Osborne v. Mountain Empire Operations LLC et al
Filing
63
OPINION AND ORDER DENYING 29 MOTION for Sanctions filed by Deborah Osborne. Signed by Judge James P. Jones on 6/15/2015.(lml)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
DEBORAH OSBORNE, ETC.,
Plaintiff,
v.
MOUNTAIN EMPIRE OPERATIONS,
LLC T/A VALLEY HEALTHCARE
CENTER, ET AL.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 1:14CV00042
OPINION AND ORDER
DENYING MOTION
FOR SANCTIONS
By: James P. Jones
United States District Judge
Ellen C. Bognar, Lynchburg, Virginia, for Plaintiff; Nancy F. Reynolds,
LeClairRyan, Roanoke, Virginia, for Defendants.
In this diversity jurisdiction personal injury case, Plaintiff filed a Motion for
Sanctions relating to discovery, which was briefed and argued and taken under
advisement. Following mediation before the magistrate judge, the parties have
now announced a settlement of the case, which settlement includes an agreement
that Plaintiff will withdraw the motion. Nevertheless, I have an independent
obligation to enforce the Federal Rules of Civil Procedure, regardless of the
parties’ agreement. See Perkins v. Gen. Motors Corp., 965 F.2d 597, 600 (8th Cir.
1992) (holding that parties cannot “bargain away the court’s discretion in imposing
sanctions and the public’s interest in ensuring compliance with the rules of
procedure”).
The motion concerns Defendants’ conduct in defending a Rule 30(b)(6)
deposition on February 27, 2015. Plaintiff contends that Defendants failed to
produce an adequately prepared witness for the deposition, as required by the rules,
and that defense counsel otherwise frustrated the purpose of the deposition by
coaching the witness and directing her not to answer certain questions, without
proper cause.
I find that the rules were violated as claimed.
In the first place, the
deposition’s purpose clearly was frustrated by the inadequate preparation of the
Rule 30(b)(6) witness.
See Fed. R. Civ. P. 30(b)(6) (stating that corporate
representatives in deposition “must testify about information known or reasonably
available to the organization”); Spicer v. Universal Forest Prods., E. Div., Inc.,
No. 7:07cv462, 2008 WL 4455854, at *8 (W.D. Va. Oct. 1, 2008) (“The
corporation must make a good-faith effort to designate people with knowledge of
the matter sought by the opposing party and to adequately prepare its
representatives so that they may give complete, knowledgeable, and nonevasive
answers in deposition.”).
While I accept defense counsel’s explanation that the
witness was supplied by her clients and not chosen by her, she had an independent
obligation to make sure that the rules were satisfied by the production of a
-2-
properly-prepared witness. Indeed, defense counsel admits that she instructed the
witness not to talk with important witnesses to the events in preparation for the
deposition, but to rely solely on a review of the documentary evidence. See id. at
*2-3 (imposing sanctions where deponent did no independent investigation to
prepare for deposition and solely spoke with counsel, while “admitt[ing] that the
information sought could have been obtained through investigation, had he done
any”).
Moreover, defense counsel plainly violated the rules by instructing the
witness not to answer certain questions. See Fed. R. Civ. P. 30(c)(2) (“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).”); Ralston Purina Co. v. McFarland, 550 F.2d 967, 973 (4th Cir. 1977)
(stating that counsel’s actions “in directing [the witness] not to answer the
questions posed to him was indefensible and utterly at variance with the discovery
provisions of the Federal Rules of Civil Procedure”).
While certain of the
questions were repetitive, if justified, defense counsel could have followed the
procedure permitted by the rules by moving to terminate the deposition and
promptly obtaining a ruling by the court. See id. at 973-74 (“If counsel felt that the
discovery procedures were being conducted in bad faith or abused in any manner,
-3-
the appropriate action was to present the matter to the court by motion under Rule
30(d).”) (footnote omitted).
In addition, on other occasions, counsel interjected comments after questions
in ways that could have suggested answers by the witness or otherwise improperly
interrupted the question and answer process. See Fed. R. Civ. P. 30(c)(2) (“An
objection must be stated concisely in an nonargumentative and nonsuggestive
manner.”); Security Nat’l Bank of Sioux City, Iowa v. Abbott Labs., No. C 114017-MWB, 2014 WL 3704277, at *4 (N.D. Iowa July 28, 2014) (admonishing
counsel for “repeatedly object[ing] and interject[ing] in ways that coached the
witness to give a particular answer or to unnecessarily quibble with” opposing
counsel).
While these violations of the rules have been established, I will not impose
sanctions on Defendants or their counsel.
It does not appear that Plaintiff was
prejudiced by the conduct of the 30(b)(6) deposition, even had the case gone to
trial.
See Spicer, 2008 WL 4455854, at *1 (stating that court may consider
prejudice to opposing party in determining sanctions). Moreover, the Motion for
Sanctions was filed not long before trial and over two months after the deposition,
thus foreclosing any effective remedial sanctions, such as a retaking of the
deposition at the cost of Defendants. Finally, I trust that defense counsel will not
repeat the conduct described here.
-4-
Accordingly, while I recognize and formally disapprove of these violations
of the discovery rules, for the reasons stated it is ORDERED that the Motion for
Sanctions (ECF No. 29) is DENIED.
ENTER: June 15, 2015
/s/ James P. Jones
United States District Judge
-5-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?