United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON MOTION TO COMPEL DEPOSITION
MARK J. DINSMORE, Magistrate Judge.
This matter comes before the Court on the City of Indianapolis's ("Defendant") Motion to Compel Deposition, filed on January 22, 2015. [Dkt. 42.] For the following reasons, the Court hereby GRANTS Defendant's motion to compel.
Jimmy Odongo ("Plaintiff") filed his Complaint pro se against the Defendant on May 7, 2014, alleging employment discrimination and wrongful termination from the police academy due to his national origin, pursuant to Title VII of the Civil Rights Act of 1964. [Dkt. 1.] At the initial pretrial conference on August 27, 2014, Plaintiff provided Defendant with his Response to Defendant's Affirmative Defenses Claim, which included twenty-two requests for documents therein. [Dkt. 31 at 1.] Also in September, Defendant informally responded to Plaintiff's twenty-two requests, which Defendant followed-up with a formal response on November 25, 2014. [Dkt. 31 at 1.] Plaintiff, remaining dissatisfied with Defendant's responses, then filed his Motion Seeking to Find Defendant in Contempt of Court on December 22, 2014 for Defendant's alleged undue delay and spoliation of evidence. [Dkt. 27.]
Meanwhile, on December 5, 2014, defense counsel reached out to Plaintiff and offered seven alternative deposition times on four separate days in December from which Plaintiff could choose to have his deposition take place. [Dkt. 43-3 at 2.] One week later, Plaintiff responded, noting that December 22 was best for him "at the moment, " but he agreed to confirm his availability "as soon as I find out." [ Id. ] On December 18, defense counsel, having not heard from Plaintiff confirming a December 22 deposition, suggested additional dates in January. [ Id. at 3.] Plaintiff did not respond, confirming his availability to have his deposition taken on December 22, until the morning of December 22, even though he knew of his availability on December 19; in response to defense counsel's offer of January dates, Plaintiff suggested that they "wait pending the Courts [sic] decision" on his Motion Seeking to Find Defendant in Contempt of Court (or motion to compel and for sanctions), which he filed later that day. [ Id. ]
On January 7, 2015, because Plaintiff would not agree to consider a deposition date until after the Court ruled on his motion to compel and for sanctions, Defendant served a Notice of Deposition on Plaintiff pursuant to Rules 26 and 30 of the Federal Rules of Civil Procedure, which notice Plaintiff received on January 9, 2015, setting the deposition for 1:00 p.m. on January 22, 2015. [Dkts. 43-1, 43-2.] On January 20, in response to an inquiry from defense counsel regarding a separate issue (and only two days before the noticed deposition was to take place), Plaintiff asked if the deposition could be rescheduled because he had stayed up three days in a row working on a motion and because he needed to prepare for the upcoming hearing on his motion to compel and for sanctions. [Dkt. 43-4 at 2.] In response later that day, defense counsel wrote that he was unable to reschedule the deposition due to his full schedule and the impending discovery deadlines. [ Id. ] On January 21, now the day before the noticed deposition was to take place, Plaintiff replied that he "will not be able to attend" the noticed deposition the next day. [ Id. ] Although Plaintiff noted that he would be filing a motion with regard to his deposition, none was filed prior to 1:00 p.m. on January 22, 2015, the day and time of the noticed deposition. [Dkt. 43.] Plaintiff failed to appear for his noticed deposition, and when defense counsel called him to inquire as to his whereabouts, Plaintiff answered that he was "at home" but did not provide defense counsel with an explanation for his non-attendance. [ Id. ]
The afternoon of January 22, due to Plaintiff's failure to appear for the noticed deposition at 1:00 p.m., Defendant filed its motion to compel Plaintiff's deposition. [Dkts. 42, 43.] Later that same day, January 22, 2015, Plaintiff filed a Motion Seeking Protective Order Against Defendant's Deposition Notice. [Dkt. 45.] Although Plaintiff's motion for protective order was filed after Defendant filed its motion to compel, it is uncertain whether Plaintiff was aware that Defendant had filed such a motion prior to filing his motion for a protective order. However, Plaintiff made no further response to Defendant's Motion to Compel Deposition other than filing his Motion Seeking Protective Order, which motions are now before the Court. [Dkts. 42, 45.]
Defendant moves to compel Plaintiff's deposition on the basis that the deposition was properly noticed, pursuant to Rule 30, and on the basis that Plaintiff's failure to appear for such a properly noticed deposition constitutes a failure to cooperate in the discovery process, pursuant to Rule 37. [Dkt. 43.] Plaintiff filed no response in opposition to Defendant's motion to compel his deposition; however, Plaintiff's motion seeking a protective order, which was filed after Defendant's motion, asserts that Defendant's alleged discovery failures, that Plaintiff's potential lack of knowledge without first receiving certain discovery from Defendant, and that Plaintiff's January 20 request to reschedule due to his lack of sleep and his need to prepare for the hearing on his motion to compel and for sanctions all are sufficient to excuse him from needing to appear for his January 22, 2015 deposition. [Dkt. 45.]
A party is free to depose an opposing party without requiring leave from the court, so long as the Rule 26(f) discovery conference has taken place. Fed.R.Civ.P. 30(a)(1). Local Rule 30-1(d) supplements this provision, clarifying that, pursuant to the standards of the Seventh Federal Judicial Circuit, "attorneys will make a good faith effort to schedule depositions in a manner that avoids scheduling conflicts." Additionally, Local Rule 30-1(d) dictates that "no deposition will be scheduled on less than 14 days' notice." When proper notice has been served but the party fails to appear for his deposition, that party has failed to cooperate in discovery pursuant to Rule 37, and sanctions may be appropriate. Fed.R.Civ.P. 37(d)(1)(A)(i). A party is only excused from appearing for his deposition when such party "has a pending motion for a protective order under Rule 26(c)." Fed.R.Civ.P. 26(d)(2). It is of further note that the "rules apply to uncounseled litigants and must be enforced"; pro se litigants are not excused from the confined of the Federal Rules of Civil Procedure. Members v. Paige, 140 F.3d 699, 702 (7th Cir. 1998). 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).
In order to evaluate whether the Plaintiff was excused from attending his noticed deposition, the Court must first determine whether the Defendant properly noticed the deposition pursuant to Rule 30. Federal Rule of Civil Procedure 30(b)(1) requires that the notice must give "reasonable written notice" that states the time and place of the deposition and, when possible, the deponent's name and address. Because the Notice of Deposition here identifies Jimmy Odongo as the deponent, including his home address, and states that the deposition "will be taken at 1:00 p.m. on January 22, 2015 at Circle City Reporting, 135 N. Pennsylvania St., Ste. 1720, " Defendant has met the name, address, time, and place requirements of Rule 30.
Having met the requirements of Rule 30 the Defendant must additionally meet the notice requirements set forth in Local Rule 30-1. As noted above, Local Rule 30-1(d) clarifies that a "reasonable written notice" within the Southern District of Indiana is one that is scheduled no less than fourteen days in advance of the noticed deposition date. Here, in the certificate of service pertaining to the Notice of Deposition, the Defendant certifies "that a copy of the foregoing has been duly served upon the party listed below by United States mail, first-class, postage prepaid on January 7, 2015." [Dkt. 43-1 at 3.] Because Defendant scheduled the deposition fifteen days in advance of the January 22 noticed deposition, the fourteen-day requirement of Local Rule 30-1(d) has been satisfied.
Finally, Local Rule 30-1 requires that a good faith effort be made to schedule depositions in a manner that avoids scheduling conflicts. Here, defense counsel made several attempts to propose deposition dates that would work for Plaintiff's schedule, and each time Plaintiff failed to confirm the date until the morning of the potential deposition, failed to consider any additional dates for a potential deposition, or failed to communicate an "inability" to attend the noticed deposition until the day before it was scheduled to take place. Such failures are strong indications of an unwillingness to cooperate with opposing counsel's multiple efforts, and thus the Court finds that Defendant's efforts, though unmet, satisfy the good faith effort requirement of Local Rule 30-1(d). Accordingly, Defendant's Notice of Deposition meets each of the requirements of Rule 30 and Local Rule 30-1, and the January 22, 2015 deposition was properly noticed.
Having found that the deposition in question was properly noticed, the Court must determine whether Plaintiff's failure to appear for his properly noticed deposition can be excused. On this point, ...