Presently before the court are two motions. (Dkt. Nos. 60, 62). Defendants have filed a motion to compel discovery, and plaintiff has filed a letter, responding to the defendants' motion and requesting the appointment of counsel. (Dkt. No. 62). Defendants have opposed plaintiff's motion. (Docket No. 63). For the following reasons, this court will grant defendants' motion in part and will deny plaintiff's motion for appointment of counsel.
Without repeating too many of the facts in this case, the court must outline the incidents that have brought the parties before the court. On March 6, 2007, this court entered a "Trial Ready Order" in this case, after a telephone conference held with the parties. (Dkt. No. 50). An issue regarding the plaintiff's transportation costs arose, and as a result, on March 28, 2007, Senior Judge Frederick J. Scullin, Jr. statistically closed this action, subject to reopening upon plaintiff's release from incarceration.
On May 2, 2007, defendants made a motion to reopen the case on a limited basis for the sole purpose of deposing an elderly non-party witness. (Dkt. No. 53). In that motion, defendants requested that the court order plaintiff to participate in the deposition. Id. Tobin Aff. ¶ 2. On May 16, 2007, this court granted defendants' motion, ordered plaintiff to participate, and ordered plaintiff to submit proposed questions for the deposition. (Dkt. No. 54).
Subsequent to my order, plaintiff submitted his proposed questions, and on July 5, 2007, I made a ruling regarding the issues presented by his questions. (Dkt. No. 57). Defendants then filed a "letter-motion" simply stating that they had made arrangements for a video-conference deposition of the witness, and had arranged for plaintiff's participation through the Department of Correctional Services. (Dkt. No. 58). The letter stated that it was submitting the "Court request for videoconference." (Dkt. No. 59). The letter also stated that the deposition had been noticed for September 27, 2007. Id.
On August 2, 2007, the court endorsed the letter, stating that "[t]his letter advises the court of the status of the case. The letter has been filed as a letter-motion and is DENIED as moot since it is not a letter-motion." (Dkt. No. 59). Defendants had improperly filed the letter as a motion, but that the letter was a status report, not a motion. The court had already ordered the deposition to go forward, and the August 2, 2007 order simply denied the "motion" as moot because the letter was not asking for any relief. This did not change the fact that the deposition had been previously ordered, and the court was not denying the request for a deposition.
Unfortunately, plaintiff misunderstood this court's order, and believed that the court had somehow changed its mind and denied defendants' request for the deposition. At the September 27, 2007 video-deposition, the plaintiff objected to the deposition going forward, basing his objection upon my August 2, 2007 order. Defendants' Ex. G (Transcript of Sept. 27, 2007 proceeding). A review of the transcript of the proceeding shows that the deposition was terminated after a lengthy discussion regarding the order. Id. at 7. The deposition ended with defense counsel stating that "we'll go see the judge and we'll come back . . . ." Id. There is no indication on the docket sheet of this action that the court was consulted regarding this issue, and no further transcript has been provided.
Rule 37 of the Federal Rules of Civil Procedure provides for sanctions relating to various forms of failure to comply with discovery. FED. R. CIV. P. 37. Rule 37(b) provides sanctions for failing to comply with a court order "to provide or permit discovery." FED. R. CIV. P. 37(b)(2)(A). These sanctions range from an order directing that matters be taken as established for purposes of the action, to dismissal and/or contempt. Id. 37(b)(2)(A)(i)-(A)(vii). The court may also order payment of expenses caused by the failure. Id. 37(b)(2)(C).
A review of the sanctions under Rule 37, however, shows that these are generally applicable when the disobedient party is the party from whom the discovery is requested or required. The incident in this case is more akin to the plaintiff "imped[ing], delay[ing], or frustrat[ing] the fair examination of the deponent" under FED. R. CIV. P. 30(d)(2). Rule 30(d)(2) provides for an "appropriate sanction" including attorneys fees and expenses incurred due to the party's misconduct. Id.
Defendants argue, however, that due to plaintiff's prior problems with discovery, necessitating court orders, the court should dismiss the plaintiff's case as a sanction for his conduct at the deposition. In the alternative, defendants ask that plaintiff be ordered to participate in the next scheduled deposition of the non-party witness, with the understanding that if he again refuses to participate, his case will be subject to dismissal.
The sanction of dismissal is a harsh remedy to be used "only in extreme situations." Bobal v. Rensselaer Polytechnic Institute, 916 F.2d 759, 764 (2d Cir. 1990), cert. denied, 499 U.S. 943 (1991). In order to impose such a severe sanction, the court must find willfulness, bad faith, or fault by the individual from whom discovery is sought. Id. The party in question, particularly a pro se litigant, must have had prior notice that violation of the court's order would result in dismissal with prejudice. Simmons v. Abruzzo, 49 F.3d 83, 88 (2d Cir. 1995).
Plaintiff argues that he simply misunderstood the court's order and did not mean to impede or delay the deposition. Unfortunately, this is not the first time that plaintiff has had trouble with discovery in this case. Defendants have had to make a prior motion for sanctions for plaintiff's own failure to produce discovery. By the same token, the court recognizes that its August 2, 2007 order may have been confusing to a pro se plaintiff. However, plaintiff did not ask the court for clarification after he received the August 2, 2007 order, and it does not appear that defendants made an attempt to contact the court ...