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1993 MTWCC 25

WCC No. 9306-6818




Respondent/Insurer for



The 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.

The 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.

Rule 37 (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.]

The rule authorizes the Court to enter an order to compel petitioner's deposition and permits the imposition of sanctions.

Petitioner 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.

The 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.

Petitioner 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.

The 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.

In 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.

Since 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.


1. 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 different date. Failure by the petitioner to attend her deposition will result in dismissal of her petition.

2. Petitioner shall pay respondent the sum of $100.00 as a sanction for her failure to attend her deposition.

3. The pretrial and trial in this matter, which are presently set for the weeks of January 10 and 17, 1994 respectively are hereby vacated and reset to the weeks of April 4 and April 11, 1994, in Missoula, Montana. An amended scheduling order will be issued.

DATED in Helena, Montana, this 28th day of December, 1993.


/s/ Mike McCarter

c: Mr. Steve M. Fletcher
Mr. Thomas R. Bostock

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