United States District Court, S.D. West Virginia, Huntington Division
C. CHAMBERS, CHIEF JUDGE
before the Court is Plaintiff Essex Insurance Company's
Motion for Excess Fees and Costs Associated with Shelly Mirus
Deposition. ECF No. 128. For the following reasons, the Court
DENIES the motion.
August 4, 2016, Defendants gave Notice of Video Deposition of
Robert Becker and Shelly Mirus to occur in Louisville,
Kentucky on August 12, 2016, at 10:00 a.m. and 1:00 p.m.,
respectively. According to Defendants, Mr. Becker is an Agent
and Producer with VanZandt, Emrich & Cary Insurance
Agency, the agency that procured the coverage at issue in
this case. Defendants contend that Ms. Mirus also works at
the agency and handles insurance tasks directed by Mr.
Becker. Defendants assert that they deliberately scheduled
Mr. Becker's deposition before Ms. Mirus' deposition
because he appeared to have more contact with Defendants.
parties conducted Mr. Becker's deposition as scheduled.
However, in light of the statements made by Mr. Becker during
his deposition, Defendants determined Ms. Mirus'
deposition was unnecessary and cancelled it. Defendants state
that Plaintiff never informed them it wanted to take Ms.
Mirus' deposition until after it was cancelled.
counsel states that, during a lunch break after Mr.
Becker's deposition ended and before Ms. Mirus'
deposition was set to begin, he received a phone call from
defense counsel stating Ms. Mirus' deposition was
cancelled. Plaintiff's counsel contends he told defense
counsel he wanted to proceed with the deposition, but defense
counsel informed him it was too late because both he and Ms.
Mirus already had left. As a result, Plaintiff's counsel
states he had to notice a new deposition date for Ms. Mirus,
which was conducted on August 26, 2016. Plaintiff now seeks
reimbursement under Rule 30(g) of the Federal Rules of Civil
Procedure for counsel's time and expenses.
30(g) provides, in part, that “[a] party who, expecting
a deposition to be taken, attends in person or by an attorney
may recover reasonable expenses for attending, including
attorney's fees, if the noticing party failed to . . .
attend and proceed with the deposition[.]” Fed.R.Civ.P.
30(g), in part. “An award of expenses pursuant to Rule
30(g) is within the discretion of the trial court.”
Renfro v. Spartan Computer Servs., Inc., No.
07-2050-CM, 2008 WL 650338, at *2 (D. Kan. Mar. 6, 2008);
Keats v. United States, 121 F.R.D. 53, 53-4 (E.D.
Mich. 1988) (stating “[t]he decision of whether to
impose discovery sanctions under Rule 30(g) is within the
discretion of the Court” (citation omitted)).
Exercising this Court's discretion, the Court declines to
case, defense counsel noticed two related depositions on the
same day. The first deposition took place as scheduled.
However, based upon the information gathered during the first
deposition, defense counsel determined it was unnecessary to
proceed with the second deposition. Therefore, he excused Ms.
Mirus and cancelled her deposition. Defense counsel states he
was unaware of Plaintiff's desire to take Ms. Mirus'
deposition until after it was cancelled, and he notes
Plaintiff's counsel did not cross-notice or subpoena Ms.
Mirus to secure her attendance on its behalf. Although
Plaintiff's counsel argues defense counsel's actions
“forced” him to make a second trip to Louisville
to take Ms. Mirus' deposition, the Court disagrees as it
was Plaintiff's choice to schedule the deposition.
defense counsel could have scheduled Mr. Becker's and Ms.
Mirus' depositions on different days at the outset to
give him time to determine whether Ms. Mirus' deposition
would be necessary. Under that scenario, if defense counsel
would have cancelled Ms. Mirus' deposition in advance,
there would be no grounds for sanctions even if, as here,
Plaintiff's counsel then decided to notice Ms. Mirus for
a deposition. On the other hand, if defense counsel decided
to proceed with Ms. Mirus' deposition, the parties still
would have to make two trips to Louisville because they would
be set on different days.
case, however, defense counsel scheduled the depositions on
the same day as a matter of convenience and efficiency
because they were related and in the same location. If
defense counsel believed Ms. Mirus' deposition was
necessary following Mr. Becker's testimony, the parties
could proceed to take her deposition on the same day and in
the same place, saving both time and money. However, the
threat of sanctions may encourage counsel in similar
situations to stagger depositions days or weeks apart
whenever there is the possibility that the first deposition
may negate the need for the second deposition, despite the
fact it may be more efficient and cost effective to schedule
them on the same day in the event both depositions are taken.
If the depositions are set on the same day, counsel who
noticed the deposition also may feel compelled to proceed
with the deposition even when counsel no longer believes it
is necessary in order to avoid the possibility of sanctions.
When raised in this context, these results make sanctions
counterproductive to the discovery process.
as a matter of professional courtesy, it would have been
preferable for defense counsel to have discussed his decision
to excuse Ms. Mirus with opposing counsel before he permitted
her to leave, the Court finds sanctions are inappropriate.
Accordingly, under the circumstances of this case, the Court
finds in its discretion that sanctions are not warranted and
DENIES Plaintiffs Motion for Excess Fees and Costs Associated
with Shelly Mirus Depositions. ECF No. 128.
Court DIRECTS the Clerk to send a copy of this Order to
counsel of ...