Wendemu v. Tesema

304 A.3d 953

Tiruwork WENDEMU, Appellant, v. Birihan TESEMA, Appellee.

No. 22-CV-0624

District of Columbia Court of Appeals.

Submitted September 21, 2023

Decided November 3, 2023^*

Anne K. Howard for appellant.

Stephen P. Ollar for appellee.

Before Beckwith, AliKhan, and Shanker, Associate Judges.

Shanker, Associate Judge:

Appellee Birihan Tesema brought a negligence suit against appellant Tiruwork Wendemu in Superior Court after Ms. Wendemu's car rear-ended Ms. Tesema's car. During a deposition of Ms. Wendemu, her counsel, Michael O'Shea, instructed her not to answer two types of questions: (1) questions seeking the facts underlying an affirmative defense that Ms. Wendemu had asserted and (2) questions about whether Ms. Wendemu had sought medical treatment after the accident.

Ms. Tesema moved to compel answers to the questions and for sanctions, asserting that Mr. O'Shea’s instructions not to answer were contrary to the civil rules of procedure. The Superior Court agreed. It concluded that Mr. O'Shea violated Super. Ct. Civ. R. 30(c)(2) and, on a subsequent renewed motion for sanctions, imposed sanctions on Ms. Wendemu under, as it appears to us, Super. Ct. Civ. R. 30(d)(2). ¹

Ms. Wendemu appeals and Ms. Tesema asks this court to impose further sanctions on the ground that the appeal is frivolous. We affirm, concluding that Ms. Wendemu has not proffered a valid basis for Mr. O'Shea’s instructions not to answer and that the Superior Court was within its discretion in sanctioning the misconduct. We decline to impose sanctions for the filing of this appeal.

I. Background

A.

The underlying dispute—the facts of which are not central to the issues on appeal—arose out of a car accident. Ms. Tesema alleged that Ms. Wendemu negligently rear-ended her vehicle. Ms. Wendemu, in her answer, reserved the right to raise a variety of affirmative defenses, including assumption of risk, untimeliness under the applicable statute of limitations, and unavoidable accident. The parties have since settled the case.

B.

As relevant to this appeal, Ms. Tesema deposed Ms. Wendemu in the course of the litigation. At the deposition, Ms. Wendemu refused to answer two types of questions based on Mr. O'Shea’s objections and instructions.

First, Mr. O'Shea objected when Ms. Tesema's counsel, Stephen Ollar, asked Ms. Wendemu whether she had "any facts that Ms. Tesema ... assumed the risk of this collision?" Mr. O'Shea instructed his client "not to answer" because the question sought a "legal conclusion" and Ms. Wendemu was "not going to know" the answer. Mr. Ollar resisted the objection, explaining that Mr. O'Shea could not "instruct this witness not to answer a question unless it's privileged." Counsel for both sides then argued over whether the question sought a legal conclusion, with Mr. O'Shea eventually asserting that the sought-after information fell "squarely within the purview of [his] work product ... as an attorney."

Mr. O'Shea instructed Ms. Wendemu not to answer a second time, when Mr. Ollar asked: "[d]id you ever seek any medical treatment for any injuries arising out of this collision?" This time Mr. O'Shea issued the instruction because Ms. Wendemu was a defendant and was "not making [a] claim for injuries." Mr. O'Shea then prompted Mr. Ollar to move on, saying "[n]ext question." Mr. Ollar responded: "No. No. 100 percent not." When the deposition continued, Mr. Ollar asked whether Ms. Wendemu was "injured in this collision." Mr. O'Shea once again objected and instructed Ms. Wendemu not to answer. Mr. O'Shea did not invoke any form of privilege but reiterated that Ms. Wendemu was "not a plaintiff" and was "not making a claim for damages."

At the conclusion of the deposition, Mr. Ollar stated that he was keeping the deposition open because "responsive answers weren't provided," and he expressed his intent to file a motion to compel. Mr. O'Shea objected to keeping the deposition open because "[a]ll answers were provided."

As her counsel had previewed, Ms. Tesema moved to compel the deposition testimony and for sanctions. Ms. Wendemu opposed Ms. Tesema's motion and requested an oral hearing.

C.

The Superior Court granted Ms. Tesema's motion to compel answers to the questions and initially denied, without prejudice, the concomitant request for attorneys’ fees as sanctions.

In its order, the trial court found that Ms. Tesema's "counsel's questions were relevant and sought the discovery of nonprivileged information relating to [Ms. Wendemu's] affirmative defenses." The court explained that questions seeking "legal conclusion[s] are not appropriate but questions seeking to elicit the factual basis for positions that may be taken during the trial are appropriate."

The court denied the sanctions without prejudice because the motion lacked "an accounting of its request for attorneys’ fees in conjunction with the Laffey Matrix" and a "description of the tasks undertaken in the ten hours allegedly spent drafting" the motion. ² The court ordered a reconvened deposition and subsequently conducted a status hearing during which it declined to limit the scope of the upcoming deposition.

After the reconvened deposition wherein Ms. Wendemu answered all of Mr. Ollar's questions, Ms. Tesema filed a renewed motion for sanctions for fifteen hours of attorney work. The court granted the motion and ordered Ms. Wendemu to pay Mr. Ollar's attorneys’ fees and costs in the amount of $6,433.76—the sum of fifteen hours of work incurred in filing Ms. Tesema's motion and the filing fee. In its order, the court detailed Mr. O'Shea’s conduct at the deposition and reiterated its prior finding that Mr. Ollar's questions were relevant, sought non-privileged information, and "were proportional to the needs of the case." The court also found that Ms. Tesema had made a good-faith effort to resolve the dispute before moving to compel. Ms. Wendemu moved for reconsideration and requested an oral hearing, both of which the court denied.

Ms. Wendemu now appeals the order granting the renewed motion for sanctions, and Ms. Tesema asks this court to sanction Mr. O'Shea under D.C. App. R. 38 for filing the appeal.

II. Analysis

This appeal raises four sets of issues:

(1) Whether Ms. Wendemu violated Rule 30(c)(2) by refusing to answer Mr. Ollar's questions regarding the assumption-of-risk affirmative defense, and whether the Superior Court abused its discretion by sanctioning Ms. Wendemu for that refusal;

(2) Whether Ms. Wendemu violated Rule 30(c)(2) by refusing to answer Mr. Ollar's questions regarding any medical treatment she sought after the accident, and whether the Superior Court abused its discretion by sanctioning Ms. Wendemu for that refusal;

(3) Whether sanctions were nevertheless inappropriate either because the Superior Court did not hold an oral hearing or because the amount was too great; and

(4) Whether this court should sanction Mr. O'Shea under D.C. App. R. 38 for filing this appeal.

After discussing the legal framework and standards of review, we address each issue in turn. ³

A. Legal Framework

The parties reference three distinct, yet sometimes overlapping, legal authorities for imposing sanctions or awarding expenses: Rule 30(d)(2), Rule 37(a)(5)(A), and courts’ inherent power to impose sanctions. Although all three avenues to relief may sometimes apply to the same conduct, see Yeh v. Hnath , 294 A.3d 1081, 1087 (D.C. 2023), they nonetheless implicate different legal standards.

Rule 30(d)(2) empowers courts to impose "appropriate sanction[s]" when someone "impedes, delays, or frustrates the fair examination of the deponent." Super. Ct. Civ. R. 30(d)(2). The rule confers substantial discretion on trial courts in determining whether specific conduct during a Rule 30 deposition warrants sanctions. See id. ("The court may impose an appropriate sanction ...." (emphasis added)); In re Harrington , 283 A.3d 714, 719-20 (D.C. 2022) (explaining, in the context of a different sanctions rule, that the use of the word "may" reflects discretionary authority).

By contrast, Rule 37(a)(5)(A) applies only after a party has prevailed on a motion to compel and limits courts to awarding "reasonable expenses incurred in making the motion." Super. Ct. Civ. R. 37(a)(5)(A). In further contrast to Rule 30(d)(2), courts "must" award expenses under Rule 37(a)(5)(A) unless (1) "the movant filed the motion before attempting in good faith to obtain the discovery without court action;" (2) "the opposing party's response or objection was substantially justified;" or (3) "other circumstances make an award of expenses unjust." Super. Ct. Civ. R. 37(a)(5)(A).

Beyond the Superior Court Rules of Civil Procedure, courts may, in their discretion, award attorneys’ fees where "the conduct of the nonprevailing party is willfully fraudulent, in bad faith, vexatious, wanton, or oppressive." Roos v. LaPrade , 444 A.2d 950, 951 (D.C. 1982) (citing 1901 Wyo. Ave. Coop. Ass'n v. Lee , 345 A.2d 456, 464-65 (D.C. 1975) ). We need not consider this avenue to relief because, although both parties discuss it, the trial court did not.

The trial court referenced both Rule 30(d)(2) and Rule 37(a)(5)(A) in its order and did not explicitly state which rule it was relying on in imposing sanctions. Because we find that the trial court's sanctions were proper under Rule 30(d)(2), we need not consider whether they were also proper under Rule 37(a)(5)(A). "In the absence of ‘procedural unfairness, we may affirm a judgment on any valid ground, even if that ground was not relied upon by the trial judge.’ " Stone v. Landis Constr. Co. , 120 A.3d 1287, 1289 n.6 (D.C. 2015) (quoting Pietrangelo v. Wilmer Cutler Pickering Hale & Dorr, LLP , 68 A.3d 697, 711 n.10 (D.C. 2013) ). No procedural unfairness exists here because the court referenced Rule 30(d)(2) in its order and both parties discuss it in their briefs. See id.

B. Standard of Review

This court reviews orders imposing sanctions under Rule...