Turner v. Home Depot, Inc.
Turner v. Home Depot, Inc.
2019 WL 13253386 (E.D. Tex. 2019)
August 1, 2019
Mitchell, Katie N., United States Magistrate Judge
Summary
Electronically stored information provided evidence of the parties' disagreement over the date of the deposition, which supported the court's decision to deny the Plaintiffs' Motion for Sanctions. The court found that Home Depot was substantially justified in not producing a witness and not attending the May 20, 2019 deposition.
Additional Decisions
JOSEPH TURNER; and JOYCE TURNER, Plaintiffs,
v.
THE HOME DEPOT, INC.; and HOME DEPOT U.S.A., INC., Defendants
v.
THE HOME DEPOT, INC.; and HOME DEPOT U.S.A., INC., Defendants
CASE NO. 6:18-CV-509-JCB-KNM
United States District Court, E.D. Texas, Tyler Division
Filed August 01, 2019
Mitchell, Katie N., United States Magistrate Judge
ORDER
*1 Before the Court is Plaintiffs Joseph Turner and Joyce Turner's Motion to Compel Defendant Home Depot, U.S.A., Inc. to Appear for Deposition and for Sanctions for Home Depot, U.S.A., Inc's Failure to Appear at Noticed Deposition (“Motion for Sanctions”) (Doc. No. 35). The Court's earlier Order, dated June 14, 2019, addressed the substantive issues raised with respect to Plaintiffs' motion to compel. See Doc. No. 40. Accordingly, to the extent that Plaintiffs' Motion for Sanctions is a motion to compel, that relief is DENIED as MOOT. Having considered the parties' arguments, relevant law, and oral arguments, Plaintiffs' Motion for Sanctions (Doc. No. 35) is DENIED.
BACKGROUND
Plaintiffs filed suit in the 124th Judicial District of Gregg County, Texas, on January 16, 2018. See Doc. No. 1. Plaintiffs allege various causes of action arising out of the alleged defective installation and repair of Plaintiffs' roof by a sub-contractor hired by The Home Depot At-Home Services. See Doc. Nos. 1, 3. Defendants The Home Depot, Inc. and Home Depot U.S.A., Inc. (collectively, “Home Depot”) removed the action to this Court on September 26, 2018. See Doc. No. 1.
On May 7, 2019, the deadline for Plaintiffs to designate and submit their expert report, Plaintiffs moved for a three-week extension of the expert designation deadline. See Doc. No. 21. Plaintiffs argued that they had difficulty locating an expert witness to serve an opinion in this matter, but had “recently located a potential expert witness, Lynn Motheral ....” Id. at 1.
On May 8, 2019, Home Depot filed an emergency motion, pursuant to Local Rule CV-7(l), to quash the deposition subpoena of R. Lynn Motheral, CGR, that was scheduled for May 9, 2019 at 10:30 a.m. See Doc. No. 22 at 1. Home Depot argued that Plaintiffs' counsel did not inform Defendants of her intent to use Motheral as an expert witness until May 7, 2019. Id. at 3. As a result of this late notice, Home Depot argued that the “subpoena fail[ed] to allow Defendants reasonable time to prepare for an expert deposition and that the subpoena subjects [Home Depot] to undue burden.” Id. at 4.
The same day Home Depot filed its emergency motion to quash, the Court issued an order denying the motion because Home Depot failed to “establish that irreparable harm [would] result if the Emergency Motion [was] not granted.” Doc. No. 23 at 2. The Court explained that “[i]f the Court grants Plaintiffs' motion for extension, and Plaintiffs are allowed to designate Motheral as a retained expert, then appropriate remedies are available to Defendants, including possible cost shifting of a necessary second deposition.” Id. On the other hand, “[i]f the Court does not grant the extension, any expert opinion testimony from a non-disclosed expert would, of course, be inadmissible.” Id. In that same order, the Court ordered Home Depot to file an expedited response to Plaintiffs' motion to extend the expert designation deadline so that the motion could be heard at the previously scheduled May 14, 2019 hearing. See id.
*2 At the May 14, 2019 hearing on Plaintiffs' First Motion to Compel and motion to extend the expert designation deadline, Plaintiffs' counsel stated that no meaningful meet and confer had occurred prior to the filing of their motion to compel. See Hearing Minutes of May 14, 2019 at 1:30:19 P.M. As a result, the Court recessed to allow the parties an opportunity to meet and confer. See id. at 1:33:34 P.M. After the Court ordered meet and confer, the parties represented that agreements on several items had been reached, and the Court resolved the remaining items in Plaintiffs' First Motion to Compel. The Court also deferred ruling on Plaintiffs' motion to extend the expert designation deadline, and ordered the parties to submit supplemental briefing on whether Plaintiffs' potential expert witness, Motheral, had a conflict of interest that would preclude him from serving an opinion in this matter. See Doc. No. 28.
Also, at that hearing, Home Depot noted that Plaintiffs had noticed a corporate representative deposition for May 20, 2019, and they would not be able to provide a corporate representative on that date due to the broad nature of the topics. See Hearing Minutes of May 14, 2019 at 2:53:09 P.M. Home Depot then inquired whether the Court would entertain an emergency motion to quash the May 20, 2019 corporate representative deposition. Id. The Court emphasized to the parties that motion practice in discovery should be the last resort after the parties have had meaningful discussion about resolving the dispute. See Hearing Minutes of May 14, 2019 at 2:55:31 P.M. Plaintiffs' counsel, in response, stated that “the notice on the front page says it's subject to agreement by counsel ....” See id. at 2:55:48 P.M. Ms. Ladwig, Plaintiffs' counsel, further stated that:
We understand that May 20th may not work. They did ask for areas of inquiry. We provided that with the notice. But, at the same time, we want to get our discovery in before this deadline, before June. We want to get all our documents in. If that date doesn't work, or if they object to any of the areas, of course, they can have that conversation with us. They haven't. This is, this is, we are hearing this at this moment. But, the notice, we always, we always issue our depositions so we don't lose a date. But, it is subject to agreement. They can email us. And I've, I've represented this. That's why you put it in there. It is subject to agreement by counsel.
Id. at 2:56:16-2:56:56.
Six days later, on May 20, 2019, the day of the noticed corporate representative deposition, Home Depot moved to quash the deposition and for a protective order. See Doc. No. 29. That motion provided that Home Depot had “attempted” to meet and confer with Plaintiffs' counsel prior to filing its motion to quash. See id. at 1. According to Home Depot, Plaintiffs' counsel “refused to set any time to confer on this matter ....” Id. at 2. The Court issued an Order on May 22, 2019, that struck Home Depot's motion to quash for failure to comply with the “Meet and Confer” Requirement of Local Rule CV-7(h). See Doc. No. 30 at 3. The Court also ordered that “each party's lead counsel shall meet and confer in person, in good faith, and in compliance with Local Rule CV-7(h), prior to filing any subsequent discovery motions.” Id. Home Depot did not produce a corporate representative or otherwise appear at the noticed May 20, 2019, deposition.
On May 28, 2019, Home Depot filed its supplemental briefing on the conflict of interest issue in the form of a motion to disqualify R. Lynn Motheral as Plaintiffs' expert witness. See Doc. No. 31. On June 5, 2019, Plaintiffs filed their response in opposition to Home Depot's motion to disqualify. See Doc. No. 34. On that same day, Plaintiffs filed the instant Motion for Sanctions. See Doc. No. 35. Finally, on June 6, 2019, Home Depot refiled its motion to quash the re-noticed deposition of Home Depot U.S.A., Inc.'s corporate representative(s). See Doc. No. 36. The Court set all four pending motions for hearing on June 12, 2019. The only remaining issue outstanding is Plaintiffs' Motion for Sanctions.
LEGAL STANDARD
*3 “A party served with a Rule 30(b)(6) deposition notice must respond in one of two ways.” Ferko v. NASCAR, 218 F.R.D. 125, 133 (E.D. Tex. 2003) (citing FED. R. CIV. P. 37(d)). “First, a party can designate a person to testify at a deposition.” Id. “Then, the person designated ‘shall testify as to matters known or reasonably available to the organization.’ ” Id. (citing FED. R. CIV. P. 30(b)(6)). “Second, a party may move for a protective order ‘for good cause shown.’ ” Id. (citing FED. R. CIV. P. 26(c)). “If a party doesn't designate a person to testify at a deposition or move for a protective order, that party has violated Rule 37(d).” Id. (citing FED. R. CIV. P. 37(d); Bregman v. District of Columbia, 182 F.R.D. 352, 355 (D.D.C. 1998)).
Federal Rule of Civil Procedure 37(d) further provides that:
Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)-(iv). Instead 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, unless the failure was substantially justified or other circumstances make an award of expenses unjust.
FED. R. CIV. P. 36(d)(3).
In Olivarez v. Geo Group, Inc., the Fifth Circuit explained that substantial justification is “ ‘justification to a degree that could satisfy a reasonable person ....’ ” 844 F.3d 200, 205 (5th Cir. 2016) (citations omitted). That court also recognized that the justification must “have had a ‘reasonable basis both in law and fact.’ ” Id. (citation omitted).
ANALYSIS
Plaintiffs move for sanctions because “Home Depot was obligated to appear at the duly noticed” Rule 30(b)(6) deposition scheduled for May 20, 2019. Doc. No. 35 at 4. Plaintiffs argue sanctions are appropriate because Home Depot's “nonattendance was not excused by any court order prior to its nonappearance.” Id. Plaintiffs also argue that the Court must award them their reasonable expenses, including attorney's fees, caused by Home Depot's failure to appear because “the failure to attend is not substantially justified by the mere fact of the filing of a motion for protective order.” Id. at 8.
In response, Home Depot argues that it was substantially justified in not preparing a witness to appear and its nonattendance was reasonable and excusable. Doc. No. 38 at 7. Home Depot argues its nonappearance was substantially justified because Ms. Ladwig previously represented to the Court that “the deposition would only occur if the parties agreed.” Id. at 7 (citing Doc. No. 27). Home Depot contends that it “informed Ms. Ladwig multiple times [that] Home Depot was not agreeing to the date, including in open court.” Id.
Home Depot further argues that Plaintiffs' Motion for Sanctions should be denied because Plaintiffs' hands are unclean. Doc. No. 28 at 10. Home Depot contends that “Plaintiffs' counsel has violated Federal Rule of Civil Procedure 11, Texas Disciplinary Rule of Professional Conduct 3.03, and Local Rule AT-3(B) by stating in open court the deposition to occur on May 20, 2019 was ‘subject to agreement of that date’ and then reversing field when it suited Plaintiffs' strategic goals.” Id. at 10. Specifically, Home Depot alleges that Ms. Ladwig made two material misrepresentations in the Motion for Sanctions. Id. First, Home Depot contends that Plaintiffs' Motion for Sanctions “alleges Home Depot did not inform her of the objections to the deposition notice until May 17, 2019.” Id. (citing Doc. No. 35 at 2). Home Depot argues this statement is directly contradicted by the Court's minute order “indicating that Mr. Hervey informed the Court and opposing counsel of Home Depot's desire to file a Motion to Quash and had objections to the date, scope, and location of the deposition.” Id. (citing Doc. No. 27). Second, Home Depot alleges that Plaintiffs' Motion for Sanctions fails to “acknowledge or address [Ms. Ladwig's] representation to the Court and counsel for Home Depot ... stating that the May 20, 2019 deposition was subject to the agreement of the parties.” Id. at 11 (citing Doc. No. 27).
*4 Home Depot was substantially justified in not producing a witness and not attending the May 20, 2019 deposition. At the hearing on May 14, 2019, counsel for Home Depot informed the Court and Plaintiffs' counsel that they would not be able to provide a corporate representative on May 20, 2019, due to the broad nature of the topics sought for deposition. See Hearing Minutes of May 14, 2019 at 2:53:09 P.M. Home Depot then inquired whether the Court would entertain an emergency motion to quash the corporate representative deposition noticed for May 20, 2019. Id. Plaintiffs' counsel, in response, stated that “the notice on the front page says it's subject to agreement by counsel ....” See id. at 2:55:48 P.M. Ms. Ladwig further stated that:
We understand that May 20th may not work. They did ask for areas of inquiry. We provided that with the notice. But, at the same time, we want to get our discovery in before this deadline, before June. We want to get all our documents in. If that date doesn't work, or if they object to any of the areas, of course, they can have that conversation with us. They haven't. This is, this is, we are hearing this at this moment. But, the notice, we always, we always issue our depositions so we don't lose a date. But, it is subject to agreement. They can email us. And I've, I've represented this. That's why you put it in there. It is subject to agreement by counsel.
The record indicates that the parties did not agree to the date of May 20, 2019 for the Rule 30(b)(6) deposition. Electronic correspondence exchanged between the parties indicates that counsel for Home Depot explicitly stated the May 20, 2019 deposition would not be going forward. See Doc. No. 29-8. In an email from Mr. Hervey, counsel for Home Depot, to Ramona Ladwig, Mr. Hervey stated that “[a]s I mentioned in open [c]ourt at the hearing on Tuesday, Home Depot has many objections to your notice and will not be able to present a witness for deposition on Monday, May 20th.” Doc. No. 29-8 at 4. Ms. Ladwig responded and asked for clarification of Home Depot's objections, but declined to reset the deposition until Home Depot provided the requested clarification and an alternative date for the deposition.” Id. at 3-4. Mr. Hervey responded and reiterated that “the deposition will not go forward on Monday[, May 20, 2019].” Id. at 3. Ms. Ladwig further responded that “[w]e will not be cancelling the deposition and will move for sanctions for your failure to appear.” Id. at 2.
The record is clear that the parties did not reach an agreement on a date for the Rule 30(b)(6) deposition prior to the noticed date of May 20, 2019. The record is also clear that Ms. Ladwig represented to the Court and counsel that the date of the deposition was “subject to agreement of counsel.” See Hearing Minutes of May 14, 2019 at 2:56:16-2:56:56 P.M. Therefore, Home Depot reasonably relied on Ms. Ladwig's representations to the Court that the corporate representative deposition would not go forward absent agreement by the parties to the date. Home Depot was substantially justified in not producing a witness and not attending the May 20, 2019 deposition.
CONCLUSION
For the forgoing reasons, Plaintiffs' Motion for Sanctions is DENIED. To the extent the Motion for Sanctions seeks to compel Home Depot to produce a Rule 30(b)(6) witness, that relief is DENIED as MOOT.
So ORDERED and SIGNED this 1st day of August, 2019.