Ala. R. Civ. P. Rule 37(d) Limited to Failure to Appear at Deposition

Ex parte Hankook Tire, et al., [Ms. SC-2023-0210; SC-2023-0312, Dec. 22, 2023] __ So. 3d (Ala. 2023). The Court (Mitchell, J.; Parker, C.J., and Shaw, Wise Bryan, Mendheim, and Stewart, JJ., concur; Cook, J., concurs specially) vacates on mandamus review the Dallas Circuit Court’s order imposing sanctions against Hankook Tire pursuant to Ala. R. Civ. P. Rule 37(d) for conduct of its corporate representative and its counsel at Hankook’s 30(b)(6) deposition.

Hankook designated Won Yong Choi as its corporate representative in response to Plaintiffs’ 30(b)(6) deposition notice. The Plaintiffs moved for sanctions asserting Choi was “unable or unwilling to answer even simple questions during the deposition and that Hankook’s counsel had ‘bombard[ed] the deposition with argumentative interruptions, speaking objections, and instructions not to answer.’” Ms. *7. The circuit court granted Plaintiffs’ motion for sanctions and entered an order “(1) prohibiting Hankook from having any corporate representative give testimony at trial that expounded on or went beyond Choi’s deposition testimony; (2) barring Hankook from disputing at trial that the failed tire was defective; and (3) striking ten of Hankook’s affirmative defenses concerning contributory negligence, assumption of risk, and misuse.” Ms. **7-8.

The court holds mandamus review is appropriate because “‘a trial court’s disallowance of a party’s affirmative defense is reviewable by a petition of mandamus.’” Ms. *12, quoting Ex parte Gadsden Country Club, 14 So. 2d 830, 833 (Ala. 2009).

The Court notes “Rule 37(d) provides that if a corporate representative designated under Rule 30(b)(6) fails ‘to appear’ for a properly noticed deposition, the trial court may sanction the party in the same manner as if a discovery order entered in response to a Rule 37(a)(2) motion was violated.” Ms. *14. The Court holds given the plain meaning of Rule 37(d) and the overall structure of Rule 37, Rule 37(d) cannot support the sanctions award because Choi appeared for the deposition. Ms. *17.

The Court explains that “[i]f, over the course of a deposition, a deponent is consistently unable or unwilling to answer questions that are asked, Rule 37(a) – not Rule 37(d) – provides the mechanism by which an aggrieved party can obtain relief. Under Rule 37(a), if the aggrieved party is unable to resolve the dispute with counsel from the other side after the deposition, that party can move the trial court to compel responses. Ms. **17-18.

The Court also vacates the award of attorney fees against Hankook. The Court explains “[i]f Hankook was challenging only an award of attorneys’ fees, our conclusion about whether that challenge was appropriate for mandamus review might be different. But it would be contrary to principles of judicial economy for us to ignore that award now when we have already held that the sanctions order was unwarranted.” Ms. *21.

Justice Cook’s special concurrence “suggest(s) that we consider modifying our Rules of Civil Procedure to address future occurrences of party or attorney misconduct during discovery in a more comprehensive way” and notes Rule 30(d)(2) of the Federal Rules of Civil Procedure “gives trial judges authority to issue sanctions against deponents and their attorneys for a broad range of misconduct that occurs during a deposition.” Ms. *24.

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