving party. Examples of a harmless violation of the initial disclosure duty include “the failure to list as a trial witness a person so listed by another party.” Fed. R. Civ. P. 37, 1993 Advisory Committee Notes. As noted, Plaintiff has not identified individuals or documents other than those in Defendants’ disclosures. There has been no identified harm as contemplated under the rule.

Defendants argue that, nonetheless, the allegations in Plaintiff’s Complaint are “inherently prejudicial to the reputation of both CareATC as a company and Jeff Coomes as an individual.” (Doc. 20 at 4). However, they offer little basis to find that any alleged reputational harm might have been spared, had Plaintiff submitted her initial disclosures earlier. Contrary to Defendants’ assertion that the allegations have been “allowed to sit stagnant,” the Court ruled on all motions to dismiss within a matter of weeks after the end of the period for briefing those motions. Id.; see also Doc. 18. The Court shortly thereafter entered a Scheduling Order, under which the time period for discovery remains open until January 24, 2022. (SeeDoc. 19). Finally, as noted, Plaintiff’s initial disclosures identify the same individuals and documents Defendants have already identified

The order is quite short, but it has important significance for those preparing for trial in federal court. The case is Elliot v. Illinois Central Railroad 2:19-cv-02807 (W.D. Tennessee, April 5, 2021). The lawsuit arose out of a collision between a train and a truck. The plaintiff missed the deadline to disclose an expert. Plaintiff made an untimely disclosure. The Defendant moved pursuant to Rule 37(c)(1). The court declined to strike the untimely opinion. The court allowed the disclosure of the opinions and noted that Defendant’s expert can dispute the opinions.

In sum, even if your disclosure is untimely, the court has discretion to allow you to proceed. Obviously, moving quickly to cure the problem is a must.

A defendant to a foreclosure lawsuit in federal court was sanctioned pursuant to Rule 37. The lender then won summary judgment and the court entered judgment in its favor. The Defendant appealed the foreclosure judgment. After judgment was entered, the court entered a second judgment on the fees and costs incurred by the plaintiff. The Defendant then filed a Rule 59(e) motion to vacate the award of attorney fees and costs. The key point to remember is that it is proper for a federal court to enter a second judgment for attorney fees or sanctions or costs after the initial judgment has become final. There is no rule against the court entering two judgments. Should this occur to you, simply file a second notice of appeal challenging the fee or cost award.

The Defendant argued that Rule 54(d) allowed for only one judgment for fees and that Rule 37 does not allow proceedings after the judgment was entered. The court rejected both arguments. The explanation:

In her motion, Ms. Wellington argues that the Court erred in filing two attorney fee awards and contends that Rule 54(d) allows for only one post-judgment fee award. Doc. 223 at 3. This argument fails for several reasons.

First, Rule 54(d)(2) governs attorney’s fees and nontaxable expenses to the prevailing party. FED. R. CIV. P. 54(d)(2)(A)-(D) (describing the procedure to claim attorney’s fees). In this case, MTGLQ was the prevailing party and sought fees pursuant to the promissory note and mortgage agreement between the parties. Doc. 209. The Court granted MTGLQ’s motion and awarded attorney’s fees on October 7, 2020. Docs. 220, 221. The attorney’s fees awarded by the Court’s October 7, 2020 judgment are separate from the attorney’s fees previously awarded as a sanction by the Court on January 18, 2019. Doc. 145. On January 18, 2019, the Court awarded attorney’s fees to MTGLQ—and later enforced the award in the October 30, 2020 judgment—as a sanction pursuant to Rule 37. Rule 54 is not applicable to Rule 37 sanctions. Rule 54 states “[s]ubparagraphs (A)-(D) do not apply to claims for fees and expenses as sanctions for violating these rules or as sanctions under 28 U.S.C. § 1927.” FED. R. CIV. P. 54(d)(2)(E). Because Rule 54 does not apply to the attorney’s fee awarded as sanctions pursuant to Rule 37, there are not two judgments for attorney’s fees under Rule 54, as Ms. Wellington contends.

Second, the Court appropriately awarded and enforced attorney’s fees as a sanction under Rule 37. Rule 37 governs the failure to make disclosures or cooperate in discovery, and sanctions for violations of discovery orders. FED. R. CIV. P. 37. Rule 37 requires the Court to order sanctions if a motion for discovery is denied. FED. R. CIV. P. 37(a)(5)(B) (“If the motion is denied, the court . . . must, after giving an opportunity to be heard, require the movant, . . . to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney’s fees.”). Ms. Wellington filed a motion to compel that the Court denied. See Docs. 107, 114. The Court then awarded MTGLQ its reasonable expenses incurred in opposing the motion, including attorney’s fees. Doc. 145. Ms. Wellington’s failure to pay the sanction prompted MTGLQ’s motion to enforce and the Court’s October 30, 2020 judgment granting that motion. Docs. 208, 222.

Ms. Wellington does not cite any legal authority for the proposition that orders for sanctions made pursuant to Rule 37 cannot be later enforced by a judgment. Rule 37(b)(2) provides that if a party “fails to obey an order to provide or permit discovery, including an order under . . . 37(a), the court where the action is pending may issue further just orders.” Here, the “further just order” came in the form of a judgment enforcing the sanctions imposed on Ms. Wellington under Rule 37(a).

Further, while Ms. Wellington is correct that Rule 37 itself contains no provision for any post-judgment proceedings (Doc. 223 at 3), the Court retains jurisdiction to rule on collateral matters such as discovery sanctions. “Although filing [a] notice of appeal generally divests the district court of jurisdiction over the issues on appeal . . . the district court retains jurisdiction over collateral matters not involved in the appeal.” Lancaster v. Indep. Sch. Dist. No. 5, 149 F.3d 1228, 1237 (10th Cir. 1998)(citations and quotation omitted). “Attorney’s fees awards are collateral matters over which the district court retains jurisdiction.” Id. As the Tenth Circuit Court of Appeals explains:

While the cases typically discuss attorney’s fees awards in the context of statutory grants of attorney’s fees to the prevailing party . . ., we see no basis to distinguish those cases from one like the present case in which fee awards are granted as sanctions. In either context, the award is collateral to the merits of the underlying action. Accordingly, we conclude the district court had jurisdiction to grant the Rule 37 motion.

Id. Thus, the Court had authority to decide MTGLQ’s post-judgment motion to enforce the order awarding attorney’s fees pursuant to Rule 37.

Conclusion: the litigant would have been better off simply filing a separate appeal of the fee judgment.

Citation: MTGLQ Investors, LP v. Wellington, No. 1:17-cv-00487 (D. New Mexico, February 3, 2021).

Rule 26(a) now requires most litigants to make certain disclosures of the types of documents they have that are relevant to the lawsuit and the names and addresses of witnesses. The purpose of the initial disclosures is to reduce the squabbling among lawyers over basic interrogatories and document requests. The idea is to speed up the litigation and avoid the inevitable discovery disputes that arise.

In Hill v. Alpine Sheriff Department, 18cv2470 (S.D. California) the plaintiff did not make the disclosures and then, when he was sanctioned, moved to remove the Magistrate judge. The District Court was unimpressed with his arguments:

Here, the motion to remove, which this Court deems an objection to Magistrate Judge Dembin’s Sanctions Order, is untimely. Fed.R.Civ.P. Rule 72(A). While it appears Plaintiff may have been incarcerated when the objections to the Sanctions Order were due, he waited almost one year from the issuance of the Sanctions Order to file objections.

Nevertheless, even if his objections had been timely, Plaintiff has failed to show that the Sanctions Order was “clearly erroneous” or “contrary to law.” 28 U.S.C. § 636(b)(1)(A). Magistrate Judge Dembin ordered Plaintiff to serve initial disclosures on several occasions. [Doc. Nos. 12, 21.] Plaintiff’s argument at the time was that he did not understand why he had to serve initial disclosures, as everything was contained in his complaint. [Doc. No. 30 at 1.] However, Magistrate Judge Dembin explained to Plaintiff why he could not merely rely on the allegations and exhibits to his complaint. [Doc. No. 32 at 4-5.] Nevertheless, Plaintiff failed to serve his initial disclosures.

Now, in this motion to remove, Plaintiff continues to argue that he should not have to comply with the initial disclosure rules because all the evidence is in his complaint. [Doc. No. 54 at 1; Doc. No. 62 at 1.] As Magistrate Judge Dembin previously explained to Plaintiff, reliance on exhibits submitted with his complaint is insufficient. Fed.R.Civ.P. Rule 26(a)(1); Davis v. Molina, No. 1:14-cv-01554 LJO DLB PC, 2016 W.L. 1587022, *2 (E.D. Cal., August 19, 2016) (finding a plaintiff was not substantially justified in failing to provide initial disclosures to defendants and instead referring defendants to his initial pleadings and their attachments). Moreover, the fact that Plaintiff is pro se does not negate his obligation to comply with the rules and with Court orders. Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995)(“Although we construe pleadings liberally in their favor, pro se litigants are bound by the rules of procedure.”) As a result, Plaintiff has failed to show that the Magistrate Judge’s order was “clearly erroneous” or “contrary to law.”

This case is unpublished, but it offers a reminder to follow the rules, produce the disclosures and spend time on the merits of the litigation. Also, of course, do not attack the judge who disagreed with you.

Ed Clinton, Jr.

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).