Lovison et al v. Gleason et al
Filing
29
Memorandum Opinion and Order granting 24 MOTION for Sanctions (See order for specifics) (Ordered by Magistrate Judge David L Horan on 6/26/2015) (mcrd)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JASON WALTER LOVISON, ET AL.,
§
§
Plaintiffs,
§
§
V.
§
§
PATRICK LANGHAM GLEASON, M.D., §
ET AL.,
§
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Defendants.
§
No. 3:14-cv-1517-P
MEMORANDUM OPINION AND ORDER
Defendants Patrick Langham Gleason, M.D. and Norcentex Neocortex, PLLC
(collectively, “Defendants”) have filed a Motion for Sanctions, seeking an order
sanctioning counsel for Plaintiff Jason Walter Lovison and Darlene Lovison under
Federal Rule of Civil Procedure 37(d). See Dkt. No. 24. Chief Judge Jorge A. Solis has
referred the motion to the undersigned United States magistrate judge for
determination, pursuant to 28 U.S.C. § 636(b) and an order of reference. See Dkt. No.
25. Plaintiff has filed a response, see Dkt. No. 26, and Defendants have filed a reply,
see Dkt. No. 27.
The Court GRANTS Defendants’ Motion for Sanctions [Dkt. No. 24] for the
reasons and to the extent explained below.
Background
The following facts are undisputed.
Plaintiff filed this medical liability action alleging that Dr. Gleason was
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negligent in performing spinal surgery on Plaintiff on April 27, 2012. See Dkt. No. 1.
After some communications between the parties’ counsel or counsel’s staff in
November and December 2014 regarding scheduling the depositions of Jason and
Darlene Lovison and Dr. Joel Hoekema, Mr. Lovison’s subsequent treating physician,
Defendants served Plaintiffs’ counsel on January 7, 2015 with notices for the
depositions of Jason Walter Lovison, Darlene Lovison, and Dr. Joel Hoekema. See Dkt.
Nos. 24-1, 24-2, 24-3, & 24-4. Defendants noticed Jason Walter Lovison’s and Darlene
Lovison’s depositions for Friday, February 6, 2015 at 10:00 a.m. and 1:00 p.m.,
respectively, at the Hilton Seattle Airport in Seattle, Washington and Dr. Hoekema’s
deposition for Monday, February 9, 2015 at 10:00 a.m. at the Northgate Community
Center in Seattle, Washington. See Dkt. Nos. 24-2, 24-3, & 24-4.
On the morning of February 6, 2015, after Defendants’ counsel had already
traveled to Seattle, Washington, Plaintiffs’ counsel sent Defendants’ counsel an email
stating: “I just notice[d] that the notices you [sent] over have it backwards (Hoekema
Monday). Please call ASAP....” Dkt. No. 24-5. Plaintiffs’ counsel never objected to the
notices, filed a motion to quash, or contacted Defendants’ counsel prior to this time to
arrange an alternate deposition schedule.
When counsel spoke by phone after Plaintiffs’ counsel sent this early-morning
email, Plaintiffs’ counsel attempted to reschedule the depositions, stating that Dr.
Hoekema was only available on February 6, 2015, that Plaintiffs would not be available
for their depositions on February 6 but could be deposed on February 9, and that there
was miscommunication on the date for Dr. Hoekema’s deposition. Defendants’ counsel
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refused to take Dr. Hoekema’s on February 6, in advance of Plaintiffs’ depositions, and
no depositions were taken on February 6, 2015.
At 10:00 a.m. on February 6, 2015, Defendants’ counsel made a record with the
court reporter of Plaintiffs’ failure to appear that day for their depositions at the
noticed location for the depositions, which resulted in the court reporter’s issuing the
following Affidavit of Nonappearance:
I, John M.S. Botelho, Certified Court Reporter in and for the State
of Washington, do hereby certify, to the following facts, to wit:
That on the 7th day of January, 2015, an Amended Notice of
Intention to Take Oral Deposition and Subpoena Duces Tecum was
forwarded by certified mail, return receipt requested, to Plaintiffs’
counsel of record, Mr. James E. Girards, to take the Oral Depositions of
JASON LOVISON and DARLENE LOVISON in the above-styled cause;
That on the 6th day of February, 2015, at 10:00 a.m., I personally
appeared at the Hilton Seattle Airport, located at 17620 International
Boulevard, Seattle, Washington, for the purpose of reporting the Oral
Depositions of the witnesses on behalf of the Defendants, pursuant to
said Notices, and that Counsel for the Defendants, Ms. Svatek, also
appeared;
That at 10:00 a.m., on February 6, 2015, the following statements
were entered into the record;
MS. SVATEK: My name is Caleena Svatek, and I’m here on behalf
of Defendants Patrick Langham Gleason, M.D., and Norcentex Neocortex,
PLLC. I’m here today to take the deposition of Jason Walter Lovison and
Darlene Lovison, both Plaintiffs in the – in this lawsuit. The Deposition
Notice was sent to Plaintiffs’ counsel on January 7th, 2015. In that
Notice, we agreed to meet on February 6, 2015, at the Hilton Seattle
Airport, address 17620 International Boulevard, in Seattle, Washington,
at 10 a.m.
At this time, I am here at the Hilton Seattle Airport. It is 10 a.m.,
and Plaintiffs’ counsel is not present, as well as both Plaintiffs in this
lawsuit. I would like to get a Certificate of Nonappearance.
I received a phone call this morning from Plaintiffs’ counsel, Jim
Girards, just a few hours before this scheduled deposition. He informed
me that he read the Notice incorrectly and Mr. and Mrs. Lovison would
not be here today but could have their deposition taken on Monday.
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Plaintiffs’ counsel attempted to have the treating physician, Dr.
Hoekema – his deposition is scheduled for Monday. He attempted to have
that deposition taken today instead, which is out of order of the
witnesses, as well as not noticed or previously agreed to. Defense counsel
was not prepared to take the deposition of the treating physician out of
order and believes that his – that my clients are entitled to an adequate
defense, and that vital to this defense is to know the Plaintiffs’
allegations prior to taking any deposition of any physician that has
treated Plaintiff in this case.
Plaintiffs’ counsel attempted to thwart this entire process by
switching the order of the depositions at the very last minute. Defense
counsel will be seeking attorney’s fees and expenses for the time wasted
by Plaintiffs’ counsel in not appearing at this deposition today as
previously scheduled.
I’m going to enter into evidence or as exhibits Defendants’ 1, which
is the Deposition Notice of Jason Walter Lovison, and Defense Exhibit 2,
the Deposition Notice for Darlene Lovison.
That I remained at the place aforesaid until 10:03 a.m., at which
time the witnesses had not appeared.
Dkt. No. 24-6.
Jason Walter Lovison’s and Darlene Lovison’s depositions were conducted on
February 9, 2015.
Plaintiffs’ counsel also made Dr. Hoekema available for deposition at 4:00 p.m.
on February 9, 2015. But Defendants’ counsel refused to proceed with Dr. Hoekema’s
deposition at that time because Defendants’ counsel had obligations in Dallas, Texas
on February 10, 2015, which would not allow time to take the deposition and return
to Dallas that night. At 9:41 a.m. on February 9, 2015, Defendants’ counsel made a
record with the court reporter of Dr. Hoekema’s failure to appear that day for his
deposition at the noticed location for the deposition, which resulted in the court
reporter’s issuing the following Affidavit of Nonappearance:
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I, John M.S. Botelho, Certified Court Reporter in and for the State
of Washington, do hereby certify, to the following facts, to wit:
That on the 7th day of January, 2015, a Notice of Intention to Take
Oral Deposition and Subpoena Duces Tecum was forwarded by certified
mail, return receipt requested, to Plaintiffs’ counsel of record, Mr. James
E. Girards, to take the Oral Deposition of JOEL HOEKEMA, M.D., in the
above-styled cause;
That on the 9th day of February, 2015, at 9:41 a.m., I personally
appeared at the Northgate Community Center, located at 10510 Fifth
Avenue Northeast, Seattle, Washington, for the purpose of reporting the
Oral Deposition of the witness on behalf of the Defendants, pursuant to
said Notice, and that Counsel for the Plaintiffs, Mr. Girards, and Counsel
for the Defendants, Ms. Svatek, also appeared;
That at 9:41 a.m., on February 9, 2015, the following statements
were entered into the record;
MS. SVATEK: My name is Caleena Svatek. I am defense Counsel.
I want to first start with entering a Certificate of Nonappearance for Dr.
Joel Hoekema. He was scheduled to appear here at the Northgate
Community Center, in Seattle, Washington, at 10 a.m.
Plaintiffs’ counsel notified me Friday morning that he would not
be attending today per the Deposition Notice. Instead, we are going to
take the depositions of Plaintiffs Jason Walter Lovison and Darlene
Lovison, not in accordance with the Deposition Notice. And I will enter
Defense Exhibit 1, which is the Deposition Notice of Dr. Hoekema.
MR. GIRARDS: And this is Jim Girards, Counsel for Plaintiffs. We
had understood Dr. Hoekema was scheduled on Friday, but apparently
due to some miscommunication, he was noticed for today. I offered to
make Dr. Hoekema available today at 4 p.m., which offer was declined by
Defense Counsel. That’s it.
That I remained at the place aforesaid until 1:48 p.m., at which
time the witness had not appeared.
Dkt. No. 24-7.
On April 7, 2015, Defendants’ counsel sent Plaintiffs’ counsel a letter asking for
Plaintiffs’ counsel “to pay for defense counsel’s time wasted in Seattle over the long
weekend you chose to conduct these depositions and for the return travel and time
spent by counsel to take Dr. Hoekema’s deposition as soon as you provide us with
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available dates.” Dkt. No. 24-8. Plaintiffs’ counsel had not responded to the letter prior
to Defendants’ filing their Motion for Sanctions on April 29, 2015.
As of the filing of the reply in support of Defendants’ Motion for Sanctions, Dr.
Hoekema had not yet been deposed.
Beyond this, the parties part ways as to the facts.
Defendants assert that Plaintiffs’ counsel had agreed to February 6 and 9 as the
dates for these depositions and that the order of witnesses to be presented for
deposition was agreed upon in advance of traveling to Seattle to take the depositions.
See Dkt. No. 24 at 2; Dkt. 24-8. The email correspondence on which Defendants rely
consists of emails between Defendants’ counsel and Plaintiff’s counsel’s administrative
assistant. See Dkt. No. 24-1. The emails reflect an understanding that Plaintiffs’
counsel wanted to have the depositions taken on a Friday and the following Monday
and to have Plaintiffs’ and Dr. Hoekema’s depositions taken in a single trip and that
Plaintiffs’ counsel’s assistant suggested the February 6 and 9, 2015 dates. See id. But
no communications in these emails reflect either that Defendants would want to depose
Jason Walter Lovison and Darlene Lovison on a Friday and Dr. Hoekema on the
following Monday or that Dr. Hoekema would only be available for his deposition on
a Friday. See id.
Defendants’ counsel also argues that Defendants have the right to take the
deposition of Plaintiff Jason Lovison first to elicit his complaints about the care
rendered, that Defendants’ counsel rightfully refused the last-minute change to the
deposition schedule that had been set for a month, and that, as a result of Plaintiffs’
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improper conduct, the depositions of the Plaintiffs were not conducted on February 6,
2015 and that the deposition of Dr. Hoekema has still not taken place and will now
require another trip to Seattle, Washington to conduct the deposition. See Dkt. No. 24
at 3-5; Dkt. 24-8.
Plaintiffs’ counsel reports that he instructed his staff to schedule Dr. Hoekema’s
deposition for Friday, February 6, 2015, which is the day that Dr. Hoekema said he
was available, and to schedule Plaintiffs’ depositions for the following Monday; that
Plaintiffs’ counsel understood that the depositions had been scheduled in this fashion
and assumed that the notices were prepared per that arrangement; and that Plaintiffs’
counsel traveled to Bellingham, Washington, Thursday evening, February 5, 2015 and
checked into a local hotel in anticipation of Dr. Hoekema’s deposition the next morning.
Plaintiffs’ counsel asserts that he did not agree to conduct the depositions of Plaintiffs
on Friday and of Dr. Hoekema on Monday and that this apparently was simply an
assumption on Defendants’ counsel’s part, where Dr. Hoekema is only available on
Fridays for depositions, according to Dr. Hoekema’s office. Plaintiffs’ counsel reports
that, early Friday morning, February 6, 2015, he learned that Defendants not only
noticed the depositions incorrectly but noticed Dr. Hoekema’s deposition to take place
90 miles from his office and that, as soon as he realized that Defendants noticed the
depositions incorrectly, he contacted Defendants’ counsel by phone.
Plaintiffs’ counsel contends that it has yet to be explained why Defendants’
counsel took a certificate of nonappearance for Plaintiffs’ depositions on February 6
after she agreed to conduct their depositions on Monday, February 9, 2015; that, since
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Defendants’ counsel actually deposed Plaintiffs on this trip, the only issue is Dr.
Hoekema’s deposition; that why Defendants’ counsel complains about the failure to
depose Dr. Hoekema on this trip when she refused to depose him on either Friday,
February 6 or Monday, February 9, 2015 is not explained, where Dr. Hoekema was
ready, willing, and able to be deposed all day on Friday, February 6 or on Monday,
February 9, 2015, starting at 4:00 p.m. Plaintiffs’ counsel reports that he offered to
accommodate Defendants’ counsel’s needs to the best of his ability once he realized that
Dr. Hoekema was noticed for February 9 and Plaintiffs for February 6 but that all
offers were refused except that Plaintiffs’ depositions were actually conducted by
agreement on Monday, February 9.
Defendants’ counsel replies that, “[t]o suggest to this court, as Plaintiffs have,
that Defendants noticed the depositions incorrectly is simply wrong” and that “[n]ot
once in the back and forth conversations did Plaintiffs’ counsel ever indicate that Dr.
Hoekema’s deposition would occur prior to Plaintiffs’ deposition.” Dkt. No. 27 at 2.
Defendants contend that “[o]ne would assume, especially with Plaintiffs’ counsel’s
experience, that in order to prepare a proper defense, it is imperative for Defendants’
counsel to first learn of all of Plaintiffs’ allegations and damages prior to a
cross-examination of Plaintiffs’ treating physician and expert in this litigation.” Id. at
2-3. Defendants assert that Plaintiffs have provided no reason as to why they did not
appear for their depositions on February 6, 2015; that, because Defendants’ counsel
had already traveled over 2,000 miles and Plaintiffs failed to appear on February 6,
2015, Defendants’ counsel’s only reasonable choice was to take Plaintiffs’ depositions
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on February 9, 2015, where a court reporter and venue had already been reserved and
Plaintiffs’ counsel stated that Dr. Hoekema would not appear for his deposition; and
that failure to properly read the deposition notices is not “substantial justification” for
not appearing for a properly-noticed deposition. Defendants further argue that
Plaintiffs’ counsel’s offer to take Dr. Hoekema’s deposition immediately after Plaintiffs’
deposition is not sufficient to avoid sanctions, where Defendants’ counsel had already
arranged for travel out of Seattle, Washington on February 9, 2015 and needed to
return to Dallas, Texas before February 10, 2015 to conduct previously scheduled
business unrelated to this matter, and that to request Defendants’ counsel to spend
more time in Seattle, Washington, pay the expense to alter travel reservations, and
reschedule other unrelated business after having already been in Seattle for three days
is unreasonable.
In their Motion for Sanctions, Defendants request that this Court issue an order
under Federal Rule of Civil Procedure 37(d) requiring Plaintiffs’ counsel to pay for the
fees and expenses associated with the wasted time spent in Seattle, Washington for the
cancelled depositions and for the fees and expenses associated with the additional trip
to Seattle that will be required to depose Dr. Hoekema. See Dkt. No. 24 at 5, 7; see
also Dkt. No. 27 at 4 (“As a result of Plaintiffs’ and Dr. Hoekema’s failures to attend
their depositions as noticed and Plaintiffs’ counsel’s lack of substantial justification for
their non-appearance, Defendants respectfully request that this Court grant
Defendants’ Motion for Sanctions and order Plaintiffs to pay for the expenses, fees, and
costs associated with taking Dr. Hoekema’s deposition.”).
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Legal Standards
Federal Rule of Civil Procedure 37(d) provides that “[t]he 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). “A failure described in Rule 37(d)(1)(A) is not excused on the ground that
the discovery sought was objectionable, unless the party failing to act has a pending
motion for a protective order under [Federal Rule of Civil Procedure] 26(c).” Id.
37(d)(2). Under Rule 37(d), “[s]anctions may include any of the orders listed in [Federal
Rule of Civil Procedure] 37(b)(2)(A)(I)-(vi),” and, “[i]nstead 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 the 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.” Id. 37(d)(3).
Analysis
As a preliminary matter, Plaintiffs contend that Rule 37(d) does not apply to the
factual circumstances here because it is limited to a party’s failure to attend its own
deposition. Plaintiff argues that Plaintiffs were deposed on Monday, February 9, 2015
and so Rule 37(d) does not apply to them and that Dr. Hoekema is not a party to this
case, is not an officer, director, or managing agent of a party, and was never “served”
with a notice, and so Rule 37 does not apply to Dr. Hoekema’s deposition in any
manner whatsoever.
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Plaintiffs are correct that the law is far from settled, in this jurisdiction or
elsewhere, on whether Rule 37(d) applies to a non-party witness, including expert
witnesses. Compare Gen. Ins. Co. of Am. v. E. Consol. Utils., Inc., 126 F.3d 215, 220 n.3
(3d Cir. 1997) (“Moreover, on its face, Rule 37d) applies only to parties.”); Pennwalt
Corp. v. Durand-Wayland, Inc., 708 F.2d 492, 494 & n.4 (9th Cir. 1983) (“The only
authority in the Federal Rules of Civil Procedure for the imposition of sanctions
against a nonparty for failure to comply with a subpoena duces tecum is Rule 45(f). ....
Similarly, Rule 37(d), which authorizes an award, is inapplicable because it addresses
only a party’s failure to appear at his own deposition.”); S.H. ex rel. Holt v. U.S., No.
CIV. S–11–1963 LKK DAD, 2013 WL 6086775, at *5 (E.D. Cal. Nov. 19, 2013) (“The
government also relies on Rule 37(d) to exclude the evidence from plaintiffs’ experts.
That provision addresses the failure to appear for depositions of the party itself, and
has nothing to do with expert depositions (or the depositions of any other
non-party)....”); Bayer Schering Pharma AG v. Watson Pharms., Inc., Nos. 2:07-CV01472-KJD-GWF & 2:08-CV-00995-KJD-GWF, 2012 WL 1079574, at *12 (D. Nev. Mar.
30, 2012) (“Defendants argue that the scope of Rule 37(d) should be extended beyond
its plain language so that a party could be sanctioned for the failure of a non-party to
appear at his deposition. However, Defendants rely solely on non-binding district court
cases from other circuits. Defendants ask this Court to interpret the word ‘party’ in
Rule 37(d) to include ‘non-party.’ District courts in this jurisdiction and elsewhere have
recognized that the Ninth Circuit interprets Rule 37(d) strictly. Given the literal
interpretation the Ninth Circuit gives to the term ‘fails ... to appear’ in Rule 37(d), it
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follows that a similarly strict construction of the term ‘party’ is appropriate under
Ninth Circuit law.”), with In re Bear Stearns Cos., Inc. Secs., Derivative, and ERISA
Litig., ___ F. Supp.3d ____, 2015 WL 3542269, at *6 (S.D.N.Y. June 5, 2015); Taylor v.
Hart, No. 1:02-cv-446, 2007 WL 1959211, at *1-*2 (S.D. Ohio June 29, 2007); 24 Hour
Fitness U.S.A., Inc. v. 24/7 Tribeca Fitness, L.L.C., No. 03 Civ. 4069(RLE), 2006 WL
1881763 (S.D.N.Y. July 6, 2006).
The Court notes that, “before being compelled to testify, [a non-party] must be
served with a subpoena pursuant to Federal Rule of Civil Procedure 45.” Karakis v.
Foreva Jens Inc., No. 08-61470, 2009 WL 113456, at *1 (S.D. Fla. Jan. 19, 2009) (citing
authorities). But “[a] party need not comply with Rule 45 and issue a subpoena if a
non-party will consent to having his deposition taken by notice alone.” Morawski v.
Farmers Tex. Cty. Mut. Ins. Co., No. 3:14-mc-21-D-BN, 2014 WL 717170, at *1 (N.D.
Tex. Feb. 25, 2014). Here, Plaintiffs’ counsel apparently had the ability to make, or at
least facilitate making, non-party Dr. Hoekema available for his deposition, where only
a notice to Plaintiffs’ counsel was issued and yet Dr. Hoekema apparently was
available to be deposed on February 6 or at 4:00 p.m. on February 9.
But Rule 37(d), by its terms, is limited to providing for sanctions for the nonappearance of a party, a party’s officer, director, or managing agent, or a person
designated under Rule 30(b)(6) or 31(a)(4). And, in reply, Defendants do not press – at
least not seriously – the position that Rule 37(d) would apply to Dr. Hoekema’s failure
to appear. See Dkt. No. 27 at 3 (“Federal Rule of Civil Procedure Rule 37(d)(1)(A) is
relevant to this situation as Plaintiffs did not appear for their deposition as properly
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noticed. The Rule is abundantly clear that the Court may order sanctions if a party
fails to appear for that person’s deposition after being served with written notice.”).
Under the circumstances, the Court denies the request for sanctions under Rule 37(d)
in connection with Dr. Hoekema’s nonappearance for his noticed deposition at 10:00
a.m. on February 9, 2015.
The Court further determines that the parties’ disagreement over whether they
agreed in advance on the order of witnesses for depositions is ultimately immaterial.
There is no dispute that Defendants noticed the depositions of Plaintiffs on February
6 and that Plaintiffs were properly served with those notices, by mail, on January 7,
2015. And Jason Walter Lovison and Darlene Lovison did not appear at the noticed
times of their depositions.
Plaintiffs Jason Walter Lovison and Darlene Lovison violated Rule 37(d) by
failing to appear for their properly-noticed depositions on February 6, 2015 at 10:00
a.m. and 1:00 p.m., respectively. That Plaintiffs’ counsel believed the notices set – or
should have set – different dates and times does not make that failure substantially
justified under Federal Rule of Civil Procedure 37(d)(3). There is no evidence that
Plaintiffs’ counsel or his staff told Defendants’ counsel that Dr. Hoekema could only be
deposed on Friday, February 6, and, even if there were, the witnesses were properly
noticed for their depositions at least 30 days in advance, and there is no inference to
be drawn from the evidence other than that Plaintiffs’ counsel failed to carefully review
those notices in advance of the morning of Plaintiffs’ noticed depositions.
That leaves only the matter of whether other circumstances make an award of
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expenses unjust under Federal Rule of Civil Procedure 37(d)(3) and, if not, what an
appropriate sanction would be.
Plaintiffs’ counsel contends that “[b]eing a lawyer is difficult enough, and
complex medical malpractice cases are hard enough, that when mistakes and
miscommunications occur from time to time – as they inevitably do – counsel should
not be sprinting to the courthouse to seek sanctions and attorneys’ fees,” which “should
be reserved solely for when genuine misconduct actually occurs.” Dkt. No. 26 at 4.
Plaintiffs’ counsel appears to have acted in good faith and appropriately when
working to remedy or mitigate the situation as best he could on February 6, 2015. But
the Court cannot find that the cost of Plaintiffs’ counsel’s not reviewing the deposition
notices until the last possible moment before the scheduled depositions – where the
notices were served on Plaintiffs’ counsel a month earlier – should be borne by
Defendants’ counsel. Even accepting Plaintiffs’ contention that this was an innocent
mistake resulting from some miscommunication, Jason Walter Lovison’s and Darlene
Lovison’s failures to appear for their properly-noticed depositions had real economic
consequences for Defendants, and the Court finds that, as between Plaintiffs’ counsel
and Defendants, it would be unjust for Defendants or their counsel to bear the
expenses caused by Plaintiffs’ failure to appear on February 6 as noticed. See generally
Coane v. Ferrara Pan Candy Co., 898 F.2d 1030, 1032 (5th Cir. 1990) (“A failure to
provide discovery need not be willful in order to trigger Rule 37(d) sanctions. [I]n view
of the possibility of light sanctions, even a negligent failure should come within Rule
37(d).” (internal quotation marks omitted)).
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That Jason Walter Lovison and Darlene Lovison were deposed on Monday,
February 9 does not change this analysis. See Martinez v. Nieman Marcus Group, No.
3:05-cv-422-P, 2005 WL 2179137, at *1-*5 (N.D. Tex. Sept. 7, 2005). Jason Walter
Lovison’s and Darlene Lovison’s lack of availability on Friday, February 9 and their
resulting rescheduled depositions on Monday, February 9 precluded Defendants’ taking
Dr. Hoekema’s deposition as noticed that same day. That Dr. Hoekema also apparently
was unavailable in any event at 10:00 a.m. on February 9 makes no difference to this
analysis. Defendants are entitled to take these depositions in the order in which they
properly noticed them, and, while not itself a basis for Rule 37(d) sanctions here, Dr.
Hoekema’s own lack of availability, if anything, compounds, not mitigates, the
problems that Plaintiffs’ counsel’s failure to review the deposition notices created.
Likewise, Defendants should not be penalized for their counsel’s refusal to take Dr.
Hoekema’s deposition at 4:00 p.m. on February 9, which would have required counsel
to incur yet more expenses in rescheduling a return flight to Dallas and incurring
another night of hotel expenses.
Under all of the circumstances, the Court finds that, under Rule 37(d), Plaintiffs’
counsel should be required to pay Defendants Patrick Langham Gleason, M.D. and
Norcentex Neocortex, PLLC the reasonable expenses, including attorney’s fees, caused
by the failure of Plaintiffs Jason Walter Lovison and Darlene Lovison to appear for
their properly-noticed depositions on February 6, 2015 at 10:00 a.m. and 1:00 p.m.,
respectively. Those expenses are limited to the cost of Defendants’ counsel’s hotel stay
on February 5, 6, and 7, 2015 (where Defendants’ counsel had already traveled to
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Seattle before learning there would be no deposition as properly noticed on February
6, 2015); any attorneys’ fees that Defendants incurred in connection with Defendants’
counsel’s efforts on February 6, 2015 to reschedule Plaintiffs Jason Walter Lovison’s
and Darlene Lovison’s depositions to February 9, 2015 and to then make a record with
the court reporter of Plaintiffs’ failure to appear that day for their properly-noticed
depositions; the expenses incurred for the previously-reserved court reporter and venue
for Plaintiffs’ depositions on February 6, 2015; and the expenses that Defendants’
counsel will incur for airfare, ground transportation, and hotel stays in traveling to
Washington for the deposition of Dr. Hoekema that was not accomplished on February
9, 2015 at 10:00 a.m., as noticed on January 7, 2015.
Defendants may file an application for their reasonable expenses as described
above. But Northern District of Texas Local Civil Rule 7.1 requires that parties confer
before filing an application for attorneys’ fees. Plaintiffs’ counsel and Defendants’
counsel are therefore directed to meet face-to-face and confer about the reasonable
amount of these attorneys’ fees and costs to be awarded under Federal Rule of Civil
Procedure 37(d). This face-to-face requirement is not satisfied by a telephonic
conference. Any attorney refusing to appear for this meeting or to confer as directed
will be subject to sanctions. By no later than July 17, 2015, the parties must file a
joint status report notifying the Court of the results of the conference. If all disputed
issues as to the amount of reasonable expenses to be awarded to Defendants have been
resolved, Defendants must also, by July 17, 2015, send an agreed proposed order to
the Court at Horan_Orders@txnd.uscourts.gov.
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If the parties do not reach an agreement as to the amount of attorneys’ fees and
costs to be awarded to Defendants, Defendants may, by no later than July 24, 2015,
file an application for attorneys’ fees and costs that is accompanied by supporting
evidence establishing the amount of the attorneys’ fees and costs (as described above)
to be awarded under Rule 37(d). The fee application must be supported by
documentation evidencing the “lodestar” calculation, including affidavits and billing
records, and citations to relevant authorities and shall set forth the number of hours
expended in connection with the recoverable attorneys’ fees described above as well as
the reasonable rate(s) requested. See Tollett v. City of Kemah, 285 F.3d 357, 367 (5th
Cir. 2002) (using the “lodestar” method to award attorney’s fees under Rule 37).
If an application is filed, Plaintiffs may file a response by August 14, 2015, and
Defendants may file a reply by August 28, 2015.
Conclusion
Defendants’ Motion for Sanctions [Dkt. No. 24] is GRANTED for the reasons and
to the extent explained above.
SO ORDERED.
DATED: June 26, 2015
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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