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6880/32851-001 current/43961755v1

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J une 19, 2014

VIA ECF
Hon. Alison J . Nathan
United States District J udge
United States District Court
Southern District of New York
40 Foley Square, Room 2102
New York, New York 10007
Re: Mark, et al. v. Gawker Media LLC, et al., No. 13 Civ. 04347 (AJN) (SN)
Dear J udge Nathan:
This firm is counsel to the defendants, Gawker Media LLC and Nick Denton
(collectively, Gawker), in the above-captioned matter. I write on behalf of the defendants in
accordance with Section II.B.1. of the Standing Order Concerning Case Management Techniques
for Complex Civil Cases (Docket No. 2), concerning a discovery matter that the parties have
been unable to resolve. Gawker respectfully moves, pursuant to Fed. R. Civ. P. 37(d), to dismiss
the claims of plaintiff Hanchen Lu because of Mr. Lus repeated failure or refusal to appear for
deposition.
At the outset, Gawker fully recognizes that depositions should be scheduled
cooperatively, and that often some negotiation and even change of agreed dates may be required.
Plaintiff Lus failures, however, go well beyond such normal exchanges.
1. Background
On February 21, 2014, Gawker proposed four dates for the depositions of the then four
plaintiffs, offering to complete two depositions per day.
1
The parties subsequently reached
agreement that Mr. Lus deposition would be taken on April 1, 2014, at defense counsels Boston
office (as Mr. Lu resides in Canton, Massachusetts, a Boston suburb). .
On March 13, 2014, Mr. Lus counsel asked that Mr. Lus deposition be rescheduled to
April 11. The parties ultimately agreed to a revised date of April 22. On March 23, however,
Mr. Lus counsel notified Gawkers counsel that Mr. Lu would not appear on April 22, and
proposed April 17. Gawker again agreed, and Mr. Lus deposition was noticed for April 17. A
copy of the notice, with the cover email is attached hereto as Exhibit A.

1
Plaintiff David Matthews voluntarily dismissed his claims with prejudice, which the Court
approved by Order dated March 28, 2014 (Docket No. 45). Matthews departure leaves three plaintiffs:
Aulistar Mark, Andrew Hudson, and Hanchen Lu.
Mark W. Batten
Member of the Firm
d 617.526.9850
f 617.526.9899
mbatten@proskauer.com
www.proskauer.com
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On April 16, at 7:57 p.m., Mr. Lus counsel emailed to say that Mr. Lu would not attend
his deposition.
2
No new dates were offered. Gawkers counsel responded on the evening of
April 16, asking the reasons for the last-minute cancellation. Mr. Lu has not responded to that
request.
On April 30, 2014, Gawkers counsel wrote to Mr. Lus counsel concerning Mr. Lus
repeated failure to appear for deposition on properly noticed dates. A copy of the April 30 letter
is attached as Exhibit B. Gawker proposed to forego a motion for sanctions and a request for
reimbursement of attorneys fees pursuant to Rule 37(d) if Mr. Lu would agree to be deposed
within the next thirty days and would pay the travel expenses of Gawkers General Counsel, who
had traveled to Boston for the deposition. Mr. Lus counsel did subsequently reimburse Gawker
for the travel expenses and the stenographers appearance fee, but Mr. Lu has not offered any
replacement date for his deposition since the April 16 refusal to appear. Nor has Mr. Lu, to this
day, offered any explanation for his behavior.
2. Argument
The Federal Rules of Civil Procedure take a particularly stern view of a partys failure to
attend his own deposition. Under Rule 37, most discovery faults do not lead directly to
sanctions; rather, Rule 37(b) provides that the Court should first order compliance, and then
impose sanctions only if the order is not complied with. Rule 37(d) bypasses that procedure,
however, as to a partys failure to attend a properly noticed deposition. For that failure, among
others, Rule 37(d)(1)-(3) provides for the direct imposition of sanctions, without a preexisting
order to comply.
Such sanctions may include dismissal. See Fed. R. Civ. P. 37(d)(3), 37(b)(2)(A)(v);
Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009) (per curiam) (a district
court may dismiss an action if a party fails to attend a deposition of that party). Dismissal is,
admittedly, a harsh remedy, reserved for unusual circumstances. See, e.g., Update Art, Inc. v.
Modiin Pub., Ltd., 843 F.2d 67, 71 (2d Cir. 1988). Still, dismissal must be available as a remedy
to achieve the purpose of Rule 37 as a credible deterrent rather than a paper tiger. Id.
Accordingly, the Second Circuit has time and time again affirmed dismissals pursuant to the
Rule. Morangelli v. Chemed Corp., 2011 WL 7475, at *1 (E.D.N.Y. 2011); see, e.g., Martinez
v. E & C Painting, Inc., 2008 WL 482869 (S.D.N.Y. Feb. 21, 2008); ShawReed v. Children's
Outing Ass'n, 1999 WL 38588 (7th Cir. J an. 27, 1999).
The Second Circuit has held, albeit in the context of the more lenient Rule 37(b)(2), that
dismissal should be imposed as a sanction only after considering (1) the willfulness of the non-
compliant party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the
duration of the period of noncompliance, and (4) whether the non-compliant party had been
warned of the consequences of . . . noncompliance. Agiwal, 555 F.3d at 302 (quoting Nieves v.

2
Mr. Lus refusal was, apparently, even a surprise to his counsel; Gawkers understanding is that
Mr. Lus counsel had already traveled from New York in anticipation of the deposition the following day.
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Hon. Alison J . Nathan
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City of New York, 208 F.R.D. 531, 535 (S.D.N.Y. 2002)). Those factors support dismissal here.
First, as to Mr. Lus willfulness or excuse, he has refused even to give a reason for his failure to
appear, and despite ample opportunity has made no effort to reschedule the deposition despite
repeated requests nor to explain any difficulty with appearance. Second, lesser sanctions do not
appear likely to be efficacious; his counsel has already paid travel expenses caused by his April
16 refusal, and even that was insufficient to provoke a rescheduled appearance. Third, Mr. Lus
noncompliance has persisted now for more than two months. And fourth, Mr. Lu was warned,
by Gawkers April 30 letter, that Gawker would seek dismissal after the April 16 cancellation if
he did not appear for deposition within thirty days. Not only has Mr. Lu failed to appear within
the requested time frame, he has not, more than seven weeks after the April 30 letter, even
bothered to propose a new date.
Rule 37(d)(3) also provides that when a party fails to attend his own deposition, the
court must require the party failing to act . . . to pay the reasonable expenses, including
attorneys fees, caused by the failure, unless the failure was substantially justified or other
circumstances make an award of expenses unjust. Gawker therefore requests that the Court also
order Mr. Lu to pay the attorneys fees incurred by Gawker in preparing this letter motion.
When an individual voluntarily chooses to participate in a lawsuit, he takes on the
obligation to provide discovery about his claim. Morangelli, 2011 WL 7475 at *1. Mr. Lu has
failed to honor his obligations for months. For all of the foregoing reasons, Gawker respectfully
requests that the Court dismiss the claims of plaintiff Hanchen Lu, and order him to pay
Gawkers attorneys fees and costs incurred in preparing this letter motion.
Respectfully submitted,
/s/Mark W. Batten
Mark W. Batten
Attachments
cc: Andrea Paparella, Esq.

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