United States District Court, D. Hawaii
MEMORANDUM OPINION AND ORDER ON DISCOVERY
Richard L. Puglisi United States Magistrate Judge
the Court are two motions: Plaintiff's Motion to hold
Defendant in Contempt for Failure to Appear and for Sanctions
for Discovery Abuse, filed July 3, 2017 (“Depositions
Motion”) and Plaintiff's Motion for Sanctions for
Discovery Abuse (“Discovery Abuse Motion”). ECF
Nos. 80, 82. On July 17, 2017, Defendant filed its Opposition
to the Deposition Motion, and on July 31, 2017, Plaintiff
filed its Reply. ECF Nos. 89, 95. On July 21, 2017, Defendant
filed its Opposition to the Written Discovery Motion, and on
August 4, 2017, Plaintiff filed its Reply. ECF Nos. 90, 98. A
hearing on the Motions was held on August 16, 2017. ECF Nos.
94, 104. Having reviewed the submissions of the parties and
applicable law, and for the reasons set forth below, the
Court GRANTS IN PART and DENIES IN PART the Motions.
dispute arises out of an order of wooden crates called
“lift vans” allegedly shipped from Marine Lumber
Co. (“Marine”) in Oregon to Precision Moving and
Storage, Inc. (“Precision”) in Hawaii. On June
30, 2016, Marine filed its Complaint alleging that Precision
owes it payment for the lift vans. Discovery was stayed from
December 23, 2016, until March 28, 2017, while Marine's
motion for summary judgment was pending. ECF Nos. 46, 48. The
parties resumed discovery in April. ECF No. 77-1 at 12.
Marine received discovery responses in May. ECF No. 21-1 at
11; see also ECF Nos. 82-9; 82-10; 82-11; 82-12. In
July, Marine filed the instant Motions. ECF Nos. 80, 82.
argues that depositions of Precision's employees and
corporate representative were properly noticed for
depositions set for June 8 and 9, 2017 and that
Precision's counsel and witnesses failed to appear or
move for a protective order. See ECF No. 80-1 at 19.
Marine seeks an order holding Precision, its counsel, and its
five witnesses in contempt of court; $15, 000 in expenses for
appearing at the depositions and bringing this Depositions
Motion; and terminating sanctions, including damages of $130,
690.00, interest, and attorneys' fees and costs. ECF No.
80 at 3-5.
Marine requests to hold Precision and its witnesses in
contempt under Rule 45. See ECF No. 80-1 at 19, 33.
“Under Federal Rule of Civil Procedure 45(g), a party
may seek an order to show cause as to why a contempt citation
should not issue if a person ‘fails without adequate
excuse to obey [a] subpoena or an order related to
it.'” AngioScore, Inc. v. TriReme Med.,
Inc., No. 12-CV-03393-YGR(JSC), 2014 WL 6706898, at *1
(N.D. Cal. Nov. 25, 2014) (quoting Fed.R.Civ.P. 45(g)).
However, courts are generally reluctant to initiate such
contempt proceedings absent a prior court order compelling
compliance, even where no such order was previously sought,
and especially when attorneys issue subpoenas as a matter of
course and without judicial involvement. In re Consol.
Meridian Funds, No. 10-17952, at *10 (Bankr. W.D. Wash.
Apr. 5, 2013); Dallas Buyers Club, LLC v.
Doe-126.96.36.199, No. 3:16-CV-00551-AC, 2016 WL
6208268, at *2 (D. Or. Oct. 21, 2016) (citing S.E.C. v.
Hyatt, 621 F.3d 687, 694 (7th Cir. 2010)). Here, the
subpoena was issued by Marine as a matter of course, and
there is no prior order compelling compliance with it or
otherwise compelling attendance at depositions. Therefore,
contempt proceedings are not appropriate.
Marine requests sanctions under Rule 37 for the missed
depositions. See ECF No. 80-1 at 20, 34. Rule 37
provides that a party's failure to appear a deposition is
not excused unless the party has moved for a protective
order. Fed. R. 37(d)(1)(A). Rule 37 grants courts discretion
to sanction a party that fails to appear at its deposition.
Fed. R. 37(d)(3). Here, on April 28, 2017, Marine requested
to conduct depositions of Precision's corporate
representative, president, and specific employees on June 8
and 9, 2017, explaining that Marine's pro-hac vice
counsel would already be in Hawaii for the parties'
settlement conference. ECF No. 80-3 at 100-01. Marine noticed
and issued subpoenas for the depositions on May 2, 2017.
See ECF Nos. 80-4; 80-5, 80-6. In the five weeks
preceding the depositions, Precision did not move for a
protective order. Precision, its counsel, and its corporate
representative did not appear for the depositions.
See ECF Nos. 80-7; 80-8. Therefore, the Court finds
sanctions against Precision are appropriate under Rule 37.
the Court finds that Precision's counsel has again failed
to confer in good faith with Marine regarding discovery.
See ECF No. 74 at 4-6 (prior order finding that
“Precision's counsel did not attempt in good faith
to resolve this [discovery] matter without judicial
involvement”). In the weeks preceding the depositions,
Precision discussed scheduling depositions with Marine and
did not oppose scheduling depositions on June 8 and 9, 2017.
See ECF Nos. 89-4; 89-5. In one such correspondence,
Precision stated its understanding that Marine wished to
reschedule the depositions of Precision's witnesses from
May to June, and that Precision “will proceed forward
with discovery.” ECF No. 89-25. However, on June 5,
2017 -- five weeks after the initial request, three days
before the depositions were set to begin, and after
Marine's counsel arrived in Hawaii -- Precision informed
Marine for the first time that all of Precision's
witnesses and counsel were unavailable for the upcoming
depositions, without explanation. ECF No. 80-1 at 19-20; ECF
first time in its Opposition, Precision claims that each
witness and counsel had various reasons for missing the
depositions, such as medical issues and a family vacation.
See ECF Nos. 89-1, 89-2, 89-3, 89-4, 89-5. The Court
is not persuaded by Precision's claim that each of its
four witnesses and its counsel were unavailable for unrelated
reasons on June 8 and 9, 2017, while Marine's counsel was
in Hawaii, but that each witness was available for a number
of dates beginning on June 26, 2017. See ECF Nos.
89-1, 89-2, 89-3, 89-4, 89-5.
the absences were fully justified, it would not excuse
Precision's counsel's delay in conferring with its
witnesses and with Marine. Precision does not appear to have
conferred with its witnesses regarding depositions until June
2, 2017 - less than a week before the depositions were
scheduled to begin. See ECF Nos. 89-1, 89-2, 89-3,
89-4, 89-5. Sanctions against Precision are warranted.
the Court ORDERS Precision's counsel and each witness
noticed by Marine to appear for depositions in Honolulu,
Hawaii at a time and place noticed by Marine within 30 days.
Marine's counsel shall provide Precision's counsel at
least two dates of availability for depositions within the
next 30 days, by no later than August 16, 2017.
Precision's counsel shall select among those and inform
Marine's counsel, by no later than August 17, 2016. The
deadline for discovery is extended for the limited purpose of
conducting these depositions. Precision will bear the expense
of the depositions up to $1, 500. Each party shall bear its
own attorneys fees and travel costs.
Court further ORDERS Precision to pay Marine $1, 500 in
attorneys' fees and costs for the missed depositions and
for the bringing of this Motion, by no later than August 23,
2017. The Court DENIES Marine's requests to impose
terminating sanctions and DENIES Marine's ...