crew v. cheney et al: regarding vp records: 10/28/08 - cheney's opposition to costs

8/7/2019 CREW v. Cheney Et Al: Regarding VP Records: 10/28/08 - Cheney's Opposition to Costs

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA__________________________________________

)CITIZENS FOR RESPONSIBILITY AND )

ETHICS IN WASHINGTON, et al., ))Plaintiffs, )

)

v. ) Civil Action No.: 08-1548 (CKK)

)THE HONORABLE RICHARD B. CHENEY, )

VICE PRESIDENT OF THE UNITED STATES )

OF AMERICA, et al., ))

Defendants. )

__________________________________________)

DEFENDANTS OPPOSITION TO MOTION FOR COSTS AND ATTORNEYS FEES

Federal Rule of Civil Procedure 37(d) does not permit recovery of costs and fees incurred

solely at plaintiffs counsels own insistence. Despite (1) defendants repeated representations

that Nancy Smith was available on two of the four days designated by plaintiffs for a deposition

(October 2 or October 3, 2008); (2) concurrent representation that October 1, 2008 was not

acceptable for scheduling Ms. Smiths deposition; (3) defendants understanding that plaintiffs

counsel would be available on at least one of the two alternative dates defendants proposed; and

(4) unambiguous objections to plaintiffs noticed intent to conduct the deposition outside of the

courthouse with videorecording, plaintiffs counsel nonetheless unilaterally noticed Ms. Smiths

deposition for a date and location that was not mutually agreeable, insisted on videorecording,

and dismissed defendants scheduling conflict as an illegitimate basis to postpone the

deposition. Having disregarded defendants request to schedule the deposition for a date on

which all parties would be available and having selected a date defendants expressly declined,

Case 1:08-cv-01548-CKK Document 29 Filed 10/28/2008 Pa


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plaintiffs counsel cannot now seriously contend that costs and attorneys fees are appropriate for

videographer cancellation fees incurred at plaintiffs counsels insistence.

Thus, on at least four independent grounds, plaintiffs motion for costs and fees should be

denied. First, as courts have recognized, the absence of an agreement between the parties on a

date and terms of a deposition may preclude the award of sanctions under Rule 37(d).

Defendants clearly rejected October 1 as a date for a deposition, and unambiguously refused to

allow plaintiffs to videotape Ms. Smiths deposition or conduct it at plaintiffs counsels office.

Plaintiffs counsels unilateral demand for a deposition on October 1, with videorecording, at her

office therefore cannot justify sanctions here. Any costs incurred for videographer cancellation

fees are of plaintiffs counsels creation. This is particularly so given the Courts subsequent

resolution of the disputes. As the Courts Memorandum Opinion [27] reveals, plaintiffs

insistence on a deposition outside the courthouse was unjustified, as was their demand for

videorecording. Mem. Op. [27] (requiring any depositions to occur at the courthouse, without a

videographer).

Second, by minute order dated September 30, 2008, this Court effectively stayed

discovery during its consideration of defendants motion to stay the discovery orders. Under the

terms of Rule 37(d), no witness thus fail[ed] . . . to appear for that persons deposition on

October 1 and no sanctions are thus permissible. Third, the pending motions for a stay and for a

protective order left unresolved critical details about any deposition that could be conducted.

Based on plaintiffs counsels refusal to agree to the deposition at the courthouse and insistence

on videorecording, defendants were compelled to seek a protective order under Rule 26(c) to

protect Ms. Smith from annoyance, embarrassment, oppression and harassment. Fed. R. Civ.

P. 26(c)(1). The absence of any resolution on those details certainly justified defendants



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unwillingness to permit plaintiffs counsel to conduct a deposition under those disputed terms.

Fed. R. Civ. P. 37(d)(2).

Finally, the totality of the above circumstances leading to plaintiffs deposition

scheduling make an award of expenses unjust, as defendants were substantially justified to

expect accommodation and compromise from plaintiffs counsel to schedule the deposition for a

mutually agreeable date and location without videorecording. Fed. R. Civ. P. 37(d)(3).

Plaintiffs motion for costs and fees should be denied.

ARGUMENT

Rule 37(d) permits courts to impose sanctions for discovery faults, but only if a party

fails after being served with proper notice, to appear for that persons deposition. Fed. R. Civ.

P. 37(d) (emphasis added); see also Advisory Comm. Notes 1970 (Rule 37 provides generally

for sanctions against parties or persons unjustifiably resisting discovery.) (emphasis added).

Accordingly, courts have rejected sanction requests where no agreement is reached between the

parties about a deposition date despite efforts to do so. See, e.g., Taneff v. Calumet Township,

Civ. No. 07-216, 2008 WL 3992701, *2 (N.D. Ind. Aug. 21, 2008) (Defendants provided

Plaintiffs counsel with notice that they could not attend. Plaintiffs counsel maintains that she

did not agree to cancel the second set of scheduled depositions, however, she does acknowledge

that she was notified that Defendants would not attend. Pursuant to Rule 37(d), . . . it does not

merit the award of sanctions.). The same principles reject sanctions here.

On at least five separate occasions over the course of a week and in advance of

October 1, 2008, defendants explained to plaintiffs counsel that October 1, 2008 was not an

acceptable date upon which to schedule the deposition of Nancy Smith, the Director of the

Presidential Materials Staff in the Office of the Presidential Libraries at the National Archives



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and Records Administration. See Ex. 1 (Sept. 24, 2008 Email from H. Hong to A. Weismann)

(Without conceding that discovery is appropriate in this case, and without waiving any of

defendants defenses to the suit or objections to discovery, I can now report that Ms. Smith is

available on October 3 for a deposition.); Ex. 4 (Sept. 26, 2008 Email from H. Hong to A.

Weismann) (Nancy Smith is available on October 3, not October 1, for the deposition. . . . If

the Court is not available on October 3, we are presently prepared to make Ms. Smith available

on Thursday, October 2 as well.); id. (Sept. 29, 2008 Email from H. Hong to A. Weismann)

(Ms. Smith is not available on October 1 because counsel for NARA is not available before

then to assist with her preparation, owing to religious holidays.); id. (Sept. 29, 2008 Email from

H. Hong to A. Weismann) (Be advised that we cannot make Ms. Smith available on October 1

for a deposition.); Ex. 5 (Defs. Resp. to Pls Stmt. of Outstanding Issues) at I.F (On

Tuesday, September 30, defense counsel spoke with plaintiffs counsel, again identifying

October 2 as a potential compromise date[.]).

Defendants offered instead two alternative dates, of only four that plaintiffs provided, as

proposals for scheduling Ms. Smiths deposition. Nonethelesswithout explaining why

October 2 was unavailable as a compromise date, and asserting only that another unilaterally-

scheduled deposition presented conflicts for October 3plaintiffs counsel refused to reschedule

Ms. Smiths deposition for either of the two dates on which both parties were available. See Ex.

4 (Sept. 29, 2008 Email from A. Weismann to H. Hong). Indeed, plaintiffs counsel refused

even to address why she was reluctant to reschedule the deposition for October 2, 2008,

notwithstanding a prior representation that she would be willing to reschedule [Ms. Smiths]

deposition for October 2, but only upon a more specific showing that she is not available

October 1. See Ex. 4 (Sept. 26, 2008 Email from A. Weismann to H. Hong); see also id.



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(Sept. 29, 2008 Email from H. Hong to A. Weismann) (We have provided to you now 2 days on

which Ms. Smith could be made available (out of only 4 that you provided as possible options).

We have fulfilled our obligations in providing you possible dates for scheduling this

deposition.); Ex. 5 (Defs. Resp. to Pls Stmt. of Outstanding Issues) at I.F.

Under these circumstances, the notice of deposition for October 1, 2008 did not constitute

proper notice of a deposition within the meaning of the Rule 37 at which defendants failed to

appear. See Fed. R. Civ. P. 37(d)(1)(A)(i) (permitting sanctions only for failure to attend

deposition after proper notice); see also Fed. R. Civ. P. 30(b)(1) (requiring reasonable written

notice of a deposition); LCvR 30.1 (requiring notice at least five business days under Federal

Rule of Civil Procedure 6 before a scheduled deposition to constitute reasonable notice). This

is particularly true in light of defendants unambiguous and repeated objections to a deposition

scheduled on October 1, and defendants offer to make Ms. Smith available on two alternative

dates, October 2nd or 3rd.1 See Taneff, Civ. No. 07-216, 2008 WL 3992701, *2. Sanctions may

not be awarded based on a disputed schedule that defendants clearly rejected as an acceptable

compromise date. See, e.g., Ex. 4 (Sept. 26, 2008 Email from H. Hong to A. Weismann).

Similarly, no proper notice was served on Ms. Smith owing to plaintiffs counsels

demand to conduct the deposition on disputed terms: at her office with a videographer present,

rather than at the courthouse without videorecording. As early as September 26, 2008,

defendants made clear that a videotaped deposition was unacceptable. See, e.g., Ex. 4 (Sept. 26,

2008 Email from H. Hong to A. Weismann) (If you nonetheless press for a videotaped

1 Plaintiffs counsels claim that defendants failed to take the minimal action of calling

plaintiffs to discuss any potential conflicts in the deposition schedules is therefore perplexing.

Pls. Mot. at 5. Defendants made absolutely clear from the outset that October 1 was not

available for a deposition of Ms. Smith, providing instead October 2 or 3 as alternative dates forscheduling.



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deposition of Ms. Smith, we will not produce the witness without first taking up the matter with

the Court.); id. (Sept. 29, 2008 Email from H. Hong to A. Weismann) (We will not allow

video recording of the deposition.). Nor did defendants agree to a deposition at plaintiffs

counsels office, requesting instead that the parties accept the Courts invitation to conduct any

deposition at the courthouse with a judicial officer present to resolve any privilege disputes. Id.

(We prefer that the deposition occur at the courthouse. If you will not consider participating in

a deposition at the courthouse, as the Court expressly offered, we will have to request an order

from the Court.). Plaintiffs counsel rejected defendants requests through three separate

emails. Id. Given the absence of any agreement on the location and terms of the deposition, in

addition to the continuing dispute about the date, sanctions are not justified for defendants

unwillingness to present Ms. Smith at plaintiffs counsels office, on an unacceptable date, for

videorecording. Sanctions are plainly not justified here.

Even assuming that plaintiffs notice was proper on the date of delivery, by October 1,

2008, no obligation existed for defendants to present Ms. Smith for a deposition. First,

defendants secured in advance of the deposition a limited order, in effect, staying discovery

pending the resolution of defendants emergency motion for a stay of discovery. See Minute

Order of September 30, 2008 (Because of the need for expedition in that Defendants

Emergency Motion for Stay must be resolved before discovery can be undertaken . . ..)

(emphasis added). Under Rule 37, the Courts minute order operated to suspend discovery until

the motion for a stay could be resolved and excused any fail[ure] . . . to appear for [a]

deposition. See Fed. R. Civ. P. 37(d)(2), Adv. Comm. Notes 1993; see also Gee, 2002 WL

1559704 at *2 (Courts have strictly construed the phrase failure to appear to require a showing

that the deponent actually failed to appear at the scheduled deposition.).



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Moreover, the pendency of defendants motion for a protective order to resolve

outstanding issues about the deposition substantially justified defendants unwillingness to

present a witness at a disputedlocation for a deposition to be recorded bydisputed means.

Indeed, as described above, defendants provided plaintiffs counsel with notice as early as

September 26, 2008 that any deposition should occur at the courthouse with a judicial officer

available to resolve any privilege disputes and that the deposition should be recorded by

stenographer only. See Ex. 4 (Sept. 26, 2008 Email from H. Hong to A. Weismann). Despite

defendants request to schedule a joint call to the Court on the morning of September 29, 2008 to

schedule a courthouse deposition, plaintiffs counsel refused. Id.

As this Courts subsequent Order [27] makes clear, defendants objectionslodged in

advance of October 1 and pending on that datewere wholly justified. See Mem. Op. [27] at 24

(requiring any depositions to occur at the courthouse, without a videographer). Plaintiffs

counsel cannot now seek sanctions, in particular for videographer cancellation fees, for services

that were in dispute on September 26 and which the Court rejected as a recordation option. Id. at

26 ([T]he Court therefore orders that these two depositions shall not be videotaped.); see also

Pls. Mot., Ex. 3 (cancellation fees for video services). Rule 37(d) should not be used as a

vehicle to recover costs incurred as plaintiffs counsel pressed for unreasonable demands that

were later rejected by this Court.

Finally, even assuming that plaintiffs notice was proper and created obligations to

appear on October 1 (which was not the case as shown above), any failure to appear on

October 1 was substantially justified under the circumstances and would make an award of



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expenses unjust.2

Fed. R. Civ. P. 37(d)(3). As the facts show, no agreement to present a

witness had been reached and any cancellation fees for videographer services on October 1, 2008

resulted from plaintiffs counsels refusal to entertain defendants objections or compromise.

CONCLUSION

For the foregoing reasons, plaintiffs motion for a costs and attorneys fees should be

denied.

Respectfully submitted this 28th day of October, 2008.

GREGORY G. KATSAS

Assistant Attorney General

JEFFREY A. TAYLOR

United States Attorney

/s/ Helen H. Hong____________________JOHN R. TYLER (DC Bar No. 297713)

Assistant Branch Director

HELEN H. HONG (CA SBN 235635)Trial Attorney

U.S. Department of Justice, Civil DivisionP.O. Box 883, 20 Massachusetts Ave., NW

Washington, D.C. 20044

Telephone: (202) 514-5838Fax: (202) 616-8460

[email protected]

Counsel for Defendants

2 On attorneys fees, plaintiffs have not set forth any amount requested. See also Ex. 6 (Oct. 14,

2008 Email from A. Weismann to H. Hong). Defendants are therefore unable to analyze whether

the amount requested is reasonable, presuming for the limited purpose of this opposition that

defendants other grounds for denial of fees and costs are rejected. That omission by itselfrequires that plaintiffs request for fees should be rejected.



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crew v. cheney et al: regarding vp records: 10/28/08 - cheney's opposition to costs

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