NJ Records, LLC et al v. Boutte

Filing 14

ORDER denying 9 Motion to Compel and Motion for Expedited Hearing. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 04/09/2014. (CGP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

NJ Records, LLC and Nicole Jackson
Plaintiffs

CIVIL ACTION
13-769-BAJ-RLB

v.
Norris Boutte (a.k.a “Tucka”)
Defendant

ORDER
Before the Court is Plaintiff, NJ Records, LLC’s Motion to Compel Deposition of
Defendant and Request for Expedited Hearing (R. Doc. 9). The Motion is opposed (R. Doc. 10)
and NJR filed a response with leave of court (R. Doc. 13).
In the Motion, NJR asserts that, on March 6, 2014, it properly noticed the deposition of
the defendant for April 21, 2014. There is no indication that the deposition was ever noticed for
any other date.
In a reflection of professional courtesy, NJR continually requested confirmation from
counsel for defendant regarding the convenience of the noticed date and a willingness to consider
alternative dates upon the suggestion of defendant. The correspondence between the attorneys
reflects these attempts by NJR’s counsel (R. Doc. 9-3). Despite repeated attempts to gain
assurance that April 21, 2014 was acceptable, counsel for defendant was either unwilling or
unable to do so. In response, NJR filed the instant motion, seeking a court order compelling the
defendant to provide three alternative dates for defendant’s deposition, as well as reasonable
attorney’s fees for the preparation and filing of the motion to compel. (R. Doc. 9-5).

In opposition, defendant asserts that he was “fully planning to confirm said dates or
provide additional proposed dates.” (R. Doc. 10). Defendant has since provided NJR with
proposed scheduling dates and argues that the motion to compel is both premature and moot. In
response, NJR argues that even if the motion is now moot, costs should still be awarded under
Rule 37(a)(5) of the Federal Rules of Civil Procedure because the requested responses were not
provided until after the filing of the motion to compel (R. Doc. 13).
This is not a case where the defendant represented that he was refusing to appear at any
deposition or that his deposition was not a proper means of discovery. Rather, NJR’s argument
is premised on an obligation of the defendant to cooperate in the scheduling of his deposition.
Having failed to so cooperate, NJR seeks a court order requiring him to do so. There is nothing
in Rule 30 to indicate that a party is required to provide dates for his own deposition. “While the
agreement of counsel on a date for a deposition is preferred, it is not required by Rule 30. The
rule requires only reasonable notice. After making a reasonable attempt to schedule a deposition
on a convenient date, counsel desiring to depose a witness must simply schedule the deposition
and serve a notice, and a subpoena when required.” Rushing v. Board of Supervisors of the Univ.
of La. System, 06-623-RET-SCR, 2008 WL 4330186, at *2 n.13 (M.D. La. Sept. 15, 2008).
Despite NJR’s urging, the court will not compel a party to do something that Rule 30 does not
require.
This is also not a case where the defendant failed to appear at the deposition. Failure to
appear at a properly noticed deposition is grounds for sanctions. Rule 37(d)(1)(A)(i) provides
for sanctions if “a party . . . fails, after being served with proper notice, to appear for that
person’s deposition.” Should defendant fail to appear for a properly noticed deposition, then the
sanctions requested by NJR, and other sanctions available under Rule 37, may be appropriate.

The parties have represented that alternate dates have been provided. The court
encourages the parties to work together on these scheduling matters without intervention. The
dates provided are between 4-8 days longer than the originally noticed date of April 21, 2014.
(R. Doc. 11-2 n.2). NJR has expressed concern that it will be unable to complete its expert
reports by the current deadline of April 30, 2014. Should NJR seek an extension of that deadline
because of the difficulty of confirming the deposition dates, the court would look favorably on
that request. 1
The Court will note that NJR’s frustration, however, is justified. This dispute could have
easily been resolved with a simple response from defendant’s counsel regarding the proposed
date as opposed to continued delay. The Court is also aware that only upon filing of the motion
to compel did defense counsel finally provide a definitive response. If defendant’s travel
schedule “in pursuit of furthering his career” is of such importance, that is all the more reason to
work with opposing counsel in finding an accommodating date rather than waiting for the court
to get involved.
IT IS ORDERED that the Motion to Compel (R. Doc. 9) is DENIED. For the reasons set
forth above, the Court finds that any award of expenses to either party would be unjust.
Therefore, each side will bear its own costs related to the motion.
Signed in Baton Rouge, Louisiana, on April 9, 2014.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

1

Rule 16 of the Federal Rules of Civil Procedure provides that a scheduling order deadline may be modified with
the judge’s consent upon a showing of “good cause.” NJR’s continued effort to accommodate defense counsel and
defendant’s schedule, and receipt of a definitive answer only after filing a motion with the court, as well as an
apparent willingness to conduct the deposition at a date convenient to the defense but only 4-8 days later than
originally requested, would support a finding of good cause for a comparable extension of any applicable deadline.