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Alexis v. Rogers

United States District Court, S.D. California

March 21, 2017

LAURA ALEXIS, Plaintiff,
JAMES B. ROGERS, et al., Defendants.


          Hon. Barbara L. Major United States Magistrate Judge

         On January 20, 2017, Defendants filed an “Omnibus Discovery Motion and Motion for Terminating Issue, Evidentiary, and/or Monetary Sanctions Against Plaintiff.” ECF No. 82 (“Mot.”). Plaintiff did not oppose the motion. See Docket. Defendants seek a variety of sanctions, including terminating sanctions, for a number of alleged discovery violations. The Court will address each of Defendants' allegations.


         On March 27, 2015, Plaintiff filed a complaint alleging, inter alia, intentional and negligent infliction of emotional distress, sexual harassment, and retaliatory, wrongful termination. ECF No. 1 at 30-32, 34-35. Plaintiff seeks general damages, lost earnings, punitive and exemplary damages, pre-judgment interest, costs of suit, and attorneys' fees, and an injunction “restraining Defendants from continuing to engage in unlawful and unfair business practices.” Id. at 35-36. Plaintiff alleges that she worked for Defendants from approximately January 2012 until she was unlawfully terminated in August 2013. Id. at 6-7, 15. Specifically, Plaintiff claims that Defendant Rogers made “improper, explicit, and unwanted sexual advances for over the course of over a year, ” and that she was fired when she refused the advances. Id. at 2, 11-15. Plaintiff further alleges that after Defendants learned that she intended to file a sexual harassment suit against Mr. Rogers, they filed a retaliatory complaint against her in the Cook Islands on January 14, 2015, alleging extortion and seeking $650, 000 in damages. Id. at 16-17. Plaintiff also contends that on February 8, 2015, she was physically injured in connection with the service of process of the Cook Islands complaint when Terri Safino “at the direction or request of the process server hired by Defendants, ” tried to physically drag Plaintiff from her house to the process server. Id. at 18. Safino was arrested, Plaintiff was taken by ambulance to the Emergency Room, and Plaintiff was treated for a concussion, corneal abrasion, and an injured foot. Id.

         I. Plaintiff's Deposition

         Defendants argue that the Court should impose terminating sanctions against Plaintiff because Plaintiff “has made it exceedingly clear that she will not obey this Court's December 16, 2016 Order and appear for additional deposition time.” Id. at 9. Defendants further state that if the Court does not order terminating sanctions, Defendants intend to depose Plaintiff “for longer that the Court-ordered three hours.” Id. at n.1.

         On December 16, 2016, the Court issued an order authorizing Defendants to depose Plaintiff for an additional three hours but limiting the scope of the questioning to the emails and documents produced after Plaintiff's first deposition. ECF No. 69 at 19. As such, Defendants may depose Plaintiff, but only for three hours. Defendants are not authorized to depose Plaintiff for a longer period of time. Moreover, the fact that Defendants do not think Plaintiff will comply with this Court's order to appear for a deposition, does not warrant the imposition of terminating sanctions at this time. Accordingly, Defendant's motions for terminating sanctions and to depose Plaintiff for more than three hours are DENIED.

         Defendant's motion to compel an additional deposition of Plaintiff is GRANTED IN PART. Defendants may depose Plaintiff for three hours at a location in San Diego. Any breaks requested by Plaintiff will not be included in the three hour time period. The court reporter will be the official timekeeper. Defendants' questioning is limited to the emails and documents that were produced after Plaintiff's first deposition. The deposition must occur on or before April 14, 2017. On or before March 27, 2017, Defendants must notify Plaintiff in writing of the proposed date and place for the deposition. If the initial date is not acceptable to Plaintiff, counsel must work with Plaintiff to find a mutually agreeable date. If the parties are unable to agree on a date, the deposition will occur on Monday, April 10, 2017 starting at 9:00 a.m. Plaintiff is ORDERED to appear for her deposition in person at the location identified by Defendants.

         II. Protective Order

         Defendants argue that the Court should impose terminating sanctions against Plaintiff because she “has made exceedingly clear that she will not obey this Court's August 26, 2016 Order imposing a Protective Order on confidential material exchanged in these proceedings.” Id. at 11. Defendants explain that they designated as confidential all of the “emails exchanged between the parties memorializing Plaintiff's consultancy relationship with Defendants” and Plaintiff designated portions of her medical records. Id. Defendants assert that Plaintiff “posted an inflammatory YouTube video” based in part on confidential material. Id. at 11-12.

         Defendants argue that terminating sanctions are appropriate because Plaintiff refused to remove the video, but Defendants subsequently admit that Plaintiff ultimately agreed to take the video down but that she has been unable to do so as of the date of Defendant's filing. Id.

         The Court DENIES Defendants' motion for terminating sanctions. First, it is not clear that the involved documents were properly designated as confidential in this litigation. Second, Defendants have not established that Plaintiff knowingly and intentionally violated the Protective Order as Plaintiff apparently agreed to remove the video. Third, and most importantly, even if there is a violation of the Protective Order, terminating sanctions are not an appropriate remedy.

         III. Mailing Address and Telephone Number

         Defendants also ask the Court to “impose terminating or lesser sanctions” because Plaintiff has refused to provide a mailing address and working phone number. Id. at 13-14. Defendants acknowledge that Plaintiff has a working email address but complain that her phone has been disconnected. Id. at 13; ECF No. 82-2, Declaration of Olaf J. Muller (“Muller Decl.”) at 14-15. Defendants claim that they have been “unfairly prejudiced” by their inability to talk with Plaintiff. Given the facts and allegations in this case, the Court DECLINES to require Plaintiff to provide a new phone number to Defendants. The Court's docket lists a mailing address for Plaintiff. If it is not accurate, Plaintiff must update the docket by March 30, 2017. Defendants' motion for sanctions is DENIED.

         IV. Independent Mental Examination

         Defendants ask the Court to require Plaintiff to submit to an Independent Mental Examination (“IME”) pursuant to Fed.R.Civ.P. 35. Mot. at 14-18. Defendants argue that an IME is necessary because Plaintiff is claiming Defendants caused her severe emotional distress and is seeking millions of dollars in damages. Id. Defendants explain that Plaintiff indicated in her initial disclosures that she intends to present expert testimony on her emotional injuries, Plaintiff produced her medical records, including psychiatric or psychological treatment, and Plaintiff testified during her deposition about the severe emotional distress she suffered and compared it to battered woman's syndrome. Id.; Muller Decl. At 11-12. Fed. R. Civ. P 35(a) allows the Court to order a party “to submit to a physical or mental examination by a suitably licensed or certified examiner” when that party's mental or physical condition is in controversy. The order “may be made only on motion for good cause and on notice to all parties and the person to be examined” and “must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.” Id.

         “Although the Ninth Circuit has not addressed the ‘in controversy' requirement, a court in this district announced a test in Turner v. Imperial Stores, 161 F.R.D. 90 (S.D. Cal. Apr. 7, 1995), that has been regularly applied by district courts.” Nguyen v. Qualcomm Inc., 2013 WL 3353840, at *3 (S.D. Cal. July 3, 2013) (citing Montez v. Stericycle, Inc., 2013 WL 2150025, at *3 (E.D. Cal. May 16, 2013); Tamburri v. SunTrust Morg. Inc., 2013 WL 942499, at *3 (N.D. Cal. Mar. 11, 2013); Sanders v. Holdings, 2012 WL 2001967, at *2 (S.D. Cal. June 4, 2012); Hongwei Zhang v. United Technologies Corp., 2011 WL 3890262, at *1 (S.D. Cal. Sept. 2, 2011)). According to Turner, courts will order an IME where a plaintiff alleges emotional distress and one or more of the following:

1) a cause of action for intentional or negligent infliction of emotional distress; 2) an allegation of a specific mental or psychiatric injury or disorder; 3) a claim of unusually severe emotional distress; 4) plaintiff's offer of expert testimony to support a claim of emotional distress; and/or 5) plaintiff's concession that his or her mental condition is “in controversy” within the meaning of Rule 35(a).

Turner, 161 F.R.D. at 95. In assessing whether “good cause” exists, courts have considered “the possibility of obtaining desired information by other means, whether plaintiff plans to prove her claim through testimony of expert witnesses, whether the desired materials are relevant, and whether plaintiff is claiming ongoing emotional distress.” Juarez v. Autozone Stores, Inc., 2011 WL 1532070, at *1 (S.D. Cal. Apr. 21, 2011) (quoting Impey v. Office Depot, Inc., 2010 WL 2985071, at *21 (N.D. Cal. July 27, 2010) (citation omitted)). Regardless of the results of the good cause inquiry, the Court has discretion to determine whether to order an examination. Nguyen, 2013 WL 3353840, at *4 (citing Williams v. Troehler, 2010 WL 121104, at *4 (E.D. Cal. Jan. 7, 2010) (“even if good cause is shown, it is still within the court's discretion to determine whether to order an examination.”); Kob v. County of Marin, 2009 WL 3706820, at *3 (N.D. Cal. Nov. 3, 2009) (since the defendant failed to show good cause, “it remained within the ...

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