CRISP V. ALLIED INTERSTATE COLLECTION AGENCY, ET AL.

Filing 59

MEMORANDUM OPINION AND ORDER. Signed by MAG/JUDGE L. PATRICK AULD on 5/12/2016. It is therefore ORDERED that the Protective Order Motion (Docket Entry 44 ) is DENIED. It is further ORDERED that the Extension Motion (Docket Ent ry 52 ) and the Motion to Compel (Docket Entry 53 ) is GRANTED IN PART and DENIED IN PART as set out herein. It is further ORDERED that, upon completion of the foregoing briefing or the time period for such briefing, the Clerk shall refer this matter back to the undersigned Magistrate Judge for further action. (Daniel, J) Modified docket text on 5/12/2016 to include text regarding Doc. 53 . (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

LUSTER JAMES CRISP,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
ALLIED INTERSTATE COLLECTION
AGENCY, et al.,
Defendants.

1:15cv303

MEMORANDUM OPINION AND ORDER
This case comes before the Court on “Plaintiff’s Motion for
Protective Order” (Docket Entry 44) (the “Protective Order Motion”)
as well as the “Motion to Compel” (Docket Entry 53) and “Motion to
Amend Deadlines” (Docket Entry 52) (the “Extension Motion”) filed
by Allied Interstate Collection Agency (“Allied”). For the reasons
that follow, the Court will deny the Protective Order Motion and
will grant in part and deny in part the Motion to Compel and the
Extension Motion.
BACKGROUND
In April 2015, Luster James Crisp (“Crisp”) commenced this
action

against

“Collecto

Allied

Defendants,”

and
and

three

additional

collectively

defendants

with

Allied,

(the
the

“Defendants”), alleging that certain Defendants committed identity
theft and violated the Fair Debt Collection Practices Act and the
Telephone Collection Practices Act.

(See Docket Entry 2.)

In

August 2015, the parties submitted a Joint Rule 26(f) Report (the
“Report”), specifying that:
Discovery will be needed on the following subjects:
relevant
nonprivileged
information,
testimony and
documents going toward the allegations advanced by the
Plaintiff and the denials and defenses of the Defendants.
The parties expect to serve interrogatories, requests for
production and requests for admission. The parties also
expect to engage in depositions.
(Docket Entry 36 at 1.)1

In the Report, the parties agreed to

complete all discovery, including depositions, by February 23,
2016. (Id. at 1-2.)

The Court adopted the Report, making February

23, 2016, the discovery deadline for this action.

(See Text Order

dated Aug. 19, 2015.)
On January 15, 2016, Collecto Defendants served on Crisp a
deposition

notice,

which

scheduled

Crisp’s

deposition

10:00 a.m. on February 18, 2016, in Durham, North Carolina.
Docket Entry 54-4 at 14-15.)

for
(See

On January 21, 2016, Allied likewise

served on Crisp a deposition notice (the “Deposition Notice”) for
a deposition “begin[ning] immediately following the taking of the
deposition of [Crisp] by [Collecto] Defendants.” (Docket Entry 541 at 1.)

On February 10, 2016, Crisp faxed to Collecto Defendants’

counsel a letter asserting various objections to the noticed joint
deposition (the “Deposition Letter”), including that Defendants

1
Citations herein to Docket Entry pages utilize the
document’s internal pagination if unified internal pagination
exists. In the absence of such pagination, the Docket Entry page
citations utilize the CM/ECF footer’s pagination.
2

needed to coordinate the date and time of any depositions with
Crisp.

(Docket Entry 54-4 at 17.)

In addition, the Deposition

Letter objected to the joint nature of the noticed deposition and
attempted to condition Crisp’s deposition on Crisp first deposing
Defendants.

(Id.)

That evening, Collecto Defendants’ counsel

responded to the Deposition Letter by email, refusing to agree to
Crisp’s

asserted

conditions,

“legitimate”

scheduling

deposition.

(Id. at 18.)

but

conflict

agreeing
Crisp

to

had

accommodate
to

the

any

noticed

Collecto Defendants’ counsel proposed

three alternative dates (February 16, 19, and 22), and stated that
Crisp should contact her by close of business the next day if he
had such a conflict, or else they would “proceed as planned.”
(Id.)
On February 17, 2016, Crisp faxed a copy of the Protective
Order Motion to Defendants’ lawyers.
Docket Entry 44.)

(Id. at 20-23; see generally

That afternoon, Allied’s counsel sent an email

to Crisp, acknowledging that Defendants’ lawyers received Crisp’s
fax, and stating, “As there does not appear to be a pending motion
before the [C]ourt on [Crisp’s] request for a protective order,
[Defendants’
scheduled.”
counsel

sent

lawyers]

intend

to

move

(Docket Entry 54-4 at 24.)
a

second

email

to

“plan[ned] on appearing tomorrow.”

Crisp,

forward

tomorrow

as

That evening, Allied’s
inquiring

(Id. at 26-27.)

whether

he

A few hours

later, Crisp responded to that email, stating, “I am at the

3

hospital ICU with my baby sister. . . .
tomorrow.”

No I won’t be there

(Id. at 26.)

Defendants’ lawyers commenced Crisp’s deposition at 10:00 a.m.
on February 18, 2016.

(See generally Docket Entry 54-4.)2

did not attend.

During the deposition, Defendants’ lawyers

(Id.)

Crisp

stated that Crisp’s Protective Order Motion “has not yet been filed
with the [C]ourt.”

(Id. at 8; see also id. at 12.)

Defendants’

lawyers concluded the deposition at 10:27 a.m., noting that they
“[we]re holding the deposition open and [would] move to compel Mr.
Crisp’s deposition testimony as necessary.” (Id. at 12.) At 11:45
a.m. on February 18, 2016, the Court received Crisp’s Protective
Order Motion through the United States mail. (See Docket Entry 441.)

The Protective Order Motion therefore bears a February 18,

2016 filing date.

(See Docket Entry 44 at 1.)3

On February 23, 2016, Collecto Defendants filed motions to
compel discovery (see Docket Entries 46 through 51) and a “Motion
to Stay Deadlines Pending Resolution of Pending Motions” (Docket
Entry 45) (collectively, the “Collecto Motions”). Allied similarly
filed the Extension Motion and Motion to Compel on February 23,

2 The transcript of this deposition, including the exhibits
introduced therein, constitute Docket Entry 54-4.
3 Under the Federal Rules of Civil Procedure, “[a] paper is
filed by delivering it: (A) to the [court] clerk; or (B) to a
judge who agrees to accept it for filing.”
Fed. R. Civ. P.
5(d)(2).
4

2016.4
District

On February 29, 2016, this Court (per United States
Court

Defendants’

Judge

motions

Thomas
for

D.

Schroeder)

judgment

on

the

granted

Collecto

pleadings,

thereby

dismissing Collecto Defendants from this action and mooting the
Collecto Motions. (Docket Entry 55.) The Protective Order Motion,
Motion

to

Compel,

and

Extension

Motion

remain

ripe

for

determination.
DISCUSSION
I. Discovery Standards
“The purpose of discovery is to provide a mechanism for making
relevant information available to the litigants.”
26 advisory committee’s notes, 1983 Amendment.5

Fed. R. Civ. P.
Accordingly,

“[u]nless otherwise limited by court order, the scope of discovery

4 Collecto Defendants seek to compel Crisp’s compliance with
their written discovery and deposition notice. (See Docket Entries
46 through 51; see also Docket Entry 54-4 at 19 (asking that Crisp
provide “[his] responses to the Requests for Production of
Documents which were served upon [him] on January 13, 2016 [on]
behalf of [Collecto Defendants]”).) In contrast, although Allied’s
unsworn opposition to the Protective Order Motion asserts that
“[a]ll defendnats [sic] served written discovery on Mr. Crisp”
(Docket Entry 56 at 1), the evidence before the Court does not
reflect that Allied pursued written discovery (see, e.g., Docket
Entry 54-1 (noticing deposition without accompanying document
production request); Docket Entry 54 (detailing, under oath,
discovery efforts)). In any regard, Allied’s Motion to Compel only
seeks to compel Crisp’s deposition rather than any responses to
written discovery. (Docket Entry 53 at 2.)
5
Relevancy “essentially involves a determination of how
substantively the information requested bears on the issues to be
tried.” Mills v. East Gulf Coal Preparation Co., LLC, 259 F.R.D.
118, 131 (S.D. W. Va. 2009) (internal quotation marks omitted).
5

is

as

follows:

Parties

may

obtain

discovery

regarding

any

nonprivileged matter that is relevant to any party’s claim or
defense . . . .”
“[e]ven

assuming

Fed. R. Civ. P. 26(b)(1) (emphasis added).
that

th[e]

information

is

relevant

Yet

(in

the

broadest sense), the simple fact that requested information is
discoverable . . . does not mean that discovery must be had.

On

its own initiative or in response to a motion for protective order
under [Federal Rule of Civil Procedure] 26(c), a district court may
limit [discovery] . . . .”

Nicholas v. Wyndham Int’l, Inc., 373

F.3d 537, 543 (4th Cir. 2004).

As such, “[d]istrict courts enjoy

nearly unfettered discretion to control the timing and scope of
discovery . . . .”

Hinkle v. City of Clarksburg, W. Va., 81 F.3d

416, 426 (4th Cir. 1996); accord Cook v. Howard, 484 F. App’x 805,
812 (4th Cir. 2012) (observing that “[d]istrict courts are afforded
broad discretion with respect to discovery”).
Therefore, the Federal Rules of Civil Procedure (the “Rules”)
authorize litigants to bring unresolved discovery disputes before
a court through either a motion to compel discovery or a motion for
protective order. See Kinetic Concepts, Inc. v. ConvaTec Inc., 268
F.R.D. 226, 243 (M.D.N.C. 2010).
that

the

moving

party

certify

Each of these motions requires
“that

[it]

has

in

good

faith

conferred or attempted to confer with other affected parties in an
effort to resolve the dispute without court action.”

Fed. R. Civ.

P. 26(c)(1); accord Fed. R. Civ. P. 37(a)(1) (“The motion must

6

include a certification that the movant has in good faith conferred
or attempted to confer with the person or party failing to make
disclosure or discovery in an effort to obtain it without court
action.”).

As our Local Rules indicate, this Court takes the

parties’ good-faith conferral obligations seriously:
The Court will not consider motions and objections
relating to discovery unless moving counsel files a
certificate that after personal consultation and diligent
attempts to resolve differences the parties are unable to
reach an accord. The certificate shall set forth the
date of the conference, the names of the participating
attorneys, and the specific results achieved. It shall
be the responsibility of counsel for the movant to
arrange for the conference[, which must be held either in
person or via telephone.]
M.D.N.C. LR 37.1(a).

Finally, as with other written motions, any

motion to compel or motion for protective order must “be set out in
a separate pleading” and, unless resolved under the expedited
procedures of Local Rule 37.1(b), must “be accompanied by a brief.”
M.D.N.C. LR 7.3(a).
II. Analysis of Motions
As a preliminary matter, the Court notes that neither the
Protective Order Motion nor the Motion to Compel complies with the
Local

Rules

regarding

certification

and

briefing.

deficiencies could justify summary denial of both motions.

These
See

M.D.N.C. LR 7.3(k) (“A motion unaccompanied by a required brief
may, in the discretion of the Court, be summarily denied.”);
M.D.N.C. LR 37.1(a) (“The Court will not consider motions and
objections relating to discovery unless moving counsel files a
7

certificate that after personal consultation and diligent attempts
to

resolve

differences

the

parties

are

unable

to

reach

an

accord.”); see also M.D.N.C. LR 83.4(a) (authorizing sanctions for
failure to comply with the Local Rules).

In light of the impending

trial date and straightforward nature of the issues presented in
both motions, however, the Court exercises its discretion to
consider these motions on their merits.

See M.D.N.C. LR 83.4(b)

(“The imposition of sanctions for violation of a local rule is
discretionary with the Court.”); see also M.D.N.C. LR 7.3(k).

The

Court nevertheless cautions the parties to fully comply with both
the Rules and Local Rules in the future.
A. Protective Order Motion
Crisp seeks a protective order curtailing his deposition,
primarily on the grounds that the deposition imposes undue burdens
and is unnecessary.

(See Docket Entry 44 at 1.)

In particular,

Crisp objects to the “unilateral[] schedul[ing of] a deposition
. . . to be conducted more th[a]n thirty miles out of town from
where

he

resides.”

(Id.)

Crisp

further

objects

that,

“[D]efendants do not have the burden of proof and there is no need
for the [D]efendant[s] to seek discovery.”

(Id.)6

As a result,

6
Crisp also takes issue with Allied’s “fail[ure] and
refus[al] to designate a witness as required by the [R]ules.”
(Docket Entry 44 at 1; see also Docket Entry 54-4 at 17 (requesting
that “each defendant first designat[e] its witness and produc[e]
that witness at the same time and place of [Crisp’s] deposition”).)
The Rules do not oblige a corporate defendant to identify the
witness(es) that will testify on its behalf in a deposition prior
8

Crisp asks the Court to prohibit his deposition.

(See id. at 1.)7

In turn, Allied opposes the Protective Order Motion and seeks
recovery of “its attorneys’ fees associated with filing” its
opposition to that motion.

(Docket Entry 56 at 3.)

In our federal judicial system, each party possesses the right
to seek discovery on matters “relevant to any party’s claim or
defense.”

Fed. R. Civ. P. 26(b)(1).

As such, the fact that

“[D]efendants do not have the burden of proof” (Docket Entry 44 at
1) does not affect their right to pursue discovery, including by
deposing Crisp, as indeed the parties envisioned in the Report (see

to receiving the deposition notice. See Fed. R. Civ. P. 30(b)(6).
Instead, Rule 30(b)(6) requires that the party noticing the
deposition first identify the topics for the deposition, at which
point the corporate defendant must designate the witness(es) to
testify on its behalf. Id. (“In its notice . . ., a party may name
as the deponent a . . . corporation[] . . . or other entity and
must describe with reasonable particularity the matters for
examination. The named organization must then designate one or
more officers[] . . . [or] other persons who consent to testify on
its behalf . . . .” (emphasis added)).
7 The Protective Order Motion alternatively requests vague
and/or stringent limitations on the deposition. (See Docket Entry
44 at 2.) For example, the Protective Order Motion proposes that
the deposition proceed “only on specified terms and conditions,
including a designation of the time or place.” (Id.; see also id.
(appearing to propose ban on any subject other than Crisp’s “email
and telephone service accounts”).) Because Crisp has not shown
that Allied seeks improper discovery via deposition or that Allied
acted unreasonably in regard to scheduling the deposition, the
Court will deny that request. Nor does the Court find any basis to
establish restrictions about (i) who may attend the deposition,
(ii) the handling of any transcript of the deposition, or (iii) the
filing of documents. To the extent any matters warranting any form
of protection from disclosure come to light in the deposition, the
parties may seek appropriate relief.
9

Docket Entry 36 at 1).8

Thus, Crisp cannot avoid his deposition on

this basis.
In pursuing discovery, parties must act cooperatively and in
good faith.

See M.D.N.C. LR 26.1(b)(1) (mandating that litigants

“conduct discovery in good faith and . . . cooperate and be
courteous with each other in all phases of the discovery process”);
Mills v. East Gulf Coal Preparation Co., LLC, 259 F.R.D. 118, 130
(S.D. W. Va. 2009) (“The civil discovery process is to be engaged
in cooperatively.”); Wagner v. St. Paul Fire & Marine Ins. Co., 238
F.R.D. 418, 422 (N.D. W. Va. 2006) (observing that “[g]amesmanship”
in discovery “is not allowed”).

Nevertheless, the Rules generally

permit the party noticing the deposition to pick its time and
location.

See Fed. R. Civ. P. 30(b)(1).

Moreover, as a general

principle, a plaintiff’s deposition may proceed anywhere in the

8 In his Protective Order Motion, Crisp baldly asserts that
“[t]he depositions sought by the [D]efendants are intended for the
sole purpose of intimidating [Crisp].” (Docket Entry 44 at 1.)
Crisp provides no support for this assertion in the Protective
Order Motion. (See id. at 1-2.) Per his opposition to the Motion
to Compel, however, Crisp appears to base this assertion on his
contention that “[D]efendants do not have the burden of proof and
there is no need for them to conduct discovery.” (Docket Entry 57
at 1.) Allied, meanwhile, maintains that it needs the requested
discovery “to conduct a comprehensive investigation into this
matter and . . . properly defend itself.” (Docket Entry 53 at 2.)
Accordingly, as “[t]he purpose of discovery is to allow a broad
search for facts, the names of witnesses, or any other matters
which may aid a party in the preparation or presentation of his
case,” Fed. R. Civ. P. 26 advisory committee’s notes, 1946
Amendment Subdivision (b), the mere fact that Allied seeks
discovery from Crisp does not establish an intent to intimidate
him.
10

forum of the lawsuit, and a plaintiff must “bear any reasonable
burdens of inconvenience that the action represents.”

Carter

Hughes v. Research Triangle Inst., No. 1:11CV546, 2014 WL 4384078,
at *4 (M.D.N.C. Sept. 3, 2014) (internal quotation marks omitted).
Here, Allied noticed a deposition for Crisp within the Middle
District of North Carolina, at a location approximately 30 miles
from where Crisp resides.

(See Docket Entry 44 at 1; Docket Entry

54-1 at 1.) Allied provided nearly a month’s advance notice of the
deposition date.
expressed

some

(Docket Entry 54-1 at 1, 3.)
willingness

to

accommodate Crisp’s schedule.
Under

these

circumstances,

adjust

the

Defendants also

deposition

date

to

(See Docket Entry 54-4 at 18.)
Crisp’s

bare

contention

that

“[a]ttending the depositions would cause an unreasonable financial
and time burden” (Docket Entry 44 at 1) does not justify his
requested protective order.

Accordingly, the Court will deny the

Protective Order Motion.
Given this denial, the Rules generally mandate that the Court
award Allied its expenses, including attorney’s fees, incurred in
opposing the Protective Order Motion.

In particular, Rule 37

provides that:
If the motion is denied, the court . . . must, after
giving an opportunity to be heard, require the movant[]
. . . to pay the party . . . who opposed the motion its
reasonable expenses incurred in opposing the motion,
including attorney’s fees. But the court must not order
this payment if the motion was substantially justified or
other circumstances make an award of expenses unjust.

11

Fed. R. Civ. P. 37(a)(5)(B); see also Fed. R. Civ. P. 26(c)(3)
(“Rule 37(a)(5) applies to the award of expenses.”). A litigant is
“substantially justified” in opposing discovery “if there is a
‘genuine dispute’ or ‘if reasonable people could differ as to the
appropriateness of the contested action.’”

Pierce v. Underwood,

487 U.S. 552, 565 (1988) (citations and brackets omitted).9

Here,

Crisp waited nearly three weeks after Allied noticed his deposition
to raise concerns about that deposition, and then waited a further
week, until the day before the scheduled deposition, to submit his
wholly meritless Protective Order Motion.
at 17, 20-24, 34-35.)

(See Docket Entry 54-4

Under these circumstances, the Court will

award Allied its reasonable expenses in opposing the Protective
Order Motion.
B. Motion to Compel
Coordinately,

Allied

seeks

an

order

compelling

Crisp’s

deposition and “awarding Allied sanctions pursuant to Fed. R. Civ.
P. 37(b)(2)(A)(i)-(iv).”

(Docket Entry 53 at 2.)

Allied also

seeks an award of “attorneys’ fees associated with filing th[e
M]otion [to Compel] and appearing at [Crisp’s] deposition.”

(Id.)

Crisp opposes the Motion to Compel for the reasons underlying his

9 Rule 37 functions to “deter the abuse implicit in carrying
or forcing a discovery dispute to court when no genuine dispute
exists” as well as “to deter a party from pressing to a court
hearing frivolous requests for or objections to discovery.” Fed.
R. Civ. P. 37 advisory committee’s notes, 1970 Amendment
Subdivision (a)(4).
12

Protective Order Motion.

(Docket Entry 57 at 1-2.)

In addition,

Crisp challenges the joint nature of the scheduled deposition,
contending that, “[Defendants] are coordinating this [deposition]
with each other, but not with [Crisp] as required by the rules.
The sole purpose of this type of collaboration is to harass and
intimidate [Crisp].”

(Id. at 1.)

Finally, Crisp objects to the

Motion to Compel on the grounds that “[he] filed a timely motion
for protective order in response to the deposition notices . . .,
and it was post marked as required by the rules, but did not appear
on the docketing statement before the deposition date because it
was sent via mail as permitted by the rules.”

(Id. at 1-2.)10

None of the grounds Crisp advances precludes his deposition.
As discussed above, the reasons underlying Crisp’s Protective Order
Motion do not suffice to forestall his deposition.

In addition,

the dismissal of Collecto Defendants from this action (see Docket
Entry 55 at 13-14) moots Crisp’s objection to the joint nature of
the February 18, 2016 deposition.
the

Rules

envision

that

all

The Court notes, however, that

parties

who

seek

to

depose

individual in a case will participate in the same deposition.
Fed.

R.

Civ.

P.

30(a)(2)(A)(ii)

(conditioning

an
See

additional

depositions of individuals who have been previously deposed upon

10 In “Plaintiff’s Response to Motion to Compel,” Crisp asks
the Court to inquire into the alleged collaboration between
Defendants. (See Docket Entry 57 at 2.) Crisp has not shown any
basis for Court action in that regard.
13

leave of court or consent of all parties); Fed. R. Civ. P. 30(c)(3)
(“Instead of participating in the oral examination, a party may
serve written questions in a sealed envelope on the party noticing
the deposition, who must deliver them to the officer.

The officer

must ask the deponent those questions and record the answers
verbatim.”).

The Court will therefore order Crisp’s deposition.11

In addition to Crisp’s deposition, the Motion to Compel seeks
sanctions “pursuant to [Rule] 37(b)(2)(A)(i)-(iv).”
53 at 2.)

(Docket Entry

That Rule authorizes sanctions “[i]f a party . . . fails

to obey an order to provide or permit discovery.”
37(b)(2)(A).

Fed. R. Civ. P.

Allied identifies no basis for awarding sanctions

under Rule 37(b)(2)(A) (see Docket Entries 53, 58), and indeed none
exists, as the instant order constitutes the first such order in
this case (see Docket Entries dated Apr. 8, 2015, to present). The

11
Crisp maintains that the purpose of Defendants
“undertak[ing] depositions of [Crisp] . . . in addition to asking
him discovery questions simultaneously, at the very limits of the
time permitted for discovery” was “to intimidate and harass [him].”
(Docket Entry 57 at 1.) The Rules permit litigants to pursue both
written and deposition discovery.
See, e.g., Fed. R. Civ. P.
30(b)(2) (“The notice to a party deponent may be accompanied by a
request under Rule 34 to produce documents and tangible things at
the deposition.”).
Thus, Collecto Defendants’ pursuit of both
written and oral discovery within the discovery period does not
itself establish that Defendants acted improperly in pursuing
discovery.
Moreover, as with Crisp’s objection to the joint
deposition, Collecto Defendants’ dismissal from this litigation
moots Crisp’s objection regarding simultaneous written and oral
discovery.
14

Court

accordingly

denies

Allied’s

request

for

Rule

37(b)

sanctions.12
Finally, Allied seeks attorney’s fees for the Motion to Compel
and for appearing at Crisp’s deposition.
2.)

(See Docket Entry 53 at

Rule 37(a)(5) authorizes expense-shifting for successful

motions to compel, and Rule 37(d) authorizes expense-shifting where
a party fails to appear at a properly noticed deposition. However,
both rules prohibit expense-shifting if the noncompliant party’s
actions were “substantially justified or other circumstances make
an award of expenses unjust.”

Fed. R. Civ. P. 37(d)(3); accord

Fed. R. Civ. P. 37(a)(5)(A)(ii)-(iii). Additionally, Rule 37(a)(5)
prohibits such expense-shifting if “the movant filed the motion
before attempting

in

good

faith

discovery without court action.”

to

obtain

the

disclosure or

Fed. R. Civ. P. 37(a)(5)(A)(i).

In evaluating the propriety of expense-shifting, the Court
first notes

that

Allied (rightly)

has

not

certified

that

it

attempted to resolve this controversy without court intervention,
a prerequisite to awarding such expenses under Rule 37(a)(5). (See

12
Rule 37(d) authorizes imposition of sanctions for a
litigant’s failure to participate in discovery. See 37(d)(1)(A).
Those “[s]anctions may include any of the orders listed in Rule
37(b)(2)(A)(i)-(vi).” Fed. R. Civ. P. 37(d)(3). Although Allied
does not reference Rule 37(d) in any of its filings (see Docket
Entries 52, 53, 54, 56, 58), the Court will address the propriety
of Rule 37(d) sanctions in evaluating the Motion to Compel. The
Court notes, however, that seeking sanctions pursuant to one Rule
does not equate to seeking, under the authority of a different
Rule, the type of sanctions “listed in” that first Rule.
15

Docket Entries 53, 54, 58.)

Through the Deposition Letter, Allied

learned of Crisp’s views regarding his deposition no later than
February 10, 2016.

(See Docket Entry 54 at 1; Docket Entry 54-4 at

10, 18.) Allied did not respond, and Collecto Defendants generally
refused to accede to Crisp’s demands. (See, e.g., Docket Entry 544 at 18.)

Crisp then waited until February 17, 2016, the day

before his scheduled deposition, to provide his Protective Order
Motion to Defendants (and to mail it to the Court).

(See id. at

20-24; Docket Entries 44, 44-1.)
Around midday on February 17, 2016, Allied received a faxed
copy of Crisp’s Protective Order Motion.

(See Docket Entry 54 at

2; see also Docket Entry 54-2.) Shortly before two that afternoon,
Allied responded to Crisp’s fax as follows: “[Defendants’ lawyers]
received your fax.

As there does not appear to be a pending motion

before the [C]ourt on your request for a protective order, we
intend to move forward tomorrow as scheduled.”
at 1.)

(Docket Entry 54-3

Crisp apparently did not respond to that email, prompting

Allied to contact him around 6:30 that evening to inquire whether
he planned to attend the scheduled deposition.
at 8, 26-27.)

(Docket Entry 54-4

Shortly before nine that night, Crisp informed

Defendants that he was at the hospital with a family member and
would not appear at the deposition.

(See id. at 26.)

Crisp did

not mention this medical situation in his Protective Order Motion.
(See Docket Entry 44; see also Docket Entry 54-4 at 9.)

16

Finally,

in the six days between learning of this medical situation and
filing the Motion to Compel, Allied evidently did not attempt to
communicate

with

Crisp

about

possibility of rescheduling it.

his

deposition,

including

the

(See generally Docket Entries 52,

53, 54, 54-4, 56, 58.)
As the above analysis of the Protective Order Motion and
Motion to Compel demonstrates, Crisp’s objections to the deposition
may have arisen from simple confusion regarding the scope and
nature of discovery under the Rules.

Although pro se status does

not exempt litigants from compliance with discovery obligations,
see Garity v. Donahoe, No. 2:11CV01805, 2014 WL 1168913, at *6 (D.
Nev. Mar. 21, 2014) (explaining that “pro se status does not
relieve

[litigants]

of

obligations

to

comply

with

discovery

rules”), pro se litigants generally lack the understanding and
expertise regarding court procedures and rules that attorneys
possess.

That

consideration

highlights

the

significance

of

Allied’s failure to comply with its conferral obligations, see,
e.g.,

M.D.N.C.

LR

37.1(a).

Specifically,

Defendants

could

conceivably have avoided this discovery dispute by engaging in a
meaningful

consultation

with

Crisp

regarding

his

objections.

See Hernandez v. Hendrix Produce, Inc., 297 F.R.D. 538, 540 n.3
(S.D. Ga. 2014) (recognizing that “meaningful consultation can lead
to informal resolution and thus conservation of court resources”).
For example, Defendants could have referred Crisp to the pertinent

17

Rules authorizing Defendants’ contested behavior — a procedure
routinely employed in negotiating discovery disputes, see, e.g.,
Dillon v. BMO Harris Bank, N.A., Case No. 1:13cv897, Docket Entries
164-2,

164-3

(M.D.N.C.

Sept.

11,

2015)

(explaining

party’s

discovery position and supporting authority).13
Under

these

circumstances,

the

Court

declines

expenses to Allied regarding the Motion to Compel.
the Court

remains

troubled

by

the

to

award

Nevertheless,

belated nature

of

Crisp’s

Protective Order Motion and notification to Defendants — only in
response to Allied’s inquiry — that Crisp would not attend the
scheduled deposition.

In addition, the current record provides

insufficient information regarding Crisp’s family medical situation
to establish whether this matter arose after Crisp faxed his
Protective Order Motion to Defendants or whether it constituted a
preexisting

circumstance

that

merited

earlier

disclosure.

Accordingly, the Court will direct Crisp to show cause as to why he
should not be required to pay Allied’s reasonable attorney’s fees
arising from his failure to attend his scheduled deposition on
February 18, 2016.

See Fed. R. Civ. P. 37(d).

13 Even if such consultation had not obviated the need for
judicial intervention, it well may have revealed whether Crisp
acted from a desire to thwart discovery rather than from genuine
confusion.
18

C. Extension Motion
Finally, Allied asks the Court “to extend . . . Allied’s
deadline to complete discovery so that the deposition of [Crisp]
can be completed.”

(Docket Entry 52 at 2.)

Allied additionally

requests that the Court “extend[] the deadline for [D]efendants
[to] complete discovery sixty (60) days from the entry of the
orders resolving all pending motions.”
respond to the Extension Motion.
23, 2016, to present.)

(Id. at 2.)

Crisp did not

(See Docket Entries dated Feb.

Thus, pursuant to Local Rule 7.3(k), the

Extension Motion “ordinarily [would] be granted without further
notice.”
The circumstances of this case, however, do not warrant the
requested sixty-day extension.
that

parties

commence

This Court’s Local Rules mandate

discovery

in

sufficient

completion within the discovery period.
Local

Rules

further

provide

that

any

time

for

its

M.D.N.C. LR 26.1(c). The
“[m]otion[]

seeking

an

extension of the discovery period . . . . must set forth good cause
justifying the additional time and will be granted or approved only
upon a showing that the parties have diligently pursued discovery.”
M.D.N.C. LR 26.1(d).

Here, barely a month before the discovery

period ended, Allied noticed Crisp’s deposition for a date only
three business days before discovery closed. (See Docket Entry 541.)

Allied neither sought written discovery in connection with

that deposition (see id.) nor scheduled the deposition sufficiently

19

in advance of the discovery deadline to enable Allied to pursue
written discovery following the deposition, see, e.g., Fed. R. Civ.
P.

34(b)(2)(A)

(establishing

production requests).
for

the

declines

requested
to

extend

thirty-day

response

period

for

As such, Allied has not shown “good cause”

sixty-day
the

extension.

discovery

The

period

Court

beyond

therefore

authorizing

completion of Allied’s deposition of Crisp in accordance with the
Deposition Notice.
CONCLUSION
Crisp has failed to justify a protective order prohibiting his
deposition,

which

the

Rules

authorize

Allied

to

conduct.

Accordingly, Crisp must sit for his deposition and Allied should
recover its expenses associated with opposing the Protective Order
Motion.

Further, Crisp must show cause why the Court should not

award further

expenses

related

previously scheduled deposition.

to

his

failure

to

attend

his

Conversely, Allied has failed to

justify its requests for Rule 37(b) sanctions, expense-shifting for
the Motion to Compel, and a sixty-day extension of the discovery
period.
IT IS THEREFORE ORDERED that the Protective Order Motion
(Docket Entry 44) is DENIED.
IT IS FURTHER ORDERED that the Motion to Compel (Docket Entry
53) is GRANTED IN PART and DENIED IN PART as follows:

no later

than June 3, 2016, Crisp shall appear for his deposition at a date,
20

time, and location properly noticed by Allied, after reasonable
efforts to consult with Crisp.

Allied may not demand any written

discovery, including production of documents, from Crisp.
IT IS FURTHER ORDERED that, on or before May 27, 2016, Allied
shall serve Crisp with a statement setting out the expenses that
Allied incurred (i) in responding to the Protective Order Motion
and

(ii)

in

attending

Crisp’s

February

18,

2016

deposition.

Failure by Allied to comply with this Order will result in denial
of any related expense-shifting.
IT IS FURTHER ORDERED that, if Allied timely serves such a
statement of expenses, Crisp shall file, on or before June 10,
2016, a Memorandum of no more than ten pages explaining (i) why
Crisp should not have to pay the expenses Allied incurred in
attending the February 18, 2016 deposition and (ii) any objections
Crisp wishes to present regarding the reasonableness of the claimed
expenses,

along

with

a

certification

that

the

parties

have

attempted in good faith to resolve any disagreement over the
reasonableness of the claimed expenses. Failure by Crisp to comply
with this Order may result in the Court ordering, upon the filing
of a Notice by Allied of its reasonable expenses as contained in
the statement it served upon Crisp, the payment of such expenses by
Crisp.
IT IS FURTHER ORDERED that, on or before June 24, 2016, Allied
may file a Response of no more than five pages to any Memorandum
21

timely filed by Crisp contesting the reasonableness of the claimed
expenses.

Failure by Allied to comply with this Order will result

in denial of any expenses contested by Crisp as unreasonable.
IT IS FURTHER ORDERED that, on or before July 8, 2016, Crisp
may file a Reply of no more than three pages to any Response timely
filed

by

Allied

regarding

the

reasonableness

of

the

claimed

expenses.
IT IS FURTHER ORDERED that, upon completion of the foregoing
briefing or the time period for such briefing, the Clerk shall
refer this matter back to the undersigned Magistrate Judge for
further action.
IT IS FURTHER ORDERED that the Extension Motion (Docket Entry
52) is GRANTED IN PART and DENIED IN PART as follows:

Allied may

take Crisp’s deposition on or before June 3, 2016.

Allied may

pursue no additional discovery without leave of Court.
This 12th day of May, 2016.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

22