Doty et al v. REV-1 Solutions LLC

Filing 56

ORDER signed by Chief Judge William C Griesbach on 10/23/18 granting 47 Motion to compel discovery and sanctions. REV-1 is ordered to pay Doty reasonable expenses, including attorneys' fees, incurred as a result of the late cancellation of t he 8/28/18 deposition of Mr. Niper and in connection with its motion to compel. The parties are directed to use their best efforts to agree to a reasonable amount to compensate Doty for its expenses. If such efforts fail, Doty may file a motion seeking costs. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

AMANDA C. DOTY, et al.,
Plaintiffs,
v.

Case No. 17-C-1723

REV-1 SOLUTIONS LLC, et al.,
Defendants.

ORDER GRANTING MOTION
TO COMPEL DISCOVERY AND FOR SANCTIONS

This matter is before the court on Plaintiff Amanda Doty’s Civil L.R. 7(h) motion to compel
discovery and for sanctions pursuant to Federal Rule of Civil Procedure 37 against REV-1 Solutions
LLC (REV-1). ECF No. 47. Doty seeks costs associated with the cancellation of Franic Niper’s
August 28, 2018 deposition and attorneys’ fees for related motion practice. The court addressed
the discovery issues earlier in two telephonic hearings. ECF Nos. 53, 55. For the reasons that
follow, Doty’s motion will be granted.
Doty filed a motion for class certification on June 15, 2018. ECF No. 29. REV-1 filed its
response on June 29, 2018, where in it relied on statements of its in-house counsel at the time,
Francis Niper. ECF No. 34. After extensions of time for Doty to file a reply were granted to allow
for settlement negotiations, Doty’s counsel contacted REV-1's counsel on August 14, 2018, to
inform him that he planned to notice Niper’s deposition for August 28, 2018. Counsel for Doty
explained that he intended to notice the deposition because REV-1 had not responded to settlement
efforts and he needed to respond to the defendant’s opposition to Doty’s motion for class

certification. Counsel also advised that he would not agree to cancel the deposition unless the case
was settled beforehand.
On August 15, 2018, Doty served REV-1 with a Notice of Deposition for Francis Niper, and
scheduled the deposition to take place at REV-1's offices in Greenwood, Indiana at 1:00 p.m. on
Tuesday, August 28, 2018. On Sunday, August 26, 2018, Doty’s counsel flew out to Indiana in
preparation for the deposition that would take place Tuesday. He elected to fly on Sunday so as not
to lose a full working day on Monday. On Monday afternoon, less than 24 hours before the
deposition, REV-1's counsel informed Doty’s counsel that Niper would not be available for the
deposition at the noticed time because he had to be in court that day. REV-1's counsel offered to
reschedule the deposition to August 29, 2018. Although REV-1's counsel knew Doty’s counsel
would be unavailable because he had a previously scheduled deposition in Green Bay, Wisconsin,
Doty’s counsel—who is also the counsel for the defendant in that matter—offered to reschedule that
deposition. Doty did not reschedule, and filed this motion on October 8, 2018. Of note, it appears
that Niper is no longer employed by REV-1 as of around October 3, 2018.
Under Federal Rule of Civil Procedure 37(d)(1)(A)(k), the court may order sanctions where
a party “fails, after being served with proper notice, to appear for that person’s deposition.”
“Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(I)-(vi).” Fed. R. Civ. P.
37(d)(3). “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 the reasonable expenses, including attorneys’ fees,
caused by the failure, unless the failure was substantially justified or other circumstances make an
award of expenses unjust.” Id.

2

Here, REV-1's failure to notify Doty that Niper would not be available for the noticed
deposition warrants the award of costs associated with the deposition to Doty. While confirming
a date prior to issuing notice is common practice, it is not required by the rules and Doty provided
REV-1 with enough time to confer with Niper regarding his availability and inform Doty if he would
be unavailable on that date prior to the day before the deposition. This is especially true given the
distance counsel was to travel in order to conduct the deposition. Counsel for Doty was also not
required to rearrange his schedule at the last minute to accommodate REV-1’s failure to produce
its witness for a properly noticed deposition. Given the continued communication issues between
REV-1 and its counsel, evidenced by REV-1's failure to inform Doty that Niper is no longer
employed by the company until two weeks after he departed, and REV-1's failure to notify Doty of
Niper’s unavailability until less than 24 hours before a noticed deposition, ordering REV-1 to
compensate Doty for the costs of travel and deposition-related expenses is an appropriate sanction.
Awarding attorneys’ fees to Doty for the filing of her motion is also warranted. Rule
37(a)(5)(A) requires that the court order payment of expenses, including reasonable attorneys’ fees,
when it grants such a motion to compel. Due to the cancellation of the deposition, Doty was
required to seek an extension of the time within which to file her reply to REV-1's opposition to her
motion for class certification. Rather than risk another last minute cancellation, counsel for Doty
chose to seek sanctions and an order compelling REV-1 to produce its sole witness on the issues
before the court. The need was compounded when both the court and counsel belatedly learned that
Niper was no longer even employed by REV-1 and would not be produced in any event.

3

For the aforementioned reasons, Doty’s Motion to Compel Discovery and Sanctions (ECF
No. 47) is GRANTED. REV-1 is ordered to pay Doty reasonable expenses, including attorneys’
fees, incurred as a result of the late cancellation of the August 28 deposition of Mr. Niper and in
connection with its motion to compel. The parties are directed to use their best efforts to agree to
a reasonable amount to compensate Doty for its expenses. If such efforts fail, Doty may file a
motion seeking costs.
SO ORDERED this 23rd day of October, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

4