crew v. cheney et al: regarding vp records: 10/14/08 - crews motion for memorandum in support

8/7/2019 CREW v. Cheney Et Al: Regarding VP Records: 10/14/08 - CREWs Motion for Memorandum in Support

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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 HON. RICHARD B. CHENEY, et al., :

:Defendants. :

____________________________________:

PLAINTIFFS’ MOTION FOR COSTS AND ATTORNEYS’ FEES AND

MEMORANDUM IN SUPPORT

Pursuant to Rule 37(d) of the Federal Rules of Civil Procedure, plaintiffs in the above-

captioned action hereby move the Court for an order requiring defendants to reimburse plaintiffs

for the late cancellation fee plaintiffs incurred as a result of the last-minute cancellation of the

deposition of Nancy Kegan Smith, scheduled for October 1, 2008, as well as plaintiffs’

attorneys’ fees incurred in the filing of this motion. On the eve of the scheduled deposition,

defendants filed a motion for a stay and protective order based on their stated intention to shortly

file a petition for a writ of mandamus. As a result of defendants’ last-minute actions, plaintiffs

incurred a late cancellation fee of $350. Under the circumstances here, this cost and the

attorneys’ fees incurred by the filing of this motion should properly be borne by defendants,

whose recalcitrant behavior caused plaintiffs to incur these costs in the first instance.

BACKGROUND

During a conference call with the parties on Tuesday, September 23, 2008, the Court

granted plaintiffs leave to depose NARA official Nancy Kegan Smith and Chief of Staff to the

Vice President David S. Addington. The Court also ordered that all discovery be completed by

Case 1:08-cv-01548-CKK Document 28 Filed 10/14/2008 Pag



1 Exhibit 1 to this motion contains copies of the letter and email correspondence betweenthe parties regarding the scheduling of the depositions.

2 Copies of these notices and subpoenas are attached as Exhibit 2.

2

October 6, 2008.

Within hours of this call, plaintiffs requested by email that defendants advise plaintiffs by

close of business the following day of the deponents’ availability.1 When defendants refused to

supply this information, plaintiffs advised defendants on Wednesday, September 24, that unless

the information on the deponents’ availability was forthcoming, plaintiffs would have no choice

but to schedule the depositions on dates of plaintiffs’ choosing. Eventually defendants advised

plaintiffs only that Ms. Smith was available on October 3, but refused a subsequent request for

information on other available dates for her deposition, and provided no information as to Mr.

Addington’s availability.

On the morning of September 25, plaintiffs sent notices of depositions and depositions to

defendants’ counsel, noticing Ms. Smith’s deposition for October 1 at 10:00 a.m. and Mr.

Addington’s deposition for October 3 at 10:00 a.m.2 Defendants did not respond until the

following evening, Friday, September 26, when they stated in an after-hours email to plaintiffs’

counsel: “we will proceed with Ms. Smith’s deposition on Friday, October 3,” ignoring

completely that Mr. Addington’s deposition was noticed for October 3 and that, because

deposition subpoenas had been issued, they did not have the right to unilaterally reschedule Ms.

Smith’s deposition. Defendants also indicated Ms. Smith was available on October 2 but “not

October 1,” with no explanation.

Although plaintiffs responded a few hours later with a request for additional information




3 Of note, Ms. Smith would have been represented at her deposition by Department of Justice counsel, not agency counsel.

4 A copy of the invoice from Capital Reporting Company is attached as Exhibit 3.

3

as to why Ms. Smith’s deposition could not go forward on October 1 as scheduled, they received

no follow-up until Monday, September 29, just before the close of business and on the eve of a

Jewish holiday. Then, for the first time, defendants explained not that Ms. Smith was

unavailable on October 1, but rather that NARA counsel was not available before then “to assist

with her preparation, owing to religious holidays.”3

The following day, plaintiffs’ counsel requested the assistance of the Court to address the

issue of scheduling depositions (as well as the place of depositions and method of recordation),

given defendants’ refusal to comply with the deposition subpoenas and the fast-approaching

close of discovery. Only then did defendants advise the Court of their intent to file that

afternoon a motion for a stay of discovery pending a petition for a writ of mandamus, which they

also intended to file that afternoon. Defendants filed these papers later in the afternoon on

September 30, 2008. Of note, defendants never filed a motion to quash the deposition

subpoenas.

As a result of defendants’ last minute filing, plaintiffs incurred a $350.00 fee associated

with the last-minute cancellation of Ms. Smith’s deposition.4

ARGUMENT

Rule 37(d) of the Federal Rules of Civil Procedure authorizes a court to impose on any

party failing to appear at a deposition “reasonable expenses, including attorney’s fees, caused by

the failure unless the court finds that the failure was substantially justified or that other




4

circumstances make an award of expenses unjust.” The Advisory Committee Notes to the 1970

Amendments explain that under this subdivision, conduct need not be wilful before sanctions can

be imposed, and that “even a negligent failure should come within Rule 37(d).” Moreover, as

the Advisory Committee Notes to the 1993 Amendments clarify further, “the filling of a motion

under Rule 26(c) is not self-executing -- the relief authorized under that rule depends on

obtaining the court’s order to that effect.” Accordingly, “the failure to appear at a deposition

constitutes a violation of Rule 37(c) regardless of whether a motion for protective order has been

filed.” Alexander v. Fed. Bureau of Investigation, 186 F.R.D. 78, 86 (D.D.C. 1998). See also

Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357

U.S. 197, 208 (1958) (a party violates Rule 37(d) by simply failing to comply with an order).

There is no question here that Nancy Smith failed to appear at her scheduled deposition

on October 1, 2008, nor did defendants secure a protective order by that date. Indeed, this Court

subsequently denied the motion for a protective order on October 5, 2008, although it suspended

the depositions pending a ruling by the D.C. Circuit.

While defendants’ filing of a motion for a protective order hours before the scheduled

deposition is a factor the Court should consider in determining what, if any sanctions are

appropriate, Alexander, 187 F.R.D. at 87, the totality of defendants’ conduct fully justifies the

very modest sanction plaintiffs are seeking -- reimbursement for their out-of-pocket deposition

expenses occasioned by defendants’ dilatory conduct and their attorneys’ fees incurred by the

filing of this motion.

It is now quite clear that defendants refused to cooperate in scheduling the court-

authorized depositions, refused to acknowledge the legally binding nature of the subpoenas




5

issued for the depositions, and interposed objections all for the clear purpose of delay while they

considered their appellate options. Their mandamus papers were not filed until a full week after

the Court authorized discovery, and less then 24 hours before the first deposition was scheduled

to begin. Indeed, defendants filed their motion for a protective order only afterplaintiffs forced

the issue by seeking the Court’s assistance in scheduling the depositions.

Had defendants taken the minimal action of calling plaintiffs to discuss any potential

conflicts in the deposition schedules, plaintiffs could have avoided a late cancellation charge.

Instead, as with their defense on the merits, defendants intermittently leaked out inconclusive

information about the availability of one deponent, but made it impossible for plaintiffs to know

with any certainty whether and when the scheduled depositions would occur.

Under these circumstances, which at a minimum establish a pattern of negligence, the

Court should require defendants to pay the late cancellation fee that plaintiffs incurred as a direct

result of defendants’ dilatory conduct. Plaintiffs are also entitled to recover the attorneys’ fees

associated with preparing this motion, which also was necessitated by defendants’ conduct.

Here, as in Alexander, requiring the defendants to pay these reasonable expenses “will deter such

conduct in the future and insure a more efficient administration of justice in this case.” 187

F.R.D. at 89.

Pursuant to LCvR 7(m), counsel for plaintiffs has discussed this motion with counsel for

defendants, who advised that defendants oppose the motion.

CONCLUSION

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

granted.




6

Respectfully submitted,

/s/ Anne L. Weismann

(D.C. Bar No. 298190)Melanie Sloan(D.C. Bar No. 434584)Citizens for Responsibility and Ethicsin Washington1400 Eye Street, N.W., Suite 450Washington, D.C. 20005Phone: (202) 408-5565Fax: (202) 588-5020David L. Sobel(D.C. Bar No. 360418)

1875 Connecticut Avenue, N.W.Suite 650Washington, D.C. 20009Phone: (202) 797-9009

Dated: October 14, 2008 Attorneys for Plaintiffs




Case 1:08-cv-01548-CKK Document 28-2 Filed 10/14/2008 Pag

crew v. cheney et al: regarding vp records: 10/14/08 - crews motion for memorandum in support

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