United States District Court, District of Columbia
EMMET G. SULLIVAN, District Judge.
When a plaintiff files a lawsuit, he takes on certain responsibilities, including the duty to participate in discovery in good faith. A component of this duty is that parties must appear for properly noticed depositions. Robert Guerra and Terrence Whitesides, two named plaintiffs in this putative class action against the National Railroad Passenger Corporation ("Amtrak"), failed to appear for their depositions during the class-discovery phase of litigation. Pending before the Court is Amtrak's motion for relief under Federal Rule of Civil Procedure 37(d), which seeks exclusion of the legal claims of Guerra and Whitesides and an award of costs and attorneys' fees.
The failure of Guerra and Whitesides to appear for depositions is disturbing and the Court finds itself required by Rule 37(d) to award Amtrak some of the expenses incurred as a result of that failure. Nevertheless, the Court "has the right, if not the duty, to temper justice with understanding." 8B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2284 (3d ed. 2015). Because the existing record does not provide detail regarding the plaintiffs' claimed inability to pay or the amount of costs and fees that Amtrak seeks to recover, the Court requires more information before fashioning an appropriate monetary sanction. In view of the fact that any prejudice caused by plaintiffs' actions can be cured by striking the evidence they submitted in support of class certification, the Court concludes that dismissal of their legal claims would be excessive. Accordingly, upon consideration of Amtrak's motion, the response and reply thereto, the applicable law, and the entire record, the Court GRANTS IN PART AND DENIES IN PART Amtrak's motion.
On March 1, 2012, the Court entered an Amended Scheduling Order. See Amended Scheduling Order, ECF No. 310. That Order provided that Amtrak would be permitted to depose "any individual who submits an affidavit, declaration, or statement in support of Plaintiff's Motion for Class Certification." Id. at 1. Plaintiffs Guerra and Whitesides each submitted declarations in support of plaintiffs' motion for class certification. See Declaration of Robert Guerra, ECF No. 304-8 at 327-335; Declaration of Terrence Whitesides, ECF No. 304-8 at 521-27. Rather than deposing everyone who submitted a declaration, Amtrak selected forty-one individuals, including Guerra and Whitesides. See Declaration of Katherine L. Hoekman ("Hoekman Decl."), ECF No. 332-2 ¶ 4. In addition to the issues with Guerra and Whitesides, scheduling issues arose regarding other depositions, persuading the Court to grant two extensions of the deposition deadline, for a total extension of twenty-four days. See Minute Order of May 11, 2012; Minute Order of June 5, 2012.
A. Mr. Guerra Fails to Appear for a Deposition.
After significant difficulty scheduling Mr. Guerra's deposition, plaintiffs' counsel informed Amtrak on June 6, 2012 that Mr. Guerra could be available for a deposition on June 7, 2012. See Hoekman Decl. ¶ 15. Mr. Guerra's deposition was noticed for 9:00 a.m. on June 7, 2012 in Washington, D.C. See id. ¶ 19; Guerra Deposition Notice, Ex. K to Mot. to Exclude, ECF No. 332-13. Shortly after 9:00 a.m., plaintiffs' counsel informed defendant's counsel by phone that Mr. Guerra would not be attending. See Hoekman Decl. ¶ 20. Plaintiffs' counsel explained the reasons more fully in an email later that morning:
We understand that Robert Guerra decided not to appear for his deposition this morning out of his personal concerns and fears of retaliation, including possible retribution by former co-workers if he were to testify at this time.... [W]e recognize that the court reporter appearance fee must be paid. We will tender that payment forthwith if Amtrak will agree not to pursue any other monetary sanction against Mr. Guerra or Plaintiffs' counsel.
Ex. L to Def.'s Mot., ECF No. 332-14 at 2; see also Declaration of Timothy B. Flemming ("Flemming Decl."), ECF No. 341-1 ¶ 10. Amtrak's counsel had prepared for the deposition before it was cancelled. See Hoekman Decl. ¶ 23.
B. Mr. Whitesides Fails to Appear for a Deposition.
Plaintiffs' counsel suggested that Mr. Whitesides be deposed in New York City on May 2, 2012 at 2:00 p.m. See id. ¶ 24. A deposition notice for that date, time, and location was issued. See id. ¶ 25; First Whitesides Dep. Notice, Ex. P to Def.'s Mot., ECF No. 332-18. At 9:00 p.m. on May 1, 2012, plaintiffs' counsel informed defendant's counsel that the deposition could not go forward. See Hoekman Decl. ¶ 26. Plaintiffs' counsel had "just received a phone call from Terrence Whitesides" who "experienced a death in his family this evening, apparently a relative to whom he was close." Ex. Q to Def.'s Mot., ECF No. 332-19.
Plaintiffs' counsel later proposed that the deposition take place on May 23, 2012 at 2:00 p.m. in Washington, D.C. See Ex. R to Def.'s Mot., ECF No. 332-20 at 2. Amtrak issued a deposition notice for that date, time, and location. See Second Whitesides Dep. Notice, Ex. T to Def.'s Mot., ECF No. 332-22. On May 22, 2012, plaintiffs' counsel cancelled Mr. Whitesides's deposition, due to their inability to contact Mr. Whitesides. See Ex. U to Def.'s Mot., ECF No. 332-23 at 2; Flemming Decl. ¶ 12 ("Plaintiffs' counsel were unable to contact Whitesides after repeated attempts. We kept trying, without success, right up to the day before the deposition."). Due to the short notice of each cancellation, Amtrak's attorneys had twice begun preparing for Mr. Whitesides's deposition. See Hoekman Decl. ¶ 30.
C. Amtrak Moves for Relief Under Rule 37(d).
Currently pending before the Court-and scheduled to be argued on June 15, 2015-are plaintiffs' motion for class certification and defendant's motion for partial summary judgment on the plaintiffs' disparate-impact claims. See Mot. to Certify Class, ECF No. 303; Mot. for Partial Summ. J., ECF No. 328. Amtrak has also moved to strike the individual claims of plaintiffs Guerra and Whitesides, and for payment of attorney's fees and costs in connection with those plaintiffs' failure to appear for depositions. See Mem. in Supp. of Mot. to Strike Guerra and Whitesides ("Mot."), ECF No. 332-1. Plaintiffs oppose the motion, Opp. to Mot. to Strike Guerra and Whitesides ("Opp."), ECF No. 341, and Amtrak has filed a reply brief. See Reply in Supp. of Mot. to Strike Guerra and Whitesides ("Reply"), ECF No. 361. Because Amtrak's motion to exclude raises a discrete issue that is distinct from ...