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Hajjar-Nejad v. George Washington University

United States District Court, District Circuit

January 16, 2013



Pending before me are three outstanding discovery issues in the above captioned case: 1) Plaintiff’s Response to Show Cause Order [#133]; 2) The George Washington University’s Motion to Dismiss, or In the Alternative, for an Order Directing that the Answers to Deposition Questions that Plaintiff has Refused to Answer be Taken as Established, and for an Order Compelling Plaintiff to Supplement his Initial Disclosures, and Directing Him to Pay the Reasonable Expenses, including Attorneys’ Fees, that GW Incurs in Connection with this Motion [#124]; and 3) The George Washington University’s Motion to Lift Seal on Plaintiff’s Deposition Transcript [#134]. I will address each of these in turn.

I. Response to Order to Show Cause

1. Background

On May 9, 2012, I issued a Memorandum Opinion [#98] and Order [#97] resolving numerous discovery disputes, including a joint motion to compel and a motion for costs/sanctions filed by GWU alleging that plaintiff failed to appear for a properly noticed deposition, and when that deposition was rescheduled, plaintiff left before the 7 hours of time allotted under the Federal Rules of Civil Procedure had elapsed. [#98] at 1-2. I found that both the failure to appear for the February 27, 2012, deposition, and plaintiff’s departure 1.5 hours early from his re-scheduled March 20, 2012, deposition, constituted discovery violations, but ordered the plaintiff to show cause why he should not be required to pay the expenses associated with those violations and the defendant’s corresponding motions, [#62] and [#74], which brought the discovery violations to the court’s attention. Id . at 1-2, 8.

Plaintiff chose to appeal my order to the District Court judge, Judge Colleen Kollar-Kotelly, Response to Order of the Court [#101], who affirmed my rulings, save for my decision regarding a dispute about initial disclosures, Order [#117]. Because the plaintiff never fully addressed the issues I requested in my order to show cause, I re-issued the request, via minute order, on November 26, 2012. Minute Order of 11/26/12. Plaintiff responded, [#133], and the defendant responded in turn, The George Washington University’s Response to Hajjar-Nejad’s Response to Show Cause Order [#135].

2. Legal Standard for Sanctions for Failure to Appear at a Deposition

Under Federal Rule of Civil Procedure 37(d), “the court . . . 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). A party will not be excused from attending a properly noticed deposition, even if she objects to the deposition, 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).

If a discovery violation has occurred, the Court has leeway in deciding which sanctions listed under Rule 37(b)(2)(A) are appropriate, but at a minimum, it “must require the party failing to act . . . 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.” Fed.R.Civ.P. 37(d)(3).

3. Plaintiff’s Failure to Appear at his February 27, 2012 Deposition

In response to my renewed order to show cause, plaintiff primarily argues that 1) he wasn’t properly noticed for that deposition, [#135] at 2, 2) he didn’t agree to be deposed on that date and he wanted to depose his witnesses first, id. at 3; and 3) the defendant was so difficult to work with that no deposition schedule was agreed upon at all prior to this Court’s intervention, id. at 4.

These justifications, which consume the vast majority of plaintiff’s response, are old arguments previously rejected by Judge Kollar-Kotelly, myself, or both. [#133] at 2. Judge Kollar-Kotelly previously criticized plaintiff for taking such an approach in his filings. [#117] at 2 (“in boldface contravention of this Court’s prior instructions . . . the vast majority of the arguments tendered by Plaintiff in Plaintiff’s Objections simply reargue facts and theories made in prior submissions upon which the Court has already ruled.”). Therefore, even allowing for plaintiff’s pro se status, many of the arguments advanced by plaintiff in his response to the show cause order are impermissible, given the previous rulings in this case.

For example, Judge Kollar-Kotelly previously found that the plaintiff was not excused from failing to appear on February 27 because he disagreed with the deposition order. [#117] at 3. In opposition to plaintiff’s proper notice argument, defendant attached the notice of deposition and certification of mailing by first class mail on January 27, 2012, exactly one month before the deposition was scheduled to take place, indicating that the deposition was, indeed, properly noticed. [#135-1]. For these reasons, most of plaintiff’s arguments must fail.

However, plaintiff makes one final argument in his show cause briefings that directs against ordering sanctions. On February 22, 2012, five days before his scheduled deposition, plaintiff filed a self-styled Request for Relief Notice [#57], wherein he raised the various scheduling arguments stated above and asked for “the Honorable Court’s help and just intervention.” Id. at 6.

Plaintiff now claims that this was a motion for a protective order, [#140] at 11, which is important because “failure to appear [at a properly noticed deposition] ‘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.’” Covad Commc’ns Co. v. Revonet, Inc., 267 F.R.D. 14, 24 (D.D.C. 2010) (citing Fed.R.Civ.P. 37(d)(2)) (emphasis added). That motion was referred to me on February 23, 2012, ...

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