Essex Insurance Company v. Schooner's Bar & Grill, Inc. et al

Filing 177

ORDER denying Plaintiff Essex Insurance Company's 128 MOTION for Excess Fees and Costs Associated with Shelly Mirus Deposition. Signed by Judge Robert C. Chambers on 4/18/2017. (cc: counsel of record; any unrepresented parties) (jsa)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

ESSEX INSURANCE COMPANY,
Plaintiff,
v.

CIVIL ACTION NO. 3:15-15881

SCHOONER’S BAR & GRILL, INC.,
dba SCHOONER’S WATERFRONT GRILLE,
HUNTINGTON HARBOR MARINA, LLC, and
JASON TOLLIVER,
Defendants.
ORDER
Pending before the Court is Plaintiff Essex Insurance Company’s Motion for Excess Fees
and Costs Associated with Shelly Mirus Deposition. ECF No. 128. For the following reasons, the
Court DENIES the motion.

On August 4, 2016, Defendants gave Notice of Video Deposition of Robert Becker and
Shelly Mirus to occur in Louisville, Kentucky on August 12, 2016, at 10:00 a.m. and 1:00 p.m.,
respectively. According to Defendants, Mr. Becker is an Agent and Producer with VanZandt,
Emrich & Cary Insurance Agency, the agency that procured the coverage at issue in this case.
Defendants contend that Ms. Mirus also works at the agency and handles insurance tasks directed
by Mr. Becker. Defendants assert that they deliberately scheduled Mr. Becker’s deposition before
Ms. Mirus’ deposition because he appeared to have more contact with Defendants.

The parties conducted Mr. Becker’s deposition as scheduled. However, in light of the
statements made by Mr. Becker during his deposition, Defendants determined Ms. Mirus’
deposition was unnecessary and cancelled it. Defendants state that Plaintiff never informed them
it wanted to take Ms. Mirus’ deposition until after it was cancelled.

Plaintiff’s counsel states that, during a lunch break after Mr. Becker’s deposition ended
and before Ms. Mirus’ deposition was set to begin, he received a phone call from defense counsel
stating Ms. Mirus’ deposition was cancelled. Plaintiff’s counsel contends he told defense counsel
he wanted to proceed with the deposition, but defense counsel informed him it was too late because
both he and Ms. Mirus already had left. As a result, Plaintiff’s counsel states he had to notice a
new deposition date for Ms. Mirus, which was conducted on August 26, 2016. Plaintiff now seeks
reimbursement under Rule 30(g) of the Federal Rules of Civil Procedure for counsel’s time and
expenses.

Rule 30(g) provides, in part, that “[a] party who, expecting a deposition to be taken, attends
in person or by an attorney may recover reasonable expenses for attending, including attorney’s
fees, if the noticing party failed to . . . attend and proceed with the deposition[.]” Fed. R. Civ. P.
30(g), in part. “An award of expenses pursuant to Rule 30(g) is within the discretion of the trial
court.” Renfro v. Spartan Computer Servs., Inc., No. 07-2050-CM, 2008 WL 650338, at *2 (D.
Kan. Mar. 6, 2008); Keats v. United States, 121 F.R.D. 53, 53–4 (E.D. Mich. 1988) (stating “[t]he
decision of whether to impose discovery sanctions under Rule 30(g) is within the discretion of the
Court” (citation omitted)). Exercising this Court’s discretion, the Court declines to award
sanctions.

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In this case, defense counsel noticed two related depositions on the same day. The first
deposition took place as scheduled. However, based upon the information gathered during the first
deposition, defense counsel determined it was unnecessary to proceed with the second deposition.
Therefore, he excused Ms. Mirus and cancelled her deposition. Defense counsel states he was
unaware of Plaintiff’s desire to take Ms. Mirus’ deposition until after it was cancelled, and he notes
Plaintiff’s counsel did not cross-notice or subpoena Ms. Mirus to secure her attendance on its
behalf. Although Plaintiff’s counsel argues defense counsel’s actions “forced” him to make a
second trip to Louisville to take Ms. Mirus’ deposition, the Court disagrees as it was Plaintiff’s
choice to schedule the deposition.

Additionally, defense counsel could have scheduled Mr. Becker’s and Ms. Mirus’
depositions on different days at the outset to give him time to determine whether Ms. Mirus’
deposition would be necessary. Under that scenario, if defense counsel would have cancelled Ms.
Mirus’ deposition in advance, there would be no grounds for sanctions even if, as here, Plaintiff’s
counsel then decided to notice Ms. Mirus for a deposition. On the other hand, if defense counsel
decided to proceed with Ms. Mirus’ deposition, the parties still would have to make two trips to
Louisville because they would be set on different days.

In this case, however, defense counsel scheduled the depositions on the same day as a
matter of convenience and efficiency because they were related and in the same location. If defense
counsel believed Ms. Mirus’ deposition was necessary following Mr. Becker’s testimony, the
parties could proceed to take her deposition on the same day and in the same place, saving both
time and money. However, the threat of sanctions may encourage counsel in similar situations to

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stagger depositions days or weeks apart whenever there is the possibility that the first deposition
may negate the need for the second deposition, despite the fact it may be more efficient and cost
effective to schedule them on the same day in the event both depositions are taken. If the
depositions are set on the same day, counsel who noticed the deposition also may feel compelled
to proceed with the deposition even when counsel no longer believes it is necessary in order to
avoid the possibility of sanctions. When raised in this context, these results make sanctions
counterproductive to the discovery process.

Although as a matter of professional courtesy, it would have been preferable for defense
counsel to have discussed his decision to excuse Ms. Mirus with opposing counsel before he
permitted her to leave, the Court finds sanctions are inappropriate. Accordingly, under the
circumstances of this case, the Court finds in its discretion that sanctions are not warranted and
DENIES Plaintiff’s Motion for Excess Fees and Costs Associated with Shelly Mirus Depositions.
ECF No. 128.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented parties.

ENTER:

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April 18, 2017