The opinion of the court was delivered by: Richard Mills, U.S. District Judge
All of the Defendants have filed a joint motion for judgment and sanctions. Also pending: Plaintiff's three motions (for a protective order, to strike the Defendants' joint motion for judgment and sanctions, and to deny Greg McCormick and all non-parties from attending depositions), and the Defendants' joint motion to extend the dispositive motion deadline.
The Defendants' joint motion for judgment and sanctions will be allowed. The Court finds that this is appropriate following the Plaintiff's decision not to proceed with her own deposition, which was only her latest abuse of the discovery process. The record shows that Plaintiff had no legitimate reason for walking out on her deposition. Moreover, despite the Defendants' efforts to resolve the matter by contacting the magistrate judge, the Plaintiff was unwilling to discuss or attempt to resolve whatever objections with the deposition process she claimed to have. Because this was not an isolated instance, the Court concludes that dismissal is warranted.
In support of their joint motion for judgment and for sanctions, the Defendants state first that counsel for the State Defendants (Assistant Attorney General Thomas H. Klein) originally noticed the Plaintiff's deposition for August 28, 2007, at 10:00 a.m. On August 20, 2007, the Plaintiff left a phone message for Attorney Klein that she would be available for her deposition on August 21, 2007 or on August 31, 2007. Because counsel for the Union Defendants (Attorney Mary Lee Leahy) was not available on August 31, Attorney Klein attempted repeatedly to talk to Plaintiff by phone on August 20 to confirm her deposition for August 21 at 10:00 a.m. He was unable to reach her or leave a message at the phone number she had left.
The Defendants claim that on August 20, 2007, Attorney Klein had a notice of deposition personally delivered at the Plaintiff's residence. The notice set the Plaintiff's deposition for August 21 at 10:00 a.m., at Attorney Leahy's office, 308 East Canedy, Springfield, IL.
On August 21, 2007, at 10:00 a.m., the following persons appeared for the deposition: Attorney Klein, Defendant Kathleen Bloomberg, Greg McCormick on behalf of the Secretary of State, Attorney Leahy, Defendant Jean Reeder and the court reporter. Shortly after 10:00 a.m., the Plaintiff phoned Leahy Law Offices and informed Attorney Klein that she was waiting for a taxi. At approximately 10:25, the Plaintiff arrived at the law office.
After she arrived, the Plaintiff refused to give her deposition because some of the Defendants were present. The Plaintiff stated that the only people she would allow to be present for her deposition were Attorney Klein and Attorney Leahy. Attorney Klein explained to the Plaintiff that the Defendants and a representative of the Secretary of State's Office had the right to be present at her deposition. The Plaintiff still refused to give her deposition.
The Defendants allege that after the Plaintiff's initial refusal, Attorney Leahy told the Plaintiff that she would call the magistrate judge in an attempt to solve the problem. As Attorney Leahy was getting the magistrate judge's phone number before placing a call on the speaker phone so that Plaintiff could participate, the Plaintiff said that she was leaving and that she would not give her deposition under these circumstances. Attorney Klein stated again to the Plaintiff that they were contacting the magistrate judge so the issue could be addressed with the Court. The Plaintiff again stated she was leaving and that she would not proceed with the deposition. The Plaintiff then left.
In support of their motion, the Defendants note that under the Federal Rules of Civil Procedure, they have a right to take the Plaintiff's deposition. Moreover, the Defendants have a right to be present at Plaintiff's deposition because counsel may need their assistance during the deposition. Federal Rule of Civil Procedure 37(d) states that "if a party . . . fails to appear before the officer who is to take the deposition, after being served with a proper notice . . . the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subparagraphs (A), (B), and (C) or subdivision (b)(2) of this rule." Rule 37(b)(2)(C) states that a court may enter "[a]n order . . . rendering a judgment by default against the disobedient party." The Defendants state that the failure of the Plaintiff to give her deposition was willful. Moreover, it is extraordinarily difficult, if not impossible, to defend this case without being certain of her claims--especially given the vagueness of Plaintiff's complaint; therefore, her deposition was necessary in order to proceed with the case.
The Plaintiff did not file a proper response to the Defendants' joint motion for judgment and for sanctions. She did, however, file a motion to deny Greg McCormick's [sic] and all non-parties from attending depositions and to deny and strike the Defendants' joint motion. This motion provides her account of the events which serve as the basis for the Defendants' joint motion. The Plaintiff claims that the Defendants waited until she was beginning her vacation before they decided to schedule a deposition and inquire as to whether she planned to conduct discovery. She asserts that Defendant Bloomberg (who knew she was going on vacation) and her attorney "contrived a scheme" to get an extension of the discovery period under the pretense of lack of cooperation from Plaintiff by calling Plaintiff at her office at the end of the day before she began her vacation. She contends this was not adequate notice for an August 15, 2007 deposition.
The Plaintiff alleges that on August 15, 2007 at approximately 10 a.m., Plaintiff's daughter signed for a UPS delivery from Attorney Klein.
She continued on her vacation as this was not adequate notice under Federal Rule of Civil Procedure 30(b)(1), according to the Plaintiff. The Plaintiff states that when she returned to Springfield on August 19, she found a stamped notice for deposition on August 28, 2007. On August 20, the Plaintiff contacted Attorney Klein to offer August 21 at 10 a.m., or August 31 at 1 p.m. for the deposition. Attorney Klein scheduled the deposition for August 21. The ...