On December 28, 2015, Sawyer filed a complaint and an application to proceed in forma pauperis in this case, which was granted. On October 26, 2016, the court ordered the parties to submit a Joint Discovery/Case Management Plan. Nevertheless, the parties filed independent discovery plans. In its discovery plan, Geico stated its intention to take Sawyer’s deposition between December, 2016, and May, 2017.
Geico did make arrangements to take Plaintiff’s deposition on January 18, 2017. Sawyer was given proper notice of the deposition, but she did not appear, and belatedly informed Defendant that she would not attend, because she was “the victim” in the action, and so she should not have to endure “such depressive measures.” Geico then rescheduled Sawyer’s deposition for February, 2, 2017. Again, she was properly notified of the deposition, but she again failed to appear, claiming that she could not, because she had been the “victim of robbery,” the night before.
On February 14, 2017, Defendant filed a motion to compel Plaintiff’s deposition. The court granted that motion, and ordered Sawyer to appear for deposition on February 24, 2017, a date to which the parties had agreed. Geico provided appropriate notice of that deposition, but Plaintiff, acting in direct violation of the court’s order, failed to present herself for questioning on that date, as well.
On March 1, 2017, Defendant filed a motion for sanctions against Sawyer, asking that the case be dismissed, for her failure to appear at the court ordered deposition. Sawyer responded in opposition, claiming that she had a valid excuse for her absence. On April 12, 2017, the court held a telephone
conference on Defendant’s motion. The court denied Geico’s motion, at that time, and expressly admonished Sawyer that her suit would be dismissed if she failed to appear for her deposition a fourth time. In fact, she was told that the court would assume that she had no interest in pursuing the case if she failed to appear.
Sawyer’s final deposition was scheduled for May 8, 2017. Plaintiff was given appropriate notice of that deposition, but, again, in direct violation of the court’s order, she failed to appear for that deposition, which was to take place in the courtroom.
Defendant filed its second motion for sanctions on May 12, 2017. In support of its motion, Geico argues that Plaintiff’s claim should be dismissed, because her refusal to appear for deposition precludes it from obtaining critical evidence concerning her claims. For that reason, Defendant requests the court to dismiss all of Sawyer’s claims, with prejudice.
Rule 26(b) permits a party to obtain discovery “regarding any non-privileged matter that is relevant to any party’s claim or defense. The information need not be admissible at trial, “if discovery appears reasonably calculated to lead to the discovery of admissible evidence. Rule 30 governs depositions by oral examination. Subject to certain exceptions, a party may depose any person by oral questions, without leave of court. If, however, the opposing party fails to appropriately respond to its discovery requests, a party may move to compel the discovery request pursuant to Rule 37(a)(3).
Further, Rule 37 provides that, if a party fails to obey an order to provide or permit discovery the court may issue further orders including dismissing the action or proceeding in whole or in part. In addition, if a party fails to appear at her own deposition, the court may sanction her by dismissing the action.
In this case, Sawyer has demonstrated a pattern of intentional delay, contumacious conduct, noncompliance, and a general refusal to cooperate in the discovery process. Further, Plaintiff has been expressly warned by the court that further failure to adhere to its orders would result in dismissal of her claims.
Considering all the above, the remedy of last resort is warranted – Dismissal with prejudice.