LeBeau v. All Chemical Transport Corp. et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANDRE LEBEAU
VERSUS
ALL CHEMICAL TRANSPORT
CORP., ET AL.
*
*
*
CIVIL ACTION
NO. 26-322
SECTION “D” (2)
ORDER AND REASONS
Pending before me is Plaintiff Andre LeBeau’s Motion for Sanctions and/or to Compel
Deposition of Defendant Shawn Handy. 	ECF No. 41. 	Defendants All Chemical Transport and
Shawn Handy timely filed an Opposition Memorandum. ECF No. 44. No party requested oral
argument in accordance with Local Rule 78.1, and the Court agrees that oral argument is
unnecessary.
Having considered the record, the submissions and arguments of counsel, and the
applicable law, Plaintiff’s Motion is GRANTED IN PART AND DENIED IN PART for the
reasons stated herein.
I. 	BACKGROUND
Plaintiff Andre LeBeau filed suit alleging personal injuries sustained after Defendant
Handy merged his employer All Chemical Transport’s 2018 Mack truck tanker into Plaintiff’s
UPS delivery truck on I-10. ECF No. 4-1 ¶¶ 6 & 9. 	Defendants removed the case, which is now
scheduled for trial on August 30, 2027 with a discovery deadline of June 18, 2027. ECF No. 46.
Plaintiff could not locate Handy for service, but his counsel waived formal service in accordance
with Rule 4. ECF No. 35.
On August 18, 2026, Plaintiff issued a Notice of Deposition directed to Defendant Handy,
scheduling the deposition for 10:30 a.m. on September 1, 2026, via zoom. ECF No. 41-7, at 2–3.
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On August 31, 2026, he issued a Re-Notice of Deposition, scheduling the deposition to begin at
9:30 a.m. on September 1, 2026, via zoom. Id. at 5–6. Defense counsel notified Plaintiff’s counsel
that they were not able to get in touch with Handy, and the night before the deposition, advised
that he would likely not appear. ECF No. 41-9.
At 9:35 a.m. on September 1, 2026, Plaintiff’s counsel proceeded with the proces verbal,
which concluded at 9:42 a.m. ECF No. 41-10, at 1, 10. Counsel for both Plaintiff and Defendants
made statements regarding the non-appearance. 	Defense counsel noted that, despite efforts to
contact Handy by email, phone, and certified mail, she had not received any response from him
and thus did not know whether Handy had actual notice of the date, time, and location of the
original deposition, or the re-noticed earlier deposition time. Id. at 7.
Plaintiff seeks sanctions for the non-appearance, specifically a finding that Handy is at fault
and striking any affirmative defense asserting Plaintiff’s fault, or alternatively, an order compelling
Handy to appear for deposition. 	ECF No. 41-1, at 4–5. 	In Opposition, Defendant argues that
Handy’s failure to appear does not warrant sanctions as counsel explained her difficulties
communicating with Handy, attempts to notify Handy of Plaintiff’s unilaterally set deposition, and
updates to Plaintiff’s counsel regarding her inability to reach Handy including prompt notice that
Handy was not expected to appear. 	ECF No. 44, at 2–4. 	Defendant argues that a court order
compelling Handy to appear is the appropriate remedy, particularly in light of the last-minute time
change of the noticed deposition. Id. at 5–11.
II. 	APPLICABLE LAW
The Federal Rules of Civil Procedure require a party seeking to depose another party to
give written reasonable notice, which “must state the time and place of the deposition and, if
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known, the deponent’s name and address.”1 	Courts generally hold that “any timeframe less than
14 days is likely unreasonable.”2 	Indeed, amendments to Rule 45 proposed in the 2025 cycle
would make clear that “reasonable notice” requires at least 14 days.3 And while the Federal Rules
of Civil Procedure specifically provide for the taking of depositions by telephone or other remote
means,4 a party may not unilaterally choose to hold a remote deposition; there must be consent or
a court order.5
Federal Rule of Civil Procedure 37(d) permits a court to order sanctions if “a party . . .
fails, after being served with proper notice, to appear for that person’s deposition” including
payment of “reasonable expenses including attorneys’ fees caused by the failure” unless it was
“substantially justified” or an award of expenses would be unjust.6 A party “may not escape
sanctions simply by notifying the attorney who noticed the deposition that they will not appear.”7
In any event, were sanctions applicable, an award of fees and expenses incurred because of the
failure to appear is appropriate as the least restrictive sanction.8
III. 	ANALYSIS
Plaintiff does not cite any court order authorizing a zoom deposition, nor does he indicate
that Defendants agreed to same. 	As such, Plaintiff’s Notice of Deposition and Re-Notice of
Deposition scheduling a zoom deposition are facially invalid. Further, Plaintiff’s Re-Notice issued
1 FED. R. C IV. P. 30(b)(1).
2 Bergeron v. Great W. Cas. Co., No. 14-13, 2015 WL 5307685, at *3 (E.D. La. Sept. 9, 2015).
3 See Preliminary Draft of Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal
Procedure, at 57–59, available at https://www.uscourts.gov/records-rules-committees/preliminary-drafts-proposed-
rule-amendments.
4 FED. R. CIV. P. 30(b)(4).
5 Id.; see also Thompson v. McDonough, No. 23-499, 2024 WL 4381250, at *2 (N.D. Okla. Oct. 3, 2024). Rule
30(b)(4) does not specify the considerations in determining whether to grant a request for a remote deposition, and
thus, the decision is left to the discretion of the Court, which must balance claims of prejudice and those of hardship,
carefully weighing all of the relevant facts. In re Terrorist Attacks on Sept. 11, 2001, 337 F.R.D. 575, 578 (S.D.N.Y.
2020).
6 FED. R. CIV. P. 37(d).
7 Rangel v. Gonzalez Mascorro, 274 F.R.D. 585, 592 (S.D. Tex. 2011) (citation modified).
8 Omega Hosp., LLC v. Cmty. Ins. Co., 310 F.R.D. 319, 323 (E.D. La. 2015).
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the day before the deposition was insufficient to provide adequate notice of the new time, and the
proces verbal was completed at 9:42 a.m., which was almost an hour before the original 10:30 a.m.
scheduled time.
Of course, the proper course of action for a defendant aggrieved by an improper deposition
notice or who is unable to appear as noticed is to file a motion to quash or seek a protective order
under Rule 26(c), not simply to defy the notice and fail to appear. And although the court may
issue sanctions if a party fails, after being served with proper notice, to appear for that deposition,9
the Court declines to issue sanctions given the re-scheduling issue and the zoom setting absent
consent or court order.
The Court will, however, order Defendant Handy to appear for deposition. 	Defense
counsel’s inability to reach Handy will not excuse his appearance as same cannot be allowed to
disrupt the proper course of this proceeding or deprive the opposing party from conducting any
necessary discovery. Within the next 14 days, Handy must provide a list of available dates over
the next 60 days. Plaintiff may then re-issue a proper Notice of Deposition on one of the available
dates. Should Handy fail to provide a list of available dates within the next 14 days, Plaintiff is
free to notice his deposition on a date convenient to him and re-issue a Notice of Deposition that
provides Handy with at least 14 days’ notice. If Handy does not obey this Order and appear for a
deposition by December 14, 2026, appropriate sanctions under Rule 37(d) (i.e., striking defenses,
deeming facts established and/or entry of default judgment) may be ordered.
IV. 	CONCLUSION
Accordingly, for the foregoing reasons,
9 FED. R. C IV. P. 37(d)(1)(A).
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IT IS ORDERED that Plaintiff’s Motion for Sanctions and/or to Compel Deposition of
Defendant Shawn Handy (ECF No. 41) is GRANTED IN PART AND DENIED IN PART as
stated herein.
New Orleans, Louisiana, this 14th day of October, 2026.
___________________________________
DONNA PHILLIPS CURRAULT
UNITED STATES MAGISTRATE JUDGE
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