Beck v. American Honda Finance Corporation
Filing
41
OPINION by U.S. Magistrate Judge Tom Schanzle-Haskins: Defendant American Honda Corporation's Motion for Sanctions Pursuant to FRCP 37 and FRCP 30 33 is ALLOWED in part and DENIED in part. The Court prohibits Plaintiff from using any documen tary evidence (including recordings) at trial or to support or oppose a motion for summary judgment unless the evidence was produced and provided to Defendant in discovery. Plaintiff, in particular, may use the four documents that were identified as Deposition Exhibits 1-4 in her deposition. See written order. (Copy of Opinion sent this date via U.S. Mail to pro se Plaintiff at her listed address.) (LB, ilcd)
E-FILED
Thursday, 17 April, 2014 02:38:35 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
TERESA M. BECK,
Plaintiff,
v.
AMERICAN HONDA FINANCE
CORPORATION d/b/a HONDA
FINANCIAL SERVICES,
Defendant,
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No. 12-cv-3133
OPINION
THOMAS P. SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Defendant American Honda
Corporation’s (Honda) Motion for Sanctions Pursuant to FRCP 37 and
FRCP 30 (d/e 33) (Motion). For the reasons set forth below, the Motion is
ALLOWED in part and DENIED in part.
BACKGROUND
Plaintiff Teresa Beck brings this case against Honda for alleged
violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, the
Illinois Uniform Commercial Code, 810 ILCS 5/9-625, and the Illinois
Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2.
Beck alleges that Honda violated these statutes in its efforts to collect on
Beck’s obligations under a retail installment contract for the purchase of a
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Honda Accord automobile (Accord), including the attempted repossession
of the Accord in alleged breach of the peace. See Amended Complaint
(d/e 16).
Beck filed this action on May 9, 2012. She was represented by
counsel at that time. The parties were required to make initial disclosures
under Rule 26(a) by October 7, 2012. Scheduling Order entered August
23, 2012 (d/e 12), ¶ 1; see Fed. R. Civ. P. 26(a). Beck’s counsel served
her initial disclosures on October 5, 2012. Response to Motion for
Sanctions (d/e 36) (Beck Response), attached Plaintiff’s Initial Disclosures
Pursuant to Rule 26(a)(1) (Rule 26 Disclosures). The initial disclosures
must include,
a copy—or description by category and location—of all
documents, electronically stored information, and tangible
things that the disclosing party has in its possession, custody,
or control and may use to support its claims or defenses, unless
the use would be solely for impeachment;
Fed. R. Civ. P. 26(a)(1)(A)(ii). In response to this requirement, Beck’s Rule
26 Disclosures stated,
Ms. Beck is in possession of records of her cell phone usage
documenting the times she spoke with Defendant as well as
self-assembled records documenting the total number of their
calls. She is also in possession of copies of the letters sent to
Defendant demanding that they cease calling her phone.
Page 2 of 10
Rule 26 Disclosures, at 1. Beck did not provide copies of any of the listed
documents with the Rule 26 Disclosures.
On May 23, 2013, this Court allowed Beck’s counsel to withdraw from
this case. Text Order entered May 23, 2013. Beck secured extensions of
time to find new counsel, but was unsuccessful. See Text Order entered
August 2, 2013. Beck is now proceeding pro se.
On November 21, 2013, Honda served on Beck a Second Amended
Fifth Notice of Discovery Deposition (Notice of Deposition). Motion, Exhibit
A, Notice of Deposition. The Notice of Deposition stated that Beck would
be deposed on December 16, 2013, in Springfield, Illinois. The Notice of
Deposition further required Beck to bring the following documents to the
deposition:
[Y]ou are also required to have present at the date, time and
place stated all documents under the Plaintiff’s possession or
control which the Plaintiff intends to introduce at trial, and any
and all other documents or tangible things in Plaintiff’s
possession or control which Plaintiff contends, in any way, is
related to Plaintiff’s claims against Defendant.
Notice of Deposition.
Beck appeared at the Deposition, but brought no documents or other
tangible things with her. Counsel for Honda questioned Beck regarding the
requested documents. During the colloquy, Beck stated that she did not
bring any documents with her, and she did not know where any of her
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documents were. She stated that her husband put some her documents in
storage in an empty building. She did not know the location of the building
or the identity of the specific records in the building. Transcript of
Deposition of Teresa Beck (d/e 37) (Deposition Transcript), at 31-36.
Beck initially stated that she did not know what documents she
intended to introduce at trial. Id., at 36-37. Counsel for Honda then asked
Beck about the documents listed in the Rule 26 disclosures, quoted above.
Beck responded, “So then you have a good idea of what records I will be
providing.” Id. at 37.
Counsel for Honda then asked Beck if she brought the documents
listed in the Rule 26 disclosures to the deposition. Beck indicated that she
did not bring any records. Id. Counsel for Honda then asked Beck if she
had cell phone records. Beck stated that she did not know. She stated
that she could get records from her cell phone company. Id., at 37-38.
Beck also testified that she had voice recordings of voice mail messages
left on her cell phone, and a video recording of an attempt to repossess the
Accord in 2013. Id., at 127, 157, 179-80. She did not produce any
recordings at the deposition.
Beck, however, testified that she had already produced her
documents in discovery:
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Q.
I’m just talking about this information. This is –
A.
Yeah. It’s just comparable to . . .
I know you want the details, but I’m telling you I
have a witness. I have as much information as I need to
present to the judge to see that these things happened and that
Honda broke the law, and they did so –
Q.
And some of the details, of course, are on your
notes and those other documents that you –
A.
Some details, yes. And all of that, you know, the
discovery documents were provided to you, so . . .
Q.
How do you know?
A.
Because I have all of the discovery information from
the attorney that had the case. And those were all provided at
previous dates that were given by the Court.
Q.
Okay. You don’t know specifically what your
lawyers gave or did not give us; correct?
A.
Sitting here right now, no. But I do have paperwork,
all of the information that was provided by the attorney.
Q.
Again, those are in those same records that you
may have at your house or –
A.
No. That would be in e-mail, because they sent
them all PDF. So everything that you required for the discovery
documents, I believe they have already provided to you prior to
this, so . . .
Deposition Transcript, at 174-75.
During the deposition, Counsel for Honda showed Beck four
documents, in addition to the Notice of Deposition. The documents were
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identified as Deposition Exhibits 1-4 to her deposition. Deposition
Transcript, at 4, List of Exhibits. Counsel for Honda asked Beck about
those documents. See Deposition Transcript, at 27, 141, 180, 181, 184.
ANALYSIS
Honda asks for sanctions against Beck for her failure to produce
documents at her deposition. Honda argues that Beck’s failure violated
Rules 26 and 30. Beck violated Rule 30, but not Rule 26.
Honda argues that Rule 26(a) requires providing copies of documents
disclosed in the initial disclosures. Honda is incorrect. As quoted above,
Rule 26(a) requires disclosure of “a copy—or description by category and
location—of all documents” in the party’s possession that may support the
claim. Fed. R. Civ. P. 26(a)(1)(iii). Beck provided a description of the
disclosed documents. She also disclosed the documents’ location; she
disclosed that the documents were in her possession. Her disclosures met
the requirements of Rule 26(a). She was not required to provide copies
under Rule 26(a).
Beck, however, was required to respond to the request to produce
documents at her deposition. Rule 30 governs depositions by oral
examination. Rule 30 states that a party may set a deposition of the
opposing party by notice. The notice further may include a request under
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Rule 34 to produce documents or other tangible things at the deposition.
Fed. R. Civ. P. 30(b)(2); see Fed. R. Civ. P. 34. Beck was required to
produce the responsive documents or object to the request. Fed. R. Civ. P.
34(b)(2). She did neither.
The appropriate remedy for the failure to produce documents is
generally governed by Rule 34. When a party fails to respond to a request
to produce under Rule 34, the proper procedure is filing a motion to
compel. Fed. R. Civ. P. 37(a)(1) and (a)(3)(iv). A movant can ask for
sanctions for failing to respond to a request to produce, but only if the
movant certifies that it “has in good faith met and conferred with the party
failing to act in an effort to obtain the answer or response without court
action.” Fed. R. Civ. P. 37(d)(1)(B). Honda has not provided such
certification here.
Beck, however, impeded her deposition by ignoring the request to
produce in the Notice of Deposition. Honda was entitled to include the
document request with the Notice of Deposition. Fed. R. Civ. P. 30(b)(2).
Beck could not ignore such a request. She brought this action, and she
was required to cooperate in discovery. By ignoring the request, Beck
impeded the deposition by denying Honda’s counsel the opportunity to
question her about the documents she intended to use to prove her case.
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The Court may award sanctions for impeding a deposition. Fed. R. Civ. P.
30(d)(2). The Court finds that some sanction is appropriate in this case.
After careful consideration, the Court determines that the appropriate
sanction for impeding her deposition is to prohibit Beck from using any
documentary evidence (including recordings) at trial or to support or
oppose a motion for summary judgment unless the evidence was produced
and provided to Honda in discovery. The limited sanction prevents Beck
from taking advantage of her decision not to produce documents at the
deposition. She will not be able to use a document unless Honda had
access to the document in discovery, and so, had an opportunity to
question her about the document at the deposition. The Court notes that
fact discovery closed on December 31, 2013. Text Order entered October
15, 2013. Thus, no additional document may be produced at this time.
The sanction should have limited effect on the parties. Beck testified
at her deposition that she already produced and provided her documents in
discovery. Deposition Transcript, at 174-75. She can use any of the
documents that she produced. Honda is not prejudiced by allowing her to
use these documents. Honda had the opportunity to inquire at her
deposition about any documents that had already been produced in
discovery. In fact, Honda’s counsel asked her about four such documents
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during the deposition. Beck can use these four documents and any others
that she properly produced in discovery to prove her claims. This sanction
is tailored to address only the injury caused by Beck’s failure to comply with
the Notice of Deposition.
The exclusions of the recordings should also have little effect on the
case. Beck does not intend to use the voice mail recordings at trial. Beck
Response, ¶ 14. The video recording would be of marginal relevance
because it recorded a later event that was not the basis of the lawsuit. The
video contains a recording of an attempt to repossess the Accord in 2013,
which occurred after Beck filed this action. Deposition Transcript, at 120,
127.1
Honda asks for additional sanctions because Honda claims that
Beck’s deposition testimony was “antagonistic, evasive and often nonresponsive.” Motion, at 5. The Court has reviewed the Deposition
Transcript and finds that some of Beck’s answers were evasive, particularly
about preliminary and background information such as work experience.
See, e.g., Deposition Transcript, at 19-25. After careful consideration, the
Court finds that no additional sanction is appropriate. Beck is proceeding
pro se; as such, she was alone at the deposition in an unfamiliar setting.
1
Beck also did not disclose the existence of any recordings in her Rule 26 disclosures. See Fed. R. Civ.
P. 37(c)(1).
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Her responses may have reflected caution rather than the intent to evade
counsel’s questions. Under these circumstances, the Court will not impose
any other sanction for her responses.
THEREFORE Defendant American Honda Corporation’s Motion for
Sanctions Pursuant to FRCP 37 and FRCP 30 (d/e 33) is ALLOWED in
part and DENIED in part. The Court prohibits Beck from using any
documentary evidence (including recordings) at trial or to support or
oppose a motion for summary judgment unless the evidence was produced
and provided to Honda in discovery. Beck, in particular, may use the four
documents that were identified as Deposition Exhibits 1-4 in her deposition.
ENTER: April 17, 2014
s/ Tom Schanzle-Haskins
UNITED STATES MAGISTRATE JUDGE
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