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Perez v. Seafood Peddler of San Rafael, Inc.

United States District Court, N.D. California, San Francisco Division

May 14, 2014

THOMAS E. PEREZ, Secretary of Labor, United States Department of Labor, Plaintiff,


NATHANAEL M. COUSINS, Magistrate Judge.

The purpose of the Federal Rules of Civil Procedure is set forth in Rule 1: "the just, speedy, and inexpensive determination of every action and proceeding." It is the Court's duty to enforce the rules so that the goal of speedy, inexpensive, and equal justice may be obtained. When the rules are abused, justice is diminished.

In this fair labor case, defendants' counsel has frustrated justice by obstructing and delaying the deposition of expert witness Sandy Magid. Plaintiff's counsel has exacerbated the problem by an inappropriate email to defendants' counsel and an incendiary motion for sanctions.

This order is intended to redirect this case into compliance with Rule 1.


This order addresses the Secretary of Labor's motion for sanctions against defendants under Fed.R.Civ.P. 37 for their failure to produce expert witness Sandy Magid for deposition on March 21, 2014, as ordered by the Court. Dkt. 223 (motion for sanctions); dkt. 222 (order denying defendants' motion for protective order). So far, the Magid deposition has required two motions, approximately 50 pages of declarations and legal arguments, one court hearing, one fruitless round-trip to San Francisco for the witness, countless correspondence among the attorneys, and two Court orders. Magid has yet to answer a single question.

In a motion for protective order filed on March 19, 2014, defendants objected to the time and place of the Magid deposition, which was noticed for the last day of the expert discovery period. Dkt. 221. Defendants also asserted that the deposition would create a hardship for Magid, an accountant. Id. The Court denied the motion for lack of good cause and ordered the deposition to proceed on March 21 in San Francisco. Dkt. 222.

It is undisputed that Magid appeared in San Francisco on March 21. But the deposition did not occur. Instead, defendants raised more objections: (1) the Secretary did not compensate the witness in advance; (2) the Secretary did not promise to compensate the witness promptly after the deposition; and (3) one of the attorneys for the Secretary had a cold and was coughing and blowing her nose and would not leave the conference table when requested.

The severity of the coughing by attorney Rose Darling is in dispute and no recording or transcript captures the events that followed. One of the Secretary's counsel described it as "minor and non-contagious residual cough from a cold, " but did not establish a medical expertise for this diagnosis. Botts Decl., dkt. 223-1 ¶ 10. Defendants' counsel, Mattaniah Eytan, on the other hand, described it as "coughing, quite heavily" and accompanied "from time to time by sneezing and blowing her nose." Eytan Decl., dkt. 223 ¶ 16. Mr. Eytan then either asked Ms. Darling to leave the room (Botts ¶ 10), or to step to the back of the conference room (Eytan ¶ 16). This final disagreement resulted in "something along the lines of a shouting match." Eytan Decl., dkt. 223 ¶ 17. According to Mr. Eytan, "It was not an issue that was negotiable since it was a health issue." Id. The parties left a telephone message for the undersigned Magistrate Judge and then adjourned the deposition without a question being asked. Id.

After the failed March 21 deposition, the parties continued to joust. On April 4, the Secretary filed a motion for sanctions under Fed.R.Civ.P. 37(b), seeking an order (1) excluding the proposed trial testimony of Magid; and (2) requiring defendants to pay the attorneys' fees ($5, 550) and costs ($480) from the deposition. Dkt. 223.

Defendants' opposition briefs contained two additional objections to the Magid deposition. Dkt. 225, 257. First, defendants submitted an email that the Secretary's lead counsel, Leon Pasker, sent to Mr. Eytan on February 17, 2014, commenting on defendants' disclosure of Magid's expert witness opinion: "This is probably hands down the stupidest expert witness disclosure I have ever seen. Ever." Dkt. 227-1 Ex. B.[1] Second, defendants argued that unless the Secretary paid the expert fees of witness Magid in advance, it would be an unconstitutional taking of his property. Dkt. 257 at 3-4.

The motion for sanctions was referred to this Magistrate Judge. Dkt. 230. The Court held a hearing on May 7.


A. Legal ...

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