Billips v. NC Benco Steel, Inc.
Filing
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ORDER granting in part and denying in part dft's 17 Mot/Compel and for Sanctions and for Expedited Hearing and/or Decision: denying as moot 17 Motion to Compel plf to attend his deposition; granting 17 Motion for Sa nctions; denying as moot 17 Motion for Expedited Hearing/Decision. It is further ordered that plf's cnsl, Lena Watts-Robinson, shall pay dft's cnsl, H. Bernard Tisdale, III, for expenses related to the instant motion in the amt of $2,500.00 as soon as possible, but not later than 8/31/2011. Signed by Magistrate Judge David Keesler on 8/8/2011. (cbb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:10-CV-095-RLV-DCK
LOUIS H. BILLIPS, JR.,
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Plaintiff,
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v.
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NC BENCO STEEL, INC.,
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Defendant.
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___________________________________ )
ORDER
THIS MATTER IS BEFORE THE COURT on “Defendant’s Motion To Compel And For
Sanctions And For Expedited Hearing And/Or Decision” (Document No. 17) filed July 1, 2011.
This motion has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b),
and is ripe for disposition. Having carefully considered the motion, the record, applicable authority,
and the arguments of counsel at a motions hearing on August 3, 2011, the undersigned will grant
the motion.
BACKGROUND
Plaintiff Louis H. Billips, Jr. (“Plaintiff”) filed his “Complaint” (Document No. 1) on July
22, 2010, pursuant to Title VII, alleging race discrimination, racial harassment, retaliatory discharge,
negligent/intentional infliction of emotional distress, and negligent retention and supervision, while
employed by Defendant NC Benco Steel, Inc. (“Defendant”).
On June 29, 2011, Plaintiff’s counsel deposed Ron Borders, Vice President of Benco Steel
(“Mr. Borders”), at the offices of Defendant’s counsel. Plaintiff was present, as well as Plaintiff’s
counsel Lena Watts-Robinson, Defendant’s counsel H. Bernard Tisdale, III, and a court reporter.
Defendant’s owner, Judy White (“Ms. White”), attended as Defendant’s representative for the
deposition of Mr. Borders. The parties disagree as to whether they entered into a stipulation
pursuant to Federal Rule 29 at Mr. Borders’ deposition, that Ms. White would be “the”
representative for Defendant at all future depositions.
The parties arrived at the same location the next day, June 30, 2011, for Defendant’s
deposition of Plaintiff. Apparently, all the same individuals were present as had attended Mr.
Border’s deposition. Defendant’s counsel requested that Ms. White be allowed to attend Plaintiff’s
deposition, but expressed an intention that Mr. Borders would be Defendant’s representative at
Plaintiff’s deposition. Plaintiff’s counsel opposed Mr. Borders’ attendance at Plaintiff’s deposition
and has expressed shock and confusion by Defendant’s counsel’s conduct, which she contends was
in bad faith and breached the parties’ purported stipulation regarding Defendant’s representative.
(Document No. 21, p.3). Plaintiff’s counsel then “mistakenly cited Rule 30(b)(6) as the grounds for
her position.” (Document No. 21, p.3). Once it was clear that Defendant intended to go forward
with Mr. Borders as its representative, Plaintiff’s counsel refused to proceed with Plaintiff’s
deposition or to make an objection on the record. At her instruction, Plaintiff and his counsel then
left the premises.
Defendant filed the pending motion to compel, for an expedited hearing and/or decision, and
for sanctions, on July 1, 2011. On July 5, 2011, the Court issued an Order (Document No. 20)
giving notice that it would not hold an expedited hearing on the motion, and encouraging the parties
to make reasonable efforts to complete discovery on schedule. In an effort to comply with the
Court’s Order, on July 15, 2011, the final day of discovery, Plaintiff was deposed at his counsel’s
office with Ms. White, not Mr. Borders, attending as Defendant’s representative.
The pending motion was fully briefed and ripe for disposition as of July 28, 2011. Based
on the foregoing, Defendant’s motion has been narrowed to one solely seeking sanctions. On July
29, 2011, the Court issued an Order (Document No. 23) setting a hearing on the motion for August
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3, 2011. Pursuant to the Court’s Order setting this matter for a hearing, Defendant’s counsel filed
an affidavit and itemized statement on August 2, 2011, alleging that Defendant has incurred a total
of $7,619.70 in expenses related to attendance at the aborted deposition and the subsequent motion.
Defendant’s counsel and Plaintiff’s counsel appeared at the motions hearing on August 3,
2011, and presented oral arguments in support of their positions on the instant motion. The
undersigned took the matter under advisement following the parties’ arguments, and the motion for
sanctions is now ripe for disposition.
STANDARD OF REVIEW
Rules 30 and 37 of the Federal Rules of Civil Procedure appear to provide the appropriate
authority for an analysis of the issues before the Court. The Rules, in most pertinent part, provide
as follows.
Fed.R.Civ.P. 30 Depositions by Oral Examination
Objections. An objection at the time of the examination--whether to
evidence, to a party's conduct, to the officer's qualifications, to the
manner of taking the deposition, or to any other aspect of the
deposition -- must be noted on the record, but the examination
still proceeds; the testimony is taken subject to any objection. An
objection must be stated concisely in a nonargumentative and
nonsuggestive manner. A person may instruct a deponent not to
answer only when necessary to preserve a privilege, to enforce a
limitation ordered by the court, or to present a motion under Rule
30(d)(3).
Fed.R.Civ.P. 30(c)(2) (emphasis added).
Sanction. The court may impose an appropriate sanction -- including
the reasonable expenses and attorney’s fees incurred by any party -on a person who impedes, delays, or frustrates the fair examination
of the deponent.
Fed.R.Civ.P. 30(d)(2).
Fed.R.Civ.P. 37 Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
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(A) If the Motion Is Granted (or Disclosure or Discovery Is
Provided After Filing). If the motion is granted--or if the disclosure
or requested discovery is provided after the motion was filed--the
court must, after giving an opportunity to be heard, require the
party or deponent whose conduct necessitated the motion, the
party or attorney advising that conduct, or both to pay the movant's
reasonable expenses incurred in making the motion, including
attorney's fees. But the court must not order this payment if:
(i) the movant filed the motion before attempting in good faith
to obtain the disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or objection
was substantially justified; or
(iii) other circumstances make an award of expenses unjust.
Fed.R.Civ.P. 37(a)(5) (emphasis added).
Grounds for Sanctions. The court where the action is pending may,
on motion, order sanctions if:
(i) a party or a party’s officer, director, or managing agent -- or
a person designated under Rule 30(b)(6) or 31(a)(4) -- fails, after
being served with proper notice, to appear for that person’s
deposition . . . .
Fed.R.Civ.P. 37(d)(1)(A) (emphasis added).
Types of Sanctions. Sanctions may include any of the orders listed
in Rule 37(b)(2)(A)(i)-(iv). Instead 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 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.
Fed.R.Civ.P. 37(d)(3).
DISCUSSION
Defendant contends it should be awarded attorneys’ fees and costs associated with
attendance at the attempted deposition of Plaintiff on June 30, 2011 and for the preparation of the
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pending “...Motion To Compel And For Sanctions...” (Document No. 17). (Document No. 18, pp.67). In support of its motion, Defendant cites Rule 30(d)(2), which allows the Court to impose
appropriate sanctions “on a person who impedes, delays, or frustrates the fair examination of the
deponent.” (Document No. 18, p.7). Defendant also relies on Rule 37(a), claiming that it is entitled
to its expenses, including attorney’s fees, incurred in making the pending motion and that Rule 37
creates a rebuttable presumption in favor of such sanctions. Id. (citing Fed.R.Civ.P. 37(a)(5)(A)
and Pitrolo v. County of Buncombe, 1:06cv199-MR-DLH, 2007 WL 1041193 at *2 (W.D.N.C. Apr.
4, 2007) (“an award to the prevailing party on a Motion to Compel is mandated by the Federal
Rules”)).
In response, Plaintiff alleges that it was stipulated on the morning of June 29, 2011, prior to
Mr. Borders’ deposition, that Judy White was “the representative and owner of Benco Steel.”
(Document No. 21, p.2). Plaintiff’s counsel asserts that Defendant’s counsel acted in “bad faith”
on June 30, 2011, when he informed her that Mr. Borders would be Defendant’s representative at
Plaintiff’s deposition. (Document No. 21, p.3). Plaintiff’s counsel concedes that on June 30, 2011,
she “mistakenly cited Rule 30(b)(6) as the grounds for her position.” Id. She “later learned that the
intended rule was Rule 29.” Id.
Plaintiff’s counsel argues that there was no violation of Rule 30(c)(2), requiring objections
at the time of examination to be put on the record, because “there was no examination being
conducted.” (Document No. 21). She further argues that “there was no examination and no
objection, only a dispute about the stipulation . . . Therefore, there is no violation under Rule
30(c)(2).” (Document No. 21, p.4). At the hearing, Plaintiff’s counsel also denied the applicability
of Rule 37 to the circumstances. Plaintiff’s counsel specifically denies that Plaintiff “failed to
appear”for his deposition. Plaintiff’s counsel concludes that sanctions are not appropriate because
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Plaintiff did not intentionally violate any rules of law, but that Defendant should pay Plaintiff’s
reasonable costs and fees for preparing a response to the instant motion. (Document No. 21, p.7).
Defendant argues that there was never any agreement or Rule 29 stipulation between the
parties regarding Defendant’s representative at depositions after June 29, 2011. (Document No. 22,
p.2). Moreover, Defendant contends that Plaintiff’s brief in response to the instant motion was “the
first time Defendant ever heard of any ‘stipulation,’ whether related to discovery or otherwise.”
(Document No. 22, p.4). Defendant asserts that a Rule 29 stipulation requires an actual agreement
between the parties and that “one party’s understanding does not create a valid stipulation.” Id.
(quoting 6-29 Moore’s Fed. Prac. - Civil § 29.05).
Defendant also makes a compelling argument that Plaintiff’s position that the “time of the
examination” had not arrived is unavailing where the parties have appeared at the time, date and
place of a properly noticed deposition, are sitting at a table where the deposition is to proceed with
a court reporter set up and ready to go, and Plaintiff’s counsel is voicing objections relating to the
deposition, to which Defendant’s counsel is responding. (Document No. 22, p.3).
Defendant notes that Plaintiff has admitted that her objection based on Rule 30 was a mistake
and argues that Plaintiff’s actions have needlessly caused Defendant to incur substantial fees and
costs associated with the deposition and pending motion. (Document No. 22, pp.6-7). Defendant
contends it incurred significant time and expense researching the invalidity of Plaintiff’s 30(b)(6)
objection, only to learn in the response that Plaintiff had abandoned that Rule as grounds for his
position. Id.
The undersigned finds language from a case cited by Defendant to be especially applicable
to the instant dispute:
Litigation at times can be trying. However, it is at the intersection of
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frustration and demand that the wise lawyer will check two axioms:
(1) collegiality can displace cost, and (2) know the rules. The failure
to heed these two universal principles gives rise to the current
controversy.
Pioneer Drive, LLC v. Nissan Diesel, 262 F.R.D. 552, 553-554 (D.Mont. 2009). That decision went
on to further opine that:
Given the protective provisions of the Rules, counsel is ill advised to
invoke obstinance as opposed to collegiality. An even better option
is to read the Rules before the deposition or at least do so when a
potentially acrimonious issue arises.
Pioneer Drive, 262 F.R.D. at 556.
The undersigned finds that Plaintiff’s counsel erred in her reaction to the circumstances of
Plaintiff’s deposition on June 30, 2011. Moreover, she has continued to deny her mishandling of
the situation despite the weight of the evidence and relevant legal authority. The undersigned is
persuaded that the law plainly provides that Plaintiff should have put any objection on the record,
including one based on an alleged stipulation, and then proceeded with the deposition as scheduled.
The undersigned does not find that Plaintiff’s counsel acted in bad faith; it appears more likely that
inexperience, emotion, and zealous advocacy contributed to the underlying dispute. Nevertheless,
even absent bad faith, Plaintiff’s counsel’s acted willfully in failing to comply with the rules of
discovery, and undoubtedly added to Defendant’s expenses.
Plaintiff’s counsel has failed to provide any evidence of the alleged Rule 29 stipulation that
she contends precluded Mr. Borders’ attendance at Plaintiff’s deposition. Although the Court will
give her the benefit of the doubt that she interpreted Defendant’s counsel’s remarks to somehow
represent that Ms. White would be the only representative of Defendant, the facts and circumstances
strongly suggest that she misunderstood Defendant’s counsel. It appears that Plaintiff’s counsel first
informed Defendant’s counsel that her objection to Mr. Borders’ representation was based on Rule
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29, in her response to the pending motion on July 18, 2011. Plaintiff’s counsel’s delay in
articulating her objection casts further doubt on her claim that there was such a stipulation, and
effectively prevented the parties from resolving this dispute without Court intervention. The
undersigned is not persuaded that there was ever any agreement regarding Defendant’s
representatives – beyond who was attending the deposition of Mr. Borders on the day of the alleged
agreement, June 29, 2011.
Although Plaintiff’s counsel suggested at the motions hearing that her client was not
prepared to proceed with his deposition with Mr. Borders in the room, she has not claimed to have
informed Defendant’s counsel of that concern. Moreover, Plaintiff’s counsel has not argued that
her client’s discomfort with Mr. Borders was substantial justification to cancel the deposition and
the undersigned finds it unlikely that such an argument could be supported. In litigation, it is
undoubtedly the norm, rather than the exception, that opposing parties have some level of discomfort
or tension when they are around each other. Here, where the same individuals had all been together
the day before, and Plaintiff had chosen to attend Mr. Borders’ deposition, Plaintiff’s alleged “shock
and confusion” at Mr. Borders’ presence seems a bit overstated.
Even if the parties had entered into a stipulation, Plaintiff’s counsel failed to cite Rule 29 as
a reason not to proceed with Plaintiff’s deposition on June 30, 2011, and then failed to seek a
protective order or other assistance from the Court. As the Court observed at the motion hearing,
if counsel for the parties had called the undersigned’s chambers at the time the dispute arose, this
situation, and costly motions practice, might have been avoided.
Plaintiff’s counsel has since failed to cite any legal authority to support her position that Rule
29, or one party’s belief that a stipulation had been entered into, is substantial justification to walk
away from a deposition. To the contrary, Rule 30 provides that if a party objects to any aspect of
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a deposition, such objection must be noted on the record and the examination still proceeds.
Fed.R.Civ.P. 30(c)(2).
The undersigned finds that Rule 30 is most applicable to the instant motion and that
sanctions are appropriate because Plaintiff’s counsel impeded, delayed, and/or frustrated the fair
examination of the deponent, her client. “Sanctions may be imposed by the Court on a party who
refuses to appear for a properly noticed deposition.” White v. McHugh, 2010 WL 4340399 at *1
(D.S.C. 2010) (citing Rule 30(d)(2)); see also, Higginbotham v. KCS Intern., Inc., 202 F.R.D. 444,
459 (D.Md. 2001). “Although Rule 30(d)(2) does not define the phrase ‘appropriate sanction,’ the
imposition of discovery sanctions is generally within the sound discretion of the trial court.”
Francisco v. Verizon South, Inc., 756 F.Supp.2d 705, 712 (E.D.Va. 2010) (citing Nat'l Hockey
League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642 (1976); GMAC Bank v. HTFC Corp., 248
F.R.D. 182, 185 n.4 (E.D.Pa. 2008)).
The undersigned is not persuaded by Plaintiff’s argument that there was no “time of the
examination,” and therefore, Plaintiff was under no obligation to proceed with the deposition. If the
Court did accept this argument, then in the alternative to Rule 30(d)(2), sanctions would most likely
also be warranted pursuant to Rule 37(d)(1)(A) for Plaintiff’s failure to appear for his deposition
after being served with proper notice. In short, either Plaintiff appeared at his examination and
contrary to the rules failed to proceed, or he failed to appear. Either interpretation supports the
imposition of sanctions.
Finally, the undersigned further observes that Plaintiff’s counsel’s conduct at the recent
hearing was concerning. Diligent advocacy is expected. However, Plaintiff’s counsel made
accusations that Defendant’s counsel was deliberately misleading the Court, and that his actions
regarding the instant dispute were shaped by racial animus towards her personally. Such accusations
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were unnecessarily inflammatory and inappropriate. This Court is – as it should be – accustomed
to greater respect and collegiality between members of the Bar, even in highly contentious lawsuits.
Based on the totality of circumstances before the Court, the undersigned finds that sanctions
against Plaintiff’s counsel are appropriate because she impeded, delayed, and frustrated the fair
examination of her client. The sanctions as set forth below are intended to deter Plaintiff’s counsel
from similar conduct in the future, and to compensate Defendant for some of its expenses. The
sanctions awarded are significantly less than the Court might have awarded because the undersigned
is convinced that the underlying dispute was created by an error in judgment and/or a misreading
of applicable law, rather than bad faith.
CONCLUSION
IT IS, THEREFORE, ORDERED that “Defendant’s Motion To Compel And For
Sanctions And For Expedited Hearing And/Or Decision” (Document No. 17) is GRANTED in part,
and DENIED in part, as follows: the request to compel Plaintiff to attend his deposition is
DENIED AS MOOT; the request for an expedited hearing/decision is DENIED AS MOOT; and
the request for sanctions is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s counsel, Lena Watts-Robinson, shall pay
Defendant’s counsel, H. Bernard Tisdale, III, for expenses related to the instant motion in the total
amount of two thousand five hundred dollars ($2,500.00), as soon as possible, but not later than
August 31, 2011.
Signed: August 8, 2011
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