United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON MOTION TO COMPEL
MARK J. DINSMORE, District Judge.
This matter comes before the Court on Matthew Slabaugh and Bobbie Slabaugh's ("Plaintiffs") Motion to Compel and/or for Sanctions for Failure to Appear for Depositions. [Dkt. 217.] For the following reasons, the Court hereby GRANTS Plaintiffs' Motion to Compel.
Plaintiffs' case against LG Electronics USA, Inc. ("LG USA") and LG Electronics, Inc. ("LG Korea") (collectively "Defendants" or "LG") involves claims of negligent infliction of emotional distress, strict products liability, and negligence. [Dkt. 85 at 22-25.] In June of 2011, Plaintiffs' home suffered water damage, allegedly caused by defective components in their LG brand washing machine. [ Id. ] After pursuing out-of-court remedies, Plaintiffs filed suit in state court in June of 2012, and their case was removed to this Court in July of 2012. [Dkt. 67 at 4.]
In August of 2014, to prove that they "admit liability, " the LG Defendants moved to amend their Answer in order to clarify that "the LG Defendants are no longer disputing that the washer at issue in this case was defective, and malfunctioned and caused a discharge of water into the Plaintiffs' home, " which motion was granted by the Court on January 14, 2015. [Dkts. 196, 263.] In pertinent part, Defendants' Amended Answers each admit that (1) Plaintiffs' washer malfunctioned by turning itself on and discharging a flow of laundry water into Plaintiffs' home, (2) Defendants are at fault for any damages proximately caused by the discharge of water, (3) Plaintiffs' washer was defective, (4) Plaintiffs' washer malfunctioned, and (5) Defendants are strictly liable for all damages to Plaintiffs and their property that resulted from the defective condition of their washer. [Dkts. 254, 265 at ¶¶ 8, 9, 12, and 128.]
Significantly, Defendants' amended answers do not admit to Plaintiffs' claims that (1) Defendants owed a duty to Plaintiffs to promptly and reasonably resolve Plaintiffs' Washer claim with regard to Plaintiffs' negligent infliction of emotional distress claim, (2) Defendants' breach proximately caused harm to Plaintiffs, including mental, emotional, and physical harm with regard to Plaintiffs' negligent infliction of emotional distress claim, (3) damages exist above the amount reimbursed by State Farm for which Defendants are liable with regard to Plaintiffs' strict products liability claim, and (4) Defendants undertook and had a duty to resolve Plaintiffs' Washer claim in a timely manner with regard to Plaintiffs negligence claim. [Dkts. 264, 265 at ¶¶ 116, 118, 129, and 131.] While the Court acknowledges that cross motions for summary judgment are pending [Dkts. 209, 221], the District Judge has not yet ruled on such motions. Therefore, all of Plaintiffs' claims and Defendants' defenses remain pending before the Court as plead.
Since the arrival of this matter in federal court, Plaintiffs have had a difficult time obtaining information from LG during the discovery process, to put it lightly. [ See, e.g., Dkts. 94, 130, 175, 191, 193, 266.] After waiting over a year for more complete discovery responses from LG but unable to wait any longer, Plaintiffs contacted defense counsel on August 22, 2014 to try and schedule the LG Defendants' depositions pursuant to Rule 30(b)(6) before the close of discovery on September 19, 2014. [Dkt. 218.] In response, on August 26, 2014, defense counsel asserted that "any such deposition is not calculated to lead to the discovery of admissible evidence in light of the LG defendants' admission of liability." [ Id. at 3.] Plaintiffs then raised the issue during a discovery call with the Court, which was held on August 29, 2014, and the undersigned indicated that Plaintiffs could serve LG with notices of the depositions pursuant to Rule 30. [ Id. at 4.]
Plaintiffs did just that on September 3, 2014, serving defense counsel, both by email and U.S. Mail, with the Notice of 30(b)(6) Deposition of LG Electronics USA, Inc. and the Notice of 30(b)(6) Deposition of LG Electronics, Inc., each to be held on September 17, 2014, at 8:30 a.m. and 2:30 p.m., respectively. [Dkts. 218-2, 218-3.] Thereafter, in the subsequent days leading up to the deposition date, defense counsel indicated that September 17th was not a good date for Defendants and advised Plaintiffs' counsel that they would take the matter up with the Court through a motion to quash, but no such motion was ever filed. [Dkt. 218 at 5.] Instead, at 6:30 p.m. on September 16, 2014, the evening before the noticed depositions were to take place, defense counsel emailed plaintiffs' counsel with objections to each of the seventeen topics noticed by Plaintiffs to be covered by LG's 30(b)(6) deponents. [Dkt. 218-5.] The next day, Defendants failed to appear for their noticed depositions, so Plaintiffs' counsel requested a discovery call with the Court, during which call the undersigned granted Plaintiffs leave to file a motion to compel. Such motion to compel is now before the Court.
Rule 37 of the Federal Rules of Civil Procedure permits a party to file a motion to compel upon the failure of a corporation or other entity to make a designation pursuant to Rule 30(b)(6). Fed.R.Civ.P. 37(a)(3)(B)(ii). When a party's officer fails to appear for a properly-noticed deposition, the court may order sanctions and must grant reasonable expenses, including attorney fees, caused by the failure to appear, to be paid by such party and/or its counsel. Fed.R.Civ.P. 37(d)(1). Ultimately, this Court has "broad discretion in discovery matters, [including with regard to a] motion to compel." Packman v. Chicago Tribune Co., 267 F.3d 628, 646 (7th Cir. 2001).
Defendants assert that the deposition notices were not properly served, thus excusing their failure to appear, for the following three reasons: (1) the notices violated Local Rule 30-1(d) because Plaintiffs' counsel failed to confer with defense counsel in scheduling the depositions, (2) the notices did not meet Local Rule 30-1(d)'s fourteen day requirement, and (3) the topics noticed were all irrelevant to the remaining issues in the case given LG's admission of liability. [Dkt. 232 at 3-8.] Local Rule 30-1(d) provides as follows:
Under the Standards for Professional Conduct within the Seventh Federal Judicial Circuit, Lawyers Duty to Other Counsel, paragraph 14, attorneys will make a good faith effort to schedule depositions in a manner that avoids scheduling conflicts. Unless agreed by counsel or otherwise ordered by the court, no deposition will be scheduled on less than 14 days [sic] notice.
S. D. Ind. L.R. 30-1 (emphasis added).
With regard to Defendants' allegation that Plaintiffs did not make a good faith effort to schedule depositions in a manner that avoids scheduling conflicts, the Court makes the following factual observations: (1) Plaintiffs telephoned and then emailed defense counsel on August 22, 2014 requesting that defense counsel "Please call [Plaintiffs' counsel] back to discuss... the scheduling of a 30(b)(6) deposition of your client(s) including logistical issues such as whether the witness(es) will be here in the USA or, if not, whether it makes sense to take the deposition telephonically" [Dkt. 218-1 at 7]; (2) In response to a second call and e-mail from Plaintiffs on August 25, 2014, the next day defense counsel emailed Plaintiffs' counsel, stating "our position is that any such deposition is not calculated to lead to the discovery of admissible evidence in light of the LG defendants' admission of liability. Nevertheless, please send me your proposed notice of deposition which outlines the areas of inquiry and I will review the same" [ id. at 6]; (3) At the next conference held with the Court three days later, on August 29, 2014, Plaintiffs' counsel raised the issue of scheduling Defendants' deposition(s) by the September 19 discovery deadline; a discussion was held, and, in light of defense counsel's refusal to provide proposed dates for the depositions, the undersigned indicated that "Plaintiffs should simply serve the notices of depositions" [Dkt. 218 at 4]; (4) In his September 3, 2014 e-mail to defense counsel with such notices attached, Plaintiffs' counsel concludes "[i]f you would like to discuss alternative locations, dates, times, or means of taking the deposition, please let me know and I am sure we can work something out" [Dkt. 218-1 at 6]; (5) In response, defense counsel writes "In never refused to give dates and times. We are not available those dates. Please withdraw the notices by the close of business tomorrow or we will file a motion to quash them" [ id. at 5]; (6) In reply, Plaintiffs' counsel reminds defense counsel that he left "a lengthy voicemail and also sent an e-mail" on August 22nd that he followed up with "a phone call and voicemail" on August 25th, which spurred defense counsel's response the next day, but acknowledged that filing a motion to quash is defense counsel's prerogative [ id. at 4-5]; (7) In surreply, defense counsel insists that ...