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Coleman v. Altec, Inc.

United States District Court, E.D. North Carolina, Western Division

October 10, 2017

LEROY COLEMAN, JR., Plaintiff,
v.
ALTEC, INC., Defendant.

          ORDER

          James E. Gates United States Magistrate Judge.

         This case comes before the court on the motion (D.E. 18) filed by defendant Altec, Inc. ("defendant") to compel plaintiff Leroy Coleman, Jr. ("plaintiff') to appear for his deposition currently scheduled for 13 October 2017. No opposition to the motion has been filed. For the reasons set forth below, the motion will be allowed.

         I. Background

         Plaintiff, who is proceeding pro se, commenced this employment discrimination action against defendant, alleging that defendant discriminated against him on the basis of his race and subjected him to a hostile work environment. See generally Compl. (D.E. 5). Defendant denies the material allegations of plaintiffs complaint. See generally Def.'s Ans. (D.E. 8).

         Plaintiff did not appear for his previously noticed deposition on 19 September 2017. Robin Shea Declaration (D.E. 19-1) ¶ 12. The deposition has been rescheduled for 13 October 2017, the last day of discovery pursuant to the Scheduling Order (D.E. 13) entered in this case, and defendant seeks a court order compelling plaintiffs attendance. Id. ¶¶ 13, 14.

         II. Applicable Legal Principles

         The Federal Rules of Civil Procedure enable parties to obtain information by serving requests for discovery on each other, including a notice of deposition. See generally Fed. R. Civ. P. 26-37. Rule 26 provides for a broad scope of discovery:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to. any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1).

         The district court has broad discretion in determining relevance for discovery purposes. Seaside Farm, Inc. v. United States, 842 F.3d 853, 860 (4th Cir. 2016); Watson v. Lowcountry Red Cross, 974 F.2d 482, 489 (4th Cir. 1992). The party resisting discovery bears the burden of establishing the legitimacy of its objections. Eramo v. Rolling Stone LLC, 314 F.R.D. 205, 209 (W.D. Va. 2016) ("[T]he party or person resisting discovery, not the party moving to compel discovery, bears the burden of persuasion." (quoting Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 243 (M.D. N.C. 2010))).

         Rule 30 governs depositions. Fed.R.Civ.P. 30. It provides that "[a] party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2). The deponent's attendance may be compelled by subpoena under Rule 45." Fed.R.Civ.P. 30(a)(1). A party intending to depose an individual; must give reasonable written notice to all parties, stating the time and place of the deposition. Fed.R.Civ.P. 30(b). Rule 30 provides that the court may impose sanctions, including attorney's fees or expenses, on any person who "impedes, delays, or frustrates the fair examination of the deponent." Fed.R.Civ.P. 30 (d)(2)

         Rule 37 allows for the filing of a motion to compel a party's attendance at a deposition. See Fed. R. Civ. P. 37(d). Rule 37 permits a court to order sanctions if "a party . . . fails, after being served with proper notice, to appear for that person's deposition." Fed.R.Civ.P. 37(d)(1)(A).

         III. Discussion

         As noted, by its motion, defendant seeks an order compelling plaintiffs attendance at his own deposition scheduled for 13 October 2017. Having failed to respond to defendant's motion, plaintiff does not contest the relief defendant seeks or the grounds advanced by defendant for it. Irrespective of the unopposed nature of the motion, the court finds that plaintiff has failed to comply with his discovery obligations ...


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