JEANNIE DOLORES VILLALONA-RODRIGUEZ PLAINTIFF v. UNITED STATES OF AMERICA DEFENDANT CIVIL ACTION NO. 3:18-CV-00786-CHB United States District Court, W.D. Kentucky Filed August 22, 2019 Counsel Jeffrey L. Freeman, Sam Aguiar, Sam Aguiar Injury Lawyers, PLLC, Louisville, KY, Marc L. Breit, Breit Law Office, Louisville, KY, for Plaintiff. Timothy D. Thompson, U.S. Attorney Office, Louisville, KY, for Defendant. Edwards, Regina s., United States Magistrate Judge MEMORANDUM OPINION AND ORDER *1 Pending before the Court is a discovery dispute concerning the issue of costs resulting from depositions that were scheduled for May 17, 2019. See (DN 24). Pursuant to 28 U.S.C. § 636(b)(1)(A) and Federal Rule of Civil Procedure 72, the District Court referred this matter to the undersigned Magistrate Judge for the purpose of resolving all discovery disputes. (DN 9). For the reasons set forth below, Plaintiff's request for an award of costs related to the May 17, 2019 depositions is DENIED. BACKGROUND On November 17, 2017, Miryam Villalona, a pedestrian, was struck by a United States Postal Service tractor-trailer driven by Woodrow Perry. (DN 1 at p. 1). Ms. Villalona sustained injuries and was transported to the University of Louisville Hospital. (DN 1-2 at p. 10). Following her release from the hospital, Ms. Villalona died on December 18, 2017. (DN 1 at p. 1). Plaintiff, Jeannie Dolores Villalona-Rodriguez, individually, and as Administratrix and Personal Representative of the Estate of Miryam Villalona, filed this action claiming negligence and wrongful death under the Federal Tort Claims Act against Defendant, United States of America. (Id.). Defendant timely filed an Answer to Plaintiff's Complaint. (DN 8). On April 17, 2019, the undersigned Magistrate Judge conducted a Rule 16 case management conference with the parties and subsequently entered the Scheduling Order for this case. (DN 19). In pertinent part, the Scheduling Order provides that discovery disputes shall be resolved in the following manner: (a) The parties shall first confer (which means orally discuss the issue) in an attempt to resolve disputes between themselves, without judicial intervention. (b) If the parties are unable to resolve a dispute informally, they shall request a telephone conference with the Court. Motions pertaining to unresolved discovery disputes may not be filed without first holding such a conference. Counsel shall contact case manager Ashley Henry at ashley_henry@kywd.uscourts.gov to schedule such a conference. (c) If, and only if, a dispute continues after a conference with the Court, a complaining party may file an appropriate written motion directed to the undersigned. Any written motion regarding discovery shall include a certification detailing counsel's attempts to resolve the dispute as required by Rule 37(a)(1) and Local Rule 37.1. The Court may impose an appropriate briefing schedule to resolve any such formal motion. (d) The Court expects parties to raise and address discovery disputes in a manner that avoids potential disruption of the schedule in the case. (Id. at p. 3-4).[1] May 17, 2019 Deposition *2 On April 17, 2019, Plaintiff filed a Notice to stenographically take the video depositions of Mr. Woodrow Perry (“Perry”) and Mr. Jeff Vogel (“Vogel”), two non-party witnesses to this action. (DNs 17 & 18). The depositions were set for May 17, 2019. (Id.). On May 16, 2019, the morning before the scheduled depositions, the Office Manager for Plaintiff's counsel emailed Defendant to confirm the depositions for the following day.[2] Defendant promptly responded and confirmed that defense counsel and the two noticed witnesses, Mr. Perry and Mr. Vogel, would be in attendance at the May 17, 2019 depositions.[3] Later that afternoon, Plaintiff's counsel emailed Defendant to address an issue prior to the depositions.[4] Upon review of Defendant's written discovery responses, Plaintiff explained that Defendant's objections to the production of certain documents may impact the scheduled depositions.[5] Plaintiff therefore requested that Defendant supplement the requested information prior to the May 17, 2019 depositions, or in the alternative, Plaintiff reserved the right to re-take the depositions of Mr. Perry and Mr. Vogel, if necessary.[6] Defense counsel replied that Defendant was willing to produce the additional documents.[7] However, Defendant alleged that the production of the documents was governed by the Privacy Act, 5 U.S.C. § 552a, which prohibited the production of the requested documents absent a protective order issued by the Court.[8] For this reason, defense counsel attached a draft motion and proposed protective order, which counsel noted were previously submitted to Plaintiff for review on May 9, 2019.[9] Additionally, Defendant objected to the two witnesses being deposed on May 17, 2019 as well as at a later date.[10] Rather, defense counsel proffered that “[i]f you want these documents before the deposition, let's work out the protective order issue and reschedule the depositions.”[11] The following morning, on May 17, 2019, Plaintiff's counsel convened with a court reporter and a videographer to take the scheduled depositions of Mr. Perry and Mr. Vogel.[12] Defense counsel, however, did not produce any witnesses or otherwise appear for the deposition on May 17, 2019.[13] At approximately 9:30 a.m., Plaintiff's counsel called defense counsel.[14] During this conversation, defense counsel expressed his belief that the depositions were properly canceled.[15] Counsel for Plaintiff disagreed with Defendant's position and claimed that there was no notice of cancelation for the May 17, 2019 depositions.[16] Based on this disagreement, and in accordance with the Scheduling Order (DN 19), Plaintiff's counsel contacted the undersigned Magistrate Judge's Chambers to request a telephone conference with the Court.[17] Specifically, Plaintiff sought leave from the Court to file a motion to compel production of certain documents that Defendant maintained were protected by the Privacy Act, 5 U.S.C. § 552a, as well as an award of costs incidental to the aborted depositions.[18] May 29, 2019 Telephonic Conference *3 Pursuant to counsel's request, the Court conducted a Telephonic Conference (“Conference”) on May 29, 2019. (DN 23). During the Conference, the parties discussed the two pending discovery disputes. (DN 24). The Court notes that the first issue, involving entry of a protective order related to the production of certain documents, was resolved amongst the parties following the May 29, 2019 Conference. (DN 27). The second discovery dispute, however, remains pending before the Court and involves the issue of costs for the May 17, 2019 depositions. During the Conference, Plaintiff claimed that as a result of the failed depositions, Defendant is liable for the costs incurred for the court reporter and the videographer. (DN 24). Plaintiff maintained that throughout the parties' email correspondence on May 16, 2019, Defendant did not provide clear notice that the depositions scheduled for May 17, 2019 were canceled.[19] Rather, Plaintiff argued that Defendant unilaterally suggested that the depositions be postponed.[20] Plaintiff, however, expressed to the Court that Plaintiff's counsel never indicated an intent to cancel and never sent or filed a notice of cancelation for the depositions.[21] Defendant posited that Plaintiff was on notice that Defendant would not produce Mr. Perry and Mr. Vogel for the May 17, 2019 depositions.[22] Instead, Defendant argued that based on the parties' communications with respect to the discovery dispute concerning the production of certain documents and the issue of the protective order, Defendant's failure to attend the May 17, 2019 deposition was substantially justified under Rule 37(d)(3) of the Federal Rules of Civil Procedure.[23] Therefore, Defendant protested that any award of costs to Plaintiff would be unjust.[24] At the conclusion of the Conference, the Court noted that each party had an opportunity to expound on its position regarding Plaintiff's request for an award of costs incidental to the May 17, 2019 depositions. (DN 24). For that reason, the Court did not order the parties to engage in motion practice concerning this discovery dispute. The Court instead advised the parties that this matter was under review and would be adjudicated in a separate opinion. (Id.). LEGAL STANDARD Federal Rule of Civil Procedure 37 governs the imposition of sanctions for failure to make disclosures or to cooperate in discovery. Fed. R. Civ. P. 37. In pertinent part, subsection (d) of Rule 37 provides guidance for sanctions with respect to a party's failure to attend its own deposition, serve answers to interrogatories, or respond to a request for inspection. Id. at 37(d). Generally, Rule 37 gives broad discretion in imposing sanctions for failure to comply with discovery. See Fed. R. Civ. P. 37. However, unlike the general grant of discretion in imposing other discovery sanctions, Rule 37(d) gives a court little discretion in imposing costs for a party or a party's officer's failure to appear at a scheduled deposition. Id. at 37(d). Under Rule 37(d)(3), although “[s]anctions may include any of the orders listed in Rule 37(b)(2)(A)(i)-(vi),” the Rule provides that “[i]nstead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure.” Id. at 37(d)(3). (emphasis added). Yet, Rule 37(d)(3) adds that sanctions or reasonable expenses caused by the failure shall be not be imposed if the party failing to act demonstrates that “the failure was substantially justified or other circumstances make an award of expenses unjust.” Id. DISCUSSION *4 Applying these principles to the facts presented, it may appear at first glance that the imposition of sanctions is appropriate in this matter. Pursuant to Rule 30 of the Federal Rules of Civil Procedure, the Court finds that the May 17, 2019 depositions were properly noticed. See generally Fed. R. Civ. P. 30(b), and (DNs 17 & 18). Additionally, it is undisputed that defense counsel failed to appear at the May 17, 2019 depositions. Moreover, Defendant concedes that defense counsel did not produce Mr. Perry and Mr. Vogel for the scheduled depositions. Based on the foregoing, the Court could award sanctions to Plaintiff under the terms of Rule 37(d)(1). See Fed. R. Civ. P. 37(d)(1)(A)(i) (“The court where the action is pending may, on motion, order sanctions if 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.”). However, under the circumstances presented, the Court finds that the imposition of sanctions would not be proper because Defendant's failure to appear for the deposition was substantially justified and other circumstances make an award of expenses unjust. Substantial Justification Under Rule 37(d)(3), “[i]nstead of or in addition to [the sanctions listed in Rule 37(b)(2)(A)(i)-(vi)], the court 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) (emphasis added). “This provision places the burden on the disobedient party to avoid expenses by showing that [the] failure [was] justified or that special circumstances make the award of expenses unjust.” Jones v. Int'l Longshoremen's Ass'n, No. 3:12 CV 00345, 2012 WL 4092713, at *8 (N.D. Ohio Aug. 23, 2012), report and recommendation adopted, No. 3:12 CV 345, 2012 WL 4092625 (N.D. Ohio Sept. 17, 2012). However, there is no bright-line test to show that the failure – in this case, the failure to appear for the deposition – was substantially justified under Rule 37. The Sixth Circuit instead has held that the disobedient party can demonstrate that its failure was “ ‘substantially justified’ if it raises an issue about which ‘there is a genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action.’ ” Doe v. Lexington-Fayette Urban Cty. Gov't, 407 F.3d 755, 765 (6th Cir. 2005) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). “There is a genuine dispute if the [failure to cooperate in] discovery ‘has a reasonable basis in law and fact.’ ” Osborn v. Griffin, No. 2:11-CV-89-WOB-REW, 2014 WL 12647954, at *2 (E.D. Ky. July 7, 2014) (quoting Pierce, 487 U.S. at 566 n.2 (noting that “a [party's] position can be justified even though it is not correct”)). Further, the Supreme Court remarked that the phrase ‘substantially justified’ “has never been described as meaning justified to a high degree, ... but rather justified in substance or in the main—that is, justified to a degree that could satisfy a reasonable person.” Pierce, 487 U.S. at 565 (internal quotation marks omitted). Thus, some justification will not suffice to show that the failure was substantially justified, as competent counsel can always offer some justification. Alvarez v. Wallace, 107 F.R.D. 658, 662 (W.D. Tex. 1985). Instead, “the Court's focus must be on the quality of the justification and the genuineness of the dispute; where an impartial observer would agree that a party had good reason [for the failure], then such a justification is ‘substantial.’ ” Id. The Court must “look to the background of [the failure], not simply the outcomes, to determine if the [failure to cooperate in] discovery [was] substantially justified.” Osborn, 2014 WL 12647954, at *2. In its statement provided to the Court in advance of the May 29, 2019 Telephonic Conference, Defendant argues that its failure to attend the May 17, 2019 depositions was substantially justified under Rule 37(d)(3) and any award to Plaintiff would be unjust.[25] Conversely, Defendant claims that it was the actions, or rather, the inactions of Plaintiff's counsel alone that caused Plaintiff to incur deposition expenses.[26] In support of this argument, Defendant relies heavily on the email exchange between the parties leading up to the scheduled depositions. Specifically, Defendant draws the Court's attention to the two emails exchanged between Plaintiff's counsel and defense counsel on May 16, 2019, the day before the scheduled depositions.[27] *5 At approximately 1:26 in the afternoon on May 16, 2019, Plaintiff's counsel emailed defense counsel to address a matter in advance of the May 17, 2019 depositions.[28] As previously referenced by the Court, the issue involved Plaintiff's review of Defendant's responses to written discovery, which included objections to the production of certain documents based on an assertion that the information was protected from disclosure by the provisions set forth in the Privacy Act, 5 U.S.C. § 552a.[29] In the email to Defendant, Plaintiff's counsel wrote that “[b]ecause the lack of information may impact the depositions of Mr. Vogel and Mr. Perry, we ask that you fully respond to the discovery requests in advance of the depositions.”[30] Plaintiff's counsel went on to add that “[i]n the absence of [Defendant fully responding to the discovery requests prior to the May 17, 2019 depositions], we will reserve the right to re-take these depositions, if necessary, to question these witnesses on the subject matter of the information that has been withheld.”[31] In reply to Plaintiff's correspondence, defense counsel's May 16, 2019 email began with a reminder to Plaintiff about a separate email defense counsel sent approximately one week before the scheduled depositions.[32] Specifically, on May 9, 2019, defense counsel emailed Plaintiff to advise that because certain documents in response to Plaintiff's discovery requests contain information protected by the Privacy Act, the production of those documents requires the entry of a protective order by the Court.[33] Accordingly, in the May 16, 2019 reply email to Plaintiff, Defendant also included the May 9, 2019 correspondence to Plaintiff, in which Defendant attached a draft motion and proposed protective order for Plaintiff's review.[34] Notably, Defendant's May 16, 2019 email to Plaintiff also provided that defense counsel “will not agree to [ ] Mr. Vogel and Mr. Perry being deposed tomorrow and then at a later date too. If you want these documents before the deposition, let's work out the protective order issue and reschedule the depositions.”[35] These email communications are a key factor in the Court's finding that Defendant's actions were substantially justified. While the Court notes that Defendant's May 16, 2019 email to Plaintiff cannot be considered an unequivocal declaration that defense counsel would not produce Mr. Perry and Mr. Vogel for the May 17, 2019 depositions, the Court also recognizes that this is not a case where a party simply refused without reason to appear for a deposition. Instead, it is clear from the correspondence and statements described above that the parties' dispute regarding the Privacy Act-protected documents was inextricably linked to the failed depositions. Because of that dispute, the parties had a fundamental disagreement about the scope of discovery and how to proceed with the scheduled depositions. The Court, therefore, is not prepared to say at this juncture that Defendant's failure to attend the May 17, 2019 depositions is beyond dispute among reasonable people. Rather, because there is a “genuine dispute,” Defendant's failure is substantially justified. Accordingly, the Court concludes that the imposition of sanctions is not warranted. Unjust Award of Expenses As referenced above, Rule 37(d)(3) provides that “the court must require the party failing to act ... to pay the reasonable expenses, including attorney's fees, caused by the failure, unless ... other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(d)(3) (emphasis added). In its request for an award of costs related to the May 17, 2019 depositions, Plaintiff does not seek attorney's fees from Defendant. Instead, Plaintiff requests expenses it incurred for the court reporter and the videographer due to the aborted depositions. Based on the following circumstances, however, the Court finds that an award of costs or any expenses related to the failed depositions of Mr. Perry and Mr. Vogel would be unjust. *6 First, the single failure of Defendant to produce witnesses or otherwise appear for the May 17, 2019 depositions, although not condoned by the Court, was not completely without reason, particularly in light of the unresolved discovery issue raised by Plaintiff on the eve of the depositions. Second, it is important to note that defense counsel attempted to rectify the issue concerning the Privacy Act-protected documents not once, but twice in advance of the scheduled depositions. Such a record does not suggest bad faith conduct on behalf of Defendant. Third, pursuant to the Scheduling Order, the deadline for discovery is February 3, 2020. (DN 19). Accordingly, Plaintiff did not experience any prejudice as a result of the failed depositions. Rather, almost immediately following the aborted May 17, 2019 depositions, Mr. Perry and Mr. Vogel's depositions were rescheduled for June 25, 2019. See (DNs 21 & 22). Thus, the Court concludes that these circumstances make an award of expenses unjust. Notwithstanding the foregoing, the Court finds that both parties, to varying degrees, were at fault for the failure of the May 17, 2019 depositions. The Court notes that defense counsel, as a practitioner in Federal Court, should have known that Rule 37 does not tolerate parties failing to appear for their depositions. As such, the Court warns defense counsel that future noncooperation will result in sanctions, including but not limited to an award of reasonable expenses. Likewise, Plaintiff's counsel is advised that any expenses incurred could have been prevented by clarifying defense counsel's May 16th email as to the status of the parties' discovery issue and the depositions. In other words, this dispute could have been avoided if counsel for either party had taken the affirmative step of timely placing a telephone call to confirm whether the depositions had been canceled and, if not, then to make a good faith effort to resolve the discovery issue prior to the May 17, 2019 depositions. Thus, the Court admonishes both parties for an inexcusable failure to communicate and reminds counsel of the importance of communicating with one another in good faith. Because the parties rescheduled Mr. Perry's and Mr. Vogel's depositions prior to the May 29, 2019 Telephonic Conference, the Court is optimistic that the parties are fully capable of good communication and cooperation going forward. CONCLUSION After carefully considering the totality of the circumstances, the Court declines to order sanctions because Defendant's actions were substantially justified. Additionally, because the Court concludes that both parties mutually contributed to the failure of the May 17, 2019 depositions, the Court finds that an award of expenses would be unjust. ORDER For the reasons provided above, and the Court being otherwise sufficiently advised; IT IS ORDERED that Plaintiff's request for an award of costs related to the May 17, 2019 depositions is DENIED. Copies: Counsel of Record Footnotes [1] In compliance with the Scheduling Order, the parties contacted the Court to request a telephone conference to address the unresolved discovery dispute at issue in this matter. See (DN 24). Prior to the telephonic conference, the Court directed the parties to submit statements outlining the nature of the discovery dispute for the Court's review. Because the Court did not order motion practice following the May 29, 2019 Telephonic Conference with respect to the resolution of the pending discovery dispute, the parties' statements and exhibits will be referenced and quoted from liberally throughout the Court's Memorandum Opinion and Order. [2] Defendant's Exhibit 4 (Email from Sara Michels on Thursday, May 16, 2019 at 9:03 AM). [3] Id. (Email from Timothy Thompson on Thursday, May 16, 2019 at 9:07 AM). [4] Defendant's Exhibit 5 (Email from Jeff Freeman on Thursday, May 16, 2019 at 1:26 PM). [5] Id. [6] Id. [7] Defendant's Exhibit 6 (Email from Timothy Thompson on Thursday, May 16, 2019 at 2:10 PM). [8] Id. [9] Id. [10] Id. [11] Id. [12] Plaintiff's Statement at p. 2. [13] Id. [14] Defendant's Statement at p. 3. [15] Plaintiff's Stmt., supra note 12, at p. 3. [16] Id. at p. 2. [17] Id. at p. 1. [18] Id. [19] Id. at p. 2. [20] Id. [21] Id. [22] Defendant's Stmt., supra note 14, at p. 5. [23] Id. at p. 4. [24] Id. [25] Id. at p. 4. [26] Id. [27] See Def.'s Exhibit 5, supra note 4, and Def.'s Exhibit 6, supra note 7. [28] Def.'s Exhibit 5, supra note 4. [29] Id. [30] Id. [31] Id. [32] Def.'s Exhibit 6, supra note 7, at p. 1 (Email from Timothy Thompson on Thursday, May 16, 2019 at 2:10 PM). [33] Id. at p. 1 (Email from Timothy Thompson on Thursday, May 9, 2019 at 3:03 PM). [34] Id. at p. 1 (Email from Timothy Thompson on Thursday, May 16, 2019 at 2:10 PM); see also, Id. (Email from Timothy Thompson on Thursday, May 9, 2019 at 3:03 PM), Id. at p. 2 (“Unopposed Motion for Protective Order”), and Id. at p. 4 (“Protective Order”). [35] Id. at p. 1 (Email from Timothy Thompson on Thursday, May 16, 2019 at 2:10 PM).