Cuggino v. Nationwide Insurance Company of America

Filing 38

MEMORANDUM AND ORDER re: 34 MOTION to Compel filed by Plaintiff Jacque Cuggino ; IT IS HEREBY ORDERED that plaintiff's motion to compel [Doc. # 34 ] is granted.IT IS FURTHER ORDERED that witness Mark Unterscheutz shall appear for a second deposition at the offices of plaintiff's counsel within thirty (30) days of the date of this Order. Absent a valid privilege, Mark Unterscheutz shall answer all questions posed to him at the second deposition IT IS FURTHER ORDERED that defendant shall bear the costs of the second deposition. IT IS FURTHER ORDERED that the deadline for filing a verified motion for attorneys fees, if any, is March 15, 2016.. Signed by District Judge Carol E. Jackson on 2/24/16. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JACQUE CUGGINO,
Plaintiff,
vs.
NATIONWIDE INSURANCE COMPANY
OF AMERICA,
Defendant.

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Case No. 4:15-CV-250-CEJ

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion to compel defendant to
produce one of defendant’s fact witnesses for a second deposition and to further
compel him to respond to questions he previously refused to answer. Defendant
has not responded to the motion, and the time allowed for doing so has expired.
On January 21, 2016, plaintiff took the deposition of Mark Unterscheutz, one
of the defendant’s employees.

During the deposition, counsel for the defendant

objected to certain question and instructed the witness not to answer them. The
asserted grounds for the objections were improper form of the question, lack of
foundation, lack of relevance, and exceeding the scope of discovery.
The Federal Rules of Civil Procedure permits counsel to instruct a witness not
to answer questions in a deposition “only when necessary to preserve a privilege, to
enforce a limitation ordered by the court, or to present a motion [to terminate or
limit the examination] under Rule 30(d)(3).” Fed. R. Civ. P. 30(c)(2) (emphasis
added). The Federal Rules further provide that an attorney who “impedes, delays,
or frustrates the fair examination of the deponent” may be required to pay the

reasonable attorneys’ fees and expenses incurred by the opposing party.

Fed. R.

Civ. P. 30(d)(2).
Here, the grounds asserted by defense counsel did not authorize her to
instruct Unterscheutz not to answer the deposition questions.

Therefore, the

plaintiff will be permitted to take a second deposition of Unterscheutz, at the
expense of the defendant.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to compel [Doc. #34] is
granted.
IT IS FURTHER ORDERED that witness Mark Unterscheutz shall appear for
a second deposition at the offices of plaintiff’s counsel within thirty (30) days of
the date of this Order. Absent a valid privilege, Mark Unterscheutz shall answer all
questions posed to him at the second deposition
IT IS FURTHER ORDERED that defendant shall bear the costs of the second
deposition.
IT IS FURTHER ORDERED that the deadline for filing a verified motion for
attorneys’ fees, if any, is March 15, 2016.

_____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 24th day of February, 2016.

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