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CREW v. Cheney Et Al: Regarding VP Records: 10/14/08 - CREWs Motion For Memorandum in Support
CREW v. Cheney Et Al: Regarding VP Records: 10/14/08 - CREWs Motion For 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 Page 2 of 6
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
Although plaintiffs responded a few hours later with a request for additional information
1
Exhibit 1 to this motion contains copies of the letter and email correspondence between
the parties regarding the scheduling of the depositions.
2
Copies of these notices and subpoenas are attached as Exhibit 2.
2
Case 1:08-cv-01548-CKK Document 28 Filed 10/14/2008 Page 3 of 6
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
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
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
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
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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
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
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
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
4
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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 after plaintiffs forced
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.
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
CONCLUSION
For the foregoing reasons, plaintiffs’ motion for costs and attorneys’ fees should be
granted.
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Respectfully submitted,
/s/
Anne L. Weismann
(D.C. Bar No. 298190)
Melanie Sloan
(D.C. Bar No. 434584)
Citizens for Responsibility and Ethics
in Washington
1400 Eye Street, N.W., Suite 450
Washington, D.C. 20005
Phone: (202) 408-5565
Fax: (202) 588-5020
David L. Sobel
(D.C. Bar No. 360418)
1875 Connecticut Avenue, N.W.
Suite 650
Washington, D.C. 20009
Phone: (202) 797-9009
6
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