United States District Court, D. Connecticut
RULING ON OBJECTION (ECF NO. 129)
KARI
A. DOOLEY UNITED STATES DISTRICT JUDGE
Pending
before the Court is the objection of plaintiff Christina
Othon (the “Plaintiff” or “Othon”) to
an order issued by Magistrate Judge Sarah A.L. Merriam on
June 4, 2019 (the “June 4 Order”) authorizing
defendant Wesleyan University (“Wesleyan”) to
seek certain costs and fees.[1](ECF No. 129; see also
ECF No. 121 at 18-19.) For the following reasons, the
Plaintiff's objection is OVERRULED.
The
Court presumes the party's familiarity with the facts and
circumstances surrounding the on-going and contentious
discovery disputes in this matter. One of the many points of
contention between the parties was when Othon's
deposition should take place. On April 2, 2019, Wesleyan
re-noticed Othon's deposition for June 6, 2019 at 10:00
a.m. (ECF No. 113-1 at 3.) Because the pleadings before
Magistrate Judge Merriam revealed an ongoing dispute as to
whether the deposition would go forward, Magistrate Judge
Merriam issued an order on May 9, 2019, in which she noted in
relevant part: “Neither a motion to compel, nor a
motion for a protective order, specifically addressed to
plaintiff's deposition has been filed or granted
in this case. Accordingly, the Court presumes that any duly
noticed deposition will go forward in the ordinary course of
business.” (ECF No. 95.)
On May
30, 2010 - three weeks later and only one week before her
duly noticed deposition - the Plaintiff filed a motion for
protective order, in which she indicated that her June 6,
2019 deposition could not go forward because, inter
alia, Othon had not purchased an airline ticket to
travel to Connecticut from Wisconsin.[2] (ECF No. 110-1 at ¶
23.) At the June 3, 2019 hearing on that motion, further
inquiry revealed that Othon had not purchased an airline
ticket because plaintiff's counsel had advised Othon that
she would tell Othon when to make travel arrangements and
counsel had not yet told her to do so. (ECF No. 121 at 5-6.)
Because of the role plaintiff's counsel played in
creating the very difficult situation, Magistrate Judge
Merriam offered plaintiff's counsel two options:
Either plaintiff's deposition could go forward as
scheduled on June 6, 2019, or the Court would order defendant
to re-notice plaintiff's deposition for June 13, 2019,
and require [plaintiff's counsel] to compensate defendant
both for the attorney's fees and costs associated with
defending the motion for a protective order on short notice,
as well as costs associated with rescheduling plaintiff's
deposition.
(Id. at 17.) Plaintiff's counsel maintained that
Othon could not be made available on June 6, 2019 so she
chose the second option. (Id. at 18.)
On June
4, 2019, Magistrate Judge Merriam issued a lengthy decision
in which she outlined in detail why the Plaintiff's
motion for protective order was being denied. (See
generally Id. at 8- 18.) She further set a deadline for
Wesleyan to file a motion for fees and costs. (Id.
at 18-19.) It is the order for fees and costs to which the
Plaintiff now objects.
A
district court may modify or set aside a magistrate
judge's ruling on nondispositive matters only if the
order “is clearly erroneous or is contrary to
law.” Fed.R.Civ.P. 72. This standard of review is a
“highly deferential” one. Air France v.
Aircraft Serv. Int'l, Inc., No. 12-cv-06025 (SLT)
(RER), 2014 WL 2718534, at *2 (E.D.N.Y. June 16, 2014).
“An order is ‘clearly erroneous' only if a
reviewing court, considering the entirety of the evidence, is
left with the definite and firm conviction that a mistake has
been committed.” Field Day, LLC v. Cty. of
Suffolk, No. 04-cv-02202, 2010 WL 5490990, at *2
(E.D.N.Y. Dec. 30, 2010) (internal quotation marks omitted).
“[A]n order is ‘contrary to law' when it
fails to apply or misapplies relevant statutes, case law, or
rules of procedure.” Id. (internal quotation
marks omitted).
After
thoroughly reviewing the June 4 Order, the Plaintiff's
objection to that order, the submissions related to the
Plaintiff's motion for protective order and the audio
recording from the hearing on that motion, the Court is not
persuaded that Magistrate Judge Merriam's order
permitting Wesleyan to seek fees and costs was clearly
erroneous or contrary to law. Although the Plaintiff briefs
in detail why Rule 37 sanctions were not appropriate, it is
apparent that Magistrate Judge Merriam imposed fees and costs
pursuant to her inherent authority, not Rule 37. Indeed,
neither Rule 37 nor the term “sanctions” appears
anywhere in Judge Merriam's ruling on the issue of costs
and fees.[3]
“Courts
of justice are universally acknowledged to be vested, by
their very creation, with power to impose silence, respect,
and decorum, in their presence, and submission to their
lawful mandates. These powers are governed not by rule or
statute but by the control necessarily vested in courts to
manage their own affairs so as to achieve the orderly and
expeditious disposition of cases.” Chambers v.
NASCO, Inc., 501 U.S. 32, 43 (1991) (citations omitted;
internal quotation marks omitted). “The power of a
court over members of its bar is at least as great as its
authority over litigants, ” and “federal courts
have inherent power to assess attorney's fees against
counsel.” Roadway Exp., Inc. v. Piper, 447
U.S. 752, 765-66 (1980). “[A] court may assess
attorneys' fees for the ‘willful disobedience of a
court order . . . as part of the fine to be levied on the
defendant(, ) or when the losing party has ‘acted in
bad faith, vexatiously, wantonly, or for oppressive
reasons'” Alyeska Pipeline Serv. Co. v.
Wilderness Soc'y, 421 U.S. 240, 258-59 (1975)
(citations omitted).
In this
case, Magistrate Judge Merriam did not impose fees and costs
on plaintiff's counsel because the Plaintiff or her
counsel violated a court order. She imposed costs and fees
because plaintiff's counsel “made a conscious
decision not to attend the duly-noticed deposition before she
sought - much less received - relief from the Court.”
(ECF No. 121 at 9.) Magistrate Judge Merriam determined that
this decision by plaintiff's counsel was an attempt to,
“in effect, unilaterally cancel the deposition.”
(Id. at 9-10.) Magistrate Judge Merriam further
determined that plaintiff's counsel “chose not to
make any meaningful effort to resolve the dispute [as
required by the federal and local rules of civil procedure],
and then failed to seek Court intervention in a timely
fashion.” (Id. at 9.)
There
is nothing in the Federal Rules of Civil Procedure that
permits a party to unilaterally withhold discovery as a
self-help remedy. Sea Trade Mar. Corp. v.
Coutsodontis, No. 09-cv-00488 (LGS) (HBP), 2014 WL
3859114, at *1 (S.D.N.Y. July 30, 2014); Hammond v. Beth
Israel Medical Center, 10-cv-00093 (NRB), 2011 WL
5980952 at *4 n.2 (S.D.N.Y. Nov. 30, 2011). Plaintiff's
counsel knew since April 2019 that defendant's counsel
was taking the position that Othon's deposition would go
forward on June 6, 2019 as noticed, even though
plaintiff's counsel had taken issue with that date. As an
experienced litigator, plaintiff's counsel undoubtedly
knew that to obtain relief from the deposition notice the
appropriate course of action was to file a motion for a
protective order. Indeed, Magistrate Judge Merriam told her
as much in her May 9, 2019 order. Yet, plaintiff's
counsel chose to wait until seven days before her
client's deposition to raise the issue, [4] and she did so
while knowing that, on her direction, her client had not
purchased an airline ticket to attend her deposition. Thus,
as a practical matter, plaintiff's counsel ensured that
the deposition would not go forward as noticed, regardless of
how the Court ruled on her motion for protective order.
Magistrate Judge Merriam properly determined that such
manipulation of the Court and the discovery process cannot be
countenanced by the Court.[5]
Magistrate
Judge Merriam's award of fees and costs was not clearly
erroneous or contrary to law. Accordingly, the
Plaintiff's objection is OVERRULED.
SO
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