                IN THE SUPREME COURT OF MISSISSIPPI

                           NO. 2002-CA-01793-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;
AND STEPHANIE HAYMER PERKINS

DATE OF JUDGMENT:                 9/17/2002
TRIAL JUDGE:                      HON. JANNIE M. LEWIS
COURT FROM WHICH APPEALED:        HOLMES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:         GLENN F. BECKHAM
                                  CHRISTOPHER W. WINTER
                                  EDWARD BLACKMON, JR.
ATTORNEYS FOR APPELLEES:          PAT M. BARRETT
                                  DEREK ARTHUR WYATT
                                  HIAWATHA NORTHINGTON
NATURE OF THE CASE:               CIVIL - OTHER
DISPOSITION:                      AFFIRMED - 01/15/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



     BEFORE PITTMAN, C.J., WALLER, P.J., AND GRAVES, J.

     WALLER, PRESIDING JUSTICE, FOR THE COURT:
¶1.     This is the second appeal to this Court regarding a discovery dispute in this case. In the first appeal

we affirmed the trial court's finding of contempt against Illinois Central Railroad Co. (ICR), but found the

amount of attorneys' fees and expenses of over $47,000 excessive, and remanded to the trial court to

reassess the amount. Ill. Cent. R.R. v. Winters, 815 So. 2d 1168 (Miss. 2002) (Winters I). On

remand, the trial court assessed approximately $5,900.00 in fees and expenses against ICR. ICR appeals,

arguing that the expenses were not actually caused by its failure to attend the scheduled depositions. We

affirm the trial court's award.

                                                   FACTS

¶2.     The facts are taken from Winters I, 815 So. 2d at 1170-71:

                 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.
                   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.
                 Aggrieved by the contempt judgment and sanctions, Illinois Central appeals, . . .
        asserting that the circuit court either erred or abused its discretion in the following actions:
                 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.
                 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

                                                       2
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."
          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.
          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).
          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.
          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.
          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


                                              3
        inaccuracies contained in the circuit court's response to the petition. This Court denied
        Illinois Central's petition for mandamus on September 29, 1999.
                  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.

¶3.     We found that the heirs failed to give reasonable notice for the July 12 and 14 depositions, and the

trial court abused its discretion in denying ICR's motion for a protective order and ordering the depositions

to proceed. Nonetheless, we held the trial court did not commit manifest error in finding ICR in contempt

for failure to make any effort to comply. Id. at 1182-83. We reversed the award of expenses and

remanded to the trial court to reduce the amount of the award to the reasonable expenses which were

actually caused by ICR's failure to attend the first round of scheduled depositions in Chicago. Id. at 1183.

On remand, Byrd documented his expenses as $4,378.18 and Barrett documented his expenses as

$4,278.81. The trial court awarded Barrett $3,392.15 of his requested $4,278.81 and Byrd $2,514.18

of his requested $4,378.18, finding that the expenses incurred were a direct result of ICR's failure to attend

the depositions. ICR appeals, arguing that the expenses were not actually caused by its failure to attend

the first round of scheduled depositions in Chicago.

                                      STANDARD OF REVIEW

¶4.     The trial court has considerable discretion in the imposition of sanctions for matters pertaining to

discovery, and its orders will not be disturbed in the absence of an abuse of discretion. Kilpatrick v.

Miss. Baptist Med. Ctr., 461 So.2d 765, 767 (Miss. 1984).

                                              DISCUSSION




                                                       4
¶5.     ICR argues that the costs assessed by the trial court were not directly caused by its failure to attend

the scheduled depositions. It contends that the heirs had notice that it would not be able to attend the

depositions and that the heirs had a duty to mitigate their expenses.

¶6.     It is well established that a party has a duty to mitigate its damages. See Flight Line, Inc. v.

Tanksley, 608 So.2d 1149, 1162 (Miss. 1992); Pelican Trucking Co. v. Rosetti, 251 Miss. 37, 167

So.2d 924, 927 (1964); Yazoo & M.V.R. Co. v. Fields, 188 Miss. 725, 195 So. 489, 490 (1940).

This duty also applies to discovery sanctions.

                 When the sanctions award is based upon attorney's fees and related
                 expenses, an essential part of determining the reasonableness of the award
                 is inquiring into the reasonableness of the claimed fee. Recovery should
                 never exceed those expenses and fees that are reasonably necessary to
                 resist the offending action. . . . In assessing the damage done, the court
                 should consider the extent to which it is self inflicted due to the failure to
                 mitigate.

Fujimoto v. Au, 19 P.3d 699, 751 (Haw. 2001).

¶7.     ICR states that the heirs purposefully incurred expenses when they traveled to

Chicago knowing that ICR would not be there. It contends that the heirs could easily have chosen to

schedule a different date for the depositions or waited until Monday and filed a contempt motion but instead

chose       to      incur        nearly        $6,000          in     unnecessary                 expenses.

¶8.     The issue of whether ICR was in contempt was decided in Winters I. Here, our discussion is

limited to addressing the amount of sanctions, and under the standard of review, the trial court did not

abuse its discretion in assessing expenses against ICR. We found in Winters I that ICR did not make

a good faith effort to comply with the trial court's discovery order. "Instead of making a good faith effort

to comply with the court order it believed was unreasonable and impossible, [ICR] made no effort at all."

815 So. 2d at 1181. We directed the trial court to award reasonable expenses which were actually caused

                                                       5
by ICR's failure to attend the scheduled depositions. Id. at 1183. As to what are reasonable expenses,

we stated "[t]he only reasonable expenses caused by the failure in this case were those expended on the

first scheduled depositions which Illinois Central did not attend.. . . [t]hus, the sanctions should have been

only for the purpose of compensation in order to make the heirs whole again, . . . ." Id. at 1181-82.

¶9.     We reject ICR's contention that the heirs failed to mitigate their expenses by traveling to Chicago

for the depositions after ICR notified them that it would not attend. The trial court had previously denied

ICR's motion for a protective order and directed that the depositions proceed as scheduled. The heirs

acted reasonably in reliance on that order while ICR chose not to comply.

¶10.    The expenses awarded by the trial court on remand were reasonable and well documented. The

expenses incurred consisted of round trip air fare from Jackson to Chicago, cab fare, hotel expense,

deposition service fee, and travel time. We find that the expenses incurred were a direct result of ICR's

failure to attend the scheduled depositions.

                                               CONCLUSION

¶11.    Finding no abuse of discretion by the trial court, we affirm the trial court's judgment.

¶12.    AFFIRMED.

     PITTMAN, C.J., SMITH, P.J., COBB, EASLEY, CARLSON, GRAVES AND
DICKINSON, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.




                                                      6
