Defendant sanctioned for failure to appear at depo

Where man failed to appear for his court-ordered deposition, certain factual allegations were deemed established for purposes of this action as a sanction.

Background

Bogdan Bindea has filed a motion for sanctions against John Uhr under Rule 37(d) of the Federal Rules of Civil Procedure. Bindea asks the court to treat certain factual allegations against Uhr as established for purposes of this action because Uhr did not appear for his court-ordered deposition in September 2022. Uhr did not respond to Bindea’s motion within 14 days.

Analysis

While Uhr is not an attorney, he “clearly should have understood his duty” to appear as directed by the court for his deposition on Sept. 28, 2022. Uhr “‘had actual and constructive knowledge’ of [that] Order” because it was served on his attorney and posted on the public docket. Yet, he “made no effort to acknowledge [his] obligations,” with respect to that directive — despite being warned that the court would allow his attorney to withdraw and may impose Rule 37 sanctions if he failed to comply. Such flagrant disregard for a party’s discovery obligations and the judicial process must obviously be deterred.

Uhr’s noncompliance also “caused ‘significant’ procedural and substantive prejudice to [Bindea’s] ability to resolve [his] claims in a just, speedy, and inexpensive manner.” For example, Uhr’s failure to appear at his own depositions “‘unacceptably forestalled [Bindea’s] ability to get discovery to which [he is] entitled,’ including [Uhr’s] ‘truthful and fulsome’ answers to oral questions posed by [Bindea’s] attorneys.”

His willful failure to be deposed on those and other relevant topics also “leaves an evidentiary gap justifying an ‘appropriately tailored sanction’ against him.” Such sanctions will still allow Uhr to defend himself against Bindea’s claims, if he wants to, “and will not have an impermissible ‘spillover’ effect on any Defendant who did not disobey a discovery order.”

The court orders 20 facts to be taken as established against Uhr for purposes of this civil action only. The court also requires Uhr to pay Bindea’s reasonable expenses and attorney’s fees for bringing the sanctions motion. Bindea may file a petition setting out such expenses, including his attorney’s fees, within 30 days from the date of this order.

Plaintiff’s motion for sanctions granted.

Bindea v. ASAP Insurance Agency, Case No. 3:21-cv-00002, April 26, 2023. WDVA at Charlottesville (Hoppe). VLW 023-3-222. 9 pp.