Thompson v. Butterball LLC
ORDER denying 63 Plaintiff's Motion to Compel; denying as moot 71 Plaintiff's Motion for Leave to File Reply; denying 73 Plaintiff's Motion to Compel; granting 76 Plaintiff's Motion to Withdraw & withdrawing & denying as moot 72 Plaintiff's Motion to Stay execution. Signed by Judge Brian S. Miller on 1/18/2012. (jct)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CASE NO.: 3:10CV00127 BSM
Plaintiff Gloria Thompson moves to stay execution of an order [Doc. No. 72], to
withdraw that motion [Doc. No. 76], and to compel discovery and for sanctions [Doc. Nos.
63, 73]. Though Thompson has filed what has been docketed as a motion for leave to file
a reply, that document is substantively a reply and, accordingly, that motion [Doc. No. 71]
is denied as moot.
I. MOTION TO STAY EXECUTION OF ORDER
Thompson moves [Doc. No. 72] to stay execution of an order [Doc. No. 59] granting
Butterball’s petition for attorneys’ fees in the amount of $3,500. Thompson later moved
[Doc. No. 76] to withdraw the original motion as she has paid those fees. The motion to
withdraw is granted and the motion to stay execution of the order is withdrawn and denied
II. MOTION TO COMPEL AND FOR SANCTIONS
Thompson moves [Doc. No. 63] to compel discovery responses and for sanctions,
which include granting partial summary judgment. Thompson argues that counsel for
Butterball engaged in “strategic interference” with her discovery requests, specifically
objecting excessively during Thompson’s depositions of Butterball’s employees and not
providing a Rule 30(b)(6) witness as noticed.
Sanctions are inappropriate at this time. Before sanctions can be imposed under Rule
37, “there must be an order compelling discovery, a willful violation of that order, and
prejudice to the other party.” Chrysler Corp. v. Carey, 186 F.3d 1016, 1019 (8th Cir. 1999).
There has been no order compelling Butterball to produce discovery and, as such, sanctions
would be improper.
As a preliminary matter, Thompson’s motion to compel discovery is defective under
both the Federal Rules of Civil Procedure and the local rules. Any motion to compel “must
include a certification that the movant has conferred or attempted to confer with” the other
party in an attempt to complete discovery without court action. FED. R. CIV. P. 37(a)(1).
Additionally, Local Rule 7.2(g) provides that all motions to compel “contain a statement ...
that the parties have conferred in good faith.” Thompson’s motion contains no such
statement but states that “it is obvious the parties have exhausted any solution to the
problems and further by conference would be futile.” The record suggests that Thompson
never attempted to work out these disputes with Butterball. Moreover, although a showing
of futility may persuade a court to overlook the procedural defect in Thompson’s motion, the
record is unclear that such an attempt would have been futile.
Moving on to the substance of the motion, Thompson asserts that Butterball’s lawyer
strategically interfered with depositions and that Butterball failed to provide 30(b)(6)
As to Thompson’s allegation that Butterball strategically interfered with
depositions, she points out that Butterball’s counsel objected to the form of the question 215
times during five depositions: 101 times during the deposition of Walter Davis; 25 times
during the deposition of Michael Bliss; 53 times during the deposition of Gary Lenaghan; 29
times during the deposition of Deborah Lisella; and seven times during the deposition of
Ruby Stone. Thompson argues that the objections to form served as verbal cues to the
deponents to avoid answering the question.
The difficulty with Thompson’s argument is that the person charged with determining
whether the objections were verbal cues was not in the room during the depositions.
Therefore, whether Butterball’s counsel was attempting to guide the witnesses’ testimony has
to be determined by reading the deposition transcripts. In reviewing those transcripts, it is
clear that counsel for Butterball objects to some questions that are as clear as day. The
transcripts also show, however, that most of the objections were clearly legitimate if done
for the purpose of preserving the record. See FED. R. CIV. P. 32(d)(3)(B). Further, while
many of the objections were tedious, nothing in the transcripts indicates that the objections
cued improper responses from the deponents. Indeed, on a number of occasions, the
objections occurred after the spontaneous responses of the witnesses had already been given.
As to the alleged failure to comply with Rule 30(b)(6), Thompson provides a number
of ambiguous arguments but it seems clear that all of the 30(b)(6) deponents noticed by
Thompson appeared and gave depositions. Therefore, Thompson’s argument that Butterball
untimely objected to the deposition notices is moot. Thompson also asserts that Butterball’s
employees testified evasively or “disclaimed knowledge of facts that are clearly known to
persons in the organization.” Whether the witnesses provided credible testimony is for the
jury to decide and is not a proper matter to be taken up in a motion to compel unless the party
taking the deposition has hard evidence that the witnesses committing perjury. Nothing has
been presented proving that the witnesses deposed by Thompson have committed perjury.
For the reasons discussed above, Thompson’s motion to compel discovery and for
sanctions [Doc. No. 63] is denied and the document purporting to be a motion for leave to
file a reply to Butterball’s response [Doc. No. 71] is denied as moot.
III. MOTION TO COMPEL RESPONSE TO REQUEST FOR PRODUCTION
Thompson also moves to compel the production of a copy of Butterball’s management
handbook [Doc. No. 73]. Thompson argues that this handbook was referred to during the
deposition of Walter Davis, Butterball’s director of human resources. Butterball responds
that no such handbook exists but that only a hourly employee handbook, as suggested by
Davis, exists. The record is clear that Butterball has consistently taken this position.
Butterball can only be required to produce what it actually has and, as of the date of
this order, there is no proof that Butterball has a management handbook. Therefore, the
motion to compel production of Butterball’s management handbook is denied.
For the reasons stated above, Thompson’s motion to withdraw [Doc. No. 76] is
granted and the motion to stay execution [Doc. No. 72] is withdrawn and denied as moot.
Thompson’s motions to compel and for sanctions [Doc. No. 63] and motion to compel [Doc.
No. 73] are denied. Her motion for leave to file reply [Doc. No. 71] is denied as moot.
IT IS SO ORDERED THIS 18th day of January 2012.
UNITED STATES DISTRICT JUDGE
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