An Indiana attorney who didn’t show up for a rescheduled deposition because he was “fully booked” has failed to convince the Court of Appeals of Indiana that the sanctions imposed against him were improper.
In 2019, Fort Wayne attorney Christopher Myers was hired to represent clients Adam and Debbie Williams to pursue their Fair Labor Standards Act claims against defendants Shafer Pick A Part LLC and Paul Shafer. The parties engaged in court-ordered mediation in late 2020, but ultimately proceeded to litigation after an oral settlement fell apart.
The defendants filed a motion to dismiss, which was treated as a motion for summary judgment. The Allen Superior Court set July 16, 2021, as the hearing date for the motion and July 1 as the deadline for the defendants to take the Williamses’ depositions.
Counsel for both parties agreed to schedule the depositions for June 24. However, while Myers and counsel for the Shafer defendants appeared, the Williamses did not. A record was made of their failure to appear, and counsel for the Shafer defendants moved for sanctions.
Shafer’s counsel then attempted via email to reschedule the depositions for July 15 or 16. Overnight or in the early morning hours, an electronic court notification was transmitted indicating the July 16 hearing date had been vacated and reset to Aug. 10.
During business hours that same morning, counsel for the Shafer defendants received an email from Myers’ assistant that Myers was “fully booked” on the proposed deposition dates, even though the court had previously set July 16 — now a proposed deposition date — as a hearing date and had postponed the hearing just hours before.
After receiving notice of the depositions, Myers filed a motion to quash, which the court denied.
Counsel for the defendants appeared for the depositions on July 16, but Myers and the Williamses did not. Again, a motion for sanctions was filed.
After some “missteps,” Myers properly withdrew from representation. The court then held a sanctions hearing at which neither Myers nor his clients appeared.
As a result, the court granted summary judgment in favor of the Shafer defendants and found the plaintiffs’ failure to attend both depositions contemptuous and sanctionable in the amount of $7,726.88.
After Myers sought relief from joint and several liability under the judgment, particularly because he was present for the failed June 24 depositions, the court modified the amount for which he was jointly and severally liable to $3,332.80.
On appeal, the Court of Appeals found Myers had not satisfied a showing that his failure to attend on July 16 was substantially justified or that other circumstances made an award of expenses unjust.
“Here, the litigation had been ongoing for some time, and it is evident that the lawyer-client relationship had broken down between Myers and the Williamses,” Senior Judge Randall Shepard wrote. “Yet, a hearing was set for nearly the same time and on the very same date as the proposed July 16th depositions. Myers offered in response to the scheduling request only that he was ‘fully booked’ and could not attend.
“Next, Myers moved to quash the depositions, but was unsuccessful. Nevertheless, aware of the deposition date, and aware that his motion to quash had been denied, Myers failed to appear,” Shepard continued. “And compounding things, Myers failed to appear for the sanctions hearing. Without more than Myers’ message through an assistant that he was fully booked, at a date the court observed had been reserved for a hearing, and without any further explanation at the sanctions hearing due to his absence, the court was well within its discretion to impose sanctions for Myers’ part in the discovery violations.”
But the COA also denied the defendants’ request to remand the case for an award of appellate costs and fees under Trial Rule 37(A)(4).
“Here, in contrast to the facts in (Georgetown Steel Corp. v. Chafee, 519 N.E.2d 574 (Ind. Ct. App. 1988)), involving obstruction of the discovery process by failing to give unreserved answers to thirty-four of forty-three requests for admissions, attorney Myers failed to attend the July 16th depositions after his attorney-client relationship had deteriorated and his motion to quash the depositions was denied,” Shepard wrote. “Though a direct violation of the discovery process, and within the court’s discretion to sanction, such conduct does not rise to the level of obdurate behavior described in Georgetown Steel where appellate fees were permitted.
“Further, we find that while attorney Myers did not follow the trial rules on the occasion at issue, he has substantially conformed with our appellate rules in pursuing his challenge to the court’s sanctions, and we cannot recommend the calculation or award of appellate fees under Rule 37(A)(4).”
In a footnote, the COA also responded to a dispute between the parties over Myers’ use of the term “Rambo-style litigator” to describe defense counsel, as well as his use of “‘false claim’ language used in reference to the sanctions that were erroneously included in the court’s original sanctions order, in his appellate briefs.”
“However, as Myers indicated in his reply brief, ‘Rambo-style litigator’ is a term that has been used by courts to describe certain litigation tactics,” Shepard wrote. “We view the use of this term as advancing Myers’ claim not as disparaging opposing counsel.
“Further, we view the commentary about the motives and inferences to be drawn therefrom concerning the original sanctions order calculation, to be superfluous and not necessary to our determination here, as the court rendered the requested relief as to that portion of the sanctions,” he continued in the footnote. “We remain hopeful that this contentious litigation will now have reached its conclusion upon our resolution of this appeal.”