Opinion: Paycom Payroll v. Boodoosingh, 2021 OK CIV APP 43
Subject matter: Discovery
Date Decided: May 13, 2021; Mandate Issued: November 3, 2021
Trial Court: District Court of Oklahoma County; Judge Truong
Route to this Court: Appeal from interlocutory order of trial court; Assigned to OCOCA, Division II
Facts: The underlying case involves the Plaintiff’s claims against a former employee for alleged violation of certain provisions of Defendant’s employment agreement with Plaintiff. During discovery, the Plaintiff noticed the Defendant, a resident of New York City, for a deposition in Oklahoma City some eighteen days hence.The day before the deposition date stated in the notice, the Defendant’s counsel informed the Plaintiff’s counsel that the Defendant was unavailable on the noticed date, citing various reasons including Defendant’s work schedule, pending nuptials, and the high cost of short-notice air travel. The parties were unable to agree on a mutually acceptable alternative date for the deposition and the Defendant filed a motion for a protective order pursuant to 12 O.S. § 3226(C) to preclude Defendant’s deposition as noticed. After a hearing some two months later (COVID-19 complicated scheduling), the trial court denied the Defendant’s motion for protective order and ordered the Defendant to appear personally in Oklahoma City for a deposition prior to a certain date. The trial court also granted Plaintiff “all reasonable fees and costs incurred in having to respond to this Motion.” Following the taking of the deposition, the Plaintiff filed a motion requesting fees of $7,290 pursuant to 12 O.S. § 3226.1(B) and the trial court’s inherent authority. The trial court granted the Plaintiff’s request for attorneys’ fees in the amount of  $7,290. The Defendant appealed. 
Standard of Review: The correctness of the trial court’s imposition of sanctions is reviewed under the abuse of discretion standard. To reverse for abuse of discretion, the appellate court must determine the trial judge made a clearly erroneous conclusion and judgment, against reason and evidence. However, because statutory construction is involved, the correct standard of review is de novo.
Analysis: The trial court’s order granting sanctions in the form of a money judgment against Defendant directing the payment of money pendente lite  (“during litigation”) constitutes an interlocutory order appealable by right pursuant to 12 O.S. Supp. § 2020 993(A)(5). 
In order to determine whether Defendant’s motion for protective order was substantially justified “or that other circumstances make an award of expenses unjust,” (quoting the applicable statute) the court carefully reviewed all the court filings and communications leading up to the filing of the protective order motion (which included a number of emails between counsel). “We discern an untoward lack of civility by both lawyers in trying to schedule/reschedule Defendant’s March 4th deposition. For example, Plaintiff’s counsel did not attempt to reach a mutually agreeable date, time and place with Defense counsel in scheduling Defendant’s deposition. Initially extending such professional courtesy would have avoided most, if not all, of this unpleasantness…Defense counsel’s lack of professional courtesy compounded the error by failing to notify Plaintiff’s counsel of his client’s unavailability until the day before the deposition.” 
The lack of civility and professional courtesy exhibited by both sides made an award of expenses unjust. To award fees under these circumstances constituted a clear abuse of discretion. 
Outcome: Reversed.
Vote: Wiseman, P.J. (author), Barnes, J. and Rapp, J. (sitting by designation), concur. 
Other:  No cert. petition filed. This is a 2017 case that does not appear to have proceeded past discovery when the dispute over the deposition of Defendant broke out in March 2020.