VOGLER, SR. et al v. JAMES R. POSHARD & SON, INC. et al

Filing 162

ORDER granting in part and denying in part Plaintiff's 151 Motion for Sanctions and to Open Discovery for Limited Purpose to Allow Second Deposition of Defendant Shealey and denying as moot Defendants' 160 Motion for Designation of Location of Jonathan Shealey's Second Deposition. Signed by Judge Richard L. Young on 11/4/2015. (TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION

THOMAS VOGLER, SR.,
THOMAS VOGLER, JR.,
TIFFANY M. VOGLER, and
TAMMY VOGLER,
Plaintiffs,
vs.
JAMES R. POSHARD & SON, INC., and
JONATHAN SHEALEY,
Defendants.

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3:14-cv-00105-RLY-WGH

ENTRY ON PLAINTIFFS’ MOTION FOR SANCTIONS AND FOR LEAVE TO
REDEPOSE DEFENDANT SHEALEY
Plaintiffs, Thomas Vogler, Sr., Thomas Vogler, Jr., Tiffany M. Vogler, and
Tammy Vogler, brought this action against Defendants, James R. Poshard & Son, Inc.
(“Poshard”) and Jonathan Shealey, for damages arising out of a vehicular accident that
occurred on March 20, 2014. Plaintiffs allege that Shealey, while driving a tractor-trailer
owned by Poshard, negligently crossed the center line on U.S. Highway 231 and collided
with Plaintiffs’ automobile. In discovery, Plaintiffs served Shealey with a request for
production (“RFP”) of Shealey’s personal cell phone records for March 20, 2014 (See
Filing No. 151 at 2 (“RFP No. 32”)). At his deposition, Shealey produced his cell phone
records for March 20, 2013, exactly one year prior to the accident. This failure to
produce prevented Plaintiffs from exploring certain lines of questioning during the
deposition. Plaintiffs now move (1) to compel Shealey’s response to the RFP, (2) for
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leave to re-depose Shealey at the offices of Plaintiffs’ counsel in St. Louis, Missouri, and
(3) for sanctions against Shealey for failing to respond to Plaintiffs’ RFP. 1
Defendants concede that Shealey failed to respond to Plaintiffs’ RFP. The court
therefore GRANTS Plaintiffs’ motion to compel Shealey’s response to Plaintiffs’ RFP
No. 32.
Defendants further concede that Plaintiffs should have the opportunity to redepose Shealey, but they object to conducting a second deposition in St. Louis.
Defendants report that Shealey recently obtained new employment and fears termination
if he must take time to travel to a deposition. Accordingly, Defendants request that the
deposition occur in Evansville, Indiana, where Shealey resides and where the trial of this
matter is set for November 16, 2015. In the alternative, Defendants recommend that
Plaintiffs conduct the deposition by telephone. Plaintiffs filed no reply to Defendants’
position.
The court is sympathetic to the cost and inconvenience of having to re-depose
Shealey. Moreover, Defendants have failed to adequately explain Shealey’s failure to
respond to RFP No. 32. Shealey and his counsel cannot agree as to which cell phone
service provider Shealey used in March 2014. Counsel simply informs the court that
“Shealey’s memory appears to be faulty.” If this sufficed to justify such a significant
delay in the production of cell phone records—by no means an impossible order—civil

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Plaintiffs cite not a single rule in the Federal Rules of Civil Procedure as authority for the
relief they seek. Thus, the court, to the best of its ability, will frame Plaintiffs’ motion in the
language of the applicable rules.

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litigation in federal court would grind to a halt. Nevertheless, with trial less than two
weeks away, the court exercises its broad discretion and orders that a second deposition
of Shealey occur in Evansville, Indiana. See In re Petition of Boehringer Ingelheim
Pharm., 745 F.3d 216, 221 (7th Cir. 2014) (“[D]istrict courts managing civil cases have
extensive discretion over the locations of depositions”). Of course, the parties may agree
to conduct a second deposition by telephone or other remote electronic means.
Thus, the court GRANTS in part Plaintiffs’ motion for leave to re-depose
Shealey. Plaintiffs may notice another deposition of Shealey, but it must either occur in
Evansville, Indiana, or by remote means.
Defendants object to the imposition of sanctions, arguing that Shealey has not
intentionally provided faulty information. Although the court remains incredulous,
Plaintiffs have not responded to Defendants’ position nor shown that Defendants’ have
failed to comply with a court order. See Fed. R. Civ. P. 37(b). Moreover, Shealey’s first
deposition occurred on March 31, 2015, and yet Plaintiffs did not move to compel
Shealey’s response to RFP #32 until October 8, 2015. Therefore, the court DENIES
Plaintiffs’ motion for sanctions.
On October 30, 2015, Defendants filed a motion to designate Evansville, Indiana,
as the location of Shealey’s second deposition (Filing No. 160). Defendants make the
same argument they made in response to Plaintiffs’ motion for leave to re-depose
Shealey. In light of the court’s ruling on Plaintiffs’ motion as set forth in this Entry,
Defendants’ motion is DENIED as moot.

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V.

Conclusion
For the foregoing reasons, the court GRANTS in part and DENIES in part

Plaintiffs’ Motion for Sanctions and to Open Discovery for Limited Purpose to Allow
Second Deposition of Defendant Shealey (Filing No. 151). Defendants’ Motion for
Designation of Location of Jonathan Shealey’s Second Deposition (Filing No. 160) is
DENIED as moot.

SO ORDERED this 4th day of November 2015.
__________________________________
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana

Distributed Electronically to Registered Counsel of Record.

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