IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 26, 2012
LINDA SHORTER, PLAINTIFF,
PEACHES UNIFORMS, INC., DEFENDANT.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Before the court is defendant's motion to quash plaintiff's notices of oral depositions and to shorten time for hearing, filed September 24, 2012. Plaintiff filed an opposition on September 25, 2012, in compliance with the court's order.
Defendant seeks order shortening time to hear its motion to quash two deposition notices which plaintiff unilaterally rescheduled for September 28, 2012, the day of the discovery cutoff, and a date when defendant's counsel is unavailable. According to defendant, the depositions notices of deponents Deena Chacon-Jerotz and Jared Jerotz were initially noticed by plaintiff on August 31, 2012 for September 14, 2012, the only date in September that defense counsel was available. Plaintiff then unilaterally cancelled the depositions and re-noticed them for September 28, 2012.
Plaintiff's opposition states that these depositions were re-noticed from September 7 to September 14, 2012, based on defense counsel's schedule. On September 10, 2012, plaintiff made a settlement offer to defendant, but when defendant did not respond by the morning of September 13, 2012, plaintiff offered to postpone the depositions to preserve costs to both parties. Defendant then responded, which caused plaintiff to make another settlement offer on September 13, 2012. When defendant did not respond to this offer, plaintiff took the depositions off calendar for the following day and re-noticed them for September 28, 2012. The declaration of plaintiff's attorney Kara Keister states, "at no time did [defense counsel] Ms. Mead inform me or my office that Defendant's counsel had no other availability in September." (Dkt. no. 50-1, ¶ 4.) According to plaintiff, it was not until September 18, 2012, that defense counsel informed plaintiff's counsel that she was not available on September 28.
After review of the papers, defendant's request for order shortening time is granted, and defendant's motion to quash is granted.*fn1 Judge England's scheduling order required that all discovery be completed by September 28, 2012, with "completed" defined as requiring that motions will have been heard, resolved by order, and that the order will have been obeyed by this date. (Dkt. nos. 24, 36.) Plaintiff should have contemplated that unilaterally canceling the depositions would result in a practical inability to resolve any disputes relative to the depositions through court intervention. Settlement negotiation is not a reason per se to cancel a deposition proximate to discovery cutoff, and plaintiff did so at her peril, especially when defendant did not respond to her counter offer prior to the September 14 scheduled date.
On the other hand, it is hard to believe that a firm such as Gordon & Rees had only one attorney who could attend a deposition. Furthermore, the court's June 5, 2012 order extending the discovery cutoff to September 28, 2012, is rendered almost meaningless if defendant can unilaterally make itself unavailable for the whole month of September other than one day. Furthermore, it is unclear from the papers if and/or exactly when defense counsel informed plaintiff's counsel of its unavailability for the month of September.
On balance, the greater fault lies with plaintiff in canceling depositions where there was an impending discovery cutoff, and no clear indication of imminent, potential settlement.
Accordingly, IT IS ORDERED that:
1. Defendant's request for order shortening time and motion to quash, filed September 24, 2012, (dkt. no. 48), are granted;
2. The October 18, 2012 hearing noticed by defendant's motion is vacated.