Marlow v. Sawyer

Filing 58

MEMORANDUM AND ORDER, denying 26 MOTION Re-Exam Defendant filed by Robert Bentley Marlow. Signed by Judge J. Phil Gilbert on 11/28/2017. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT BENTLEY MARLOW,
Plaintiff,
v.

Case No. 16-cv-1088-JPG-DGW

VANCE E. SAWYER,
Defendant.
MEMORANDUM AND ORDER
This matter comes before the Court on plaintiff Robert Bentley Marlow’s motion for
sanctions against defendant Vance E. Sawyer and Sawyer’s attorneys Michael Schroer and Justin
Zimmerman (Doc. 26). He believes Sawyer and his defense team should be sanctioned because
they failed to disclose certain individuals as witnesses and certain telephone and banking records
in a timely manner, failed to supplement interrogatory responses in a timely manner, and impeded
the plaintiff from deposing Sawyer.
When a party fails to provide information or identify a witness, that party is not allowed to
use the information or witness at trial unless the failure is harmless or substantially justified. Fed.
R. Civ. P. 37(c)(1). Additional sanctions may also be ordered, including paying the reasonable
expenses caused by the failure, Fed. R. Civ. P. 37(c)(1)(A), or informing the jury of the party’s
failure, Fed. R. Civ. P. 37(c)(1)(B). If a party’s motion to compel is granted, the Court must, with
some exceptions, require the party whose conduct necessitated the motion to pay the reasonable
expenses incurred in making the motion. Fed. R. Civ. P. 37(a)(5)(A). The Court may sanction
any person who impedes, delays or frustrates the fair examination of a deponent. Fed. R. Civ. P.
30(d)(2).
Sanctions are not warranted under Rule 37(c)(1) because the failure to timely identify or

disclose was harmless. As explained in Magistrate Judge Donald G. Wilkerson’s November 20,
2017, order (Doc. 44), the documentation was produced in plenty of time for Marlow to use it at
trial and the witnesses identified late did not witness the accident and are not likely to be able to
offer evidence relevant to the ultimate issues in this case.
Sanctions are not warranted under Rule 37(a)(5)(A) because Magistrate Judge Wilkerson
did not grant Marlow’s motion to compel.
Sanctions are not warranted under Rule 30(d)(2) because Sawyer’s attorneys did not
impede, delay or frustrate Marlow’s deposition of Sawyer. Marlow has not pointed to any
specific objectionable instance, and after a quick review of the deposition transcript attached to
Marlow’s motion, the Court has not identified any conduct that improperly impeded, delayed or
frustrated the deposition. In fact, it appears that the vast majority of defense counsel’s objections
were reasonable considering the questions asked and were not out of the mainstream of deposition
objections.
For these reasons, the Court DENIES Marlow’s motion for sanctions (Doc. 26).
IT IS SO ORDERED.
DATED: November 28, 2017
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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