298 F.R.D. 145
S.D.N.Y.2014Background
- Plaintiffs sued Book Dog Books, LLC and Philip Smyres on copyright and federal claims in Feb. 2013.
- Cahill deposition occurred Feb. 19, 2014; Smyres’s deposition was set for Feb. 20, 2014.
- Smyres and counsel canceled the Feb. 20 deposition at the last minute after Cahill deposition.
- Court conference on Feb. 25, 2014 found no adequate justification for the cancelation and ordered completion of Smyres deposition in NYC.
- Plaintiffs sought Rule 37(d) sanctions including $4,542.30 in expenses (hotel, travel, court reporter, and attorney’s fees).
- Defendants opposed some costs as avoidable and argued sanctions should reflect bad faith or unnecessary expenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 37(d) sanctions are warranted. | Smyres violated Rule 37(d) by not appearing despite notice; sanctions appropriate. | Smyres acted in good faith; some costs could be avoided; not all fees justified. | Yes; sanctions warranted; defendants failed to show substantial justification. |
| What expenses are recoverable and in what amount. | Costs directly caused by nonappearance (hotel, travel, court reporter, attorney’s fees) are recoverable. | Some costs could have been avoided; challenge to court reporter fee as avoidable. | Recover hotel, travel, court reporter fees, and eight hours of attorney’s fees totaling $4,542.30. |
| Reasonableness of specific cost items (e.g., court reporter fee, travel). | Costs were reasonable and necessary due to cancellation and rescheduling. | Some costs were avoidable or not attributable to the cancellation. | Court reporter fee allowed; travel costs allowed as the additional night/trip were caused by cancellation. |
Key Cases Cited
- Kamps v. Fried, Frank, Harris, Shriver & Jacobson L.L.P., 274 F.R.D. 115 (S.D.N.Y. 2011) (sanctions under Rule 37(d) require showing of noncompliance and reasonable expenses)
- Klein v. Torrey Point Grp., LLC, 979 F.Supp.2d 417 (S.D.N.Y. 2013) (substantial justification standard for sanctions; burden on disobedient party)
- Novak v. Wolpoff & Abramson LLP, 536 F.3d 175 (2d Cir. 2008) (bad faith not required for sanctions under Rule 37(d))