Faizi v. Temori

Background

The court had previously allowed Faizi to take the deposition of Temori or another defendant by October 6, 2023, based on a possible agreement to complete some discovery after the fact-discovery deadline. The parties agreed to schedule Temori’s deposition for October 2, 2023, by videoconference. Faizi’s counsel and a court reporter appeared, and Temori’s counsel also appeared. Temori’s counsel reported that Temori had sent a text message about an hour before the scheduled start saying that he could not go to defense counsel’s office because of an “emergency.” Temori did not appear, and the deposition did not proceed.

Faizi later moved under Federal Rule of Civil Procedure 37 for discovery sanctions based on Temori’s failure to appear. In his reply, Faizi clarified that the motion concerned only Temori’s failure to attend the October 2 deposition.

Requested sanctions and governing rule

Faizi requested an order preventing the defendants from presenting evidence in their favor, striking their pleadings and entering default judgment, and requiring reimbursement of the fees and costs incurred for the deposition and the sanctions motion. Rule 37(d) permits sanctions, including payment of expenses, when a properly notified party fails to appear for that party’s own deposition. The rule also generally requires payment of reasonable expenses caused by the failure unless the failure was substantially justified or an award would otherwise be unjust.

Court’s ruling

The court held that evidence preclusion, striking the pleadings, and default judgment were not warranted. Although Faizi believed Temori had falsely claimed that an emergency prevented his appearance, the record did not clearly establish that Temori’s inability to attend was willful, in bad faith, or the result of fault.

The court also found no basis to award Faizi’s attorney’s fees. The motion did not itemize the requested fees with particularity. The record also showed that neither side made an effort to reschedule Temori’s deposition after he failed to appear, and the motion did not include detailed declarations describing efforts to obtain compliance without court intervention.

The court did award $750 for the deposition reporting service. It found no indication that Temori’s failure to appear was substantially justified and accepted counsel’s statement that the reporting service cost $750. The order therefore states that Faizi’s motion for Rule 37 sanctions was granted only insofar as Temori was required to reimburse Faizi’s counsel $750 for the deposition costs, and that the motion was otherwise denied.