Felder Part 2 of 4: Defendant Sanctioned for Late Cancellation of Depositions

Image: Holley Robinson, EDRM.

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

In Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024)(Simms, J.), defendant was sanctioned for belatedly canceling depositions that were scheduled at the discovery cutoff date.

This is the second blog of a four-part blog on Felder, an employment discrimination case. See Felder Part 1 of 4: Court-Ordered Transcription of “Meet and Confer” Session. In this employment discrimination case, the defendant had noted depositions of Ms. Jones and Mr. Fisher:

Plaintiff asserts that Defendant engaged in misconduct related to Ms. Jones’ deposition. Specifically, Plaintiff maintains that Defendant misled her into thinking that Jones deposition (and Patrick Fisher’s deposition) “would be conducted, only to find that the Defendants would cancel both depositions for unexplained reasons on the weekend before the close of Discovery.”
In Felder v. MGM National Harbor, LLC, 2024 WL 3690779, at *16 (D. Md. Aug. 7, 2024)(Simms, J.).

The Court wrote:

The record before me reflects that, on [Saturday] February 25, the Defendant notified Plaintiff that the Lisa Jones’ deposition, which was scheduled for [Monday] February 27, was being cancelled…. However, counsel for the Defendant did not explain to Plaintiff why the cancellation occurred. Instead, Plaintiff was told “I am confirming again that the depositions previously noticed for today have been cancelled. We notified you as soon as we learned the depositions would not be going forward.”
Id. at *17.

The pro se plaintiff stated that the notice was “on the day of the close of Discovery” and that the defendant then submitted a declaration of Ms. Jones that was executed on [Thursday] February 23, two days prior to the cancellation. Thus, plaintiff received the Jones declaration on the day that discovery was set to close. Id. at *17.

Plaintiff complained of prejudice and “asserted that… Jones’ declaration was inundated with outright lies. But because Discovery had closed, [she] could not inquire or attempt to rectify the situation….” Id. (emphasis added).

The Court agreed that defendant’s actions were sanctionable:

Reviewing all of the evidence put before the Court by the parties, the undersigned finds that Defendant notified Plaintiff on Saturday February 25 that it was cancelling the February 27 depositions of Jones and Fisher; indeed, this last-minute, weekend notice did not provide Plaintiff with … notice at least one business day in advance. Such conduct strikes the undersigned as discourteous, unfair, and worthy of some sort of sanction.
Id. (emphasis added).

Under Rule 30(g), the Court viewed the appropriate sanction as an award of costs. It then noted that the deposition was a remote one, so no travel was involved. The Court wrote:

[T]he undersigned interprets Rule 30(g) to allow for an award of expenses to Plaintiff because Defendant cancelled Jones’ remote deposition on a Saturday, i.e., less than one business day before the deposition was to occur. Defendant did not explain to Plaintiff why Jones’ deposition was cancelled. I find that Plaintiff has met her burden that a sanction is appropriate due to the last-minute cancellation. Plaintiff, even though she is not an attorney, should be entitled to recover any reasonable expenses that she actually incurred to prepare for Ms. Jones’ deposition.
Id. at *18 (emphasis added).

A parallel analysis was applied to the deposition of Patrick Fisher: “As was the case with Ms. Jones’ deposition, the record before me reflects that, on February 25, the Defendant notified Plaintiff that Patrick Fisher’s deposition, which was scheduled for February 27, was being cancelled…. In addition, the Court now engages in the same analysis as it did above for Ms. Jones….”

[T]he undersigned interprets Rule 30(g) to allow for an award of expenses to Plaintiff because Defendant cancelled Jones’ remote deposition on a Saturday, i.e., less than one business day before the deposition was to occur.
Felder v. MGM National Harbor, LLC, 2024 WL 3690779 at *18 (D. Md. Aug. 7, 2024).

In short, defendant had noted Ms. Jones deposition, obtained a declaration from her on February 23^rd, canceled the deposition set for Monday, February 27^th on Saturday, February 25^th, and the discovery cut-off date was February 28^th.

This well-reasoned sanction illustrates the old maxim, that even a dog knows the difference between being tripped over and being kicked.

Author

Michael D. Berman

Mike is the owner of E-Discovery, LLC, and of counsel at Rifkin Weiner Livingston LLC, in Baltimore. He concentrates on commercial litigation and offers mediation services. He was the primary editor of Electronically Stored Information in Maryland Courts (Md. State Bar Ass’n. 2020), and he co-edited M. Berman, C. Barton, and P. Grimm, eds., Managing E-Discovery and ESI: From Pre-Litigation Through Trial (ABA 2011), and J. Baron, R. Losey, and M. Berman, eds., Perspectives on Predictive Coding (ABA 2016). Mike has litigated a number of cases in the trial and appellate courts in Maryland. He is an Adjunct Professor at the University of Baltimore School of Law where he co-teaches a three-credit discovery workshop that focuses on e-discovery. He has lectured at the Maryland Judicial College and he chaired the Bar committee that drafted the proposed ESI Principles for the District of Maryland. He is a past: co-chair of the Federal District Court Committee of the Maryland State and Federal Bar Associations; chair of the Litigation Section Council, Maryland State Bar Association; and, co-chair of the American Bar Association Litigation Section Book Publishing Board. He graduated from the University of Maryland School of Law and is also an Army veteran. He is admitted to the Maryland bar. The opinions expressed in this blog are not necessarily those of Rifkin Weiner Livingston LLC.
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