In a class action brought against Amtrak, two plaintiffs, Guerra and Whitesides, both of whom had submitted declarations in support of plaintiffs’ motion for class certification, failed to appear at their scheduled depositions. Defendants sought an award of costs and fees and, in addition, the dismissal with prejudice of the legal claims of Guerra and Whitesides, arguing that only a dismissal would remedy the misconduct and prevent plaintiffs’ counsel from picking and choosing which declarants should be deposed depending on the veracity of their claims.
The court declined to dismiss the claims under Rule 37: the prejudice to Amtrak, the court said, lay in the costs it incurred preparing for the depositions and its inability to examine Guerra and Whitesides. But this prejudice was remediable with the lesser sanction of striking the Guerra and Whitesides declarations, as well as awarding partial expenses. The failure to appear at deposition, said the court, did not “irrevocably damage [Amtrak’s] ability to prove its case.” The court also saw no need to dismiss the claims as a deterrent, since there was no proof that Guerra and Whitesides’ failure to appear at deposition was strategic.