The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
JANET GRAHAM, Administratrix of
The Estate of Edna Marie McNeely,
Plaintiff,
v. CIVIL ACTION NO. 1:18-00274
SUNIL KUMAR DHAR, M.D.,
BLUEFIELD CLINIC COMPANY, LLC,
d/b/a BLUEFIELD CARDIOLOGY, and,
BLUEFIELD HOSPITAL COMPANY, LLC,
d/b/a BLUEFIELD REGIONAL MEDICAL CENTER,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is plaintiff’s Motion for
Sanctions and Entry of Default Judgment against defendant
Bluefield Hospital Company, LLC, d/b/a Bluefield Regional
Medical Center (“BRMC”). ECF No. 76. For the reasons that
follow, plaintiff’s motion for sanctions and default judgment is
DENIED.
I. Factual and Procedural Background
There are two primary grounds upon which plaintiff files
her Motion for Sanctions and Entry of Default Judgment, alleging
that BRMC violated Federal Rule of Civil Procedure
37(d)(1)(A)(i) in both respects: that BRMC failed to produce
witnesses to answer Topics 11 and 12 of the 30(b)(6) Deposition
Duces Tecum; and that BRMC produced unprepared witnesses for the
30(b)(6) deposition. BRMC counters that it properly objected to
Topics 11 and 12; and that its witnesses were prepared, plus
plaintiff failed to meet and confer before filing her motion for
sanctions thereby not complying with Fed. R. Civ. P. 37(d)(1)(B)
and L.R. Civ. P. 37.1(b).
A. Failure to Produce Witnesses as to Topics 11 and 12
On June 6, 2019, plaintiff filed her Notice of Rule
30(b)(6) Deposition Duces Tecum of defendant BRMC. See ECF No.
62. In her Notice, plaintiff outlined 12 topics and requested
that a representative or representatives be designated to
testify regarding the topics. On August 9, 2019, BRMC filed its
Objection and Partial Designation to plaintiff’s Notice of Rule
30(b)(6) Deposition Duces Tecum. See ECF No. 72. BRMC objected
to Topics 11 and 12 of the Notice, and partially designated
corporate representatives Rovanda Wills, David Rumley, and
Stephen Ward, M.D., to discuss Topics 1 – 10. Plaintiff filed
no response to BRMC’s objection, and no communications were had
between the parties regarding any issues related to the filed
objection.1
1 BRMC’s counsel Bosak states that at some point she drew Mr.
Byrd’s attention to the Objection and Partial Designations, and
Mr. Byrd denied any need to meet and confer regarding the
objections; indeed, advising Attorney Bosak that he had “seen
the filing and forgot about it.” See ECF No. 80.
On September 5, 2019, BRMC’s counsel Megan Bosak confirmed
that all corporate representatives were available for September
27, 2019. See ECF No. 76, Exh. 8. At the start of the
deposition of BRMC’s corporate representatives on September 27,
2019, plaintiff’s counsel Andrew Byrd inquired as to whether
BRMC was refusing to produce any witnesses for Topics 11 and 12.
Attorney Bosak confirmed on the record that BRMC had filed
objections to plaintiff’s Rule 30(b)(6) Notice and was not
producing any witnesses for Topics 11 and 12 in light of its
filed objections. See ECF No. 76, Exh. 9.
B. Producing Unprepared Witnesses for 30(b)(6) Deposition
Plaintiff alleges that BRMC produced unprepared 30(b)(6)
witnesses. Specifically, plaintiff claims that Dr. Ward was
unprepared to testify as to Topics 5, 6, 8, and 10, and that Mr.
Rumley was unprepared to testify as to Topic 9. Plaintiff
argues that Dr. Ward was unprepared as to Topics 5 and 6 because
he had not calculated the exact number of cardiac
catheterization procedures performed by defendant Sunil Dhar,
M.D., and that Dr. Ward testified that another individual at
BRMC was more qualified than him to testify as to Topic 8. As
to Topic 10, plaintiff argues that Dr. Ward was unprepared
because he had no knowledge of the communications Topic 10 was
seeking information on. Plaintiff further argued that Mr.
Rumley was unprepared as to Topic 9 because he neither reviewed
nor brought any documents to facilitate his knowledge of the
topic, and he would not have access to those documents or the
conversations surrounding those documents. See ECF No. 76.
BRMC responds that, as to Topics 5 and 6, Dr. Ward
expressly testified he had prepared for the deposition by
meeting with Attorney Bosak and reviewing Dr. Dhar’s case logs,
and that as to Topic 8, Dr. Ward was able to testify as to the
non-existence of the documents sought. As to Topic 10, BRMC
argues that Dr. Ward could testify to the information sought
based upon the medical records provided, even if he did not have
personal knowledge, and, moreover, that BRMC had already
provided all documents related to the Topic 10 area of inquiry.
BRMC also responds that as to Topic 9, Mr. Rumley expressly
testified that he was the person at BRMC with the most knowledge
on the topic, and that any gap in Mr. Rumley’s knowledge
asserted by plaintiff is due to plaintiff’s Attorney Byrd asking
questions to Mr. Rumley outside the scope of Topic 9’s inquiry.
See ECF No. 80.
II. Analysis
It is best to begin by stating the relevant federal and
local rules of civil procedure at issue here. Fed. R. Civ. P.
37(d)(1)-(2) is as follows:
(1) In General.
(A) Motion; Grounds for Sanctions. The court
where the action is pending may, on motion, order
sanctions if:
(i) a party or a party's officer, director,
or managing agent--or a person designated
under Rule 30(b)(6) or 31(a)(4)--fails,
after being served with proper notice, to
appear for that person's deposition; or
(ii) a party, after being properly served
with interrogatories under Rule 33 or a
request for inspection under Rule 34, fails
to serve its answers, objections, or written
response.
(B) Certification. A motion for sanctions for
failing to answer or respond 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.
(2) Unacceptable Excuse for Failing to Act. 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).
L.R. Civ. P. 37.1(b) states:
(b) Duty to Confer.
Before filing any discovery motion, including any
motion for sanctions or for a protective order,
counsel for each party shall make a good faith
effort to confer in person or by telephone to
narrow the areas of disagreement to the greatest
possible extent. It shall be the responsibility
of counsel for the moving party to arrange for
the meeting.
Plaintiff’s grounds for sanctions are each based upon a
violation of Fed R. Civ. P. 37(d)(1)(A)(i) – that BRMC failed to
appear for the 30(b)(6) deposition. BRMC’s decision to not
provide any witnesses to answer to Topics 11 and 12 is certainly
such a failure to appear. See, e.g., Robinson v. Quicken Loans,
Inc., 2013 WL 1776100, at *2-3 (S.D.W. Va. Apr. 25, 2013). It
has also been widely established that “‘[p]roducing an
unprepared [Rule 30(b)(6)] witness is tantamount to a failure to
appear.’” Scott Hutchison Enterprises, Inc. v. Cranberry
Pipeline Corp., 318 F.R.D. 44, 54 (S.D.W. Va. 2016)(Eifert, Mag.
J.)(quoting United States v. Taylor, 166 F.R.D. 356, 363
(M.D.N.C. 1996)). Thus, plaintiff’s claim that BRMC corporate
representatives Dr. Ward and Mr. Rumley were unprepared clearly
also falls within the scope of Rule 37(d)(1)(A).
Defendant BRMC argues that plaintiff’s motion for sanctions
should be denied as to all grounds because plaintiff did not
comply with either the local or the federal rules’ requirement
of conferral before filing. BRMC is partially correct, and thus
the court hereby DENIES plaintiff’s motion for sanctions, but
the matter is not quite so simple as BRMC suggests.
A. Federal Rule of Civil Procedure 37(d) Does Not Require
Conferral Before Filing a Motion for Sanctions
Fed. R. Civ. P. 37(d) does not require a pre-filing
conference or a certification of a good faith effort to confer
as a “prerequisite to a court imposing sanctions for failing to
appear at a deposition.” Nationstar Mortg., LLC v. Flamingo
Trails No. 7 Landscape Maint. Ass'n, 316 F.R.D. 327, 335 (D.
Nev. 2016). As the court in Nationstar correctly explains, a
certification of conferral is needed only before motions for
sanctions are made for violations of Rule 37(d)(1)(A)(ii), and
not for violations of Rule 37(d)(1)(A)(i), as is alleged here:
Rule 37(d)[(1)(B)] requires a movant's certification
of a pre-filing conference for motions seeking
sanctions arising out of a party “failing to answer or
respond” to discovery. This provision “require[s]
that, where a party fails to file any response to
interrogatories or a Rule 34 request, the discovering
party should informally seek to obtain such responses
before filing a motion for sanctions.” In contrast,
Rule 37(d)[(1)(B)] omits any reference to requiring a
pre-filing conference for sanctions motions arising
out of the failure to appear for deposition. Hence, a
pre-filing conference is not required under Rule 37(d)
in relation to a motion for sanctions arising out of a
nonappearance at a deposition.
Id. (emphasis added) (internal citations omitted).
Therefore, BRMC’s reliance on Fed. R. Civ. P. 37(d)(1)(B)
as requiring a certification of good faith conferral is
misplaced.
B. Courts Have Discretion Whether to Require Strict Compliance
with Local Rule of Civil Procedure 37.1(b)
“[A] court has discretion in managing its discovery issues
and must address motions for sanctions on a case-by-case basis.”
Scott Hutchison Enterprises, 318 F.R.D. at 51. Thus, while BRMC
is correct that Rule 37.1(b) requires a good faith conferral
“before filing . . . any motion for sanctions,” L.R. Civ. P.
37.1(b), non-compliance with the rule does not automatically
preclude an award of sanctions. Courts in this district have
held that “the failure of a party to comply with L.R. Civ. P.
37.1(b) may provide a basis for the presiding judicial officer
to deny a motion for sanctions,” see Scott Hutchison
Enterprises, 318 F.R.D. at 51, but courts have also declined to
deny the motion for sanctions despite non-compliance with Local
Rule 37.1(b). See, e.g., id.
However, the factors which mitigate the need for compliance
with Local Rule 37.1(b) are not present here, and thus this
court declines to exercise its discretion to allow plaintiff’s
motion for sanctions to go forward in spite of its failure to
adhere to Local Rule 37.1(b). In Scott Hutchison Enterprises,
the court gave two reasons for its decision to overlook the non-
compliance with Local Rule 37.1(b). First, the corresponding
federal rule did not require conferral before awarding
sanctions. See id. And second, the parties had already
conferred about the scope of the Rule 30(b)(6) deposition and
there had even been a discovery hearing held before the court on
the discovery issues which served as the basis of the motion for
sanctions. See id. While here the corresponding federal rule
likewise does not require conferral before awarding sanctions
for nonappearance at a deposition, see supra, the second factor
is grossly absent.
There have been extremely limited discussions between the
parties as to their discovery disagreements. BRMC filed
objections to Topics 11 and 12, but plaintiff made no response,
and thus the issue has not been “already narrowed, fully
briefed, and argued” as it had in Scott Hutchison Enterprises.
318 F.R.D. at 51. Likewise, there was minimal, if any,
discussion as to the fact that the witnesses were deemed to be
unprepared by plaintiff, and minimal discussion as to how BRMC
could remedy the perceived shortcomings in the witnesses’
30(b)(6) deposition testimony.2 “The purpose of the meet and
2 The court declines to find that the two conversations relating
to BRMC’s provision of information and/or documents at issue as
to Topic 9 constitute a conferral sufficient to satisfy Local
Rule 37.1(b). The first conversation occurred on September 27,
2019, at the 30(b)(6) deposition. During the depositions,
Attorney Byrd requested several off the record conversations
with BRMC’s counsel to discuss the content of Topic 9 of the
30(b)(6) Notice, and it became apparent that there was a
conflict as to which documents were being requested as part of
Notice Topic 9. According to defendant BRMC, an informal
agreement was made to discuss any issues related to requests for
additional documents after the conclusion of the 30(b)(6)
depositions, see ECF No. 80, and the parties agreed that BRMC
would attempt to find documents related to Topic 9 and provide
them to plaintiff prior to the close of discovery. See ECF No.
83. These general terms of this informal agreement seem to be
supported by plaintiff’s Attorney Byrd’s statements at the
conclusion of the deposition with Mr. Rumley. See ECF No. 83,
Exh. 3 at p. 26 ¶ 8-14 (“I'm going to . . . give your counsel
time to look for documents that I believe are responsive to
[Topic 9 of] the subpoena duces tecum in this 30(b) Notice.”).
confer obligation is to obtain discovery material without court
action.” Frontier-Kemper Constructors, Inc. v. Elk Run Coal
Co., 246 F.R.D. 522, 525–26 (S.D.W. Va. 2007). Or, in the event
that court action is needed, conferral prepares both the court
and the parties to efficiently and effectively resolve the
dispute. Because conferral in all likelihood would have served
both the parties and the court by narrowing the issues in
dispute, and perhaps by avoiding court action at all, this court
holds that plaintiff’s non-compliance with Local Rule 37.1(b)
does preclude an award of sanctions, and so DENIES plaintiff’s
Motion for Sanctions and Entry of Default Judgment. ECF No. 76.
Then on October 9, 2019, Attorney Byrd left a message for
Attorney Bosak to “call him back.” A conversation was held via
telephone later that morning wherein, according to BRMC,
Attorney Byrd represented that he was not concerned about the
Topic 9 documents and advised Attorney Bosak, “don’t worry about
it.” See ECF No. 80. But according to Attorney Byrd’s
recollection of the phone call on October 9, he called to check
on the status of whether or not BRMC had obtained the
information contained in Notice Topic 9, and states that BRMC’s
suggestion that he wasn’t worried about it is a complete
misinterpretation. See ECF No. 83.
First, the court remains unclear about what documents
relating to Topic 9 are at issue or are still being sought by
plaintiff. Conferral between the parties prior to filing the
motion for sanctions would have aided the court in this respect.
Second, conferral would have been beneficial for the parties, as
there is a difference of recollection as to the October 9, 2019
discussion. Further conferral between the parties, and clear
notice by the plaintiff to BRMC that these documents were still
sought, may likely have solved this current dispute before court
intervention was requested.
III. Court Criticism of Defendant BRMC’s Actions
Despite the court’s ruling in favor of defendant BRMC as to
this instant motion for sanctions, defendant BRMC is not without
fault.
First, BRMC’s corporate representatives at the 30(b)(6)
depositions should have been better prepared. The court
declined to reach the merits of whether BRMC’s witnesses were
prepared, but notes that if it had, it would have been a close
case. The court expects better preparation from 30(b)(6)
designees in the future.
Second, BRMC was required to file a protective order,
rather than filing objections, when it declined to designate a
representative to answer Notice Topics 11 and 12. Federal Rule
37(d)(2) is clear on this matter, as is the law of this
district. See Robinson v. Quicken Loans, Inc., 2013 WL 1776100,
at *3 (S.D.W. Va. Apr. 25, 2013)(“‘[T]here is no provision in
the rules which provides for a party whose deposition is noticed
to serve objections . . . to avoid providing the requested
discovery until an order compelling discovery is issued . . .
Put simply and clearly, absent agreement, a party who . . . does
not wish to comply with a notice of deposition must seek a
protective order.’”)(quoting New England Carpenters Health
Benefits Fund v. First Databank, Inc., 242 F.R.D. 164, 165–66
(D. Mass. 2007)).
Iv. Conclusion
For the reasons expressed above, plaintiff’s Motion for
Sanctions and Entry of Default Judgment, ECF No. 76, is DENIED.
The Clerk is directed to send copies of this Memorandum
Opinion and Order to all counsel of record.
IT IS SO ORDERED this 19th day of December, 2019.
Enter:
David A. Faber
Senior United States District Judge
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