Illinois Central Railroad Company v. Bertha Lee Winters

IN THE SUPREME COURT OF MISSISSIPPI

NO. 1999-CA-01387-SCT

ILLINOIS CENTRAL RAILROAD COMPANY, HERBERT BENNETT AND J. R. WRIGHT
v.
BERTHA LEE WINTERS, DEMETRIUS HAWKINS, LUCIOUS ROBINSON,
INDIVIDUALLY, AND AS FATHER AND NEXT FRIEND OF SHUNTAI ROBINSON,
SHERITA ROBINSON AND JUANITA ROBINSON, MINORS, KEVIN MABRY, TIBITHAL
O. SELDERS, ALVIN P. HAYMER, DENNIS HAYMER, IRA HAYMER, MILLER HAYMER,
ANNETTE HAYMER FORT, LARRY HAYMER, STEPHANIE HAYMER PERKINS, AND
ALVIN P. HAYMER, JR.

DATE OF JUDGMENT: 8/2/1999
TRIAL JUDGE: HON. JANNIE M. LEWIS
COURT FROM WHICH HOLMES COUNTY CIRCUIT COURT
APPEALED:
ATTORNEYS FOR GLENN F. BECKHAM
APPELLANTS:
CHRISTOPHER WAYNE WINTER

EDWARD BLACKMON, JR.
ATTORNEYS FOR PAT M. BARRETT, JR.
APPELLEES:
ROBERT GEORGE CLARK, III

ISAAC K. BYRD, JR.
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN
PART-04/25/2002
MOTION FOR REHEARING
FILED:
MANDATE ISSUED: 5/16/2002

EN BANC.

COBB, JUSTICE, FOR THE COURT:

¶1. In September of 1994, a train owned by Illinois Central Railroad Company collided with a car in
Holmes County, Mississippi, resulting in the death of three persons. The following year, numerous plaintiffs
(the heirs) initiated, inter alia, a wrongful death action in the Circuit Court of Holmes County against Illinois
Central and its engineer and conductor, Herbert Bennett and J. R. Wright.

¶2. This appeal concerns a contempt judgment and sanctions, including the assessment of attorney's fees
and expenses, entered against Illinois Central for disobeying a court order to produce certain high-level
corporate officers (the executives) for depositions. The heirs' underlying action for wrongful death against
Illinois Central was tried in September of 2000, and the heirs won a multi-million dollar verdict. That verdict
is not a part of this appeal.

¶3. Aggrieved by the contempt judgment and sanctions, Illinois Central appeals,(1) asserting that the circuit
court either erred or abused its discretion in the following actions (edited for clarity and brevity):

I. DENYING MOTION FOR PROTECTIVE ORDER.

II. ORDERING THE JULY 12 & 14 DEPOSITIONS TO GO FORWARD.

III. ALLOWING DEPOSITIONS FOR PARTIES WHO HAD NOT BEEN SUBPOENAED
AND WHO WERE HIGH LEVEL CORPORATE OFFICERS.

IV. FINDING ILLINOIS CENTRAL IN CONTEMPT.

V. ORDERING EXCESSIVE MONETARY SANCTIONS.

¶4. We conclude that the circuit court abused its discretion in denying Illinois Central's motion for protective
order and ordering the depositions to go forward. But we further conclude that the circuit court did not
abuse its discretion in finding Illinois Central in civil contempt. However, because the circuit court erred in
awarding expenses in excess of what is permitted under Miss. R. Civ. P. 37, we reverse and remand so the
court can reduce the award of fees and expenses to include only that amount which was actually caused by
Illinois Central's failure to produce the executives and attend the July 12 and 14 depositions.

FACTS

¶5. After the heirs' complaint was filed in 1995, the parties proceeded with discovery and other pre-trial
proceedings for almost a year. Then in April 1996, the circuit court entered an order staying discovery
pending the completion of parallel proceedings in chancery court to determine the identities of the heirs at
law and wrongful death beneficiaries. The stay was subsequently lifted in October 1998, and discovery
resumed. In March 1999, after a hearing, the circuit court determined the discovery deadline would be July
1, 1999, and could only be extended by permission of the court with a showing of "good cause."

¶6. One week prior to the discovery deadline, on June 23, 1999, the heirs filed a notice to depose six
executives on June 29, in Jackson, Mississippi, and seven executives on July 1, in Chicago, Illinois. The
heirs also filed a motion to extend the deposition deadline. The heirs claimed that they had discovered the
identities of various individuals employed by Illinois Central who had held critical positions with the
company at the time of the accident. They claimed they did not discover this information until June 15,
1999, while conducting a Miss. R. Civ. P. 30(b)(6) deposition of one of Illinois Central's employees.

¶7. On June 28, Illinois Central filed a motion for protective order, response in opposition to the heirs'
motion to extend discovery, and motion for time to file a complete response and brief. That same day
around 5 p.m., via a conference call between the parties and the court, the circuit court extended the
discovery deadline to July 21, and told Illinois Central to get any motions that it had to the court before that
deadline. Also on June 28, the heirs renoticed twelve of the thirteen previously noticed executives: six of
them for Monday, July 12, in Chicago and six of them for Wednesday, July 14, in Jackson. On July 7, the
circuit court, by order, set the hearing on Illinois Central's motion for protective order and motion to
reconsider extending discovery, for August 25, 1999 (more than a month after the dates noticed by the
heirs for depositions in Jackson and Chicago).

¶8. On Friday, July 9, without benefit of the scheduled hearing on the motions, the circuit court denied
Illinois Central's motion for protective order and ordered the depositions to go forward as noticed the
following week. The next day, Saturday, Illinois Central notified the heirs by fax that their attorneys, "will
not be in Chicago on Monday or Jackson on Wednesday, and the Plaintiffs should not incur any expense in
making that trip." The heirs did not heed this advice and showed up for both depositions as scheduled. On
Monday, July 12, Illinois Central filed a motion for reconsideration of denial of the protective order. Four
days later, the heirs filed a motion to compel discovery and for sanctions.

¶9. The trial court heard both Illinois Central's motion for reconsideration, and the heirs' motion to compel
and for sanctions, on August 2, 1999. The court found Illinois Central in contempt of court for disobeying
the court's July 9th order, and ordered sanctions, including the assessment of attorney's fees and expenses
related to the depositions which Illinois did not attend on July 12 and 14. The circuit court also granted the
heirs' motion to compel and ordered Illinois Central to pay all costs associated with the rescheduled
depositions. These rescheduled depositions were conducted in August and September, at times and places
mutually agreed to by the parties.

¶10. On August 9, Illinois Central filed a petition for writ of mandamus with this Court, asking: to stay all
proceedings pending Supreme Court review of the contempt appeal; to remove the circuit court judge from
the case; and to prohibit the remaining depositions. The circuit court filed a response. Illinois Central then
filed a motion to correct the factual inaccuracies contained in the circuit court's response to the petition. This
Court denied Illinois Central's petition for mandamus on September 29, 1999.

¶11. The heirs subsequently submitted itemized fee and expense records, for both the scheduled depositions
that Illinois Central did not attend and the rescheduled depositions. The total award of fees and expenses
assessed against Illinois Central by the circuit court came to over $47,000, plus interest. This award was
made directly to the two law firms representing the heirs. The Byrd law firm was awarded $19,398.15, and
the Barrett law firm was awarded $28,109.11.

STANDARD OF REVIEW

¶12. "In regard to matters relating to discovery, the trial court has considerable discretion. The discovery
orders of the trial court will not be disturbed unless there has been an abuse of discretion." Dawkins v.
Redd Pest Control, Inc., 607 So.2d 1232, 1235 (Miss. 1992).

DISCUSSION

¶13. Since Illinois Central's first two assignments of error are related, we will discuss them in concert.

I. DENYING MOTION FOR PROTECTIVE ORDER.

II. ORDERING THE JULY 12 & 14 DEPOSITIONS TO GO FORWARD.

¶14. Illinois Central contends that there was an egregious abuse of the discovery process, in that the heirs
had only deposed two Illinois Central employees in the previous twenty-one months of discovery, prior to
noticing the thirteen executives one week before the discovery deadline. Illinois Central argues that the
circuit court abused its discretion in denying its motion for a protective order under Rule 26(d). Illinois
Central further argues that the circuit court abused its discretion by ignoring the "voluminous logistics" of
preparing for six different depositions on one day in Chicago, then two days later, preparing for six more
depositions in Jackson.

¶15. We have on many occasions followed the reasoning of federal courts in interpreting the Federal Rules
of Civil Procedure where the rules implicated are identical to our rules, and where this Court has not dealt
with the specific issue raised. "It is well known that our Mississippi Rules of Civil Procedure were copied
from the Federal Rules of Civil Procedure, and we construe ours as the Federal courts construe the federal
rules." Nichols v. Tubb, 609 So.2d 377, 383 (Miss. 1992).

¶16. In Dawkins v. Redd Pest Control, Inc., we stated the following with regard to discovery:

(d) while the importance of the information must be weighed against the hardships and cost
of production and its availability through other means, it is preferable for the court to impose
partial limitations on discovery rather than an outright denial. Any record which indicates a failure to
give adequate consideration to these concepts is subject to the attack of abuse of discretion,
regardless of the fact that the order shows no such abuse on its face.

Dawkins, 607 So.2d at 1236 (citing 23 Am.Jur. 2d, Depositions and Discovery, § 5 (1983))(emphasis
added).

¶17. Pursuant to the Mississippi Rules of Civil Procedure: "A party desiring to take the deposition of any
person upon oral examination shall give reasonable notice in writing to every other party to the action."
Miss. R. Civ. P. 30(b)(1)(emphasis added).(2) Unfortunately, the rules fail to give any guidance as to what is
reasonable, neither does it appear that this Court has specifically addressed this issue. Fortunately, federal
courts interpreting the federal rules have given some insights as to what is, and is not, reasonable notice. In
Hart v. United States, 772 F.2d 285, 286 (6th Cir. 1985), the Sixth Circuit stated: "The rules do not
require any particular number of days, so that reasonableness may depend on the particular circumstances."

¶18. In C&F Packing Co., v. Doskocil Cos., Inc, 126 F.R.D. 662, 678 (N.D. Ill. 1989), the district
court held that the party seeking deposition failed to give reasonable notice to opposing counsel. In that
case, there was a factual dispute as to how much notice the deponent had, but it appeared to be either a
couple of days or only a few hours. Id. The court held: "Under these circumstances, the only reasonable
notice would have consisted of both written notice and oral notice accompanied by a good faith effort to
schedule the deposition at a mutually convenient time." Id. (emphasis added). As another district court
has said:

It is an accepted practice ... for attorneys to make an effort to agree among themselves on the
arrangements for the taking of depositions before resorting to the giving of formal notice. This enables
them to make arrangements that will suit the convenience of all interested parties. It is a very
commendable procedure and one that should be encouraged.

Warning Lites Co. v. Leggitt, 32 F.R.D. 431, 433 (W.D. Tex. 1963).

¶19. In Lloyd v. Cessna Aircraft Co., 430 F. Supp. 25, 26 (E.D. Tenn. 1976), a district court in
Tennessee quashed depositions for which the defendant had served notice on attorneys in Chattanooga,
Tennessee and Washington, D.C. just before the start of the Memorial Day weekend, even though the
depositions were to be taken the following Tuesday in Los Angeles, California. The district court held that
giving only two working days notice was patently unreasonable in absence of any special need for haste. Id.
The court further ordered the parties to engage "in a telephone conference and undertake to agree orally
upon a reasonable time for the taking of the depositions heretofore noticed." Id. See also Federal
Aviation Admin. v. Landy, 705 F.2d 624, 634-35 (2d Cir. 1983)(in which the court approved four
days' notice for an out-of-town deposition); Radio Corp. of America v. Rauland Corp., 21 F.R.D. 113,
115 (N.D. Ill. 1957)(in which the court approved written notice one day in advance for a deposition in
Oslo, Norway, where both counsel were already in Oslo). But see Mims v. Central Mfrs. Mut. Ins. Co.,
178 F.2d 56 (5th Cir. 1949)(holding that where on October 2, the party noticed the taking of 15
depositions on October 6, 1948, and one in New York on October 9, 1948, of witnesses in Boston,
Chicago, San Francisco, St. Louis, Alliance, Ohio, Cincinnati, Baltimore, Philadelphia, Birmingham and
Dallas, it was not reasonable notice).

¶20. In the case sub judice, the first time the heirs noticed the depositions, they did so with only three
business days before the first six depositions would take place, and five business days before the next seven
depositions would take place. The second time the heirs noticed the depositions, they did so with only ten
business days before the first six depositions would take place, and twelve business days before the second
six depositions would take place. However, these ten and twelve business days included the Fourth of July
holiday break, so in effect, the notice was more like eight days. When the heirs noticed the depositions on
June 23, there is no indication in the record that they first consulted with Illinois Central in order to select
dates and places convenient to both parties. In their motion to extend deposition deadline for three weeks,
also filed June 23, it states, "it likely would be more convenient for all concerned to re-scheduled them at
some mutually convenient time within the three-week period immediately following the present deadline
of July 1st ." (emphasis added) There is no indication in the record that the heirs discussed a "mutually
convenient time" with Illinois Central before they renoticed the executives on June 28. However, the heirs
clearly offered to do so after they noticed the executives, as this following statement on the fax cover sheet
demonstrates:

Per directions by Judge Lewis, we have re-noticed the subject depositions for July 12 and July 14.
Should these dates cause any hardship to you or . . . [Illinois Central's] named employees, please let
us know promptly and we will be glad to consider any alternative dates you propose within the
framework set by Judge Lewis.

Illinois Central apparently did not respond to the heirs' offer to suggest alternative dates.

¶21. In their response to Illinois Central's motion for protective order, the heirs seem to reveal the real
motive for noticing so many depositions, so close together, with such short notice, at the end of the
discovery period:

The central reason for the absolute lather that the Defendants seemingly now find themselves is
revealed in the Conclusion to their brief: they aren't being allowed to "engage in preparation time" with
their witnesses before the depositions. Plaintiffs would simply remind the Court of what the Court
already knows from its own experience: spontaneous, unrehearsed testimony is more likely to contain
the real truth than is testimony of the drilled, practiced and parroted variety. Why do any of the
railroad's witnesses need to be "prepared"? Why can't they just be placed under oath and asked what
 they know about certain subjects before preparation?(3)

¶22. We find this discovery tactic employed by the heirs deplorable, not in keeping with the purpose of the
discovery rules, and an abuse of the discovery process. As this Court has said: "Rules of discovery are to
prevent trial by ambush." Nichols, 609 So.2d at 384. What the heirs apparently were attempting to do was
in effect, "deposition by ambush," and we condemn this practice.

¶23. In C&F Packing, the district court said, "counsel is entitled, when possible, to a date which does not
conflict with other obligations and to an opportunity to prepare for the deposition. (Indeed, it may have
been precisely a desire to prevent such preparation that created C & F's urgency.)" C&F Packing, 126
F.R.D. at 679 (emphasis added). It seems that the heirs had a similar desire to prevent such preparation.

¶24. In their motion to extend the deposition deadline, the heirs stated that they had just discovered the
identities of various individuals employed by Illinois Central who had held critical positions with the
company at the time of the accident. In its motion for protective order and motion to reconsider extension
of discovery, Illinois Central demonstrates this assertion by the heirs is either blatantly false or grossly
misleading. First, it must be remembered that discovery had already been conducted for a period of over
twenty-one months. Second, six of the executives noticed had been listed as persons with discoverable
knowledge in Illinois Central's answers to interrogatories, anywhere from eight months to three and one-half
years previously. Finally, the remaining six employees are either present or former chief corporate officers
of Illinois Central, and their identities, as is true for any corporate officer, are a matter of public record
which could have been easily learned at an earlier date through a minor investigation, or written discovery.
We agree that the most plausible explanation for the heirs deposing only two Illinois Central employees
during twenty-one months of discovery, then attempting to depose twelve or thirteen on the final week, was
a discovery tactic intended to not allow Illinois Central the time to properly prepare for the depositions.

¶25. As the previously cited federal cases indicate, in order to facilitate discovery, the court should use its
authority to stress the importance of, and encourage, the parties to find mutually convenient times to
conduct depositions. It is disputed whether the trial court attempted to get the parties to agree to schedule
the depositions at a mutually convenient time prior to ordering the depositions to go forward. In its response
to Illinois Central's petition for writ of mandamus, the circuit court stated:

The Defendants would not discuss an agreed time to extend the discovery deadline or schedule the
depositions when Judge Lewis requested the same from the parties in the telephone conversation on
June 28, 1999. . . . Judge Lewis' Order of July 9, 1999 was faxed to all parties at about 5:30 p.m. on
Friday evening. Judge Lewis did not receive any telephone messages, e-mail or fax concerning the
July 9, 1999 order on July 9, 10, 11, or 12th advising that Defendants could not physically conduct
the depositions and/or requesting additional time to schedule the depositions. Subsequently, two (2)
business days after the date in which the Defendants were to appear for depositions the Court
received a letter dated July 13, 1999 . . . and a motion to reconsider the July 9, 1999 Order.

¶26. Illinois Central argues that there are two significant inaccuracies in the preceding recitation of facts.
First, Illinois Central taped the telephone conference of June 28, and produced a transcript of the
conversation for the record. In that transcript there was no indication that Illinois Central was asked by the
circuit court to discuss the extension of discovery or the scheduling of the depositions. Second, Illinois
Central's motion for reconsideration of the July 9 order was dated July 12, 1999, and stamped by the clerk
of the court as filed on July 12, in the p.m, not July 13, as the trial judge had claimed. Incidently, Monday,
July 12, was the first day Illinois Central would have been able to file a motion for reconsideration, since the
order was not delivered until 5:30 p.m. on Friday, and of course, the courthouse is closed on the weekend.

¶27. We conclude that under the unique facts and circumstances of this case, notice was not reasonable. In
so concluding, we are not saying that notice of eight days is presumptively unreasonable. We could foresee
a situation where notice of less than one day, or a few hours, might be reasonable, because of exigent
circumstances. We are also not saying that noticing twelve deponents over a three-day period is
presumptively unreasonable. However, except under the most exceptional circumstances, and with the
agreement of both parties, scheduling six depositions, in a single day is not reasonable.

¶28. We conclude that under the facts of this case, where a party notices six deponents for one day, twice
in a three-day period, in cities 700 miles apart, with only eight days' notice, in the last week of a twenty-one
month discovery period, apparently with the purpose of catching the opposing party unprepared, then
notice is unreasonable.

¶29. As the rules of procedure state: "These rules shall be construed to secure the just, speedy, and
inexpensive determination of every action." Miss. R. Civ. P. 1. As the official comment explains:

There probably is no provision in these rules more important than this mandate: It reflects the spirit in
which the rules were conceived and written and in which they should be interpreted. The primary
purpose of procedural rules should be to promote the ends of justice; . . .[through] a simplified
procedure that minimizes technicalities and places considerable discretion in the trial judge for
construing the rules in a manner that will secure their objectives.

Miss. R. Civ. P. 1 cmt.

¶30. As the comment says, the primary purpose of the procedural rules is promote the ends of justice, and
the trial judge is given considerable discretion to effect this purpose. We are concerned as to whether
justice was promoted by extending discovery for three weeks, in this case, so the heirs could depose twelve
high-level Illinois Central executives, even though there was a dubious showing of good cause, and no
showing of excusable neglect. Even if we assume, for the sake of argument, that the heirs' failure to notice
the depositions of the executives until the last week of discovery was not merely a discovery tactic, it would
clearly be a lack of due diligence. The heirs knew or should have known the identity of these individuals at
least eight months prior. The heirs proffered "good cause" for extending discovery was, at the least, grossly
misleading.

¶31. We are further troubled that, on July 7, the trial court scheduled a hearing for August 25, for the
purpose of hearing Illinois Central's motion for protective order and motion to reconsider extending
discovery. Then two days later, on July 9, without benefit of the hearing, the judge denied the motions and
ordered the depositions to go forward the following week. The court's reasons for ruling on the matter,
without the benefit of a hearing, was the court's schedule and the scheduling of the depositions. We are also
concerned about the trial court issuing an order at 5:30 p.m. on Friday, after the courthouse is closed, that
was not appealable because Illinois Central would be in contempt before the court house reopened on
Monday. While we are cognizant of the fact that the trial date of October 4, 1999,(4) was near, it was the
heirs who requested an extension of discovery, either as a discovery tactic or from a lack of due diligence.
This would seem to warrant that Illinois Central should not be penalized because of the shortness of time,
because it was not the source of the time problem.
¶32. Under the circumstances discussed above, we conclude that the trial judge abused her discretion in
denying Illinois Central's motion for protective order and ordering the depositions to go forward. However,
that does not necessarily relieve Illinois Central of its duty to make a good-faith effort to comply with the
order. As this Court has explained:

The person who disobeys the order of a court of general jurisdiction does so at his peril. It is no
answer that the order was improvidently or erroneously granted. Griffith, Mississippi Chancery
Practice s 668 (2d ed. 1950). If a party could disobey a decree by a court of general jurisdiction, and
defend on the ground that in his opinion the decree was erroneous, appellees would be constitutionally
free to ignore all of the procedures of the law and respect for judicial process. Appellees could not
bypass orderly judicial review of the injunction by disobeying it.

Masonite Corp. v. International Woodworkers of America, 206 So.2d 171, 183 (Miss. 1967). See
also Maness v. Meyers, 419 U.S. 449, 458, 95 S.Ct. 584, 591, 42 L.Ed.2d 574 (1975)(holding that
orders of courts must be complied with promptly, and absent a stay, party who refuse to obey an order,
even if it is ultimately ruled incorrect, risk being held in contempt).

III. ALLOWING DEPOSITIONS FOR PARTIES WHO HAD NOT BEEN SUBPOENAED
AND WHO WERE HIGH LEVEL CORPORATE OFFICERS.

¶33. Illinois Central next argues that the circuit court erred in ordering that the depositions proceed because
the executives had not been subpoenaed, and the executives had no actual knowledge about the events
surrounding the accident.

A. Lack of Subpoena.

¶34. Illinois Central's argument appears to rely on the theory that a subpoena is required for all deponents
other than Rule 30(b)(6) deponents. Rule 30(b)(6) allows a party to name a private corporation as the
deponent, and in such a case, the corporation must designate one or more officers, directors, or managing
agents who are prepared to speak on behalf of the corporation as to specific matters reasonably specified
by the deposing party. Miss. R. Civ. P. 30(b)(6).

¶35. Illinois Central correctly points out that, except where the employee has been designated by the
corporation under Rule 30(b)(6), an employee is treated as any other witness, and his or her presence must
be obtained by subpoena. 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal
Practice & Procedure: Civil 2d § 2103, at 37 (1994)). However, Illinois Central ignores the next
paragraph which notes that a subpoena is not required for a corporate employee who qualifies as an officer,
director or managing agent of a party-corporation, even if he has not been designated as the 30(b)(6)
deponent. Id. See also United States v. Afram Lines (USA), Ltd., 159 F.R.D. 408, 413 (S.D.N.Y.
1994)(holding that "a corporate employee or agent who does not qualify as an officer, director, or
managing agent is not subject to deposition by notice"); Central States, Southeast & Southwest Areas
Pension Fund v. J.W. Cartage Co., 1994 WL 416978, *2 (N.D.Ill. 1994)(concluding that: "No
subpoena is required for taking the deposition of a corporate party when the opposing party seeks that
deposition through officers who will be deposed on the corporation's behalf"); Plantation-Simon Inc. v.
Bahloul, 596 So.2d 1159, 1162 (Fla. Dist. Ct. App. 1992)(holding that "a party has the right to take a
deposition of an officer, director or managing agent of a corporation or partnership or government agency,
already named and served as a party, by simple notice and without the necessity of serving the official with
a witness subpoena").

¶36. Thus, the heirs were permitted to depose Illinois Central executives without the necessity of a
subpoena, provided those executives fell under the rubric of officers, directors or managing agents of Illinois
Central. While the identify of an officer or a director is generally clear, the question of whether a deponent is
a managing agent is answered pragmatically on an ad hoc basis, with the federal courts applying the
following three-part test:

(1) Is the individual to be deposed invested by the corporation with general powers to exercise his
discretion and judgment in dealing with corporate matters?

(2) Can the individual be depended upon to carry out the employer's direction to give testimony at the
demand of a party engaged in litigation with the employer?

(3) Can the individual be expected to identify with the interests of the corporation rather than those of
the other parties?

8A Wright, Miller & Marcus, supra, at 39. See also Founding Church of Scientology of
Washington, D.C., Inc. v. Webster, 802 F.2d 1448, 1452 (D.C. Cir. 1986)(concluding that it is a
question of fact as to whether a particular employee may be considered a managing agent of a corporation);
Reed Paper Co. v. Proctor & Gamble Distrib. Co., 144 F.R.D. 2, 4 (D.Me. 1992)(citing Wright &
Miller); Terry v. Modern Woodmen of America, 57 F.R.D. 141, 143 (W.D. Mo. 1972)(applying three-
part test); Tomingas v. Douglas Aircraft Co., 45 F.R.D. 94, 96-97 (S.D.N.Y. 1968)(applying three-
part test and holding that any doubt as to whether deponent was "managing agent" should be resolved in
favor of examining party).

¶37. Illinois Central did not argue before the circuit court that the deponents were not managing agents and
does not argue so now. Rather, Illinois Central limits its argument on appeal to whether the deponents could
be deposed without subpoena. Thus, this issue is waived and we further find Illinois Central's argument
unconvincing. We furthermore adopt the three-part test of Professors Wright, Miller & Marcus, for
determining whether a corporate employee is a managing agent.

B. Lack of Actual Knowledge.

¶38. Illinois Central also argues that the depositions were improper because the deponents had no actual
knowledge about the events surrounding the accident at the heart of this case. Illinois Central argues that the
purpose of the depositions is strictly harassment, which is not permitted under the rules of discovery.

¶39. The heirs respond that this argument conveniently ignores their two theories of liability against Illinois
Central that would warrant the imposition of punitive damages in this case. First, the heirs claim that there
were high-level corporate failures concerning vegetation control policies at public grade crossings. Second,
there were high-level corporate failures in policies directed towards identification of specific hazards posed
by particular crossings and warning the public thereof, as well as notifying relevant authorities, such as the
Mississippi Department of Transportation.

¶40. Pursuant to the discovery rules of the Mississippi Rules of Civil Procedure:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the issues
 raised by the claims or defenses of any party. The discovery may include . . . the oral testimony of
witnesses. It is not a ground for objection that the information sought will be inadmissible at the trial if
the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Miss. R. Civ. P. 26(b)(1).

¶41. Under the heirs' two theories for punitive damages, the testimony of the executives is relevant to their
claims and appear reasonably calculated to lead to admissible evidence. Thus, the circuit court did not
abuse its discretion in concluding that the executives could be deposed.

IV. FINDING ILLINOIS CENTRAL IN CONTEMPT.

¶42. After Illinois Central failed to produce the executives for the depositions on July 12 and 14, the circuit
court held Illinois Central in contempt of court for disobeying the court's July 9th order. The circuit court
ordered Illinois Central to pay attorney's fees and expenses related to the depositions which Illinois Central
did not attend on July 12 and 14. The circuit court further ordered Illinois Central to pay all costs
associated with the rescheduled depositions.

¶43. Pursuant to Rule 37, failure to obey a court order involving discovery is contempt, and the court is
authorized to impose sanctions. Rule 37 states in relevant part:

(b) Failure to Comply with Order.

(1) Sanctions by Court. If a deponent fails to be sworn or to answer a question after being directed to
do so by the court, the failure may be considered a contempt of court.

...

(d) Failure of Party to Attend at Own Deposition . . If a party . . . fails (1) to appear before the officer
who is to take his deposition, after being served with a proper notice, . . . the court in which the
action is pending on motion may make such orders in regard to the failure as are just, . . .the court
shall require the party failing to act or the attorney advising him or both to pay the
reasonable expenses, including attorney's fees, caused by the failure, unless the court finds
that the failure was substantially justified or that other circumstances make an award of expenses
unjust.

Miss. R. Civ. P. 37 (emphasis added).

¶44. Illinois Central argues that by ordering it to pay not only for the scheduled, but also the rescheduled
depositions, the purpose was not merely to reimburse the heirs for the expenses caused by the failure, but
also to punish. Thus, the sanctions were punitive in nature, meaning, the circuit court had in effect found
Illinois Central in criminal contempt.(5)

A. Was Illinois Central in Civil or Criminal Contempt?

¶45. In Premeaux v. Smith, 569 So.2d 681 (Miss. 1990), this Court discussed the difference between
civil and criminal contempt, including the different standard of review as follows:

The factual findings of the chancery court in a civil contempt case are affirmed unless manifest error is
 present and apparent. However, . . . a finding of criminal contempt which is punitive in nature, . . . this
Court is not bound by the manifest error rule . . . [r]eview proceeds ab initio to determine whether
on the record the contemnor is guilty of contempt beyond a reasonable doubt.

A citation for criminal contempt is to vindicate the dignity and authority of the court. A citation is
proper only when the contemnor has wilfully, deliberately and contumaciously ignored the court.

Id., at 683-84. As this Court has further held:

While a person may be fined or placed in jail for civil contempt, it must be conditioned so that upon
his performing the court-required act, he is relieved of the penalty. A civil contempt penalty is
coercive, while a criminal contempt penalty is punishment.

Hinds County Bd. of Sup'rs v. Common Cause of Miss., 551 So.2d 107, 120 (Miss. 1989)

¶46. In practice, the distinction between criminal and civil contempt generally turns on two factors. First, a
criminal contempt charge typically carries a fixed sentence or fine, while a civil contemnor "carries the keys
to his prison in his own pocket" through his ability to comply with the court's orders and end his sentence.
Common Cause of Mississippi v. Smith, 548 So.2d 412, 415 (Miss. 1989) (quoting Gompers v.
Buck's Stove & Range Co., 221 U.S. 418, 442, 31 S.Ct. 492, 55 L.Ed. 797 (1911)).

¶47. Second, in criminal contempt, the court is the aggrieved party, so the fine is paid to the court. In civil
contempt, the opposing party is the aggrieved party and the one who is paid. As one federal district court
stated:

Monetary fines in civil contempt are payable to the party injured by noncompliance with the court's
order and are related to, and ordinarily should not exceed, the injured party's proved losses and
litigation expenses, including counsel fees. Fines in criminal contempt are wholly punitive and unrelated
in amount to any private damages caused by the contemptuous conduct. Fines in purely criminal
contempt, moreover, are not allocable to private litigants, since it is the authority and dignity of the
court which is endangered, not private interests. We are aware that in some cases involving criminal
contempt proceedings fines have been paid over to the opposing party, or divided between the court
and the private litigants. It is plain, however, that in each such instance the criminal contempt
conviction was accompanied by a valid civil contempt decree so that allocation of fines to private
litigants was based solely on the civil aspect of the dual proceeding. We find no instance in which any
court, in exclusively criminal contempt proceedings, has allowed [a] private [party] to share in a fine
which is punitive and devoid of remedial purpose.

Hyde Constr. Co. v. Koehring Co., 387 F. Supp. 702, 715-16 (S.D. Miss. 1974)(footnotes omitted),
aff'd as modified in part and rev'd in part on other grounds sub nom. Dunn v. Koehring Co., 546
F.2d 1193 (5th Cir.), clarified on rehearing, 551 F.2d 73 (5th Cir. 1977).

¶48. In the case sub judice, the circuit court held Illinois Central in contempt of court for disobeying its
order that depositions proceed. The circuit court did not say whether it was holding Illinois Central in civil
or criminal contempt. However, the penalties assessed by the court against Illinois Central included: an
order that the depositions would take place at a later, specified date; an order for Illinois Central to pay the
heirs' attorneys' fees; and an order for Illinois Central to pay the heirs' other reasonable expenses in
connection with its contemptuous conduct. Because the circuit court contempt order was coercive in nature,
intended to compensate the heirs, and the fees and expenses were to be paid exclusively to the heirs, we
conclude that the circuit court found Illinois Central in civil contempt rather than criminal contempt. As such,
we will review the finding of contempt for manifest error, rather than ab initio with a beyond a reasonable
doubt standard.

B. Did the Circuit Court commit manifest error in finding Illinois Central in Contempt?

¶49. During the August 2 hearing on the heirs' motion to compel and for sanctions, the circuit court stated:

The Court finds that there are procedures that you must follow when you disagree with the Court's
order and one of those procedures is not just to not show up. This Court will not tolerate such
behavior from the defendants. If there - - anytime you disagree with this Court's order, you can file
your notices with the Supreme Court to appeal such order, but this Court will not tolerate the
defendants making the decision that they will just not show up to participate.

¶50. We agree. Instead of making a good faith effort to comply with the court order it believed was
unreasonable and impossible, Illinois Central made no effort at all. Perhaps it was impossible to produce all
six executives for deposition in Chicago on July 12, or all six scheduled for July 14 in Jackson, but Illinois
Central did not produce even one, nor did it bother to show up itself. While it is true that Illinois Central did
notify the heirs that it would not be attending the depositions scheduled on Monday and Wednesday, by fax
and phone on Saturday, it made no attempt to notify the trial judge. Neither did Illinois Central attempt to
have the depositions rescheduled at a more convenient time, either with the trial judge, or with opposing
counsel. Not until Monday afternoon, the day the depositions were to commence at 9 a.m. in Chicago, did
Illinois Central file a motion to reconsider the order. Instead of attempting to comply with the order, Illinois
Central clung to its arguments that these executives could not be deposed, or that discovery should not be
extended, even though the trial court continued to reject these arguments.

¶51. This Court agrees that a trial court can not tolerate a willful defiance of its orders, even if those orders
are later found to be an abuse of discretion. In its motion for reconsideration of the July 9 order, Illinois
Central stated: "While defense counsel has always endeavored to follow the Orders of all Counts and this
Court, counsel's primary duty is to represent his client zealously within the bounds of law under the Rules of
Professional Conduct." We agree that a lawyer is to zealously represent his client, but he or she must do so
"within the bounds of law," and defying a court order is not within the bounds of the law. We conclude that
Illinois Central was in contempt of court for not attempting to obey the July 9 order to proceed with
depositions the following week, and the circuit court did not commit manifest error in so determining.

V. ORDERING EXCESSIVE MONETARY SANCTIONS.

¶52. Finally, Illinois Central argues that the final award of damages was excessive. A plain reading of Rule
37 indicates that Illinois Central is correct. Rule 37 states that the court shall require the party to pay the
reasonable expenses, including attorney's fees, caused by the failure. Miss. R. Civ. P. 37(d). The
mandate is mandatory, but it only includes those expenses that are a direct result of the failure, not expenses
that the aggrieved party would have incurred even without the failure. The only reasonable expenses caused
by the failure in this case were those expended on the first scheduled depositions which Illinois Central did
not attend. The rescheduled depositions are expenses that the heirs would have incurred anyway. Further,
there is nothing in the record to indicate that Illinois Central did not subsequently comply with future orders
and directives of the court, so the coercive effect of the sanctions was realized. Thus, the sanctions should
have been only for the purpose of compensation in order to make the heirs whole again, and Illinois Central
should not have been further penalized.

¶53. In Batson v. Neal Spelce Assocs, Inc., 765 F.2d 511, 516 (5th Cir. 1985), the Fifth Circuit has
held the plain language of Rule 37 limits the imposition of expenses and attorney's fees to those caused
directly by the other party's failure to comply with the court's orders. In Batson, the court of appeals
reversed and remanded the case because the district court assessed attorney's fees for matters unrelated to
Batson's failure to comply with a discovery order. The Batson court also held that an award of attorney's
fees in excess of $30,000 over a single discovery violation was unreasonable on its face. Batson, 765 F.2d
at 516. See Liew v. Breen, 640 F.2d 1046, 1051 (9th Cir. 1981)(holding that award of attorney fees and
costs for opposing attorney's failure to obey order was excessive, since part of fees were not incurred
because of failure to obey order); Gordon v. New England Tractor Trailer Training Sch., 168 F.R.D.
178, 179 (D. Md. 1996)(holding that the party would have had to prepare at least once for the deposition
whether or not the other party failed to appear the first time the deposition was scheduled, therefore, the
attorney's preparation for the originally scheduled deposition must be subtracted from party's requested
attorney fees); Dixon v. Margolis, 765 F. Supp. 454, 456 (N.D. Ill. 1991)(holding that only proper
sanction was for additional costs incurred because of discovery violation); Lawrence v. Northwestern
Nat'l Life Ins. Co., 716 F. Supp. 883, (D. Md. 1989)(holding that party could not recover cost of
depositions allegedly needed because of a discovery violation, because the depositions would have had to
been taken anyway); Argo Marine Sys., Inc. v. Camar Corp., 102 F.R.D. 280, 285 (S.D.N.Y. 1985)
(holding that the Court must make a careful determination of the additional expenses incurred by party as a
direct result of discovery violation), aff'd, 755 F.2d 1006 (2d Cir. 1985).

¶54. In the case sub judice, the circuit court awarded the heirs just over $47,000, the amount the heirs
submitted as expenses, including attorneys' fees, for the scheduled and the rescheduled depositions. In
doing so, the circuit court went beyond reimbursing the heirs, it gave the heirs a windfall. If the circuit court
wished to find Illinois Central guilty of criminal contempt as well, it should have set a fixed amount, payable
to the court, not the heirs. See Blake Assocs., Inc. v. Omni Spectra, Inc., 118 F.R.D. 283, 293 (D.
Mass. 1988)(holding that the only basis on which a punitive fine may be imposed for violation of discovery
orders is criminal contempt; civil contempt is only to insure compliance and inures to the benefit of the other
party). We would have then reviewed the contempt order ab initio to determine whether on the record
Illinois Central had, beyond a reasonable doubt, wilfully, deliberately and contumaciously ignored the court.

¶55. We conclude the circuit court abused its discretion in awarding fees and expenses for both sets of
depositions. We therefore remand this case so that the trial court may determine, on the record, what is the
proper amount of expenses that is directly attributable to Illinois Central's failure to attend the first round of
depositions - in other words, the expenses incurred because the first scheduled round of depositions did not
occur. All expenses that the heirs would reasonably have expected to incur anyway, in the process of
deposing the Illinois Central executives, must be excluded.

CONCLUSION

¶56. Under the unique facts and circumstances of this case, the heirs failed to give reasonable notice for the
depositions they scheduled for July 12 and 14. Further, the circuit court abused its discretion in denying
Illinois Central's motion for protective order and ordering the depositions to proceed. But the circuit court
did not commit manifest error in finding Illinois Central in contempt. However, awarding the heirs the
expenses incurred by the both sets of depositions would be a windfall to the heirs, and punishment to Illinois
Central, neither permitted for a finding of civil contempt pursuant to Rule 37. Thus we reverse the award of
expenses and remand for the circuit court to reduce the amount of the award to the reasonable expenses,
including attorneys' fees, which were actually caused by Illinois Central's failure to attend the July 12 and 14
scheduled depositions. In all other respects, the trial court's judgment is affirmed.

¶57. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

PITTMAN, C.J., SMITH, P.J., WALLER AND GRAVES, JJ., CONCUR. CARLSON, J.,
CONCURS IN RESULT ONLY. McRAE, P.J., DIAZ AND EASLEY, JJ., DISSENT
WITHOUT SEPARATE WRITTEN OPINION.

1. Illinois Central appeals under Miss. Code Ann. § 11-51-11 (Supp. 2001), appeal from judgment of
criminal contempt. Section 11-51-12 (Supp. 2001), is entitled, appeal from judgment of civil contempt. The
latter section was added to the code in 1991. Whether this is a civil or criminal contempt will be discussed
further in Issue IV. Pursuant to these statutes, a person ordered to be punished for either type of contempt,
"may appeal to the court to which other cases are appealable from said tribunal." Miss. Code Ann. § 11-
51-11 & -12 (Supp. 2001). Thus, an appeal from a contempt order may be had on direct appeal, even
though the underlying case is ongoing.

2. The first sentence of the Federal Rule of Civil Procedure 30(b)(1), is identical to Mississippi's version of
the rule quoted above.

3. The Byrd law firm's bill, submitted at the request of the circuit court, includes over $4,000, specifically
designated as "deposition preparation." In the Barrett law firm's bill, deposition preparation cost is not
specifically designated. However, under the general heading of, "Preparation, travel & deposition time," the
total is $15,687.50 in attorneys' fees.

4. A mistrial was declared two days after the trial commenced, and the case was rescheduled to be tried in
September of 2000.

5. In its reply brief, Illinois Central further argues that the heirs waived their right to respond to this issue by
not addressing it in their brief. The heirs quite clearly chose to discuss Issue IV and Issue V together, as
Issue V of their brief spends several pages discussing the appropriateness of contempt charges against
Illinois Central. Thus, Illinois Central's waiver argument is without merit.