The opinion of the court was delivered by: Hon. William McCurine, Jr. U.S. Magistrate Judge, U.S. District Court
ORDER GRANTING MOTION: (1) TO COMPEL; (2) FOR A PROTECTIVE ORDER; AND (3) FOR SANCTIONS [ECF No. 50.]
On April 4, 2012, Defendant Anytime Towing filed a motion to compel the further deposition of Plaintiff Richard Hylton in the above entitled case. [ECF No. 50.] In addition to its request to conduct a second deposition of Plaintiff in light of Plaintiff's various refusals to answer deposition questions, Defendant seeks: (1) a protective order requiring Plaintiff to destroy the unauthorized computer recording he made of his first deposition; and (2) sanctions of $2,400 in attorney's fees and costs in accordance with Rule 37 and Rule 30 of the Federal Rules of Civil Procedure for bringing the instant motion.
On April 20, 2012, Plaintiff filed an opposition brief. [ECF No. 58.] On May 1, 2012, Anytime Towing filed a reply brief in support of its motion to compel. [ECF No. 61.] After careful consideration of the parties' briefing and exhibits, the Court GRANTS Defendant's motion to compel, motion for protective order and motion for sanctions.
Rule 26(b)(1) of the Federal Rules of Civil Procedure states in part: "Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense --including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter."
Fed. R. Civ. P. 26(b)(1).
Where a party fails to cooperate with discovery proceedings, the party propounding discovery may move to compel disclosure. Fed.R. Civ. P. 37(a)(1). An incomplete answer in deposition is construed as a failure to disclose. Fed.R. Civ. P. 37(a)(4). A party seeking discovery may move to compel a deponent to answer a question in oral deposition. Fed.R. Civ. P. 37 (a)(3)(B). The moving party may also seek sanctions for the failure to cooperate. Fed. R. Civ. P. 37(a)(3)(A).
A. Further Deposition With Leave Of Court
Defendant Anytime Towing deposed Plaintiff on March 9, 2012. At the deposition, Plaintiff refused to answer certain background questions on the basis of relevance and refused to answer questions regarding his efforts to retrieve his vehicle after it was impounded based upon the fact that the subject was addressed at the Early Neutral Evaluation Conference with the Court on July 11, 2011. Specifically, Plaintiff refuses to answer deposition questions which address topics discussed at the Early Neutral Evaluation Conference. See Plaintiff's Deposition Transcript at ECF No. 50-2 at p. 27 ("It's privileged because it became a part of the ENE settlement conference, and the answers that were given in the ENE are, per the decision or the direction of the magistrate, all matters discussed are privileged and confidential.")
Plaintiff misconstrues the advisements in the Court's Early Neutral Evaluation Order.*fn1
Simple discussion of the plain facts underlying a complaint with the Court during the Early Neutral Evaluation Conference does not convert non-privileged facts that are otherwise discoverable into privileged ones. See e.g. In re RDM Sports Group, Inc., 277 B.R. 415, 43-31 (Bankr.N.D.Ga.2002) (explaining a federal "mediation privilege does not apply to shelter from disclosure documents prepared prior to the mediation, merely because those documents were presented to the mediator during the course of the mediation.")(emphasis added); see also Rule 408 of the Federal Rules of Evidence (evidence of settlement offers and compromise negotiations is not admissible to prove the or disprove the validity or amount of disputed claim.")(emphasis added.)
The deposition transcript indicates that the question which Plaintiff refused to answer on privilege grounds was: "Did you make any efforts to contact the impound yard to retrieve your car after it was impounded." [ECF No. 50-2 at p.27.] This question in no way sought to elicit testimony regarding offers made in settlement or settlement communications made at the Early Neutral Evaluation Conference. It is a fact-based question likely to lead to the ...