United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
COLIN H. LINDSAY, Magistrate Judge.
This matter is before the Court on two motions for contempt (DN 44; DN 45) filed by Plaintiff Robert Paul McLean ("McLean") on May 22, 2014. The Court addresses both motions herein as they relate to the same set of allegations.
In his first motion ("Alere Motion") (DN 44), McLean requests that the Court hold Defendant Alere, Inc. ("Alere") in contempt for Alere's counsel's interference with the scheduling of a deposition of witness Michael Scott Stanley ("Stanley"), as well as for Alere's counsel's failure to appear for Stanley's deposition as scheduled by McLean's counsel. Alere filed a response (DN 47) on June 16, 2014, and McLean filed a reply (DN 49) on June 30, 2014.
In his second motion ("Stanley Motion") (DN 45), McLean requests that the Court hold Stanley in contempt for failing to appear for his deposition despite having been personally served with a subpoena. ( See DN 45-1.) McLean further requests that the Court direct that his costs associated with a would-be deposition of Stanley be paid by McLean and/or Stanley. As it appeared to the Court that Stanley was never served with the Stanley Motion, the Court ordered McLean to serve the motion on Stanley. (DN 74.) The Court further ordered Stanley to show cause as to why he should not be held in contempt for failure to obey a subpoena. ( Id. at 2.) Stanley timely filed a response on March 16, 2015. (DN 77.) McLean then filed a reply in support of the Stanley Motion. (DN 80.) Both motions for contempt (DN 44; DN 45) are now ripe for review.
A. McLean's Motions for Contempt
The motions for contempt (DN 44; DN 45), and their respective exhibits, are nearly identical. In both motions, McLean alleges that Stanley failed to appear for a deposition despite being properly served with a subpoena. ( See DN 44-1; DN 45-1 (copy of subpoena).) Stanley is not an Alere employee, but his wife, Jill Lee ("Lee"), is employed by Alere. McLean alleges that Stanley was a "topic of discussion" in two early depositions of fact witnesses and is referenced in documents produced by Alere during discovery. (DN 44 at 2; DN 45 at 2.)
On March 19, 2014, McLean conducted a deposition of Lee at the offices of McLean's counsel. (DN 44 at 2; DN 45 at 2.) Stanley sat in the reception area of the law office for the duration of the deposition. (DN 44 at 2; DN 45 at 2.) According to McLean, upon confirming Alere's counsel's availability for a deposition on May 14, 2014, staff for McLean's counsel prepared a subpoena and deposition notice and personally served Stanley with the same. (DN 44 at 2-3; DN 44-1; DN 45 at 2-3; DN 45-1.) McLean alleges that when Lee's deposition adjourned on March 19, 2014, Alere's counsel "conferred with Mr. Stanley and subsequently informed [McLean]'s counsel on Mr. Stanley's behalf that Mr. Stanley did not find the date of May 14, 2014 convenient for his deposition." (DN 44 at 4; DN 45 at 4.) Neither Stanley nor counsel for Alere suggested an alternative date and, when Stanley departed the law office, he left the subpoena in the reception area. (DN 44 at 4; DN 45 at 4.)
In the days following Lee's March 19, 2014 deposition, Alere's counsel stated that he would not make available for depositions any more Alere witnesses, or conduct a deposition of McLean, until existing discovery disputes had been resolved. (DN 44, p. 4; DN 45, p. 4; see, e.g., DN 44-2 at 7, DN 45-2 at 7.) McLean contends that several e-mails and a letter sent by his counsel to Alere's counsel in March and April of 2014 demonstrate McLean's efforts to confirm that Stanley's deposition would be held on May 14, 2014, as well as Alere's counsel's refusal to confirm as much. (DN 44 at 4-5; DN 44-2; DN 44-3; DN 45 at 4-5; DN 45-2; DN 45-3.) The most direct communication provided to the Court is an e-mail sent by McLean's counsel to Alere's counsel on March 24, 2014 ("March 24, 2014 E-Mail"). The March 24, 2014 E-Mail provides as follows:
You stated that you had May 6, 7, 13, 14, and 15 available. As you know, Mr. Stanley was served while he was accompanying his wife, Ms. Lee, at our office. The date on his subpoena is Wednesday, May 14, 2014. While we are happy to arrange another date for him if that date is truly unworkable, we will expect him on that date unless and until we hear from him and are able to confirm a replacement date. Since he was duly served, but then chose to leave his subpoena at our offices, we suspect he does not fully appreciate the significance of the subpoena or the Court's authority to enforce it. We further suspect that he may not know that he could be liable for sanction if he just fails to show for his deposition, and fails to work with us to make other arrangements. We will communicate with him directly this week,  unless you can confirm that you have been authorized by him to act on his behalf regarding the scheduling of this deposition - or we hear from other counsel on his behalf.
(DN 44-2 at 3; DN 44-2 at 3.)
McLean contends that the lack of communication by Alere's counsel regarding Stanley's deposition date was disingenuous. "Certainly, " McLean contends, Alere's counsel "remains in touch with Mr. Stanley's wife regarding her unfinished deposition, and certainly Mr. Stanley, his wife, and [Alere's counsel] conferred about the deposition subpoena served upon Mr. Stanley." (DN 44 at; DN 45 at 4.)
On May 14, 2014 at 9:30 a.m., McLean, his counsel, members of counsel's support staff, and a court reporter convened for a deposition of Stanley consistent with the subpoena. (DN 44 at 5; DN 45 at 5; DN 44-1; DN 45-1.) McLean's counsel went on the record to state that neither Stanley nor Alere's counsel had appeared. (DN 44-4 at 2 (Tr. at 3); DN 45-4 at 2 (Tr. at 3).) An employee of McLean's counsel's law firm testified that he served the subpoena on Stanley while Stanley waited in the law office. (DN 44-4 at 3-4 (Tr. at 7-9); DN 45-4 at 3-4 (Tr. at 7-9).) McLean's counsel closed by stating that McLean intended to seek sanctions against Stanley and Alere. (DN 44-4 at 4 (Tr. at 9); DN 45-4 at 4 (Tr. at 9).)
McLean requests that the Court hold both Alere and Stanley in contempt and order Stanley to appear for a deposition. He further requests that the Court order either Alere or Stanley to reimburse him for his costs associated with the deposition of Stanley, or, ...