holding party who prevailed on motion to compel discovery responses entitled to reasonable expenses where a good faith effort was made to obtain discovery and no legal authority existed for non- moving party’s refusal to produce responses
How later courts described this case
- holding party who prevailed on motion to compel discovery responses entitled to reasonable expenses where a good faith effort was made to obtain discovery and no legal authority existed for non- moving party’s refusal to produce responses
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:20-CV-85-D
JEANNIE MAE BARDEN, et al., )
Plaintiffs,
V. ORDER
MURPHY-BROWN LLC, et al., .
Defendants.
This matter comes before the court on Defendants’ motion to compel the deposition of
Plaintiff Annette Pearsall and for an award of fees and costs. [DE-63]. No response to the motion
- was filed, and the time to do so has expired. For the reasons set forth below, Defendants’ motion
to compel Ms. Pearsall’s deposition is allowed, and the fee-award issue is reserved for ruling.
Defendants first noticed Ms. Pearsall’s deposition for September 21, 2021, but due to her
health issues Defendants agreed to continue the deposition to a later date. Defs.” Mem. [DE-64]
at 2; Depo. Notice, Ex. A [DE-64-1] at 5-8. Defendants attempted to reschedule the deposition
for months, and, after agreement with Plaintiffs’ counsel, it was ultimately renoticed for April 25,
2022. Defs.” Mem. [DE-64] at 2; Depo. Notice, Ex. B [DE-64-1] at 10-13. Defendants’ counsel
and Plaintiffs’ counsel appeared at the appointed place and time for the deposition but Ms. Pearsall
failed to appear without explanation or objection. Defs.” Mem. [DE-64] at 3.
The Federal Rules of Civil Procedure enable a party to obtain information by conducting
an oral deposition of another party. Fed. R. Civ. P. 30(a)(1), 37(a)(3)(B)(i). The court may award
sanctions if a party fails to attend and proceed with a noticed deposition. Fed. R. Civ. P. 30(g)(1),
37(d)(1)(A)i). “[T]he court has ‘substantial discretion’ to grant or deny motions to compel
discovery.” English v. Johns, No. 5:11-CT-3206-D, 2014 WL 555661, at *4 (E.D.N.C. Feb. 11,
2014) (quoting Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 929 (4th
Cir. 1995)).
The court finds that Plaintiff Anette Pearsall failed to appear for her properly noticed
deposition. Accordingly, the motion to compel Ms. Pearsall’s deposition is allowed. Counsel
shall confer regarding a mutually agreeable date, and the deposition shall be held by no later than
. September 30, 2022.
Ms. Pearsall is cautioned that a failure to appear at her properly noticed deposition
may result in sanctions, including dismissal of her claims for failure to comply with her
discovery obligations, failure to comply with the court’s order, and failure to prosecute. Fed.
R. Civ. P. 30(d)(2) and 37(b)(2)(A).
Defendants also request an award of costs and fees incurred in bringing the motion to
compel and in attending the noticed deposition at which Ms. Pearsall failed to appear. Defs.” Mem.
[DE-64] at 5.
If the motion [to compel] is granted—or if the disclosure or requested discovery is
provided after the motion was filed—the court must, after giving an opportunity to
be heard, require the party or deponent whose conduct necessitated the motion, the
party or attorney advising that conduct, or both to pay the movant’s reasonable
expenses incurred in making the motion, including attorney’s fees.
Fed. R. Civ. P. 37(a)(5)(A); see also Fed. R. Civ. P. 30(d)(2) (“The court may impose an
appropriate sanction—including the reasonable expenses and attorney's fees incurred by any
party—on a person who impedes, delays, or frustrates the fair examination of the deponent.”).
Courts have held that an award of reasonable expenses incurred is appropriate where the moving
party has acted in good faith, attempted to resolve the matter without court intervention, and the
non-moving party has failed to comply with its obligations under the Federal Rules of Civil
Procedure. See, e.g., Gardner v. AMF Bowling Ctrs., Inc., 271 F. Supp. 2d 732, 733-34 (D. Md.
2003) (holding defendant entitled to discovery sanction and attorney’s fees where plaintiff failed
to respond to discovery requests by due date, defendant advised plaintiff's counsel in writing that
responses were past due, and plaintiff did not respond to defendant’s letters or to motion for
sanctions); Biovail Corp. v. Mylan Labs., Inc., 217 F.R.D. 380, 382 (N.D.W.Va. 2003) (holding
party who prevailed on motion to compel discovery responses entitled to reasonable expenses
where a good faith effort was made to obtain discovery and no legal authority existed for non-
moving party’s refusal to produce responses).
Ms. Pearsall has failed to comply with her discovery obligation to appear for a properly
noticed deposition to which she did not object. Defendants made good-faith attempts to obtain the
deposition without court intervention, and Ms. Pearsall has failed to respond to the motion to
compel and request for fees and costs. The court finds that Defendants are entitled to an award of
fees and costs incurred in bringing the motion to compel and in attending the noticed deposition at
which Ms. Pearsall failed to appear. Accordingly, Defendants shall file by October 12, 2022, an
affidavit setting out their reasonable costs and fees and a supportive memorandum of law, and any
response shall be filed by no later than October 26, 2022. If Plaintiff fails to timely respond,
the court will deem her to have no objection to the costs and fees claimed by Defendants and
to have waived her right to be heard.
SO ORDERED, the /2 day of September, 2022.
United Statés Magistrate Judge