Garner et al v. Cincinnati Insurance Company

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
THOMAS GARNER; and CAMMI
GARNER,
Plaintiffs,
v.
THE CINCINNATI INSURANCE
COMPANY,
Defendant.
MEMORANDUM DECISION AND
ORDER DENYING MOTION FOR
SANCTIONS (DOC. NO. 55)
Case No. 2:24-cv-00378
District Judge Tena Campbell
Magistrate Judge Daphne A. Oberg
Thomas and Cammi Garner initiated this action after Cincinnati Insurance
Company denied their insurance claim for injuries sustained in a car accident.1 Arguing
Cincinnati violated a scheduling order and engaged in “repeated discovery abuses,” the
Garners move for sanctions.2 Specifically, they contend Cincinnati’s conduct prohibited
their ability to take “depositions of key witnesses and engage in crucial discovery”
before the discovery period closed.3 Accordingly, the Garners seek an order striking
Cincinnati’s answer or defense, or in the alternative, denying Cincinnati’s pending
motion for summary judgment or giving an adverse inference instruction. Cincinnati
1 (Compl., Doc. No. 1; Am. Compl. ¶¶ 7–17, 26–29, Doc. No. 17.)
2 (Pls.’ Mot. for Sanctions (Mot.), Doc. No. 55.)
3 (Id. at 2.)
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opposes, arguing the motion is legally and factually baseless.4 Because the severe
sanctions the Garners request are unjustified, the motion is denied.
BACKGROUND5
The Garners initiated this action in April 2024.6 Between July and September
2024, the parties briefed Cincinnati’s motion to dismiss.7 During that time, the court
issued an initial scheduling order, requiring the parties serve initial disclosures by
August 15, 2024.8 The Garners served their disclosures by the deadline.9 Cincinnati
did not.
More than five months later, on February 4, 2025, the Garners served their first
set of discovery requests.10 One week afterward, they contacted Cincinnati to schedule
depositions for its corporate witness and for Robert Poppleton—the adjuster who
investigated the Garners’ insurance claim, discussed it with counsel, and signed and
4 (Def.’s Opp’n to Mot. (Opp’n), Doc. No. 59.)
5 The briefing and exhibits do not have uniform page numbering. This order refers to
internal page numbers where documents or exhibits contain them but refers to CM/ECF
pagination where they are lacking. And when citing to the fact sections of the briefs, the
order refers to numbered paragraphs.
6 (Compl., Doc. No. 1; Am. Compl. ¶¶ 7–17, 26–29, Doc. No. 17.)
7 (Doc. Nos. 20, 26, & 30.)
8 (Scheduling Order, Doc. No. 24.) Although Cincinnati reserved the right to file a
motion to stay discovery pending resolution of its motion to dismiss, it never did. (Id. at
2 n.1.)
9 (Ex. A to Opp’n, Doc. No. 59-1.)
10 (Ex. B to Opp’n, Doc. No. 59-2.)
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sent counsel the coverage determination.11 Cincinnati served its initial disclosures the
next day, identifying Mr. Poppleton and other individuals as representatives of
Cincinnati.12 And on February 21, Cincinnati responded to the Garners’ request for
depositions for Mr. Poppleton and its corporate witness, providing fourteen dates of
availability in March and early April.13
Thereafter, the parties coordinated discovery. The parties agreed to extend the
fact discovery deadline to April 17, 2025, and granted each other extensions for written
discovery response deadlines.14 Cincinnati served its written responses on March 18,
stating it would produce documents on April 1, as the requests did not otherwise specify
a reasonable time, place, and manner for the production.15
On March 27, the Garners responded to Cincinnati’s email regarding deposition
dates and asked for additional dates and additional deponents.16 Cincinnati responded
11 (Ex. R to Mot. 9, Doc. No. 55-18; Ex. C to Opp’n, Doc. No. 59-3 at 4; Mot. ¶ 23, Doc.
No. 55 (citing Exs. G, H, & Q to Mot., Doc. Nos. 55-7, 55-8, & 55-17).)
12 (Ex. P to Mot. 2, Doc. No. 55-16 (Cincinnati’s initial disclosures dated February 13,
2025); Ex. D to Opp’n 2, Doc. No. 59-4 (same).)
13 (Ex. R to Mot. 9, Doc. No. 55-18.)
14 (Ex. U to Mot., Doc. No. 55-21; Exs. F & G to Opp’n, Doc. Nos. 59-6 at 2 & 59-7 at 2;
Am. Scheduling Order, Doc. No. 35; Opp’n ¶ 20, Doc. No. 59.)
15 (Ex. U to Mot., Doc. No. 55-21; Exs. F & H to Opp’n, Doc. Nos. 59-6 at 2 & 59-8.)
Cincinnati produced documents as promised. (Ex. W to Mot., Doc. No. 55-23.)
16 (Ex. R to Mot. 8, Doc. No. 55-18.) The Garners requested deposition dates for
Cincinnati’s corporate designee, Mr. Poppleton, Mason Hill, and Jeremy John. (Id.
at 7.) According to Cincinnati, Mr. Hill oversaw all coverage opinions, as Mr.
Poppleton’s direct supervisor. (Opp’n ¶ 13, Doc. No. 59.) However, the Garners’
motion centers on Cincinnati’s actions regarding Mr. Poppleton’s deposition.
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that same day, asking for a notice with deposition topics for its corporate designee and
stating it would ask Mr. Poppleton for available dates.17 The Garners served the
deposition notice for Cincinnati’s corporate witness the following day.18
On March 31, Cincinnati asked the Garners to propose dates for the “other
depositions” and indicated they would stipulate to extend the fact discovery deadline to
complete the depositions.19 The Garners said they could not “agree to extend discovery
again.”20 Cincinnati then indicated it was still checking availability for Mr. Poppleton and
asked if the Garners would at least agree to allow fact witness depositions to occur after
the discovery cut-off.21 The Garners again declined: “We can’t agree to depos[itions]
after the fact discovery deadline.”22
Cincinnati responded the following day, April 2, indicating it could likely make the
depositions work without extending the cut-off but noting it was still trying to schedule
Mr. Poppleton.23 Later that day, Cincinnati informed the Garners that counsel had been
unable to reach Mr. Poppleton and believed he no longer worked for Cincinnati, but
17 (Ex. R to Mot. 8, Doc. No. 55-18.)
18 (Ex. J to Opp’n, Doc. No. 59-10.)
19 (Ex. R to Mot. 5, Doc. No. 55-18.)
20 (Id.)
21 (Id. at 4.)
22 (Id. at 3.)
23 (Id.)
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counsel would continue to attempt contact.24 Five days later, Cincinnati informed the
Garners that Mr. Poppleton had resigned in March and no longer worked for the
company, “so that [they] could attempt to subpoena him for the deposition.”25 Counsel
explained Mr. Poppleton had not responded to attempts to contact him, and provided
Mr. Poppleton’s address (a P.O. Box in Logan, Utah) should the Garners wish to
subpoena him directly.26
On April 15, the Garners emailed Cincinnati’s counsel a copy of a deposition
subpoena they tried to serve on Mr. Poppleton.27 Cincinnati’s counsel responded the
next day, explaining he had spoken with Mr. Poppleton.28 He relayed that Mr.
Poppleton indicated he never received a subpoena, he did not live at the address on the
subpoena, and he believed he had no obligation to appear for the April 17 deposition.29
Cincinnati’s counsel explained he had no address for Mr. Poppleton. He only had a
P.O. Box (which he already shared) and he was not authorized to share Mr. Poppleton’s
24 (Id. at 1.)
25 (Ex. L to Opp’n, Doc. No. 59-12.)
26 (Id.)
27 (Ex. X to Mot. 3, Doc. No. 55-24.) Mr. Poppleton’s deposition was set for April 17, the
day fact discovery closed, but the Garners do not attach any deposition subpoena to
their motion. (Id. at 2.) From the parties’ email exchange, it appears the Garners sent
Cincinnati a copy of a subpoena they served at an address they believed to be Mr.
Poppleton’s. (See id. at 1–2.)
28 (Id. at 2.)
29 (Id.)
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phone number.30 The April 17 deposition did not occur. That day, Cincinnati
supplemented its initial disclosures, removing Mr. Poppleton as a potential witness—
since the company does not intend to rely on him for trial where he disclaimed any
memory of the Garners’ claim.31
More than two months later, the Garners filed the present motion, seeking
sanctions pursuant to Rules 16 and 37 of the Federal Rules of Civil Procedure.32
DISCUSSION
The Garners contend Cincinnati’s “dilatory and abusive tactics” in discovery
caused prejudice by impairing their ability to conduct discovery.33 They make two
distinct arguments in support of their request that the court strike Cincinnati’s answer or
defense, or deny its motion for summary judgment or give an adverse inference
instruction as to Mr. Poppleton’s testimony. First, the Garners argue Rule 16(f)(1)(C)
and Rule 37(b)(2)(A) justify such sanctions, because Cincinnati failed to comply with the
scheduling order by serving initial disclosures late and engaging in other discovery
30 (Id. at 1.)
31 (Opp’n ¶ 42, Doc. No. 59.) The Garners do not dispute this fact.
32 (Mot., Doc. No. 55.) In their reply, the Garners cite Sender v. Mann, 225 F.R.D. 645,
656–57 (D. Colo. 2004). (See Pls.’ Reply Mem. in Supp. of Mot. (Reply), Doc. No. 63 at
4.) In Sender, the court discussed whether to impose sanctions under Rule 37(c)(1) for
a party’s failure to make initial disclosures under Rule 26(a). See 225 F.R.D. at 656–57.
But the Garners do not argue for sanctions under Rule 37(c). They explicitly move for
sanctions under Rules 16(f)(1)(C), 37(b)(2)(A), and 37(d). (Mot., Doc. No. 55 at 1.)
33 (Mot., Doc. No. 55 at 7.)
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misconduct.34 Second, the Garners contend Rule 37(d) justifies these sanctions
because Cincinnati failed to produce Mr. Poppleton for his deposition after assuming
responsibility for his appearance.35 In opposition, Cincinnati argues the motion lacks
factual and legal merit.36 Because the conduct at issue does not justify the requested
sanctions, the Garners’ motion is denied.
A. Neither Rule 16(f)(1)(C) or 37(b)(2)(A) Supports the Imposition of Sanctions
The Garners do not justify the imposition of sanctions under Rule 16(f)(1)(C) or
Rule 37(b)(2)(A). The Garners contend striking Cincinnati’s answer or defense is
justified by Cincinnati’s failure to comply with the scheduling order and its other
discovery misconduct.37 Specifically, the Garners argue Cincinnati prevented them
from “discovering key facts and witnesses for 8 months” by failing to timely serve initial
34 (Id. at 7–10.)
35 (Id. at 10–12.)
36 (Opp’n 8–11, Doc. No. 59.) Cincinnati also contends the Garners failed to confer on
any of the discovery issues raised in their motion, including the delayed initial
disclosures. (Id. 8, 9.) In their reply, the Garners argue that, unlike for motions to
compel under Rule 37(a), meet-and-confer requirements do not apply to motions for
sanctions under Rule 16(f) or Rule 37(b). (Reply, Doc. No. 63 at 2.) Courts have found
Rule 37(b) does not impose meet-and-confer requirements. See, e.g., Martin v. SGT,
Inc., No. 2:19-cv-00289, 2022 U.S. Dist. LEXIS 45646, at *12 (D. Utah Mar. 14, 2022)
(unpublished) (explaining motions for sanctions under Rule 37(b) are not subject to
meet-and-confer requirements like Rule 37(a) motions seeking “an order compelling
disclosure or discovery”).
37 (Mot., Doc. No. 55 at 7–10.) It is unclear whether the Garners seek the alternative
sanction of an adverse inference instruction as to Mr. Poppleton’s testimony under
Rules 16(f)(1)(C) and 37(b)(2)(A). They do not explain how these rules support an
adverse inference. They instead seem to rely on Rule 37(d) to argue for this alternative
remedy. (Id. at 7, 12.)
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disclosures, serving deficient disclosures, producing no documents, and “lulling” the
Garners into believing Mr. Poppleton would appear for his deposition while refusing to
provide his contact information.38 According to the Garners, Mr. Poppleton is a “key
witness” who they would have subpoenaed if Cincinnati had served initial disclosures on
time and provided his contact information.39 As it stands, they ran out of time.
The Garners’ arguments are uncompelling. As a threshold matter, the Garners
have not shown Cincinnati should be sanctioned for deficient initial disclosures or failing
to produce documents. Although the thrust of the Garners’ grievance is that they were
unable to depose Mr. Poppleton before the close of discovery, they also argue
Cincinnati failed to identify witnesses it intends to rely on.40 For instance, the Garners
note that Mr. Poppleton contacted Litchfield Cavo (Cincinnati’s coverage counsel) in
February 2022.41 Although Litchfield Cavo drafted a coverage opinion, Cincinnati “did
not identify the attorneys from Litchfield Cavo as witnesses” in its initial disclosures.42
The Garners also argue the disclosures were deficient because Cincinnati did not
38 (Id. at 7–9.)
39 (Id. at 9.)
40 (Id. at 8.)
41 (Id. ¶ 7.)
42 (Id. ¶¶ 11, 26 (citing Exs. F, I, & P to Mot., Doc. No. 55-16).) To the extent the
Garners seek an evidentiary ruling excluding specific witnesses or evidence from trial
based on nondisclosure, the request is premature, and they have not adequately briefed
it. In addition, the evidentiary sanctions available for nondisclosure under Rule 37(c)
“are often described as ‘self executing’ or ‘automatic.’” O’Sullivan v. Geico Cas. Co.,
233 F. Supp. 3d 917, 931 (D. Colo. 2017).
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“produce the full claims log and coverage opinion” it relies on for its defense that
coverage was “fairly debatable.”43 But the Garners cite no authority supporting their
one-paragraph argument that Cincinnati’s initial disclosures were substantively
deficient. Nor do they cite any authority holding documents must be produced with
initial disclosures.44 And they never challenged any deficient or delayed document
production during the discovery period.45 Accordingly, they have not justified Rule 37(b)
sanctions on these grounds.
Cincinnati’s late disclosures and conduct around Mr. Poppleton’s deposition
likewise fail to justify the severe sanctions requested. Under Rule 16(f)(1)(C), “the court
may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)–(vii), if a
43 (Mot., Doc. No. 55 at 8.)
44 Rule 26 requires a party to provide “a copy—or a description by category and
location—of all documents, electronically stored information, and tangible things that the
disclosing party has in its possession, custody, or control and may use to support its
claims or defenses,” without waiting for a discovery request. Fed. R. Civ. P.
26(a)(1)(A)(ii). But “[w]hile Rule 26(a) requires a party to identify and describe
supporting witnesses and documents, it does not require the party to produce them.”
Adkins v. TFI Family Servs., No. 13-CV-2579, 2017 U.S. Dist. LEXIS 96344, at *24 (D.
Kan. June 22, 2017) (unpublished) (emphasis omitted).
45 The Garners did not serve their discovery requests until February 4, 2025. (Ex. B to
Opp’n, Doc. No. 59-2.) The parties apparently agreed Cincinnati would serve its
responses by March 18—which it did. (Ex. U to Mot., Doc. No. 55-21 at 1; Ex. H to
Opp’n, Doc. No. 59-8.) And where the Garners did not specify a time, place, or manner
for Cincinnati’s production, Cincinnati informed the Garners it would produce the
documents by April 1—and it did. (Ex. U to Mot., Doc. No. 55-21 at 1; Ex. W to Mot.,
Doc. No. 55-23.) This timing undermines the Garners’ suggestion that the production
was unduly delayed.
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party or its attorney . . . fails to obey a scheduling or other pretrial order.”46 And under
Rule 37(b)(2)(A), if a party “fails to obey an order to provide or permit discovery,
including an order under Rule 26(f), 35, or 37(a), the court . . . may issue further just
orders.”47 This includes orders “prohibiting the disobedient party from supporting or
opposing designated claims or defenses, or from introducing designated matters in
evidence” or “striking pleadings.”48
Before imposing severe sanctions49 for failure to obey a discovery order, courts
consider several factors, generally known as the Ehrenhaus factors.50 These include:
“(1) the degree of actual prejudice to the other party; (2) the amount of interference with
the judicial process; (3) the culpability of the litigant; (4) whether the court warned the
46 Fed. R. Civ. P. 16(f)(1)(C).
47 Fed. R. Civ. P. 37(b)(2)(A).
48 Fed. R. Civ. P. 37(b)(2)(A)(ii)–(iii).
49 Severe sanctions include those with the same force and effect as dismissal, such as
striking a party’s answer or defense. See Brigham Young Univ. v. Pfizer, Inc., 282
F.R.D. 566, 569–70 (D. Utah 2012) (discussing Ehrenhaus v. Reynolds, 965 F.2d 916,
920–21 (10th Cir. 1992) and explain that, “[i]n general, before imposing severe
sanctions such as striking a parties’ answer or dismissing a case, courts should
consider the Ehrenhaus factors.”); see also Shanley v. Hutchings, No. 2:22-cv-00549,
2023 WL 4764007, at *5 (D. Utah July 26, 2023) (unpublished) (applying Ehrenhaus
factors and considering sanction of striking affirmative defenses). Although the Garners
appear to seek an adverse inference instruction under Rule 37(d), courts have
considered the Ehrenhaus factors on motions for an adverse inference instruction under
Rule 37(b)(2)(A) and imposed this sanction against a party for acting in bad faith and
disobeying prior discovery orders that warned of the sanction. See, e.g., Boxer F2, L.P.
v. Flamingo West, Ltd., at *2 (D. Utah May 4, 2015) (unpublished), aff’d sub nom. Boxer
F2, L.P. v. Bronchick, 722 F. App’x 791, 797 (10th Cir. 2018) (unpublished).
50 See HCG Platinum, LLC v. Preferred Prod. Placement Corp., 873 F.3d 1191, 1203
(10th Cir. 2017) (discussing Ehrenhaus factors).
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party in advance that dismissal of the action would be a likely sanction for its
noncompliance; and (5) the efficacy of lesser sanctions.”51 These factors are not
exhaustive, nor are they necessarily of equal weight.52
Striking Cincinnati’s answer or defense is not justified under Rule 16(f)(1)(C) or
37(b)(2)(A). To start, Rule 37(b)(2)(A) permits sanctions “where a party fails to comply
with a discovery order.”53 But Cincinnati has not violated any discovery orders. No
discovery orders were issued—because neither party raised any discovery disputes.
There is no question Cincinnati violated the scheduling order by serving late initial
disclosures. But there has been no specific “order to provide or permit discovery”—let
alone an order Cincinnati disobeyed.54
51 Procter & Gamble Co. v. Haugen, 427 F.3d 727, 738 (10th Cir. 2005) (citation
modified).
52 See Chavez v. City of Albuquerque, 402 F.3d 1039, 1044 (10th Cir. 2005); see also
Lee v. Max Int’l, LLC, 638 F.3d 1318, 1323 (10th Cir. 2011) (“The Ehrenhaus factors are
simply a non-exclusive list of sometimes-helpful ‘criteria’ or guide posts the district court
may wish to ‘consider’ in the exercise of what must always remain a discretionary
function.”).
53 Klein-Becker USA, LLC v. Collagen Corp., No. 2:07-CV-873, 2008 U.S. Dist. LEXIS
85475, at *4 (D. Utah Oct. 22, 2008) (unpublished) (emphasis added); see also HCG
Platinum, 873 F.3d at 1203 (explaining courts can sanction a party under Rule 37(b)(2)
for failing “to obey an order to provide or permit discovery” (emphasis added));
Ehrenhaus, 965 F.2d at 920 (explaining a court’s discretion to impose sanctions under
Rule 37(b)(2) “is limited in that the chosen sanction must be both just and related to the
particular claim which was at issue in the order to provide discovery” (citation modified)).
54 See HCG Platinum, 873 F.3d at 1203; Ehrenhaus, 965 F.2d at 920.
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To be sure, Rule 16 allows courts to address violations of scheduling orders,
including by issuing orders authorized by Rule 37(b)(2)(A)(ii)–(vii).55 But the Garners
provide no authority supporting the imposition of such severe sanctions solely because
a party violates a scheduling order. While the Garners cite multiple cases, in all but
one, the court sanctioned a party who violated multiple prior court orders, including
discovery orders (or who refused to engage in discovery entirely). In the sole outlier,
Hathcock v. Navistar International Transportation Corporation,56 the Fourth Circuit found
the district court abused its discretion by imposing a default sanction. While the court
concluded a default sanction can be an appropriate response to the violation of a
scheduling order, it found the district court erroneously imposed the sanction without
warning the offending party, assessing prejudice to the moving party, and considering
lesser sanctions.57 Consistent with this concept overall, each court in the other cases
only imposed (or affirmed the imposition of) sanctions after the court warned of the
55 Fed. R. Civ. P. 16(f)(1)(C).
56 53 F.3d 36 (4th Cir. 1995).
57 Id. at 40–41; cf. Blackburn v. Webb, No. 24-6206, 2025 U.S. App. LEXIS 11078, at
*3–5 (10th Cir. 2025) (unpublished) (holding the district court did not err in applying the
Ehrenhaus factors in granting a motion for sanctions made under Rules 16(f)(1)(C),
37(b)(2)(A), and 41(b) where a party failed “to participate in discovery” or to comply with
the federal rules, and had been warned “that further procedural failures could result in
harsh sanctions”); Okla. Federated Gold & Numismatics, Inc. v. Blodgett, 24 F.3d 136,
139–40 (10th Cir. 1994) (holding the district court appropriately sanctioned a party
under Rules 16(f) and 37(b)(2)(A) by preventing him from presenting witnesses,
exhibits, testimony, or evidence at trial, because the party had entirely failed to respond
to any discovery requests, failed to attend his deposition despite a court order, and did
not comply with an order to provide witness and exhibit lists).
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possible consequences of continued noncompliance.58 The same is not true here. This
is the first discovery-related dispute raised in the case, and Cincinnati has never been
warned of the consequences of noncompliance. In other words, none of the cases the
Garners cite support the imposition of the sanctions they seek.
In addition, the Ehrenhaus factors largely weigh against striking Cincinnati’s
answer. First, the degree of prejudice from not deposing Mr. Poppleton is equivocal.
The Garners claim Mr. Poppleton (the adjuster who investigated and denied their
insurance claim) is a key witness. But Cincinnati removed Mr. Poppleton as a witness
in its supplemental disclosures because the company does not intend to rely on him for
trial, given his lack of memory of the Garners’ claim.59 Moreover, despite knowing of
58 See, e.g., Dreith v. Nu Image, Inc., 648 F.3d 779, 787 (9th Cir. 2011) (affirming
sanctions striking answer and entering default where the defendants failed to comply
with a discovery order, failed to meet and confer, and provided initial disclosures just
before motions in limine); Martin, 2022 U.S. Dist. LEXIS 45646, at *17–21 (upholding
Rule 37(b)(2) sanctions for disobeying a prior discovery order directing the defendant to
complete document production by a certain date); Spectator Blankets II, LLC v.
McKeon, No. 2:08-CV-919, 2010 U.S. Dist. LEXIS 32242, at *3–4 (D. Utah Apr. 1, 2010)
(unpublished) (granting “terminating sanctions” where the defendant failed to comply
with an order to hire counsel and failed to comply with the scheduling order—and
despite two orders warning of severe sanctions, the defendant prohibited the plaintiff’s
ability to conduct discovery by refusing to be part of the litigation entirely); Klein-Becker,
2008 U.S. Dist. LEXIS 85475, at *4–5 (entering default judgment against the defendants
for “continually and repeatedly” disobeying discovery obligations and multiple court
orders, including orders compelling document production, orders to show cause, and an
order to pay monetary sanctions); Oak Valley Invs., L.P. v. Southwick, No. 2:06-CV-737,
2007 WL 3333248, at *1 (D. Utah Nov. 8, 2007) (unpublished) (striking answer because
the defendants failed to comply with three discovery orders granting motions to compel,
ordering them to supplement discovery responses, and warning that failure to do so
could result in severe sanctions).
59 (Opp’n ¶ 42, Doc. No. 59.) The Garners do not dispute this fact.
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Mr. Poppleton’s role since at least 2022, the Garners did not begin to seek discovery
until two months before the discovery period closed. They rejected Cincinnati’s multiple
offers to extend the fact discovery cut-off, even though the extensions would have
permitted time for depositions. And they never raised any discovery disputes or
challenged Cincinnati’s disclosures until filing this motion—nearly three months after the
close of fact discovery. Even if the Garners’ inability to depose Mr. Poppleton and other
witnesses caused prejudice, the Garners bear some (if not equal) responsibility for this
predicament.
The remaining factors all weigh against sanctions. Cincinnati’s culpability and
the amount of interference with the judicial process (the second and third Ehrenhaus
factors) are minimal. Although Cincinnati missed its initial disclosure deadline by more
than five months, the Garners did not raise this with the court until now. And the
Garners themselves did not serve their first set of discovery requests until February
2025. Likewise, during the discovery period, the Garners chose not to challenge any of
the “discovery abuses” they now allege. There is no interference with the judicial
process where the parties never sought judicial intervention.60 Under the fourth
Ehrenhaus factor, because the court never addressed claims of noncompliance in this
case, it never warned Cincinnati of any potential sanctions for continued
60 Cf. Burgi v. Awolf Fitness, No. 2:19-cv-00151, 2021 U.S. Dist. LEXIS 35993, at *11
(D. Utah Feb. 25, 2021) (unpublished) (noting a party “interferes with the judicial
process when it fails to abide by discovery orders”).
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noncompliance. And under the fifth factor, the Garners have not shown lesser
sanctions would be ineffective. They rely entirely on the first three factors.61
Even setting aside the Ehrenhaus factors, it would be unfair to impose the severe
sanctions the Garners seek—where they chose to first raise these issues months after
the fact discovery period closed. When discovery challenges are timely raised, the
court can guide the parties’ conduct and give any noncompliant party the opportunity to
defend its conduct or correct course. Cataloging discovery offenses without raising
them (until it’s too late to mitigate any damage) undermines the discovery dispute
process. It does not justify sanctions.
In sum, the Garners have not shown sanctions are warranted under Rule
16(f)(1)(C) or Rule 37(b)(2)(A). Although Cincinnati missed the initial disclosures
deadline, the Garners waited until now to raise the issue. And the Garners did not file
any motions challenging any other discovery misconduct. Where Cincinnati has
violated no prior discovery orders and the Garners waited until two months before the
cut-off to seek discovery from a potential witness they have known of for years,
sanctions are not merited.
B. Rule 37(d) Does Not Support the Imposition of Sanctions
The Garners also seek sanctions under Rule 37(d), but this request is similarly
unjustified. Specifically, the Garners seek an order striking Cincinnati’s answer or
defense, and denying its pending motion for summary judgment or giving an adverse
61 (See Mot., Doc. No. 55 at 8 (specifically referencing only the prejudice, interference
with the judicial process, and culpability factors).)
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inference instruction as to Mr. Poppleton’s testimony.62 They contend such sanctions
are justified where Mr. Poppleton was the primary claims adjuster and Cincinnati
interfered with the Garners’ ability to depose him. Specifically, the Garners complain
Cincinnati disclosed him eight months late, refused to provide his contact information,
and failed to produce him for his deposition after assuming responsibility for his
attendance.63
Under Rule 37(d), a court “may, on motion, order sanctions if: (i) a party or a
party’s officer, director, or managing agent . . . fails, after being served with proper
notice, to appear for that person’s deposition.”64 The sanctions available under Rule
37(d) “include any of the orders listed in Rule 37(b)(2)(A)(i)–(vi).”65 It is not necessary
for a party to violate a court order for Rule 37(d) to apply, “[i]t is enough that a notice of
the taking of a deposition . . . has been properly served on the party.”66 Where Rule
37(d) applies, courts use the Ehrenhaus factors to assess sanctions for a party’s failure
to attend a properly noticed deposition.67
62 (Id. at 12.)
63 (Id. at 10–12.)
64 Fed. R. Civ. P. 37(d)(1)(A)(i).
65 Fed. R. Civ. P. 37(d)(3).
66 8B Wright & Miller’s Federal Practice & Procedure § 2291 (3d ed. 2025); see also
Patton v. Sparks, No. 23-3096, 2024 U.S. Dist. LEXIS 8420, at *16 (D. Kan. Jan. 17,
2024) (unpublished) (“Unlike Rule 37(b)(2), Rule 37(d) does not require a court order as
a prerequisite for sanctions.”).
67 See, e.g., Patton, 2024 U.S. Dist. LEXIS 8420, at *18–25.
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Sanctions are unjustified under Rule 37(d) because the rule does not apply and
the Ehrenhaus factors weigh against imposing sanctions. First and foremost, the
Garners have not shown Rule 37(d) applies here. Rule 37(d) calls for sanctions if a
party or a party’s officer, director, or managing agent fails to appear for a deposition
after proper notice. But Mr. Poppleton is not Cincinnati’s corporate designee—or its
officer, director, or managing agent. Relying on PrecisionFlow Technologies, Inc. v.
CVD Equipment Corporation,68 the Garners contend Rule 37(d)(1)(A)(i) applies “even
when the party’s employee is not an officer, director, or managing agent, when a party
assumes responsibility for the attendance of one of their employees as a witness at a
deposition.”69 But in PrecisionFlow, the Northern District of New York found the party
employed the deponents at the time they failed to appear, and the deponents had
actively worked with the party’s counsel to prepare for the depositions.70 In contrast,
Mr. Poppleton resigned in March, was no longer Cincinnati’s employee, and never
worked with Cincinnati’s counsel to prepare for the deposition. Indeed, he did not
respond to counsel’s attempts to contact him until just before the deposition. The
Garners’ assertion that Rule 37(d) applies to Mr. Poppleton—a nonparty who was not
an employee of Cincinnati at the time of the scheduled deposition—is uncompelling and
unsupported.
68 198 F.R.D. 33 (N.D.N.Y. 2000).
69 (Mot., Doc. No. 55 at 11.)
70 PrecisionFlow, 198 F.R.D. at 34–35.
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Second, even assuming Rule 37(d) applied here, the Ehrenhaus factors do not
support sanctions against Cincinnati for Mr. Poppleton’s failure to appear at the April 17
deposition. While the Garners claim Cincinnati assumed responsibility for his
attendance, as of April 2, counsel warned the Garners he could not reach Mr. Poppleton
and believed Mr. Poppleton no longer worked for Cincinnati.71 And as of April 7,
counsel affirmatively advised the Garners they would need to subpoena Mr. Poppleton
directly, as he had resigned from the company and could not be reached.72 In other
words, at least as of April 7, Cincinnati no longer assumed responsibility for his
attendance. And, again, the Garners did not raise this issue during the discovery
period—when it could have been remedied. Accordingly, even if the Garners suffered
prejudice and even if Cincinnati bears some culpability for delayed notice that the
Garners needed to subpoena Mr. Poppleton directly, its interference with the judicial
process is minimal. In addition, the court never warned Cincinnati of potential sanctions
for failure to produce Mr. Poppleton for a deposition. And the Garners have not shown
lesser sanctions would be ineffective. For all these reasons, the sanctions requested
are not justified under Rule 37(d).
71 (Ex. R to Mot. 1, Doc. No. 55-18.)
72 (Ex. L to Opp’n, Doc. No. 59-12.)
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CONCLUSION
The Garners’ motion73 for sanctions is denied. The Garners have not shown the
requested sanctions—striking Cincinnati’s answer or defense, denying its motion for
summary judgment, or giving an adverse inference instruction to the jury—are justified.
This is particularly true where Cincinnati did not violate any discovery orders, the court
never warned Cincinnati of possible sanctions for noncompliance, and the Garners did
not show Rule 37(d) applies.
DATED this 4th day of November, 2025.
BY THE COURT:
_____________________________
Daphne A. Oberg
United States Magistrate Judge
73 (Doc. No. 55.)
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