CREW v. Cheney Et Al: Regarding VP Records: 10/28/08 - Cheney's Opposition To Costs

Case 1:08-cv-01548-CKK Document 29 Filed 10/28/2008 Page 1 of 8
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’ counsel’s 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. Smith’s 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. Smith’s
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,
plaintiffs’ counsel cannot now seriously contend that costs and attorneys’ fees are appropriate for
videographer cancellation fees incurred at plaintiffs’ counsel’s 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. Smith’s deposition or conduct it at plaintiffs’ counsel’s office.
Plaintiffs’ counsel’s 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’ counsel’s creation. This is particularly so given the Court’s subsequent
resolution of the disputes. As the Court’s 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 person’s 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’ counsel’s 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 person’s 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
Plaintiff’s counsel with notice that they could not attend. Plaintiff’s 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
3
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. Smith’s deposition. Nonetheless—without explaining why
October 2 was unavailable as a compromise date, and asserting only that another unilaterally-
scheduled deposition presented conflicts for October 3—plaintiffs’ counsel refused to reschedule
Ms. Smith’s 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. Smith’s]
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.
4
(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’ counsel’s
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’ counsel’s 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 for
scheduling.
5
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’
counsel’s office, requesting instead that the parties accept the Court’s 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’ counsel’s 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 Court’s 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.”).
6
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 disputed location for a deposition to be recorded by disputed 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 Court’s subsequent Order [27] makes clear, defendants’ objections—lodged in
advance of October 1 and pending on that date—were 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’ counsel’s 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 Division
P.O. Box 883, 20 Massachusetts Ave., NW
Washington, D.C. 20044
Telephone: (202) 514-5838
Fax: (202) 616-8460
helen.hong@usdoj.gov
Counsel for Defendants
2
On attorney’s 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 itself
requires that plaintiffs’ request for fees should be rejected.
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Case 1:08-cv-01548-CKK Document 29-2 Filed 10/28/2008 Page 1 of 20

CREW v. Cheney Et Al: Regarding VP Records: 10/28/08 - Cheney's Opposition To Costs

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Case 1:08-cv-01548-CKK Document 29 Filed 10/28/2008 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

DEFENDANTS’ OPPOSITION TO MOTION FOR COSTS AND ATTORNEYS’ FEES

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

videographer cancellation fees incurred at plaintiffs’ counsel’s insistence.

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

Plaintiffs’ motion for costs and fees should be denied.

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

proposals for scheduling Ms. Smith’s deposition. Nonetheless—without explaining why

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

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

videorecording. Sanctions are plainly not justified here.

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

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 disputed location for a deposition to be recorded by disputed means.

schedule a courthouse deposition, plaintiffs’ counsel refused. Id.

As this Court’s subsequent Order [27] makes clear, defendants’ objections—lodged in

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

were later rejected by this Court.

resulted from plaintiffs’ counsel’s refusal to entertain defendants’ objections or compromise.

Respectfully submitted this 28th day of October, 2008.

/s/ Helen H. Hong____________________

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