EMW Women's Surgical Center, P.S.C. et al v. Glisson

Filing 150

MEMORANDUM OPINION AND ORDER by Magistrate Judge Dave Whalin on 10/30/2017 granting in part and denying in part 76 Planned Parenthood's Motion for Sanctions. The Governor's Office is ordered to reimburse Planned Parenthood for actual travel expenses incurred in appearing for the previously scheduled deposition and Planned Parenthood's reasonable attorneys' fees incurred in filing the instant motion for sanctions and reply brief. Planned Parenthood is ordered to submit a detailed bill of costs in that regard by 11/21/2017. cc: Counsel (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:17CV-00189-GNS
EMW WOMEN’S SURGICAL
CENTER, P.S.C.
PLAINTIFF
and
PLANNED PARENTHOOD OF INDIANA
AND KENTUCKY, INC.

INTERVENING PLAINTIFF

VS.
VICKY YATES BROWN GLISSON, et al.

DEFENDANTS

MEMORANDUM OPINION
AND ORDER
Intervening Plaintiff Planned Parenthood of Indiana and Kentucky, Inc. (“Planned
Parenthood”) has filed a Motion for Sanctions against Defendant Matthew Bevin (“Governor
Bevin”) in his official capacity as Governor of Kentucky. (DN 76). Planned Parenthood
specifically urges the Court to grant monetary and evidentiary sanctions against Governor Bevin
for his conduct relating to the originally scheduled Rule 30(b)(6) deposition of the Governor’s
Office. (DN 75, at p. 11). Governor Bevin has responded in opposition (DN 132), and Planned
Parenthood has filed a reply (DN 142). For the following reasons, Planned Parenthood’s Motion is
granted in part and denied in part.

Background
This case concerns the constitutionality of KRS § 216B.0435, a statute requiring abortion
clinics to maintain written “transfer agreements” with a licensed acute care hospital and written
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“transport agreements” with a licensed ambulance service. EMW Women’s Surgical Center P.S.C.
of Louisville (“EMW”) filed this action on March 29, 2017, against Vicky Yates Brown Glisson
(“Glisson”) in her official capacity as Secretary of Kentucky’s Cabinet for Health and Family
Services (“CHFS”) alleging that the Cabinet’s actions and KRS § 216B.0435 violate the First and
Fourteenth Amendments of the United States Constitution. (DN 1, at ¶¶ 56-61). Almost three
months later the Court permitted Planned Parenthood to intervene as a plaintiff. (DN 45). Planned
Parenthood’s intervening complaint added Matthew Bevin as a defendant, in his official capacity
as the Governor of Kentucky, and alleges that he “has caused his agents, under his supervision and
direction, to obstruct [Planned Parenthood’s] Louisville Health Center from providing abortions
by any means necessary, including misapplication of the plain language of the challenged statute
and regulation.” (DN 46, at ¶ 13). The parties agreed to an expedited scheduling order, with a
bench trial beginning September 6, 2017. (DN 11).
On August 1, 2017, Planned Parenthood noticed a Rule 30(b)(6) deposition of the
Governor’s Office to take place on August 18, 2017. (DN 65-1; DN 75, at p. 4). One week before
the scheduled Rule 30(b)(6) deposition, the Cabinet emailed Planned Parenthood to indicate the
Governor’s Office could not agree to the terms of the Rule 30(b)(6) deposition. (DN 76-3). The
e-mail stated that if “[Planned Parenthood] seeks a 30(b)(6) deposition on the topics set forth in the
draft 30(b)(6) notice, the Governor’s Office will seek a protective order from the Court.” (Id.).
Planned Parenthood responded to the e-mail on August 14, explaining that it understood the Rule
30(b)(6) deposition of the Governor’s Office was moving forward as planned and that travel for
the deposition was already booked. (Id. at p. 1). Planned Parenthood went on to ask whether
counsel for the Governor was refusing to produce its client for a Rule 30(b)(6) deposition on the
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grounds of undue burden. (Id.). The next day, Planned Parenthood again e-mailed counsel for the
Governor’s Office, expressing their concern over the Governor’s Office’s lack of response and
emphasizing once more that travel was booked for the Rule 30(b)(6) deposition on August 18. (DN
76-4). It appears that Planned Parenthood and the Governor’s Office attempted to resolve the Rule
30(b)(6) deposition dispute on August 16, during a phone conference. (DN 132, at p. 3). But
neither party identifies what conversations occurred during the phone conference or whether
Governor Bevin’s intent to not produce a Rule 30)(6) witness was communicated. (Id. (stating
only that “Ms. Wolsing set up a teleconference for the evening of August 16.”)).
On the morning of August 17, counsel for Planned Parenthood participated in the
depositions of Dr. Tanya Franklin and Dr. Jeanne Bramer in Louisville. (DN 132, at p. 4).
Following these depositions, counsel for CHFS and Governor Bevin, Ms. Wolsing, advised
Planned Parenthood that it was her understanding that no one would be appearing on behalf of the
Governor’s Office for the Rule 30(b)(6) deposition the next day. (DN 142, at p. 4). Later that night,
the Governor’s Office filed a Motion for Protective Order, seeking to limit the scope of the
deposition because the notice was unduly burdensome and overly broad or, alternatively, to
prevent such deposition. (DN 65). The Governor’s Office did not produce a representative or
otherwise appear for the Rule 30(b)(6) deposition on August 18.
As a result of these events, Planned Parenthood filed a response opposing Governor
Bevin’s motion for protective order (DN 75) and a related motion for sanctions for the Governor’s
Office’s failure to appear at the noticed deposition on August 18 (DN 76). During a telephonic
conference with the Court on August 29, the parties appeared to resolve their dispute over the
scope of the deposition and agreed to reschedule the Rule 30(b)(6) deposition of the Governor’s
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Office for September 1.1 (DN 88). Planned Parenthood’s Motion for Sanctions (DN 75) is now
ripe for adjudication.

Analysis
Planned Parenthood seeks monetary and evidentiary sanctions based on Governor Bevin’s
failure to produce a witness at the originally scheduled Rule 30(b)(6) deposition on August 18,
2017. (DN 76). Planned Parenthood believes it is entitled to travel costs and attorneys’ fees for its
response to Governor Bevin’s motion for protective order and motion for sanctions and to either
“default judgment against the Governor” or “a mandatory adverse inference against Governor with
respect to the testimony his Rule 30(b)(6) designee would have given had they appeared.” (Id. at
pp. 11-13). Governor Bevin counters that sanctions are not warranted for four reasons: (1) the
deposition was not properly noticed; (2) the Governor’s Office advised Planned Parenthood a
week in advance that it would not produce a deponent; (3) the Governor’s Office filed a Motion for
Protective Order before the deposition; and (4) Planned Parenthood already incurred travel
expenses to be in Louisville on August 18, 2017, for a separate Rule 30(b)(6) deposition of CHFS.
(DN 132).
Federal Rule 37(d) sets forth the rule regarding sanctions for failure to appear for a Rule
30(b)(6) deposition. The Court “may, on motion, order sanctions” if “a party or . . . a person
designated under Rule 30(b)(6) . . . fails, after being served with proper notice, to appear for that
person’s deposition[.]” Fed. R. Civ. P. 37(d)(1)(A)(i). Such a failure to appear for deposition “is
1 Following the rescheduled Rule 30(b)(6) of the Governor’s Office on September 1, 2017, Planned Parenthood filed
a second motion for sanctions against Governor Bevin, alleging that the witness produced was not prepared to testify
regarding the specific topics in the deposition notice, that the witness intentionally destroyed discoverable evidence,
and that the witness improperly invoked attorney-client privilege throughout the deposition. (DN 106). This second
motion for sanctions will be addressed in a separate opinion.

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not excused on the ground that the discovery sought was objectionable, unless the party failing to
act has a pending motion for a protective order under Rule 26(c).” Id. at (d)(2). The Court may
award sanctions for this conduct, including any type of sanction listed in Rule 37(b)(2)(A)(i)-(vi),
and “[i]nstead of or in addition to these sanctions, the court must require the party failing to act, the
attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees,
caused by the failure, unless the failure was substantially justified or other circumstances make an
award of expenses unjust.” Id. at (d)(3).
None of Governor Bevin’s justifications for failing to produce a Rule 30(b)(6) designee on
August 18 are compelling. First, Governor Bevin alleges that the Rule 30(b)(6) deposition of the
Governor’s Office was not properly noticed until August 16 and that he promptly filed the Motion
for Protective Order one day after receiving such notice. (DN 132, at pp. 5-6). Even though
Governor Bevin admits in his response that “[o]n August 1, Planned Parenthood provided
finalized Rule 30(b)(6) deposition notices to CHFS and the Governor’s Office,” he goes on to state
that “Ms. Wolsing did not receive this e-mail.” (Id. at p. 3). To support that Ms. Wolsing never
received the deposition notice via e-mail, Governor Bevin cites to an e-mail from August 16,
where Ms. Wolsing asked Planned Parenthood to send her “a copy of the Governor’s 30(b)(6)
notice” because she couldn’t locate the document. (DN 132-3).
The Rule 30(b)(6) deposition notice, however, states that on August 1, 2017, a true and
correct copy of such notice was sent via e-mail and U.S. Mail to all parties, including Ms. Wolsing
and two other attorneys with the Cabinet for Health and Family Services and two attorneys for the
Office of the Governor. (DN 65-1, at p. 4). All that is necessary to require attendance of a party at
a deposition is “[a] notice for the taking of a deposition sent to all parties[.]” Farquhar v. Sheldon,
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116 F.R.D. 70, 72 (E.D. Mich. 1987); see Wright & Miller, Federal Practice and Procedure: Civil §
2107. Ms. Wolsing’s statement that she did not receive the deposition notice by e-mail, therefore,
does not establish that the deposition was not properly noticed. Governor Bevin does not allege
that Ms. Wolsing did not receive the deposition notice through U.S. Mail. Nor does he allege that
the other four attorneys serving as counsel for Defendants did not receive the deposition notice by
e-mail or U.S. Mail.2
Further, the record demonstrates that the parties began discussing and negotiating the terms
of the Rule 30(b)(6) deposition of the Governor’s Office in early July. (DN 76, at pp. 3-4, DN 132,
at p. 2). Counsel for Defendants were clearly aware of the scheduled Rule 30(b)(6) deposition as
evidenced by the ongoing dispute as to the scope of the deposition from early July through August.
Specifically, Ms. Wolsing indicated in an e-mail on August 1 that despite its continued objections
to the scope, “the Governor’s Office will submit to the deposition” and “will provide a 30(b)(6)
deponent ready to testify on those topics on August 18, 2017 at CHFS.” (DN 132-2, at p. 2). These
communications contradict the Governor’s argument that its counsel did not have actual notice of
the Rule 30(b)(6) deposition. The Governor’s Office’s failure to appear at the Rule 30(b)(6)
deposition on August 18, 2017, is not justified on this basis.
Second, Governor Bevin states that sanctions are inappropriate because the Governor’s
Office advised Planned Parenthood a week prior to the scheduled deposition that it would not
produce a deponent and would be moving for a protective order. (DN 132, at pp. 1, 5-6). It is true
2 Governor Bevin’s response specifically highlights that “all defense attorneys in this matter represented both
defendants. Despite, their titles as Governor’s counsel, Steve Pitt and Chad Meredith regularly represented CHFS in
the matters leading up to this litigation. Similarly despite their positions at CHFS, Catherine York and Jennifer
Wolsing participated in all but four of the numerous depositions in this matter as counsel for both CHFS and the
Governor’s Office.” (DN 132, at p. 5 n. 2). As such, all of these attorneys should have received the notice of the Rule
30(b)(6) deposition of the Governor’s Office by e-mail and U.S. Mail on August 1, 2017, and Governor Bevin does not
argue otherwise in his response.

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that Ms. Wolsing e-mailed Planned Parenthood on August 11, 2017, stating that “the Governor’s
Office has concluded that it cannot agree to the terms of the 30(b)(6) deposition as set forth in
[Planned Parenthood’s] e-mail from August 2” and “[i]f PPINK seeks 30(b)(6) deposition on the
topics set forth in the draft 30(b)(6) notice, the Governor’s Office will seek a protective order from
the Court.” (DN 132-3, at pp. 3-4). But this e-mail cannot be considered an unequivocal
declaration that the Governor’s Office would not produce a witness for the deposition.
In fact, Planned Parenthood responded to Ms. Wolsing’s e-mail asking specifically
whether the Governor’s Office was refusing to produce its client for the deposition on August 18,
2017, and indicating it understood the deposition to be moving forward since travel was already
booked. (Id. at p. 2). Planned Parenthood again e-mailed Ms. Wolsing on August 15, 2017, stating
“[w]e are deeply troubled by your refusal to timely respond to our multiple attempts to reach an
expedient resolution of pending discovery issues” and emphasizing that travel was already booked
for the August 18, 2017 deposition and “[w]e expect both of your client’s designees to be there,
and to be fully prepared.” (Id. at pp. 1-2). Ms. Wolsing’s only response to these e-mails suggested
the parties conference telephonically on the issue. (Id. at p. 1). Beyond these e-mails, it is unclear
whether a conference actually occurred and, if it did occur, whether it justified the non-appearance
of a witness for the Governor’s Office for the originally scheduled deposition.
Governor Bevin’s third justification, that a protective order was filed the day before the
deposition, is likewise not persuasive. On August 17, 2017, the day before the deposition, two
events occurred. First, Ms. Wolsing advised Planned Parenthood that “it was her understanding at
that time that no one [from the Governor’s Office] would appear” at the deposition. Secondly, at
5:42 PM, Governor Bevin filed a motion for protective order to limit the scope of the deposition, or
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alternatively, to prevent the deposition altogether. These attempts at preventing the deposition on
the day/night before it was scheduled to take place are “too little, too late,” given that Planned
Parenthood’s counsel had already traveled to Louisville, Kentucky for the depositions. The
Governor’s objections to the Rule 30(b)(6) deposition at the eleventh hour, therefore, did not
excuse his obligation to produce a deponent for the properly noticed deposition. See In re Johnson,
408 B.R. 127, 130-31 (S.D. Ohio 2009) (holding that motion for protective order filed shortly
before scheduled deposition was not sufficient justification for failure to appear at deposition)
(citing In re Hollar, 184 B.R. 243 (M.D.N.C. 1995) (a “last minute purported motion for a
protective order is not a mitigating factor” for failing to appear at deposition)). The Governor’s
Office’s unresponsiveness to Planned Parenthood leading up to the scheduled deposition and
delayed attempt at preventing the deposition through a protective order weigh in favor of granting
Planned Parenthood’s request for sanctions.3
Lastly, Governor Bevin claims that because counsel for Planned Parenthood already
incurred travel expenses to be in Louisville, Kentucky, on August 18, 2017, for a separate Rule
30(b)(6) deposition of the Cabinet of Health and Family Services, awarding monetary sanctions
would “unnecessarily compensate Planned Parenthood.” (Id. at pp. 6-7). But Planned Parenthood
scheduled the Rule 30(b)(6) deposition of CHFS and the Rule 30(b)(6) deposition of the
Governor’s Office for the same day so that counsel could avoid traveling to Louisville on multiple
occasions. The Governor’s Office’s failure to appear at the noticed deposition on August 18, 2017,
and the subsequent rescheduling of the deposition for September 1, 2017, required Planned
Parenthood’s counsel to return to Louisville, Kentucky, a second time. Additionally, Planned
3 The Court also notes that the Governor’s Office’s lack of communication leading up to the Rule 30(b)(6) deposition
is especially egregious in light of the circumstances of the case with a rapidly approaching bench trial to take place less
than three weeks after the deposition was originally scheduled.

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Parenthood explains in its reply that if only the CHFS deposition had been scheduled for August
18, 2017, local counsel would have taken the deposition. (DN 142, at p. 8). Thus, regardless of the
fact that counsel for Planned Parenthood had another deposition scheduled on August 18, 2017,
the Governor’s Office’s actions caused Planned Parenthood to incur additional costs to return for
the rescheduled Rule 30(b)(6) deposition of the Governor’s Office.

Conclusion
As a result of Governor Bevin’s untimely objection to the Rule 30(b)(6) deposition and
failure to clearly communicate the intent to not appear, the Court finds the circumstances warrant
an award of sanctions under Rule 37(d). Because the main repercussion of Governor Bevin’s
actions are monetary in nature, the Court concludes that Planned Parenthood is entitled to actual
travel expenses incurred in appearing for the previously scheduled deposition and attorneys’ fees
incurred in filing the instant motion for sanctions and reply brief. Evidentiary sanctions, on the
other hand, are not warranted for the Governor’s Office’s failure to appear at the August 18
deposition since the parties were able to resolve their disagreement as to the scope of the Rule
30(b)(6) deposition and the rescheduled deposition took place on September 1.4

4 Again, the Court recognizes that Planned Parenthood has filed a second motion for sanctions relating to the
rescheduled Rule 30(b)(6) deposition on September 1, 2017, (DN 106) that will be adjudicated in a separate opinion.

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ORDER
IT IS THEREFORE ORDERED that Planned Parenthood’s Motion for Sanctions (DN
76) is granted in part and denied in part. The Governor’s Office is ordered to reimburse
Planned Parenthood for actual travel expenses incurred in appearing for the previously scheduled
deposition and Planned Parenthood’s reasonable attorneys’ fees incurred in filing the instant
motion for sanctions and reply brief. Planned Parenthood is ordered to submit a detailed bill of
costs in that regard by November 21, 2017.

October 30, 2017

Copies:

Counsel of Record

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