Expert Subpoena Order
Expert Subpoena Order
Plaintiffs,
VS.
Defendants.
1
THIS MATTER is before this Court on Defendant, Insurance Company ofNorth America's,
Motion for Sanctions (D.E. 888). The Court has considered the motion, the response, the reply and
Defendant moves the Court to impose sanctions because Plaintiffs failed to present Donald
Dinsmore ("Dinsmore"), one of Plaintiffs' expert witnesses, for a deposition. It is undisputed that
Defendant failed to serve a subpoena on Dinsmore. Def.'s Reply 2-3.; Pl.'s Resp. 3. A deposition
for Dinsmore was scheduled, and Plaintiffs contend that they telephonically attended assuming the
Defendant argues, inter alia, it had no obligation to subpoena Dinsmore because Dinsmore
was a testifying expert. Def.'s Reply 2. Further, Defendant claims that Plaintiffs had an obligation
Case 4:08-cv-10084-STB Document 1114 Entered on FLSD Docket 10/22/2010 Page 2 of 4
to produce Dinsmore within the period set out by the Court for discovery. a. Plaintiffs argue that
they had no duty to produce Dinsmore and it was incumbent upon Defendant to have Dinsmore
served with a subpoena. Pl.'s Resp. 1. Plaintiffs also ask this Court to sanction Defendant, inter
alia, for causing them Plaintiffs to appear at the unattended deposition. PI'S Resp. 3.
1. Plaintiffs complied with their dutv to make Dinsmore available for a deposition
It is black letter law that if a party is to be examined, a notice of examination under Federal
Rule of Civil Procedure 30(b)(l) is sufficient to require a party's attendance. Fed. R. Civ. P.
30(b)(l). However, if the deponent is a nonparty, he or she must be subpoenaed under Federal Rule
of Civil Procedure 30(a)(l), which provides that the attendance of a witness at the taking of a
issue, Plaintiffs claim that the following conversation occurred at the deposition:
When some time had passed and Dinsmore had not appeared Mr. Browning
[Defendant's counsel] and the writer [Plaintiffs' counsel] engaged in a
discussion of the situation. The writer asked whether the witness had been
subpoenaed and the answer was no. Mr. Browning stated that the plaintiffs
were obligated to produce the witness.
Pl.'s Resp. 3. Defendant did not dispute this characterization of this conversation in its reply. Def.'s
'Although rule 30(a)(l) does not say so expressly, some circuits have found that if the
deponent is an officer, director or managing agent of a party then a subpoena is not necessary and
a notice of examination is sufficient notice, because rule 37(d) provides for sanctions when an
officer, director, or managing agent of a party fails to appear for the taking of his or her
deposition after being served with a notice of examination. See, Telluride Mgmt. Solutions, Inc.
v. Telluride Inv. Group, 55 F.3d 463 (9th Cir. 1995); Peitzman v. Citv of Illmo, 141 F.2d 956
(8th Cir. 1944), cert denied, 323 U.S. 718 (1944); Fed. R. Civ. P. 37(d). Dinsmore does not fall
under this exception to rule 30(a) because it is undisputed that he is a nonparty. Both parties
refer to Dinsmore as "Expert" (Def.'s Mot. 1; Pl.'s Resp. I), and neither party refers to him as
either a party or an officer, director, or managing agent of a party.
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Reply 1-4. Further corroborating this account of the conversation, Defendant reiterated in its reply
that Plaintiffs had an obligation to provide Dinsmore for the deposition regardless of whether
Although it is true that Defendant had the right to depose Dinsmore as a testifying witness
under rule 26(b)(4), Defendant may have confused this right with a party's non-existent duty to
compel a nonparty deponent's attendance without a subpoena. Defendant's motion for sanctions is
Federal Rule of Civil Procedure 30(g), which provides a specific remedy for the failure of
Fed. R. Civ. P. 30(g). Rule 30(g) is directly on point in this matter. Accordingly, this Court orders
Defendant to pay Plaintiffs' reasonable expenses for attending the Dinsmore deposition, including
attorney's fees.
Defendant raises the issue of Plaintiffs failure to provide Dinsmore's expert report to
Defendant prior to the Dinsmore deposition. Def.'s Mot. 2. While rule 26(a)(2)(B) requires "a
report from the expert, [and that] the deposition may be conducted only after the report is
provided", here Defendant chose to schedule the Dinsmore deposition without having the report.
Because the report is unrelated to the subpoena of Dinsmore, Plaintiffs alleged failure to provide
the report does not excuse Defendant's failure to subpoena Dinsmore.
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Therefore, the Court being otherwise fully advised in the premises it is hereby ORDERED
3. Plaintiffs' request for sanctions is hereby GRANTED. This Court awards Plaintiffs
i
reasonable expenses for attending the deposition, including attorney's fees. If the parties cannot
resolve the amount and payment of same, this Court will decide those issues, upon proper motion.
The parties should be cautioned, however, that an unreasonable position by either party requiring
S MAGISTRATE JUDGE
cc: Counsel of record