United States District Court, W.D. Oklahoma
JOSEPH P. SEAY, D.D.S., MS, LOIS JACOBS, D.D.S., Plaintiffs,
OKLAHOMA BOARD OF DENTISTRY; SUSAN ROGERS, as the Executive Director of the OKLAHOMA BOARD OF DENTISTRY, and as an individual; et al., Defendants.
TIMOTHY D. DEGIUSTI CHIEF UNITED STATES DISTRICT JUDGE
the Court is Plaintiffs' Motion for Sanctions and Motion
to Compel Deposition [Doc. No. 43], filed pursuant to
Fed.R.Civ.P. 37 (d)(1)(A). Defendant Curtis Bowman has timely
opposed the Motion, which is fully briefed.
their Motion, Plaintiffs accuse Defendant of failing to
appear at his deposition without notice. Motion at 4.
Previous efforts from both parties to schedule the deposition
at a mutually-agreeable time had failed. Id. at 3-4.
Plaintiffs were aware that Defendant was under the belief he
had not been personally served and was therefore refusing to
appear for the deposition. Id. at 4. A court
reporter appeared for the deposition and made a record of
Defendant's failure to appear. Id. Defendant
notes that there had been an exchange between Plaintiffs'
counsel and defense counsel, which left defense counsel under
the impression that there would be further discussion about
the deposition before it took place. Response at 3. The
parties have introduced documentation that verifies this was
a reasonable assumption. Response, Ex 1 [Doc. No. 47-1]. A
new deposition date has since been agreed upon and was again
rescheduled due to Plaintiffs' conflict.
Rule of Civil Procedure 37(d)(1)(A)(i), provides that a court
may enter sanctions against a party who fails to appear for
his deposition after being served with proper notice. Under
that authority, “instead of or in addition to these
sanctions, the court must require the party failing to act,
the attorney advising that party, or both to pay the
reasonable expenses, including attorney's fees, caused by
the failure, unless the failure was substantially justified,
or other circumstances make an award of expenses
unjust.” Fed.R.Civ.P. 37(d)(3). The Supreme Court has
described the test of “substantially justified”
under Rule 37 as “a genuine dispute or if reasonable
people could differ as to the appropriateness of the
contested action.” Pierce v. Underwood, 487
U.S. 552, 565 (1988). “Substantially justified”
connotes “not justified to a high degree, but rather
justified in substance or in the main-that is, justified to a
degree that could satisfy a reasonable person.”
Id; accord Lester v. City of Lafayette,
Colo., 639 Fed.Appx. 538, 542 (10th Cir. 2016).
consideration of the parties' briefs, and the
undersigned's personal knowledge of the parties'
discovery disputes in this case, the Court declines to make
an award to Plaintiffs of expenses sought by the Motion.
the Court notes that Plaintiffs have shown compliance with
LCvR37.1 with respect to their Motion. The requirement of an
informal conference between counsel is applicable to
“all motions or objections relating to discovery
pursuant to Fed. R. Civ. P . 2 6 through 37.” Counsel
met in person to discuss this issue on October 25, 2019.
See LCvR37.1. In the Court's view, however,
Defendant's failure to appear at the deposition was due
to a reasonable mistake and miscommunication, after a
well-documented set of events. Counsel for both parties have
at times rescheduled the deposition for a variety of reasons,
and there is nothing in the record to indicate that there
were any bad-faith intentions to disrupt the discovery
process. The Court declines to sanction Defendant, or to
compensate Plaintiffs, with an award of costs and expenses
“where reasonable people could differ as to the
contested action.” Pierce, 487 U.S. at 565.
Court further notes that the parties have not yet agreed upon
a time and place to hold the deposition. The discovery
deadline has been extended to March 7, 2020. Given the many
unsuccessful attempts to schedule Defendant's
disposition, the Court finds, for good cause shown,
Plaintiffs' Motion to Compel Deposition should be
THEREFORE ORDERED that Plaintiffs' Motion to Compel
Deposition [Doc. No. 43] is GRANTED in part. Defendant Bowman
is ordered to appear for the taking of his deposition on an
agreed-upon date by counsel of record, to take place not
later than Wednesday, February 19, 2020.
FURTHER ORDERED that Plaintiffs' Motion for Sanctions
[Doc. No. 43] is DENIED.
 The time for filing a reply brief has
expired. See ...