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Davenport v. Charter Communications, LLC

United States District Court, E.D. Missouri, Eastern Division

September 26, 2016

PENNY DAVENPORT, et al., Plaintiffs,



         This conditionally certified collective action for unpaid overtime wages under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., is before the Court on the motion (Doc. No. 400) of Defendant Charter Communications, LLC (“Charter”) for sanctions against 10 opt-in Plaintiffs who failed to appear for their depositions. For the reasons set forth below, the Court will grant Charter's motion in part.

         On November 16, 2015, following a discovery dispute between the parties regarding the number of depositions permissible in this case, the Court amended the Case Management Order to allow each side to take the depositions of up to 32 opt-in Plaintiffs of its choice, taking into account the seven opt-in Plaintiffs that had already been deposed by that time. The Court also ordered the parties to confer and attempt to reach agreement with respect to a schedule for disclosure of trial witnesses and a schedule for making such witnesses available to the other side for deposition.

         Pursuant to the amended Case Management Order, Charter selected 25 opt-in Plaintiffs to be deposed, and the parties met and conferred to determine the availability of each witness. The parties also agreed to depose designated trial witnesses on the same schedule.

         Nine of the 25 opt-in Plaintiffs that Charter chose to depose failed to appear for their depositions. With respect to five of these deponents, Plaintiffs notified Charter in advance of the noticed deposition dates that the deponents were not expected to appear. The remaining four deponents agreed to appear but then failed to do so, with little or no notice to Charter.[1]

         The parties conferred regarding rescheduling these depositions, but Plaintiffs' counsel ultimately emailed Charter's counsel that: “[a]fter repeated attempts, we are unable to produce the plaintiffs you name for depositions. We will be glad to withdraw them from the case.” (Doc. No. 401-7 at 1.)

         In addition to these nine opt-in Plaintiffs selected by Charter for deposition, one of Plaintiff's designated trial witnesses, opt-in Plaintiff Kimberly Torgersen, refused to appear for her deposition. Plaintiffs thereafter represented that Torgersen would be removed from their list of designated trial witnesses, and Charter did not attempt to reschedule Torgersen's deposition.

         Charter moves for the following sanctions against the 10 opt-in Plaintiffs who failed to appear for their depositions: (1) dismiss these Plaintiffs' claims with prejudice; (2) strike the declarations of the four such Plaintiffs who executed declarations in support of Plaintiffs' claims; (3) issue an adverse jury instruction that these four Plaintiffs would have testified inconsistently with their declarations; and (4) award Charter $20, 638.33 in attorneys' fees, costs, and expenses that Charter states it incurred in collecting documents Plaintiffs requested for the non-appearing opt-in Plaintiffs, in preparing for the depositions for the four opt-in Plaintiffs who provided no notice of non-appearance, and in preparing for or recording the non-appearance of the remaining deponents.

         Plaintiffs agree to the first two sanctions (dismissal with prejudice and striking of declarations) and argue that that these two sanctions are sufficient under all applicable standards for discovery violations. Plaintiffs argue that neither an adverse inference instruction nor an award of attorneys' fees, expenses, and costs would be appropriate here.

         With respect to the adverse inference instruction, Plaintiffs argue that federal courts should not permit such an instruction where it would operate against a co-party's interest, as Plaintiffs assert it would do here against the nearly 800 opt-in Plaintiffs who did not refuse to participate in discovery. In any event, Plaintiffs argue that Charter has failed to demonstrate that an adverse inference instruction is warranted under the rules for such discovery sanctions as interpreted by the Eighth Circuit, which require findings of bad faith and prejudice.

         With respect to the award of fees and costs, Plaintiffs argue that the Court should not penalize Plaintiffs' counsel because Plaintiffs' counsel informed Charter as soon as Plaintiffs' counsel learned that the opt-in Plaintiffs would not appear and because Plaintiffs' counsel was not responsible for the non-appearance. Plaintiffs' counsel argues that, at most, Charter may have an argument for the imposition of fees and costs against the non-appearing opt-in Plaintiffs individually but that such an award would be inequitable here.

         In reply, Charter argues that it only seeks an adverse inference instruction against the four opt-in Plaintiffs who executed declarations and then failed to appear for their depositions, not against the entire Plaintiff class. Charter also argues that an adverse inference instruction is warranted because the opt-in Plaintiffs likely refused to appear because they knew that the content of their testimony would contradict their sworn declarations. In support of this argument, Charter argues that other opt-in Plaintiffs who submitted nearly identical declarations made conflicting statements in their depositions or explicitly admitted that their declarations were incorrect. Charter argues that this fact supports an inference that the four opt-in Plaintiffs who refused to appear for their depositions would have likewise testified inconsistently with their declarations.

         With respect to its request for fees and costs, Charter states that its request for sanctions is directed to the opt-in Plaintiffs at issue, not to Plaintiffs' counsel, whom Charter concedes is not at fault for the non-appearances. Charter asserts that the Court should, at the least, award fees and costs with respect to the ...

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