| Lee Allen Martin Plaintiff, VS. DEPARTMENT OF REVENUE, et al., Defendants. | ) ) ) ) ) ) | CASE #01CV324209 |
Statement of Facts
1. Defendants filed a Notice of Deposition, stating their intent to take Martin's deposition in Springfield on May 21, 2002. The notice was served on Martin by mail.
2. Martin filed a motion to quash the Notice of Deposition, and his motion was noticed up and heard by this Court on May 20, 2002.
3. Martin's Motion to Quash was denied by this Court on May 20, 2002, and Martin was ordered to give his deposition that was scheduled for the next day.
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4. Counsel for Defendants, Martin and the Court Reporter, Debbi Sonntag, appeared at the designated time and place.
5. Martin stated he wanted to question the Court Reporter, however Counsel for the Defendant stated he wanted all of Martin's questions on the record.
6. The Court Reporter stated that she could not answer Martin's questions and make the record at the same time.
7. Martin proceeded to question the ethics of the Court Reporter and verbally abuse her to such an extent that she burst into tears and was unable to continue, and refused to proceed. (See: Statement of Debbi Sonntag, Attached as Exhibit 1; See; Transcript of the Deposition, Attached as Exhibit 2).
8. Martin refused to be sworn in by the Court Reporter. (Exhibit 1 and 2).
9. Martin was instructed by Counsel for Defendants to agree to cooperate with the deposition, or because of his verbal abuse and questioning of the Court Reporter's ethics, the deposition would be ended and sanctions would be sought. (Exhibit 2, p.4)
10. Martin refused to state that he would cooperate with the deposition.
11. The deposition ended at this point.
Request for Sanctions
The imposition of sanctions against a party for failure to participate in discovery, including an order denying a party the right to cross-examine witnesses or present evidence, is a matter within the trial court's discretion. Edison ex rel. Webster V. Edison,
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7 S.W.3d 495, 499 (Mo.App.W.D. 1999); Kohn by Curtis V Kohn, 672 S.W.2d 174, 176 (Mo.App.E.D. 1984). "Rules 61.01(b) and (d) expressly authorize striking pleadings and the entry of judgment [by default] as permissible sanctions for failure..." to provide discovery. Edison, at 499.
Martin was ordered by the Court on May 20, 2002, to have his deposition taken on May 21, 2002. Martin willfully refused to allow his deposition to be taken by refusing to take the oath, verbally abusing and questioning the ethics of the Court Reporter. After rendering the Court Reporter in tears, the Court Reporter stated she was unable to continue with the deposition. Martin's actions constitute willful refusal to have his deposition taken, willful refusal to cooperate with discovery, and is a direct violation of this Court's order.
Defendants request that sanctions against Martin be ordered by this Court, such sanctions to include costs and attorney fees, dismissal of Martin's petition, refusal to allow Martin to testify or present evidence, refusal to allow Martin to cross-examine witnesses, and any other relief to which Defendants may be entitled. In the alternative, Defendant's request that this Court order Martin to have his deposition taken at the Cole County Courthouse, with Martin to pay all fees and expenses of the Court, Defendants and the Court Reporter.
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WHEREFORE, Defendants respectfully request this Court to grant it sanctions for Martin's willful failure to comply with this Court's order and for willful failure to provide discovery.
Respectfully submitted,
JEREMIAH W. (JAY) NIXON
Attorny General
Keith D. Halcomb
Missouri Bar No.43941
Assistant Attorneys General
Earl D. Krause
Missouri Bar No.51157
Assistant Attorney General
P.O. Box 899
Jefferson City, Missouri 65102-0899
(573) 751-3321
ATTORNEYS FOR DEFENDANTS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was mailed, postage prepaid, this 14 day of June, 2002, to:
Lcc Allen Martin
7050 County Road 2810
West Plains, MO 65775
Keith D. Ha1comb
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