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Laverna Simms v. Center For Correctional Health and Policy Studies

January 19, 2011

LAVERNA SIMMS, PLAINTIFF,
v.
CENTER FOR CORRECTIONAL HEALTH AND POLICY STUDIES, DEFENDANT.



The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge

MEMORANDUM AND ORDER

Before the Court are the following discovery motions:

Defendant's Motion to Compel [88], the opposition thereto [90], and the reply brief [92];

Plaintiff's Motion to Compel the Deposition of CCHPS' Board Members, Discovery, and Sanctions [90, 91], the opposition thereto [93], and the lack of reply brief; and Defendant's Motion to Stay the Dispositive Briefing Schedule [89], and the lack of any opposition thereto.

The Court will address the motions in turn. The Court denies the parties' request [96] in their Joint Statement to the Court filed on January 14, 2011, to stay these pending motions.

I.DISCUSSION

A.Defendant's Motion to Compel [88]

Defendant Center for Correctional Health and Policy Studies ("CCHPS") moves for three things: (1) to compel plaintiff's deposition, (2) for sanctions associated with the motion to compel plaintiff's deposition, and (3) to compel responsive documents requested by defendant. ([88] at 1.)

1.Motion to Compel Plaintiff's Deposition and for Sanctions

Defendant moves first to compel the deposition of plaintiff LaVerna Simms. On November 8, 2010, plaintiff's counsel sent defendant's counsel an e-mail stating: "I and Ms. Simms are available after 1:30 p.m. to have her deposition taken on November 15, 2010." ([88-1] at 15.) Later that day, defendant's counsel replied to the e-mail, stating "1:30 p.m. on the 15th of November works for Ms. Simm's deposition." (Id.) Defendant's counsel attached to her e-mail a Second Amended Notice of Deposition. (Id. at 16--17.) This Notice stated that "the deposition will commence on November 15, 2010, at 1:30 p.m. at the offices of [defendant's counsel]." (Id.) Plaintiff's counsel did not reply further to this chain of e-mails. On November 9, plaintiff's counsel sent defendant's counsel a letter, initially stating: "I tried emailing you a second time today to object to your recent Amended Notice of Deposition but was unable to do so because my AOL email account began having problems. I am not able to email for some reason, which is why I am sending this letter." ([90-2] at 1.) Plaintiff's counsel then states:

Simms objects to your amended notice of deposition for two reasons. First in your rush to execute an Amended Notice of Deposition you failed to contact me to discuss an actual time for the deposition. In my November 8, 2010, email I did not say I was available at 1:30 p.m. but after 1:30 p.m. I have another matter scheduled in the morning on that date. Secondly, I would not be available until probably after 2:00 p.m., and that is only if the matter has finished. Thirdly, at the conclusion of the morning matter, I would then have to travel at least an hour to get to your office, which would put the deposition of Ms. Simms to begin at around 3:00 p.m. If you want to start the deposition that late you can but I can only stay until 5:30 p.m. because I care for an elderly parent and must be at their home by 6:30 p.m.

(Id. (emphasis in original).) Defendant's counsel states that she never received this letter, and she saw it for the first time as an exhibit to plaintiff's opposition to this motion. ([92] at 1.) Defendant's counsel further states: "On November 15, 2010, at 1:30 p.m., undersigned counsel and a court reporter from Gore reporters were present and prepared to take plaintiff's deposition. By 2:00 p.m., neither plaintiff nor her counsel had appeared." ([88] at 2.)

Plaintiff failed to appear for her properly noticed deposition. "The court where the action is pending may, on motion, order sanctions if a party . . . fails, after being served with proper notice, to appear for that person's deposition." Fed. R. Civ. P. 37(d)(1)(A)(i). Based on the conduct in this case, the Court could issue sanctions against plaintiff. Plaintiff acknowledges receiving the Amended Notice of Deposition, and defendant gave reasonable notice to plaintiff. D.D.C. LCvR 30.1. The parties agree that plaintiff did not appear for her deposition. Further, plaintiff's letter noting her objections to the Amended Notice of Deposition did not excuse her from appearing. "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 Rule 26(c)." Fed. R. Civ. P. 37(d)(2). Plaintiff never filed a motion for protective order regarding this deposition.

Before the Court can award sanctions, however, the Court must find that the movant complied with its certification requirements. "A motion for sanctions for failing to appear . . . must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action." Fed. R. Civ. P. 37(d)(1)(B). Defendant states in its motion: "To date, undersigned counsel has not received any communication from plaintiff's counsel regarding her and plaintiff's absence. Accordingly, undersigned counsel certifies that she has made effort to seek plaintiff's cooperation with supplemental discovery production and the taking of her deposition without the Court's intervention." ([88] at 2.) Although defendant technically makes the certification required by Rule 37(d)(1)(B), the Court questions its good faith and attempt to confer with plaintiff. Defendant simply states that it did not hear anything from plaintiff. But that is not what the Rule requires. The Rule requires that defendant affirmatively reach out to plaintiff to try to resolve the issue. Defendant has not shown that it reached out to plaintiff to discuss this issue. Further, if defendant truly had attempted to resolve this issue with plaintiff, then plaintiff's counsel would have likely discussed the letter that she sent to defendant's counsel. Because defendant said it did not even know about this letter until plaintiff opposed this motion, the Court questions defendant's certification of a good faith attempt to confer with plaintiff.

Because the Court finds that defendant did not make a good faith attempt to confer with plaintiff before filing this motion to compel, the Court will deny defendant's request for sanctions. Thus, the Court will not issue any of the orders listed in Rule 37(b)(2)(A)(i)--(vi). See Fed. R. Civ. P. 37(d)(3) ("Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)-- (vi)."). Nor will the Court order plaintiff to pay reasonable expenses caused by the failure, as payment of expenses also constitutes sanctions. See id. The Court will, however, reopen discovery for the purpose of deposing plaintiff. Defendant was prepared to depose plaintiff before the close of discovery, but plaintiff's failure to appear for that deposition made the timing of that deposition impossible.

Accordingly, the Court will grant defendant's motion to compel plaintiff's deposition, and will deny defendant's motion for sanctions.

2.Motion to Compel Responsive Documents

Defendant next moves to compel "responsive documents requested by CCHPS." ([88] at 1.) Based on defendant's letter to plaintiff, the Court assumes that defendant is requesting documents responsive to defendant's discovery requests 1--8, 13--16, 18, 21, and 22. ([88-1] at 1.) In response to these discovery requests, plaintiff states several objections, but also states that she will produce some of the documents for inspection and copying at plaintiff's counsel's office, and states that she will produce some of the documents once the parties sign and enter a Confidentiality Agreement/Protective Order. ([88-1] at 2--14.) Plaintiff informed defendant "that it could inspect, review and copy [plaintiff's] documents but at its own expense because in order for Simms to copy the documents it would cost her over $300.00 dollars to do so and she was unwilling to bear that expense." ([90] at 3 n.2.)

This motion to compel thus raises three issues: (1) whether plaintiff complied with her discovery obligations by allowing defendant to inspect and copy the documents at plaintiff's counsel's office, (2) whether plaintiff complied with her discovery obligations by shifting the cost of production to defendant, and (3) whether the Court will compel plaintiff to turn over documents subject to a Protective Order.

First, the Court finds that plaintiff has complied with her document production obligations by allowing defendant to inspect and copy the documents at plaintiff's counsel's office. The Federal Rules provide: "A party may serve on any other party a request within the scope of Rule 26(b) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody or control: any designated documents . . . ." Fed. R. Civ. P. 34(a)(1). The plain language of the Rule thus allows a party to fulfill its production obligations by "permit[ting] the requesting party . . . to . . . copy . . . any designated documents."

Second, the Court finds that plaintiff has complied with her discovery obligations by shifting the cost of production to defendant. The Court finds that defendant must pay for the cost of responding to defendant's document production request, which includes paying for any copies of documents. The Supreme Court has held:

Under [the discovery] rules, the presumption is that the responding party must bear the expense of complying with discovery requests, but he may invoke the district court's discretion under Rule 26(c) to grant orders protecting him from "undue burden or expense" in doing so, including orders conditioning discovery on the requesting party's payment of the costs of discovery.

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978); see also Peskoff v. Faber, 251 F.R.D. 59, 61 (D.D.C. 2008). Thus, the Court has discretion "to shift all or part of the costs of production to the requesting party" when necessary to "protect the responding party from undue burden or expense." Peskoff, 251 F.R.D. at 61; see also Fed. R. Civ. P. 34(a) advisory committee's note on 1970 amendment ("The burden thus placed on respondent will vary from case to case, and the courts have ample power under Rule 26(c) to protect respondent against undue burden or expense, either by restricting discovery or requiring that the discovery party pay costs."). The presumption, ...


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