In Re: Foreign Court Subpoena Jane Doe v. USA Swimming et al.

A non-party deponent appeals the imposition of $6,635 in monetary sanctions under Tennessee Rule of Civil Procedure 37.01(4). The non-party deponent, a Tennessee resident, was subpoenaed to give a deposition concerning a civil action pending in a California state court pursuant to a foreign court subpoena, which was issued and served in accordance with the Uniform Depositions and Discovery Act, Tenn. Code Ann. §§ 24-9-201 through -207. During the deposition, the deponent’s attorney objected to almost every question in an argumentative and suggestive manner, often without providing a proper basis for the objection, consulted with the deponent at length several times during questioning, and unilaterally terminated the deposition without seeking a protective order. The California defendants who attempted to take the deposition filed a motion to compel discovery and to recover their expenses pursuant to Tennessee Rule of Civil Procedure 37.01. The trial court granted the motion and held the non-party deponent liable for the defendants’ expenses. The deponent appeals contending that he did not obstruct the deposition, that the sanctions are the result of his attorney’s misconduct, and that his attorney should be solely responsible for the sanctions. Tennessee Rule of Civil Procedure 37.01(4) affords the trial court the discretion to require a deponent whose conduct necessitated a motion to compel, or the attorney advising such conduct, or both of them to pay to the moving party’s reasonable expenses. The manner in which the deponent’s attorney conducted the deposition amounted to clear violations of Tennessee Rules of Civil Procedure 30.03 and 30.04. Except for certain circumstances not at issue here, a lawyer’s misconduct is attributable to and binding on the client; therefore, the deponent should not be excused from liability for his attorney’s misconduct, especially considering the deponent is experienced in giving depositions and knew or should have known his attorney’s conduct was outrageous and in violation of the rules of discovery. Moreover,because trialcourts have broad discretion in determining when to impose sanctions and against whom, such decisions are reviewed on appeal pursuant to the very deferential abuse of discretion standard. Finding no abuse of discretion, we affirm.