In their opposition to the government defendants' motion for protective order with respect to Clifford Bernath, plaintiffs request an award of attorneys' fees and costs, including fees incurred by plaintiffs in preparing the opposition to the motion for protective order and associated expenses incurred in canceling Bernath's deposition. Plaintiffs also seek costs for the videographer appearance scheduled for that day and request that the court hold counsel for the government defendants personally liable for all fees, costs, and expenses in order to “prevent continued misconduct in the future.” Pls.' Opp. to Mot. for Protective Order at 9.
Prior to considering the merits of plaintiffs' request, a close examination of the facts immediately preceding Bernath's deposition is necessary. On April 13, 1998, a process server employed by plaintiffs attempted to serve Bernath at his former office at the Pentagon where he was Principal Deputy Assistant to the Secretary of Defense for Public Affairs. The process server was instructed that Bernath was no longer employed at the Pentagon and that he was employed at the offices of the Armed Forces Information Service. As plaintiffs would eventually learn, the Armed Forces Information *84 Service is a branch of the Department of Defense and is located in a commercial office building in Alexandria, Virginia. Notwithstanding plaintiffs' misconceived notions regarding his place of employment, Bernath was eventually served with a notice of deposition on April 13 with the deposition scheduled for April 24.
Acting on the erroneous assumption that Bernath was no longer an employee of DOD, on April 20, counsel for plaintiffs, Kevin Pagoda, sent a letter to Bernath stating “[w]e are in the process of obtaining documents from the Pentagon necessary for your deposition and may not be able to do so before your scheduled deposition date of April 24, 1998. We would, therefore be willing to re-schedule your deposition for some time after May 6, 1998. Please call our office at your earliest possible convenience so that we may select a mutually agreeable date.” Pls.' Opp. to Mot. for Protective Order Ex. 9 at 1 (Letter from Kevin Pagoda to Clifford Bernath (April 20, 1998)). According to the government defendants, Bernath's office forwarded this letter to Brad Weigmann, Special Counsel at the Office of the General Counsel at DOD on the same date. Mot. for Protective Order at 2.
The following day, April 21, Pagoda called Bernath's office and was informed that the letter delivered to Bernath had been forwarded to Weigmann. Later that same day, Pagoda contacted Weigmann, who identified himself as an attorney with DOD, to discuss possible alternate dates for Bernath's deposition. Weigmann indicated that he would contact Bernath to determine his availability on alternate dates and contact plaintiffs' counsel with this information. Plaintiffs contend that it was necessary to postpone the deposition of Bernath because it was their belief that he was no longer an employee of DOD and therefore, plaintiffs would be required to serve a separate subpoena on DOD officials to obtain documents in the possession of DOD that were relevant to the deposition of Bernath.
The government defendants assert that on April 22, Weigmann authorized Elizabeth Shapiro, counsel for the Executive Office of the President (“EOP”), to communicate to plaintiffs' counsel Larry Klayman that Bernath would be available to be deposed until May 15. Shapiro was to communicate this information to Klayman prior to the deposition of Madeleine Grunwald which was to be conducted on April 23. Pagoda contends in a declaration that several unsuccessful attempts were made to contact Weigmann throughout the day on April 22 and as of 8:30 p.m. that evening, Weigmann had failed to return any of the messages left for him by Pagoda. However, Weigmann states in his own declaration that on April 22, he spoke to an individual at plaintiffs' counsel's office, whom he believed to be Don Bustion, to inform him that he would get back to plaintiffs as soon as possible with alternate dates for Bernath's deposition. Notwithstanding the differing versions of the events that transpired that day, no firm alternate date for Bernath's deposition was set on April 22.
In his declaration, Pagoda states that because Weigmann failed to contact him on April 22, he faxed a letter to Weigmann stating that “unless we receive from you an agreement to one of the proposed dates by noon today [April 23], Mr. Bernath's deposition will take place as stated on his subpoena—beginning at 10:00 a.m. on April 24, 1998.” Pls.' Opp. to Mot. to Compel Ex. 10 at 1 (Letter from Pagoda to Weigmann (April 23, 1998)). This letter was sent by facsimile transmission at 8:40 a.m. on April 23 to Weigmann's office.
The government defendants state that on April 23, Elizabeth Shapiro attempted to convey to Klayman that Bernath would be available to be deposed on May 15, “but for some inexplicable reason, [Klayman] refused to abide by the agreement to postpone the deposition and suddenly claimed he would require the deposition to go forward [on April 24.]” Mot. for Protective Order at 3. The conversation between Shapiro and Klayman on this issue was captured on the record immediately preceding the deposition of Grunwald. This record reveals that at the beginning of the proceedings, Klayman announced that he would be conducting the deposition of Bernath as originally scheduled on April 24 because no alternate dates had been proposed by Weigmann. After Klayman *85 made this announcement, Shapiro stated that she had alternate dates to propose to Klayman. During the colloquy that ensued, it became apparent to Klayman that Bernath was still employed by DOD. Upon reaching this realization, Klayman stated that “one of the reasons why we were proposing that we could move the date was because we had learned that he was no longer employed by the Department of Defense.” Grunwald Dep. at 8. It was at this point that Klayman demanded the deposition proceed as scheduled on April 24. Klayman confirmed this position that afternoon in a letter sent to Weigmann.
Two additional letters were sent to plaintiffs' counsel on April 23—one sent to Klayman by Sylvia Kaser, an attorney from the Civil Division of the Department of Justice, responding to Klayman's announcement of plaintiffs' position that Bernath's deposition would proceed on April 24 and the other from Kaser directed to Pagoda and Bustion. Kaser's letter notified Pagoda and Bustion that she would be representing Bernath in his official capacity for the purpose of responding to the subpoena served on Bernath and that all future inquiries and correspondence should be addressed to her. This letter also proposed May 15 as an alternate date for the deposition of Bernath.
In contrast, the letter from Kaser directed at Klayman stated that Klayman's “reversal of position ... and [his] new insistence on proceeding with [the] deposition [on April 24], puts us in an impossible situation, and makes compliance with the subpoena unduly burdensome.” Mot. for Protective Order Ex. 5 at 1. Furthermore, Kaser added that in reliance on plaintiffs' initial proposal to change the date of the deposition, Bernath made alternate plans for April 24 and would be unavailable on that date. Id. Kaser also stated that she planned to file a motion for protective order on behalf of Bernath and accordingly, Bernath would not be appearing at the deposition on the following day.
As foreshadowed by Kaser in her letter to Klayman, at 10:36 p.m. on Thursday, April 23, she filed a motion for protective order on behalf of Bernath arguing that the subpoena failed to allow reasonable time for compliance and that compliance with the subpoena would be unduly burdensome in light of plaintiffs' reversal of position. Moreover, the motion for protective order also noted that in reliance on plaintiffs' proposal to postpone the deposition, counsel for Bernath postponed preparation of Bernath until a later date. As stated in the correspondence between the parties, the motion also stated that Bernath had scheduled another matter for April 24 and would be unavailable for the deposition. Plaintiffs filed their opposition to the motion for protective order on Saturday, April 25.
On April 27, this court denied Bernath's motion for protective order and ordered the deposition to proceed on April 28. In response to this order, the government defendants immediately filed a motion to amend the court's order directing that Bernath's deposition go forward the following day. According to this motion, Bernath was on travel in Kansas and the government defendants sought an amendment to the court's April 27 order to provide that his deposition instead take place immediately upon his return to Washington, D.C.
The government defendants state that upon receiving the court's April 27 order, counsel for Bernath was contacted to ascertain Bernath's availability for the deposition scheduled for April 28. According to the government defendants, counsel for Bernath communicated to them that Bernath was in Kansas attending a college reunion where he was scheduled to give an address. Bernath left for Kansas prior to the issuance of the court's April 27 order and at the time of the filing of the motion to amend, the government defendants were unaware of when he was scheduled to return. Plaintiffs refused to reschedule Bernath's deposition when apprized of these facts and asserted that the request to amend the court's April 27 order was “in derogation of the Court's process and ... [was] tactically based to make the witness unavailable until such time as the Clinton White House and the Pentagon [could] ‘woodshed’ [Bernath] about his testimony.” Pls.' Emergency Opp. to Mot. to Amend the Court's Order of April 27, 1998 at 1.
The court must first consider the propriety of Bernath's failure to appear at his deposition *86 as scheduled on April 24, 1998. Counsel for Bernath and the government defendants included in Bernath's motion for protective order a footnote suggesting that “[h]aving moved to quash the subpoena, Mr. Bernath is entitled to withhold compliance with the subpoena until the Court decides the motion.” Mot. for Protective Order at 7 (citing Wright & Miller, Federal Practice and Procedure, § 2465 at 84–85 (1994) and Ghandi v. Police Dep't of the City of Detroit, 74 F.R.D. 115, 118 n. 4 (E.D.Mich.1977)). Counsel reiterated this position during the status conference held on April 28, 1998 and cited to the language of Rule 37 as support. See
Trans. of Status Conf. of April 28, 1998 at 5 (“I would draw [the court's] attention to very recent amendments to, I believe it is, Rule 37, which make it clear, at least as to parties, that they are totally protected if they file in advance of a deposition a motion for a protective order, and we were relying in good faith as well on the amendments to Rule 37 in that respect.”). Plaintiffs oppose the position espoused by the government defendants and request that the court award attorneys' fees and costs incurred in canceling the deposition including costs associated with videographer appearance for the deposition.
This court must disagree with the position that the filing of a protective order completely exonerates a party's failure to appear at a scheduled deposition. Rule 37(d) states specifically that:
If a party ... fails to appear before the officer who is to take the deposition, after being served with the proper notice, ... the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subparagraphs (A), (B), and (C) of subdivision b(2) of this rule.... In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure unless the court finds that the failure was substantially justified or that other circumstances make an award of unjust.
Fed.R.Civ.P. 37(d). This rule clearly contemplates that a court may impose expenses and costs on a party failing to attend a scheduled deposition.
In contrast, the government defendants rely on the following additional language in Rule 37(d) to support their position that a witness is not required to attend a deposition if a motion for protective order has been filed:
The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has a pending motion for protective order as provided by Rule 26(c).
1The plain language of Rule 37(d) and the Advisory Committee Notes to the 1993 Amendments shed definitive light on how Rule 37(d) should be read. The use of the word “may” as opposed to “shall” in the above-quoted language clearly demonstrates that it is discretionary rather than mandatory for a court to excuse an individual's failure to appear at a scheduled deposition. Moreover, the Advisory Committee Notes to the 1993 Amendments, upon which the government defendants rely, support this reading of Rule 37(d). These Advisory Committee Notes state:
(Advisory Committee Notes of the 1993 Amendments) (emphasis added). This passage makes clear that the failure to appear at a deposition constitutes a violation of Rule 37(d) regardless of whether a motion for protective order has been filed.
23In light of these considerations, the court concludes that, contrary to defendants' *87 position, the proper reading of Rule 37(d) permits a court to assess attorney's fees and costs upon a party or their counsel for failing to attend a scheduled deposition despite the pendency of a motion for protective order. The filing of a motion for protective order does not automatically relieve a party from attending a deposition. However, the pendency of such a motion and whether the motion was filed in good faith may be factors the court considers in determining whether “the failure [to appear] was substantially justified or that other circumstances make an award of expenses unjust.” Id.
4In the instant case, the court concludes that the circumstances surrounding Bernath's failure to appear at the deposition scheduled for April 24 would make an award of sanctions unjust. Although the motion for protective order was literally filed at the eleventh hour, it appears that the late filing was necessitated in part as a result of plaintiffs' actions and plaintiffs' efforts to reschedule Bernath's deposition. Moreover, notwithstanding the fact that the motion for protective order was filed at such a time so as to preclude the court's consideration of the motion prior to the time of the scheduled deposition, the facts fail to clearly suggest that the motion was filed in bad faith. However, the court must note that in future cases, the parties should not rely on having filed a motion for protective order as a justification for a failure to appear at a deposition because as the Advisory Committee Notes to the 1993 Amendments state “Rule 26(c) is not self-executing—the relief authorized under that rule depends on obtaining the court's order to that effect.” Fed.R.Civ.P. 37 (Advisory Committee Notes of 1993 Amendments).
A different conclusion is reached when this court contemplates the imposition of attorneys' fees and costs with respect to Bernath's failure to appear as ordered by the court at the deposition scheduled for April 28, 1998. This is not the first instance in which the court has encountered piecemeal disclosure surrounding the availability of a deponent. In a memorandum and order dated March 13, 1998 concerning the deposition of James Carville, this court expressed in clear language its condemnation of a party's failure to fully disclose all relevant facts to the court bearing on the availability of a deposition witness. After being served with a subpoena on February 24, 1998 for a deposition to be conducted on March 10, Carville moved this court for a protective order on March 4 and asserted that he would be in California for the filming of the television program “Mad About You” on March 10. The court granted the motion for protective order and ordered the parties to submit to the court dates for which Carville would be available for deposition. Carville neglected to convey to the court the full extent of his availability during his initial motion for protective order. Indeed, it was not until the court considered plaintiffs' motion for sanctions against Carville that the he provided a full explanation as to his whereabouts and why he was not available for deposition on the dates proposed by plaintiffs. As the court stated in rejecting Carville's motion for reconsideration:
[Carville's counsel's] conduct has cluttered the docket of this court unnecessarily and the entire matter could have been addressed in an efficient manner had she and Carville been completely forthcoming with the court at all relevant times. Instead, counsel for Carville chose to wait until filing her Motion for Reconsideration to fully apprise this court of the nature of Carville's unavailability for deposition on the dates suggested by plaintiffs' counsel.
Mem. and Order of March 13, 1998 at 5.
5In the instant case, the government defendants similarly failed to apprise the court of the extent of Bernath's availability when the initial motion for protective order was filed with the court. At a minimum, the government defendants should have presented the court with sufficient information in the motion for protective order to allow the court to avoid having to consider a motion to amend its order of April 27 immediately after the issuance of this order. This information would have properly included a complete disclosure of the fact that Bernath would be traveling in Kansas from April 25–28 and would be unavailable to be deposed during that time period. While it is true, as the *88 government defendants state, plaintiffs never sought to depose Bernath on these dates, this fact would be of greater relevance had this court granted the motion for protective order. Instead, the government defendants either assumed this court would grant the motion for protective order or chose to ignore the possibility that this court would deny this motion. In any event, if the government defendants notified the court as to Bernath's schedule for the reasonable future in their motion for protective order and this notification included the fact that Bernath would be in Kansas on April 28 with no possibility of returning on that date, the court certainly would not have ordered the deposition to go forward on April 28. Concomitantly, the government defendants would not have been forced to file a motion to amend and plaintiffs would not have incurred time and expense in responding to this motion.
6The court does not expect the parties to present to the court the entire foreseeable schedule of a witness every time a protective order is sought. However, if a party is seeking the postponement
of the deposition of a witness, the court believes that it is reasonable for this party to make some effort to notify the court of the witness' schedule between the time the motion is filed and the date to which the party seeks to postpone the deposition. In such a case, if the court denies the motion for protective order the court will avoid setting a date with which it is impossible for the deponent and the parties to comply.
789Rule 37(b)(2) of the Federal Rules of Civil Procedure authorizes the award of expenses for the failure of a party to obey a discovery order unless the disobedient party establishes that the failure was substantially justified or that other circumstances make an award of expenses unjust. Fed.R.Civ.P. 37(b)(2). “District courts enjoy substantial discretion in deciding whether and how to impose sanctions under Rule 37.” Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366 (11th Cir.1997). However, the plain language of this rule limits its applicability to situations where a court order has been violated. See
Brandt v. Vulcan, Inc., 30 F.3d 752, 756 n. 7 (7th Cir.1994) (stating that “courts have broadly interpreted what constitutes an ‘order’ for purposes of imposing sanctions”). In making the determination of whether to impose sanctions, Rule 37(b)(2) does not require a showing of willfulness or bad faith as a prerequisite to the imposition of sanctions upon a party. See
Brown v. United States Elevator Corp., 102 F.R.D. 526, 530 (D.D.C.1984) (“The Advisory Committee's notes in the 1970 amendment to Rule 37 makes clear that the word ‘failure’ was substituted for the word ‘refusal’ to eliminate any requirement that a plaintiff seeking sanctions prove willfulness.”). See also
Hyde & Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir.1994) (“We have not required a finding of bad faith on the part of the attorney before imposing sanctions under Rule 37.”) (citing Toth v. Trans World Airlines, Inc., 862 F.2d 1381 (9th Cir.1988)).
In the instant case, sanctions are required not because the government defendants filed a motion for protective order for some improper purpose as plaintiffs suggest, but rather because the court concludes that the failure of Bernath to appear for his deposition on April 28 constituted a violation of the court's order dated April 27, 1998 denying the government defendants' motion for protective order and ordering Bernath to be deposed on April 28. This violation, at a minimum, was the direct result of government defendants' conduct. The court finds that the failure to comply with this order was not substantially justified, and therefore, sanctions are appropriate in this case.
In reaching these conclusions, the court notes that the parties in this case had ample notice of this court's disapproval of the failure of parties to fully apprise the court of the availability of a witness when issues surrounding the timing of the conduct of a deposition arise. Counsel for the government defendants simply failed to maintain reasonable communication with Bernath, thereby necessitating additional litigation on the issues surrounding his deposition. Although the government defendants' conduct with respect to Bernath does not rise to the level of impropriety or active misleading as engaged in by Carville and his attorney, their conduct did necessitate piecemeal resolution of the issue of availability and resulted in the failure *89 to comply with the court's April 27 order. Furthermore, plaintiffs incurred expenses due to the government defendants' failure to comply with the court's order as plaintiffs were required to file an opposition to the government defendants' Motion to Amend and appear in court to address this issue.
The government defendants offer no explanation for their failure to notify the court of Bernath's availability other than their apparent belief that the court would not require the deposition to go forward on April 28. Similarly, the court has been unable to uncover any reason justifying their failure to comply with the April 27 order. While the government defendants may assert that they did not become aware of Bernath's travel schedule until after the court denied the motion for protective order, this assertion only supports the court's conclusion that sanctions are warranted in this case. It is this very conduct—the failure to reasonably determine the availability of a witness and to notify the court of this availability when filing a motion for protective order—that provides the most compelling justification for the imposition of sanctions in this case.
The court determines that by requiring the government defendants to pay plaintiffs the reasonable expenses incurred as a result of the government defendants' disobedience of the April 27 order, this court will deter such conduct in the future and insure a more efficient administration of justice in this case. Plaintiffs' request for sanctions is granted. The government defendants shall pay plaintiffs' reasonable expenses incurred due to the failure to comply with the April 27 order in the amount of $750.