Illinois Cent. R. Co. v. Winters, No. 1999-CA-01387-SCT.

• Citation: 815 So.2d 1168
• Decision Date: 25 April 2002
• Docket Number: No. 1999-CA-01387-SCT.
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY, Herbert Bennett and J.R. Wright v. Bertha Lee WINTERS, Demetrius Hawkins, Lucious Robinson, Individually, and as Father and Next Friend of Shuntai Robinson, Sherita Robinson and Juanita Robinson, Minors, Kevin Mabry, Tibithal O. Selders, Alvin P. Haymer, Dennis Haymer, Ira Haymer, Miller Haymer, Annette Haymer Fort, Larry Haymer, Stephanie Haymer Perkins, and Alvin P. Haymer, Jr.
• Court: Mississippi Supreme Court

815 So.2d 1168

ILLINOIS CENTRAL RAILROAD COMPANY, Herbert Bennett and J.R. Wright v. Bertha Lee WINTERS, Demetrius Hawkins, Lucious Robinson, Individually, and as Father and Next Friend of Shuntai Robinson, Sherita Robinson and Juanita Robinson, Minors, Kevin Mabry, Tibithal O. Selders, Alvin P. Haymer, Dennis Haymer, Ira Haymer, Miller Haymer, Annette Haymer Fort, Larry Haymer, Stephanie Haymer Perkins, and Alvin P. Haymer, Jr.

No. 1999-CA-01387-SCT.

Supreme Court of Mississippi.

April 25, 2002.

Glenn F. Beckham, Christopher Wayne Winter, Greenwood, Edward Blackmon, Jr., Canton, attorneys for appellants.

Pat M. Barrett, Jr., Lexington, Robert George Clark, III Isaac K. Byrd, Jr., Jackson, attorneys for appellees.

EN BANC.

COBB, J., for the Court.

¶ 1. In September of 1994, a train owned by Illinois Central Railroad Company collided with a car in Holmes County, Mississippi, resulting in the death of three persons. The following year, numerous plaintiffs (the heirs) initiated, inter alia, a wrongful death action in the Circuit Court of Holmes County against Illinois Central and its engineer and conductor, Herbert Bennett and J.R. Wright.

¶ 2. This appeal concerns a contempt judgment and sanctions, including the assessment of attorney's fees and expenses, entered against Illinois Central for disobeying a court order to produce certain high-level corporate officers (the executives) for depositions. The heirs' underlying action for wrongful death against Illinois Central was tried in September of 2000, and the heirs won a multi-million dollar verdict. That verdict is not a part of this appeal.

¶ 3. Aggrieved by the contempt judgment and sanctions, Illinois Central appeals,¹ asserting that the circuit court either erred or abused its discretion in the following actions (edited for clarity and brevity):

I. DENYING MOTION FOR PROTECTIVE ORDER.

II. ORDERING THE JULY 12 & 14 DEPOSITIONS TO GO FORWARD.

III. ALLOWING DEPOSITIONS FOR PARTIES WHO HAD NOT BEEN SUBPOENAED AND WHO WERE HIGH LEVEL CORPORATE OFFICERS.

IV. FINDING ILLINOIS CENTRAL IN CONTEMPT.

V. ORDERING EXCESSIVE MONETARY SANCTIONS.

¶ 4. We conclude that the circuit court abused its discretion in denying Illinois Central's motion for protective order and ordering the depositions to go forward. But we further conclude that the circuit court did not abuse its discretion in finding Illinois Central in civil contempt. However, because the circuit court erred in awarding expenses in excess of what is permitted under Miss. R. Civ. P. 37, we reverse and remand so the court can reduce the award of fees and expenses to include only that amount which was actually caused by Illinois Central's failure to produce the executives and attend the July 12 and 14 depositions.

FACTS

¶ 5. After the heirs' complaint was filed in 1995, the parties proceeded with discovery and other pre-trial proceedings for almost a year. Then in April 1996, the circuit court entered an order staying discovery pending the completion of parallel proceedings in chancery court to determine the identities of the heirs at law and wrongful death beneficiaries. The stay was subsequently lifted in October 1998, and discovery resumed. In March 1999, after a hearing, the circuit court determined the discovery deadline would be July 1, 1999, and could only be extended by permission of the court with a showing of "good cause."

¶ 6. One week prior to the discovery deadline, on June 23, 1999, the heirs filed a notice to depose six executives on June 29, in Jackson, Mississippi, and seven executives on July 1, in Chicago, Illinois. The heirs also filed a motion to extend the deposition deadline. The heirs claimed that they had discovered the identities of various individuals employed by Illinois Central who had held critical positions with the company at the time of the accident. They claimed they did not discover this information until June 15, 1999, while conducting a Miss. R. Civ. P. 30(b)(6) deposition of one of Illinois Central's employees.

¶ 7. On June 28, Illinois Central filed a motion for protective order, response in opposition to the heirs' motion to extend discovery, and motion for time to file a complete response and brief. That same day around 5 p.m., via a conference call between the parties and the court, the circuit court extended the discovery deadline to July 21, and told Illinois Central to get any motions that it had to the court before that deadline. Also on June 28, the heirs renoticed twelve of the thirteen previously noticed executives: six of them for Monday, July 12, in Chicago and six of them for Wednesday, July 14, in Jackson. On July 7, the circuit court, by order, set the hearing on Illinois Central's motion for protective order and motion to reconsider extending discovery, for August 25, 1999 (more than a month after the dates noticed by the heirs for depositions in Jackson and Chicago).

¶ 8. On Friday, July 9, without benefit of the scheduled hearing on the motions, the circuit court denied Illinois Central's motion for protective order and ordered the depositions to go forward as noticed the following week. The next day, Saturday, Illinois Central notified the heirs by fax that their attorneys, "will not be in Chicago on Monday or Jackson on Wednesday, and the Plaintiffs should not incur any expense in making that trip." The heirs did not heed this advice and showed up for both depositions as scheduled. On Monday, July 12, Illinois Central filed a motion for reconsideration of denial of the protective order. Four days later, the heirs filed a motion to compel discovery and for sanctions.

¶ 9. The trial court heard both Illinois Central's motion for reconsideration, and the heirs' motion to compel and for sanctions, on August 2, 1999. The court found Illinois Central in contempt of court for disobeying the court's July 9th order, and ordered sanctions, including the assessment of attorney's fees and expenses related to the depositions which Illinois did not attend on July 12 and 14. The circuit court also granted the heirs' motion to compel and ordered Illinois Central to pay all costs associated with the rescheduled depositions. These rescheduled depositions were conducted in August and September, at times and places mutually agreed to by the parties.

¶ 10. On August 9, Illinois Central filed a petition for writ of mandamus with this Court, asking: to stay all proceedings pending Supreme Court review of the contempt appeal; to remove the circuit court judge from the case; and to prohibit the remaining depositions. The circuit court filed a response. Illinois Central then filed a motion to correct the factual inaccuracies contained in the circuit court's response to the petition. This Court denied Illinois Central's petition for mandamus on September 29, 1999.

¶ 11. The heirs subsequently submitted itemized fee and expense records, for both the scheduled depositions that Illinois Central did not attend and the rescheduled depositions. The total award of fees and expenses assessed against Illinois Central by the circuit court came to over $47,000, plus interest. This award was made directly to the two law firms representing the heirs. The Byrd law firm was awarded $19,398.15, and the Barrett law firm was awarded $28,109.11.

STANDARD OF REVIEW

¶ 12. "In regard to matters relating to discovery, the trial court has considerable discretion. The discovery orders of the trial court will not be disturbed unless there has been an abuse of discretion." Dawkins v. Redd Pest Control, Inc., 607 So.2d 1232, 1235 (Miss.1992).

DISCUSSION

¶ 13. Since Illinois Central's first two assignments of error are related, we will discuss them in concert.

I. DENYING MOTION FOR PROTECTIVE ORDER.

II. ORDERING THE JULY 12 & 14 DEPOSITIONS TO GO FORWARD.

¶ 14. Illinois Central contends that there was an egregious abuse of the discovery process, in that the heirs had only deposed two Illinois Central employees in the previous twenty-one months of discovery, prior to noticing the thirteen executives one week before the discovery deadline. Illinois Central argues that the circuit court abused its discretion in denying its motion for a protective order under Rule 26(d). Illinois Central further argues that the circuit court abused its discretion by ignoring the "voluminous logistics" of preparing for six different depositions on one day in Chicago, then two days later, preparing for six more depositions in Jackson.

¶ 15. We have on many occasions followed the reasoning of federal courts in interpreting the Federal Rules of Civil Procedure where the rules implicated are identical to our rules, and where this Court has not dealt with the specific issue raised. "It is well known that our Mississippi Rules of Civil Procedure were copied from the Federal Rules of Civil Procedure, and we construe ours as the Federal courts construe the federal rules." Nichols v. Tubb, 609 So.2d 377, 383 (Miss.1992).

¶ 16. In Dawkins v. Redd Pest Control, Inc., we stated the following with regard to discovery:

(d) while the importance of the information must be weighed against the hardships and cost of production and its availability through other means, it is preferable for the court to impose partial limitations on discovery rather than an outright denial. Any record which indicates a failure to give adequate consideration to these concepts is subject to the attack of abuse of discretion, regardless of the fact that the order shows no such abuse on its face.

Dawkins, 607 So.2d at 1236 (citing 23 Am. Jur.2d, Depositions and Discovery, § 5 (1983))(emphasis added).

¶ 17. Pursuant to the Mississippi Rules of Civil Procedure: "A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action." Miss. R. Civ. P. 30(b)(1)(emphasis added).² Unfortunately, the rules fail to give any guidance as to what is reasonable, neither does...