Andrews v. Bradshaw

OPINION BRYNER, Justice Pro Tern. I. INTRODUCTION Everett L. Andrews and Moneymaker/Hub City Construction Co., Inc., appeal the superior court’s order precluding Andrews’ testimony at trial based on a violation of the court’s underlying order directing their counsel to make Andrews available for a deposition during the two weeks preceding trial. We reverse the superior court’s order and remand the case for further proceedings consistent with this opinion. II. FACTS AND PROCEEDINGS In December 1990 William Bradshaw filed suit against Everett Andrews and Moneymaker/Hub City Construction, Inc., (hereinafter Andrews/Moneymaker) for breach of contract, arising out of services that Bradshaw performed for Andrews/Moneymaker. The pretrial order required that the parties file witness lists by September 11, 1992. On September 11, 1992, Andrews/Moneymaker timely filed its witness list, naming Andrews as a witness. Andrews/Moneymaker’s counsel, Thomas Wiekwire, alleges that on the same day, it served a copy of the witness list on opposing counsel. Bradshaw’s counsel, Gary Foster, submits that he never received a copy of this witness list, and thus canceled his scheduled deposition of Andrews, allegedly presuming that Andrews/Moneymaker did not intend to call any witnesses. Upon discovering that Andrews/Moneymaker did, in fact, file a witness list, Foster faxed a letter to Wiekwire, informing him that Foster had not received the witness list. Foster indicated that he did not intend to make a motion regarding delinquent receipt of the witness list, provided that he be permitted to take Andrews’ deposition and that Wiekwire provide him with a short statement of the proposed testimony of two other named witnesses. Wiekwire refused to comply with Foster’s requests, claiming that the process server delivered the witness list to Foster’s office and that Wiekwire was not accountable for any mistake in delivery beyond the reception desk. At the November 6, 1992 pretrial conference, Bradshaw requested that the court preclude Andrews/Moneymaker from presenting any witnesses due to the delinquent receipt of the witness list. The court, Judge Mary E. Greene presiding, found that although it was unclear who was at fault, a mistake had occurred somewhere in the delivery process and that Bradshaw had been prejudiced as a result. Judge Greene decided not to preclude testimony of the witnesses on the condition that Andrews/Moneymaker’s counsel provide Bradshaw’s counsel with statements [975] of two named witnesses’ proposed testimony and arrange for Andrews to be available for a deposition during one of the two weekends before trial was scheduled to begin on November 16 before Judge Martha Beckwith. Wickwire expressed reservations as to Andrews’ availability for a deposition, disclosing that Andrews was out of town, transporting his ailing father from Pennsylvania to Alaska. In response to counsel’s qualms, Judge Greene stated that counsel could make Andrews available telephonically, adding that, if counsel failed to make Andrews available, “He isn’t gonna testify.” On November 17, one day before trial actually commenced,1 Wickwire faxed a letter to Foster which, in accordance with Judge Greene’s order, provided the anticipated testimony of the two named witnesses. In the letter, Wickwire proposed to arrange to have Andrews available for a telephonic interview at some point during the trial. Later the same day, Wickwire also offered Foster the opportunity to take Andrews’ deposition that evening. Foster rejected the proposal and informed Wickwire that he planned to object to the calling of Andrews as a witness at trial. On November 18 before selection of the jury, Wickwire requested that Judge Beck-with rule on whether the court would permit Andrews to testify. Judge Beckwith reasoned that because Judge Greene’s pretrial order expressly conditioned the admissibility of Andrews’ testimony on his counsel’s making him available for a telephonic deposition prior to trial, and his counsel failed to schedule such a deposition, Andrews would not be permitted to testify. The jury returned a verdict for Bradshaw. This appeal followed. III. DISCUSSION Andrews/Moneymaker appeals both the court’s order directing their counsel to make Andrews available for a deposition during the two weeks preceding trial and the court’s decision to preclude Andrews’ testimony upon failure to comply with the order.2 A. The Deposition Order Judge Greene ordered Andrews/Moneymaker’s counsel to make Andrews available for a deposition on a weekend prior to commencement of trial because she found that Bradshaw’s counsel had not received a copy of the witness list filed by Andrews/Moneymaker. Andrews/Moneymaker argues that because Andrews is a party, his name did not have to appear on a witness list. Andrews/Moneymaker further argues that upon receiving no witness list, Bradshaw’s counsel should have reasonably presumed that a mistake had occurred, given that Andrews/Moneymaker’s case management memorandum stated that they intended to call approximately six witnesses, and should not have canceled Andrews’ scheduled deposition. Therefore, Andrews/Moneymaker argues that the superior court abused its discretion by ordering its counsel to make Andrews available for a deposition prior to trial. Andrews/Moneymaker’s argument is without merit. Whether Bradshaw’s counsel should have reasonably presumed that Andrews was going to testify is not the issue. The issue is whether the court abused its discretion in ordering the deposition. Judge Greene found that regardless of fault, Bradshaw’s counsel did not see the witness list and was prejudiced as a result.3 Judge Greene attempted to strike a balance that [976] would accommodate both parties and enable them to proceed to trial as scheduled. In allowing the deposition to be conducted tele-phonically, the court considered Andrews’ predicament of being “on the road” and fashioned its order accordingly. We conclude that the court did not abuse its discretion in ordering Andrews/Moneymaker’s counsel to make Andrews available for a telephonic deposition prior to trial. B. Preclusion Order Andrews/Moneymaker argues that Judge Beckwith abused her discretion in precluding Andrews’ testimony for failing to comply with the court’s order requiring that he be available for a deposition. Judge Greene ordered Andrews/Moneymaker’s counsel to “make [Andrews] available for a deposition” on one of the two weekends preceding trial. She stated to counsel, “You can make him available tele-phonically, and if Mr. Foster wants to take it on one of these two weekends that are between now and the time of trial, that’s fíne, he can do so.” When Andrews/Moneymaker’s counsel disclosed that the matter had slipped his mind and that the deposition had not been arranged, Judge Beckwith responded by precluding Andrews from testifying: I find that you did violate the spirit of Judge Greene’s order, whether intentional or not, and that the sanction for that is preclusion of Mr. Andrews testifying, and that was Judge Greene’s clear statement at the time. In our view, the trial court abused its discretion by ordering preclusion based solely on Judge Greene’s prior warning, and without any independent determination of the reasonableness of preclusion under the totality of the circumstances that existed at the time the sanctions were ordered. Although the forgetfulness of Andrews/Moneymaker’s counsel would hardly seem to constitute excusable neglect, it is apparent, considering the totality of the circumstances, that Bradshaw’s counsel likewise failed to conduct himself in a manner comporting with “the spirit of Judge Greene’s order.” Judge Greene’s original order requiring Andrews’ deposition to be held on one of the two weekends prior to trial plainly contemplated the cooperation of both counsel in the scheduling and taking of the deposition. Although the deposing party would ordinarily be required to take the initiative in arranging a deposition, given the limited time remaining, Bradshaw’s counsel obviously would have been unable to depose Andrews without the assistance of Andrews/Moneymaker’s counsel. Thus, as we have already indicated, it was appropriate for Judge Greene to order Andrews/Moneymaker’s counsel to cooperate in the holding of Andrews’ deposition, and the judge plainly intended to order such cooperation. On the other hand, however, it is difficult to construe Judge Greene’s order as one that required Andrews/Moneymaker’s counsel to bear the entire burden of arranging the deposition. The record gives no indication that Judge Greene meant to shift full responsibility for Andrews’ deposition to Andrews/Moneymaker. Judge Greene had no apparent reason to force Andrews/Moneymaker to bear the full responsibility for the deposition. While such an order might have made sense as a sanction for dilatory conduct on Andrews/Moneymaker’s part, Judge Greene had not found either party at fault for the failure to arrange a timely deposition. Nor does a common sense reading of Judge Greene’s admonition requiring Andrews/Moneymaker’s counsel to “make [Andrews] available” suggest that the court expected one party to bear the responsibility for the deposition. Rather, the wording of admonition implies that the court expected that counsel for both parties would agree on a mutually acceptable time and date for the deposition, that Bradshaw’s counsel would make the usual arrangements for the deposition to be held, and that Andrews/Moneymaker’s counsel would then “make [Andrews] available” by ensuring his appearance on short notice, either tele-phonically or in person. Although Andrews/Moneymaker’s counsel failed to notify Bradshaw’s counsel regarding a specific time to depose Andrews, Brad977 Shaw’s counsel similarly failed to take any steps toward taking the deposition, evidently contenting himself with allowing the two weekends remaining before trial to pass without inquiring of opposing counsel or notifying the court. Because Judge Greene’s order realistically charged counsel for both parties with mutual responsibility for taking Andrews’ deposition, the parties were mutually responsible for the failure to arrange for the deposition to be taken. In entering the preclusion order, Judge Beckwith did not reject Andrews/Moneymaker’s counsel’s explanation or determine whether Andrews/Moneymaker’s counsel acted willfully;4 the judge similarly made no effort to independently evaluate the reasonableness of Bradshaw’s conduct under the circumstances, and failed to explore the suitability of alternative sanctions. Instead, Judge Beckwith simply accepted and enforced Judge Greene’s previous warning that Andrews would not be permitted to testify if he were not made available for a deposition. By precluding Andrews from testifying, the trial court imposed severe sanctions for the unexcused inaction of Andrews/Moneymaker’s counsel. In the process, however, the court allowed Bradshaw to reap a windfall benefit from his own counsel’s equally unjustified — and evidently tactical — inaction. The discovery process is meant to promote the search for truth, not to reward gamesmanship.5 Considering the totality of the circumstances, we conclude that the trial court abused its discretion in precluding Andrews from testifying. IV. CONCLUSION For the foregoing reasons, we REVERSE the superior court’s order precluding Andrews from testifying at trial, and REMAND for further proceedings consistent with this opinion. COMPTON, J., dissents in part. Footnotes [1] Due to a conflict with another trial in which Andrews/Moneymaker’s counsel was involved, the trial was postponed two days until November 18, 1992. [2] We review discovery sanctions for abuse of discretion. Underwriters at Lloyd's London v. The Narrows, 846 P.2d 118, 119 (Alaska 1993); Rohweder v. Fleetwood Homes of Oregon, Inc., 767 P.2d 187, 190 (Alaska 1989). "We will reverse a ruling for abuse of discretion only when left with a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling.” Betz v. Chena Hot Springs Group, 742 P.2d 1346, 1348 (Alaska 1987). [3] Based on Foster’s statements that he never received the witness list, Judge Greene’s factual determinations were not clearly erroneous. Cf. Parker v. Northern Mixing Co., 756 P.2d 881, 892 (Alaska 1988) (”[I]t is the function of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting evidence."). [4] Because we reverse the trial court's sanction, we do not need to address whether the preclusion order amounted to an issue establishment sanction. [5] Cf. City of Valdez v. Salomon, 637 P.2d 298, 299 (Alaska 1981) (holding that trial court abused its discretion in granting default judgment to a party whose counsel employed inaction as a tactical tool, after tacitly leading opposing counsel to believe that action was not necessary.)