ORDER COMPELLING DEPOSITION AND FOR SANCTIONS; ORDER
VACATING AND RESETTING TRIAL AND PRETRIAL CONFERENCE
matter before the Court is respondent's MOTION FOR
SANCTIONS/IN THE ALTERNATIVE, MOTION TO DISMISS. The motion
arises as the result of petitioner's failure to appear
for her deposition on November 30, 1993. Petitioner's
deposition was initially scheduled for August 10, 1993, but
shortly before that date her attorney contacted
respondent's attorney to notify him that she would not be
able to attend. The deposition was thereafter rescheduled by
agreement for November 30, 1993. A NOTICE OF DEPOSITION
confirming the date was served on November 5, 1993.
Respondent's attorney drove from Kalispell to Missoula to
take the deposition on November 30, 1993. Petitioner,
however, did not appear at the time scheduled. Instead, her
counsel informed respondent's attorney that she would not
be attending. In his brief opposing respondent's motion,
petitioner's attorney represents that petitioner could
not attend because she has been traveling back and forth to
California to attend to her husband, who is dying of cancer.
rules of the Workers' Compensation Court allow for the
deposition of a party. ARM 24.5.322. The petitioner's
deposition was properly noticed; in fact, the date for the
deposition was set by agreement between counsel. While
petitioner may have a legitimate and compelling need to be
with her husband, there is no excuse for her failure to give
respondent's attorney advance notice that she would be
unable to attend her deposition as scheduled. Her response
provides no insight into shy she or her attorney failed to
contact respondent's counsel. Lacking permission to
postpone the deposition, petitioner should also have sought a
protective order fixing a different time for the deposition.
By failing to even notify respondent of her inability to
attend her deposition, petitioner has shown a disregard for
common courtesy, as well as the rules of the Court.
(d), Mont. R. Civ. P. permits dismissal of a civil action
where the plaintiff or petitioner fails to attend her own
deposition. This Court has not adopted a specific rule
applicable to the failure of a party to attend a deposition.
Rather, such failure is governed by the general rule covering
failure to make discovery, ARM 24.5.326. That rule provides
in relevant part:
FAILURE TO MAKE DISCOVERY - SANCTIONS (1) If
a party fails to respond to discovery pursuant to these
rules, or makes evasive or incomplete responses to discovery,
or objects to discovery, the party seeking discovery may move
for an order compelling responses. . . . With respect to
a motion to compel discovery, the court may impose such
sanctions as it deems appropriate, including, but not limited
to, awarding the prevailing party attorney fees and
reasonable expenses incurred in obtaining the order or in
opposing the motion. If the party shall fail to make
discovery following issuance of an order compelling
responses, the court may order such sanctions as it deems
required and just under the circumstances. [Emphasis added.]
rule authorizes the Court to enter an order to compel
petitioner's deposition and permits the imposition of
argues that the Court need not issue an order to compel
petitioner's deposition since she "is not refusing
to be deposed." However, she urged postponement of her
deposition when first scheduled and then failed to show up on
the rescheduled date. Her failure to notify respondent's
counsel that she could not attend, or to seek a protective
order, shows a disregard for Court rules. Respondent is
entitled to an order to compel.
petitioner also argues against sanctions. The affidavit of
respondent's attorney establishes that he traveled from
Kalispell to Missoula for the deposition. According to
respondent's attorney, he devoted six hours of time in
driving time and in preparing for the deposition.
points out that Thomas R. Bostock, respondent's attorney,
used his trip to Missoula to take two other depositions, but
Mr. Bostock states that those depositions were scheduled for
that day only because he was going to make the trip to
Missoula to take petitioner's deposition. Although other
depositions were taken on November 30, petitioner's
failure to show up for her deposition will result in Mr.
Bostock devoting a second day to complete the three
depositions, instead of the one day he originally planned.
petitioner also objects to any award of attorney fees because
the respondent could have hired a local, Missoula attorney,
thus avoiding travel time. But petitioner and her attorney
were well aware that Mr. Bostock practices in Kalispell and
would have to travel to Missoula. That awareness makes
petitioner's conduct even more egregious.
light of petitioner's failure to attend her own
deposition, and lacking any reasonable excuse for her failure
to provide respondent with advance notice that she was unable
to attend the deposition, sanctions are appropriate.
Respondent has incurred additional time and costs due to both
the failure to attend and the need to seek an order to compel
discovery. The Court's authority to impose sanctions is
not limited to an award of attorney fees incurred in
connection with obtaining the order, or to an award of
attorney fees generally. It "may impose such sanctions
as it deems appropriate." In this case, the Court finds
that a sanction of $100.00 is appropriate. Determining actual
attorney fees would only prolong matters and lead to more
time and expense. The Court does not consider dismissal
appropriate at this time. Therefore, it need not determine
whether its rules authorize dismissal in the absence of a
prior order to compel attendance at a deposition.
discovery in this case has been delayed by petitioner, it is
also appropriate to vacate the trial which is presently
scheduled for the week of January 17, 1994, in Missoula.
IT IS HEREBY ORDERED that:
Respondent's motion to compel discovery is
granted. Petitioner shall appear for
deposition in Missoula, Montana, at a time and place
determined by respondent. Respondent shall provide at least
14 days notice of the deposition and if for any reason that
date is impossible for petitioner, she shall immediately
notify the Court and seek an Order for a ...