May v. Phillips

Filing 49

ORDER granting 42 Motion to Compel. Signed by Jane M Virden on 10/18/2012. (sef)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
DELTA DIVISION
TEDDY L. MAY

PLAINTIFF

VS.

CIVIL ACTION NO. 2:11CV193-MPM-JMV

BOBBY PHILLIPS ET AL

DEFENDANT
ORDER

This matter is before the court on motion of the Defendants to compel Plaintiff’s
deposition (# 42). This is a Title VII employment discrimination case originally filed pro se on
September 9, 2011. On February 24, 2012, Plaintiff retained counsel, and Yollander Hardaway
made a pro hac vice appearance in the case on his behalf.
On March 1, 2012, plaintiff’s counsel unilaterally noticed multiple procedurally deficient
depositions and, by email, offered to work with Defense counsel on mutually convenient dates.
On March 27, 2012, Plaintiff’s counsel noticed additional depositions by email, followed by a
telephonic conference between counsel to discuss discovery and amending the pro se complaint.
According to defense counsel, the parties discussed (and the defense relied on) an agreement that
plaintiff’s deposition would take place prior to any other depositions. Defense counsel
confirmed this agreement by e-mail on April 16, 2012 (Docket Entry # 42-4 Exhibit “D”).
Specifically, defense counsel stated “This confirms our agreement today by telephone that
plaintiff will submit to a deposition prior to any defense witnesses being deposed.” Id.
Plaintiff’s counsel offers emails commencing on July 13, 2012, almost three months after
the confirmation email, as evidence that she never agreed to plaintiff’s deposition taking place
first. It appears based on the briefing and the evidence submitted that some type of agreement
1

was reached during the initial phone call regarding the timing of plaintiff’s deposition and that
defense counsel relied on this agreement. While the agreement may or may not have been “quid
pro quo” and perhaps was even unintended by plaintiff’s counsel, she should have raised
objections to the clear confirmation email dated April 16, 2012, immediately following it’s
receipt. Plaintiff’s counsel’s July email is a delinquent objection to what certainly appears -as a
matter of record- to have been a confirmed agreement from at least April 16, 2012, until July13,
2012. Accordingly, the defendant’s motion is well taken.
The plaintiff will provide deposition testimony at a mutually convenient time and place
prior to defense witness depositions. The parties are encouraged to work together to complete all
depositions in a prompt and mutually convenient manner.
IT IS, THEREFORE, ORDERED that the defendant’s motion to compel (# 42) is hereby
GRANTED.
SO ORDERED, this the 18th day of October, 2012.

/s/ Jane M. Virden
UNITED STATES MAGISTRATE JUDGE

2