1 2 3 4 5 6 9 10 MARTHA DE LA ROSA, Case No.: 21-cv-1630-W-BGS
11 Plaintiff, ORDER DENYING MOTION FOR 12 v. SANCTIONS
CORPORATION [ECF 13] 14 Defendant. 15 16 17 Defendant Costco Wholesale Corporation has filed a Motion for Sanctions seeking 18 $ 6,884.38 in sanctions against Plaintiff Martha De La Rosa under Federal Rule of Civil 19 Procedure 30(d)(2) and Federal Rule of Civil Procedure 37(d)(1)(A)(i). (ECF 13.) 20 Plaintiff has filed an Opposition. (ECF 14.) For the reasons set forth below, the Motion is 22 I. BACKGROUND1 23 Plaintiff’s initial deposition, conducted remotely, was not completed because she 24 was unable to properly view exhibits. (ECF 13 at 2-3; ECF 14 at 3.) The screen she was 25
26 27 1 The following summary is drawn from both parties’ briefing and supporting declarations. (ECF 13-14.) There are differences in the parties’ characterization of 28 1 using for the remote deposition was scratched and too small. (ECF 13 at 2-3; ECF 14 at 2 3.) The remainder of her deposition was rescheduled for March 29, 2022 with assurances 3 from Plaintiff’s counsel that Plaintiff would not have the same issues at the rescheduled 4 deposition. (ECF 13 at 3; ECF 14 at 3.) A week before the rescheduled deposition, 5 Defendant’s counsel asked if Plaintiff would prefer to do the remainder of the deposition 6 in-person, and she declined. (ECF 13 at 3; ECF 14 at 3.) Plaintiff’s brief explains that 7 Plaintiff had previously become very seriously ill from Covid-19 and wanted to avoid the 8 risk of exposure. (ECF 14 at 3.) 9 For the rescheduled deposition, Plaintiff indicates that she borrowed a laptop to 10 avoid the screen issues encountered during the first deposition. (ECF 14 at 3.) Plaintiff 11 appeared for her rescheduled remote deposition via Zoom, but her internet connection 12 was poor, and this resulted in delayed and garbled audio, the screen freezing, and not 13 being able to view documents. (ECF 13 at 3; ECF 14 at 3.) Defendant’s brief states that 14 Plaintiff indicated that nearby construction had been affecting her internet for a number 15 of days. (ECF 13 at 3.) The deposition was cancelled as a result of poor connectivity 16 issues. (ECF 13 at 3; ECF 14 at 2.) Defendant requested Plaintiff appear in-person to 17 complete the deposition and she immediately agreed to avoid further issues. (ECF 14 at 18 3.) Plaintiff’s deposition was completed in-person less than a week later on April 4, 2022. 19 (Id.) When Defendant’s counsel requested Plaintiff reimburse Defendant for the 20 cancellation costs of the deposition, Plaintiff declined. (ECF 13 at 4.) 22 Defendant moves for sanctions under Rule 30(d)(2) and 37(d)(1)(A)(i). Under Rule 23 30(d)(2), “[t]he court may impose an appropriate sanction--including the reasonable 24 expenses and attorney’s fees incurred by any party--on a person who impedes, delays, or 25 frustrates the fair examination of the deponent.” Rule 37(d)(1)(A)(i) states that “[t]he 26 court where the action is pending may, on motion, order sanctions if: (i) a party . . . fails, 27 after being served with proper notice, to appear for that person’s deposition.” 28 2 A. Parties’ Positions 3 Defendant argues Plaintiff should be required to pay the costs of her remote 4 deposition and Defendant’s attorney’s fees for the deposition and this Motion. (ECF 13.) 5 The sanctions sought consist of $1,229.38 in costs for a court reporter, videographer, and 6 translator to conduct the deposition and $5,355.00 is attorneys’ fees for the deposition 7 and preparation of this Motion. (Id. at 4.) Defendant argues it is entitled to sanctions 8 because Plaintiff could not proceed with her rescheduled deposition based on the same 9 issues that impeded her first deposition, and Defendant had to pay the costs of the 10 rescheduled deposition (Id. at 5-6.) Defendant also points to Plaintiff’s assurances she 11 would not have technological issues at the rescheduled deposition, her awareness that she 12 was having connectivity issues based on nearby construction, and Defendant’s offer to 13 conduct the deposition in-person. (ECF 13 at 5.) Defendant argues this conduct was a 14 constructive failure to appear comparable to appearing, but not being prepared to 15 proceed, failing to attend at all, or cancelling at the last minute. (ECF 13 at 5 (citing 16 Billips v. NC Benco Steel, Inc., Case No. 5:10CV95-V, 2012 U.S. Dist. LEXIS 70952, at 17 *8 (W.D. N.C. May 22, 2012); Resolution Trust Corp. v. S. Union Co., 985 F.2d 196, 197 18 (5th Cir. 1993); Pine Lakes Int’l Country Club v. Polo Ralph Lauren Corp., 127 F.R.D. 19 471, 472 (D. S.C. 1989); Edmonson v. LCW Auto. Corp., Case No. CV 07-03303-CAS 20 (VVKx), 2009 WL 10675221, at * 2-4 (C.D. Cal. March 3, 2009)).) 21 Plaintiff first notes that Defendant has not cited any cases where a court sanctioned 22 a party for connectivity or technology-related issues that delayed completion of a 23 deposition and argues the cases Defendant relies on are distinguishable from this one. 24 (ECF 14 at 4-6.) Plaintiff also asserts that she should not be sanctions because she did not 25 purposefully or intentionally delay the deposition. (ECF 14 at 4.) Rather, she was ready 26 and willing to proceed, but could not because of technological issued beyond her control. 27 (ECF 14 at 4.) In short, Plaintiff argues she should not be sanctioned because she 28 1 appeared for her deposition and did not impede, delay, or obstruct her deposition . (Id. at 2 4-6.) 3 B. Analysis 4 While there might be circumstances where a deponent that appears, but is unable to 5 be deposed, constitutes a failure to appear under Rule 37(d)(1)(A)(i) or the deponent’s 6 conduct impedes, delays, or frustrates the examination under Rule 30(d)(2), that is not the 7 case here. The only obstacle to the completion of the deposition was a problem with 8 internet connectivity that was beyond Plaintiff’s control. The Court recognizes 9 encountering technological obstacles twice, even if different problems, is challenging. 10 However, Plaintiff addressed the screen issue that arose on the first attempt to complete 11 her deposition by borrowing a laptop and appearing for the rescheduled deposition. The 12 only conduct identified by Defendant that could conceivably be considered delaying or 13 frustrating the completion of her rescheduled deposition was not alerting Defendant that 14 nearby construction had been affecting her internet in the days prior to the rescheduled 15 deposition. That might have been a better course, but failing to raise it is not equivalent to 16 failing to appear or obstructing, delaying, or frustrating the completion of her deposition. 17 Additionally, the cases relied on by Defendant to establish Plaintiff’s conduct was 18 a constructive failure to appear or conduct that impeded, delayed, or frustrated the 19 completion of her deposition are distinguishable. Plaintiff did not leave the deposition. 20 See Billips, 2012 U.S. Dist. LEXIS 70952, at *7-8 (Overruling objections to award of 21 sanctions when deponent “physically le[ft] the deposition site.”). She was prepared to 22 proceed as to the subject of the deposition. See Resolution Trust Corp., 985 F.2d at 197 23 (Awarding sanction when two Rule 30(b)(6) witnesses had no knowledge of the topic 24 designated in the Rule 30(b)(6) notice). Plaintiff’s deposition was also not cancelled at 25 the last minute as a result of known scheduling conflicts. See Pine Lakes Int’l Country 26 Club, 127 F.R.D.
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1 2 3 4 5 6 9 10 MARTHA DE LA ROSA, Case No.: 21-cv-1630-W-BGS
11 Plaintiff, ORDER DENYING MOTION FOR 12 v. SANCTIONS
CORPORATION [ECF 13] 14 Defendant. 15 16 17 Defendant Costco Wholesale Corporation has filed a Motion for Sanctions seeking 18 $ 6,884.38 in sanctions against Plaintiff Martha De La Rosa under Federal Rule of Civil 19 Procedure 30(d)(2) and Federal Rule of Civil Procedure 37(d)(1)(A)(i). (ECF 13.) 20 Plaintiff has filed an Opposition. (ECF 14.) For the reasons set forth below, the Motion is 22 I. BACKGROUND1 23 Plaintiff’s initial deposition, conducted remotely, was not completed because she 24 was unable to properly view exhibits. (ECF 13 at 2-3; ECF 14 at 3.) The screen she was 25
26 27 1 The following summary is drawn from both parties’ briefing and supporting declarations. (ECF 13-14.) There are differences in the parties’ characterization of 28 1 using for the remote deposition was scratched and too small. (ECF 13 at 2-3; ECF 14 at 2 3.) The remainder of her deposition was rescheduled for March 29, 2022 with assurances 3 from Plaintiff’s counsel that Plaintiff would not have the same issues at the rescheduled 4 deposition. (ECF 13 at 3; ECF 14 at 3.) A week before the rescheduled deposition, 5 Defendant’s counsel asked if Plaintiff would prefer to do the remainder of the deposition 6 in-person, and she declined. (ECF 13 at 3; ECF 14 at 3.) Plaintiff’s brief explains that 7 Plaintiff had previously become very seriously ill from Covid-19 and wanted to avoid the 8 risk of exposure. (ECF 14 at 3.) 9 For the rescheduled deposition, Plaintiff indicates that she borrowed a laptop to 10 avoid the screen issues encountered during the first deposition. (ECF 14 at 3.) Plaintiff 11 appeared for her rescheduled remote deposition via Zoom, but her internet connection 12 was poor, and this resulted in delayed and garbled audio, the screen freezing, and not 13 being able to view documents. (ECF 13 at 3; ECF 14 at 3.) Defendant’s brief states that 14 Plaintiff indicated that nearby construction had been affecting her internet for a number 15 of days. (ECF 13 at 3.) The deposition was cancelled as a result of poor connectivity 16 issues. (ECF 13 at 3; ECF 14 at 2.) Defendant requested Plaintiff appear in-person to 17 complete the deposition and she immediately agreed to avoid further issues. (ECF 14 at 18 3.) Plaintiff’s deposition was completed in-person less than a week later on April 4, 2022. 19 (Id.) When Defendant’s counsel requested Plaintiff reimburse Defendant for the 20 cancellation costs of the deposition, Plaintiff declined. (ECF 13 at 4.) 22 Defendant moves for sanctions under Rule 30(d)(2) and 37(d)(1)(A)(i). Under Rule 23 30(d)(2), “[t]he court may impose an appropriate sanction--including the reasonable 24 expenses and attorney’s fees incurred by any party--on a person who impedes, delays, or 25 frustrates the fair examination of the deponent.” Rule 37(d)(1)(A)(i) states that “[t]he 26 court where the action is pending may, on motion, order sanctions if: (i) a party . . . fails, 27 after being served with proper notice, to appear for that person’s deposition.” 28 2 A. Parties’ Positions 3 Defendant argues Plaintiff should be required to pay the costs of her remote 4 deposition and Defendant’s attorney’s fees for the deposition and this Motion. (ECF 13.) 5 The sanctions sought consist of $1,229.38 in costs for a court reporter, videographer, and 6 translator to conduct the deposition and $5,355.00 is attorneys’ fees for the deposition 7 and preparation of this Motion. (Id. at 4.) Defendant argues it is entitled to sanctions 8 because Plaintiff could not proceed with her rescheduled deposition based on the same 9 issues that impeded her first deposition, and Defendant had to pay the costs of the 10 rescheduled deposition (Id. at 5-6.) Defendant also points to Plaintiff’s assurances she 11 would not have technological issues at the rescheduled deposition, her awareness that she 12 was having connectivity issues based on nearby construction, and Defendant’s offer to 13 conduct the deposition in-person. (ECF 13 at 5.) Defendant argues this conduct was a 14 constructive failure to appear comparable to appearing, but not being prepared to 15 proceed, failing to attend at all, or cancelling at the last minute. (ECF 13 at 5 (citing 16 Billips v. NC Benco Steel, Inc., Case No. 5:10CV95-V, 2012 U.S. Dist. LEXIS 70952, at 17 *8 (W.D. N.C. May 22, 2012); Resolution Trust Corp. v. S. Union Co., 985 F.2d 196, 197 18 (5th Cir. 1993); Pine Lakes Int’l Country Club v. Polo Ralph Lauren Corp., 127 F.R.D. 19 471, 472 (D. S.C. 1989); Edmonson v. LCW Auto. Corp., Case No. CV 07-03303-CAS 20 (VVKx), 2009 WL 10675221, at * 2-4 (C.D. Cal. March 3, 2009)).) 21 Plaintiff first notes that Defendant has not cited any cases where a court sanctioned 22 a party for connectivity or technology-related issues that delayed completion of a 23 deposition and argues the cases Defendant relies on are distinguishable from this one. 24 (ECF 14 at 4-6.) Plaintiff also asserts that she should not be sanctions because she did not 25 purposefully or intentionally delay the deposition. (ECF 14 at 4.) Rather, she was ready 26 and willing to proceed, but could not because of technological issued beyond her control. 27 (ECF 14 at 4.) In short, Plaintiff argues she should not be sanctioned because she 28 1 appeared for her deposition and did not impede, delay, or obstruct her deposition . (Id. at 2 4-6.) 3 B. Analysis 4 While there might be circumstances where a deponent that appears, but is unable to 5 be deposed, constitutes a failure to appear under Rule 37(d)(1)(A)(i) or the deponent’s 6 conduct impedes, delays, or frustrates the examination under Rule 30(d)(2), that is not the 7 case here. The only obstacle to the completion of the deposition was a problem with 8 internet connectivity that was beyond Plaintiff’s control. The Court recognizes 9 encountering technological obstacles twice, even if different problems, is challenging. 10 However, Plaintiff addressed the screen issue that arose on the first attempt to complete 11 her deposition by borrowing a laptop and appearing for the rescheduled deposition. The 12 only conduct identified by Defendant that could conceivably be considered delaying or 13 frustrating the completion of her rescheduled deposition was not alerting Defendant that 14 nearby construction had been affecting her internet in the days prior to the rescheduled 15 deposition. That might have been a better course, but failing to raise it is not equivalent to 16 failing to appear or obstructing, delaying, or frustrating the completion of her deposition. 17 Additionally, the cases relied on by Defendant to establish Plaintiff’s conduct was 18 a constructive failure to appear or conduct that impeded, delayed, or frustrated the 19 completion of her deposition are distinguishable. Plaintiff did not leave the deposition. 20 See Billips, 2012 U.S. Dist. LEXIS 70952, at *7-8 (Overruling objections to award of 21 sanctions when deponent “physically le[ft] the deposition site.”). She was prepared to 22 proceed as to the subject of the deposition. See Resolution Trust Corp., 985 F.2d at 197 23 (Awarding sanction when two Rule 30(b)(6) witnesses had no knowledge of the topic 24 designated in the Rule 30(b)(6) notice). Plaintiff’s deposition was also not cancelled at 25 the last minute as a result of known scheduling conflicts. See Pine Lakes Int’l Country 26 Club, 127 F.R.D. at 472 (Sanctions awarded when deposition was cancelled on less than 27 one day’s notice by noticing party when opposing counsel had already travelled to 28 deposition location); Edmonson, 2009 WL 10675221, at * 2-4 (Awarding sanctions when 1 || depositions were cancelled numerous times and deponents failed to appear for noticed 2 || depositions). 3 The Court finds sanctions are not justified under the circumstances. 4 ||IV. CONCLUSION 5 The Motion for Sanctions is DENIED. 7 Dated: July 27, 2022 : p / / 8 on. Bernard G. Skomal 9 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28