Here's teh text of a Federal Judge's granting a Motion
for Sanctions against Debbie Frisch, released today.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DEBORAH ELLEN FRISCH,
CITY OF EUGENE, et.al.,
Before the court is defendants' Motion for Imposition ofSanctions
(dkt. # 14 7) filed on April 26,2010. Because Ms. Frisch failed to
appear at her properly noticed April 15, 2010 deposition, defendants
ask the court to impose the following sanctions: (I) require Ms. Frisch
to pay $515 to partially cover defendants' costs and attomeys fees;
(2) prohibit Ms. Frisch from opposing any of defendants' facts in support
of their upcOlning summary judgment motion with her own statements;
and (3) prohibit Ms. Frisch from supporting any facts in her own
summary judgment motion with her own statements. (Dkt. #147). Ms.
Frisch filed a response opposing the motion for sanctions (dkt. #161) on
May 9, 2010. I grant defendants' motion in part and deny in part.
Ms. Frisch agreed to be deposed on April 15, 2010....Defendants' counsel
[REDACTED] properly noticed Ms. Frisch's deposition.... Ms. Frisch sent
[REDACTED] emails indicating her reluctance to be deposed by
[REDACTED]. (ld., Ex. 3). In response, [REDACTED] sent Ms. Frisch
a letter stating that her noticed deposition would go forward on April
15, 2010 and cautioning her that he intended to seek sanctions if
she failed to appear. Ms. Frisch did not appear for her deposition.
Under FRCP 37(d), if a party fails to appear at her deposition, the
court may impose any of the sanctions authorized under
FRCP 37(b)(2)(A), (B), and (C). A court may prohibit a party
from introducing evidence and may require the party failing to
appear to pay reasonable expenses (including attomeys fees)
caused by the failure. FRCP 37(d)(3) and (b)(2)(A)(ii); see also,
Navellier v. Sletten, 262 F.3d 923, 947 (9th Cir. 2001) (prohibiting
introduction of evidence is reasonable sanction so long as what is
prohibited bears a reasonable relationship to the discovery frustrated
by failure to appear at the deposition. Sanctions for failure to appear
at a deposition may be imposed even absent a prior court order.
Henry v. Gilllndus, Inc 983 F.2d 943, 947 (9th Cir.1993) (repeated
cancellations at the last minute constitute a firilure to appear).
Moreover, there is no need to fmd that the failure to attend was
"willful." Lew v. Kona Hospital, 754 F.2d 1420, 1427 (9th Cir.1985)
("Even a negligent failure to allow reasonable discovery may be
Defendants' motion for sanctions is well taken. An essential part
defendants' discovery in this litigation is taking Ms. Frisch's
deposition. By failing to appear at her deposition, Ms. Frisch has
prevented the defense from using this tooi to gather evidence.
The record establishes that Ms. Frisch wilfully failed
to appear at her deposition, despite being properly
noticed and warned, by letter, that defendants would
seek sanctions if she failed to appear.
Ms. Frisch argues that the deposition notice, which was mailed
March 19,2010, was not valid because it noticed a deposition date
which was past the discovery deadline which was in effect on
March 19,2010... This argument is not persuasive. On March 23,
2010, I granted an unopposed motion to extend the discovery date
to April 16,2010. (Dkt. #142). Moreover, if Ms. Frisch was confused
about the validity of the deposition notice, she had ampie time to
address that concern instead of simply not appearing at her deposition.
I grant defendants' motion for sanctions in part. I find that under
the circumstances it is reasonable to order Ms. Frisch to reimburse
defendants for the costs they incurred for the court reporter's
appearance ($75) and to prohibit Ms. Frisch from using her own
statements as evidence in dispositive motions.
Ms. Frisch shall pay defendants $75, which was the cost of the court
reporter's appearance.... Ms. Frisch shall not use her own statements
as evidence in dispositive motions. Ms. Frisch is prohibited from
controverting any of defendants' facts in support of their motion
for summary judgment with evidence in the fom10fher own
statements. The court shall disregard any supporting facts in the
form of Ms. Frisch's own statements which are included in Ms. Frisch's
recently filed partial motion for summary judgment (dkt. #144) or
motion for summary judgment (dkt. # 170).
Defendants' response to Ms. Frisch's partial motion for summary
judgment and defendants' motion for summary judgment shall be
filed within fourteen days of the date this order is filed.
A blog devoted to reminding Deb Frisch that, even if she takes down her libelous and harassing posts, the evidence has been screencapped...and forwarded to appropriate authorities...[email@example.com firstname.lastname@example.org or email@example.com]
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