United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTIONS TO COMPEL DEPOSITIONS AND FOR
SANCTIONS [ECF Nos. 97, 98, 100]
Barbara L. Major United States Magistrate Judge
before the Court is Defendants' April 7, 2017 motion to
compel deposition of Intervenor Stephen M. Lobbin [ECF No.
97-1 (“Lobbin MTC”)], motion to compel deposition
of Plaintiff's Federal Rule of Civil Procedure
(“Fed. R. Civ. P.”) 30(b)(6) witness [ECF No.
98-1 (“30(b)(6) MTC”)], motion to compel
deposition of Mr. Edward O'Connor [ECF No. 100-1
(“O'Connor MTC”)], Plaintiff's opposition
to the motion to compel the deposition of Edward O'
Connor [ECF No. 113 (“O'Connor Oppo.”)],
Plaintiff's opposition to the motion to compel 30(b)(6)
witness deposition [ECF No. 114 (“30(b)(6)
Oppo.”)], and Intervenor's opposition to the motion
to compel deposition of Intervenor [ECF No. 115
(“Lobbin Oppo.”)]. For the reasons set forth
below, Defendants' motions to compel are GRANTED IN PART
AND DENIED IN PART.
instant matter was initiated on June 26, 2015, when
Plaintiff, who is represented by Mr. Edward O'Connor,
filed a complaint for breach of quasi-contract, quantum
meruit, and unjust enrichment. ECF No. 1. Plaintiff filed an
amended complaint for the same claims on June 2, 2016. ECF
No. 50 (“FAC”). Plaintiff alleges that in early
2012, it was retained to represent a group of aligned
parties in various patent matters referred to as
Worldslide litigation. Id. at 2. Plaintiff
represented the parties for almost three years and
successfully defended them in patent litigation involving
three patents. Id. at 3. Plaintiff also alleges that
Manley, Aquawood LLC has not paid Plaintiff on any of its
invoices since 2013 and now has a past due balance of $91,
418.71, plus interest as explained in the engagement letter
between Manley, Aquawood LLC and Plaintiff. Id.
Plaintiff states that the amount due is based on hourly rates
that were well below market value due to the relationship
between Manley and Plaintiff and that the actual value of the
services is about twice the invoice amounts. Id.
Plaintiff further alleges that it was retained in early 2012
to represent aligned parties in a patent case called Aviva
Sports, Inc. v. Menard, Inc. et al., Case No.
09-cv-1091-JNE (D. Minn.). Id. at 4. Plaintiff
represented the parties in the Aviva litigation for
almost three years and again successfully defended the
parties against claims of false advertising and patent
infringement. Id. Manley, Aquawood LLC has failed to
pay any invoices for the Aviva litigation since 2013
and owes $145, 629.41. Id. As with the
Worldslide litigation, Plaintiff alleges that the
amount due is below market value. Id. Finally,
Plaintiff alleges that it was retained to represent Target in
a putative class action called Adams v. Target
Corporation, Case No. 13-cv-5944-GHK-PJWx (C.D. Cal.).
Id. at 5. The successful representation lasted for
almost two years and Manley, Aquawood now has a past due
balance of $250, 589.66 that represents hourly rates well
below market value. Id.
1, 2016, Stephen M. Lobbin filed a motion for permission to
intervene that was granted on September 15, 2016. ECF Nos. 49
and 57. In his motion, Intervenor stated that he is asserting
a claim against Target and Kmart for breach of quasi-contract
for quantum meruit. ECF No. 49 at 4. Intervenor filed his
complaint on September 19, 2016. ECF No. 58. Intervenor
alleges that he worked as an attorney pursuant to a
contractual relationship with Plaintiff which entitled
Intervenor to 60% of attorney fee revenues collected from
Intervenor's clients payable the month after the revenues
were collected by Plaintiff. Id. at 3. In early
2012, Intervenor was retained to work on the
Worldslide, Aviva, and Adams
litigation and at no time did Defendants “request or
propose that Intervenor or Plaintiff waive or relinquish
their right to recover attorney fees directly from the
represented parties under the time-honored requirements of
quasi-contract, quantum meruit and/or unjust
enrichment” nor did Plaintiff or Intervenor do so.
Id. at 3-4. Intervenor alleges that Defendant Target
“assented explicitly to the representation and advocacy
of Intervenor and Plaintiff, which lasted for almost two
years.” Id. at 6. Intervenor further alleges
that he is entitled to $50, 000 of the $91, 418.71 past due
balance of Manley, Aquawood LLC for the Worldslide
litigation, $90, 000 of the $153, 458.95 past due balance for
the Aviva litigation, and $100, 000 of the past due
balance for the Adams litigation. Id. at
4-7. Finally, Intervenor alleges that “Plaintiff and
its counsel in this action are one-in-the- same; that is,
both are very small entities managed by the same
individual.” Id. at 7.
MOTION TO COMPEL DEPOSITION OF INTERVENOR, STEPHEN
seek an order from the Court compelling Intervenor to appear
for his deposition and to pay $2, 992.50 in sanctions to
Defendants. Lobbin MTC at 17.
March 2, 2017, Defendants served notice for the deposition of
Intervenor for April 3, 2017. Lobbin MTC at 5; see
also ECF No. 97-2, Declaration of Jason Cirlin In
Support of Defendants' Motion to Compel the Attendance of
Stephen M. Lobbin at Deposition (“Cirlin Decl.”)
at 2, Exh. A. Almost three weeks later, on March 21, 2017,
Intervenor responded to the notice telling Defendants that he
was unavailable for a deposition on April 3, 2017 due to his
children's spring break. Lobbin MTC at 5; see
also Cirlin Decl. at 2, Exh. B. On March 23, 2017,
defense counsel attempted to meet and confer with Intervenor
via email to reschedule the deposition and stated that unless
Intervenor was “agreeable to re-schedule [his]
deposition, we intend to ask the court to compel your
attendance at deposition.” Cirlin Decl. at 2, Exh. C.
On March 24, 2017, Intervenor provided his formal objections
to the deposition to defense counsel and stated that his
response to the initial notice was delayed because defense
counsel failed to contact him prior to serving the notice
and, therefore, it was unexpected and he did not notice it.
Id. at 2, Exh. D. Intervenor objected to the
deposition on the grounds that the notice was untimely
because he was entitled to thirty days to respond in writing
to the request for production of documents contained in the
notice, Defendants did not meet and confer regarding his
availability prior to serving the notice, and Defendants were
not diligent in conducting discovery. Id. at Exh. D.
March 28, 2017, District Judge Janis L. Sammartino issued an
order granting Defendants' ex parte motion to
continue the hearing date and briefing schedule for
Intervenor's motion for summary adjudication in part so
that Defendants could complete the discovery necessary to
respond to the motion. Cirlin Decl. at 2, Exh. E; see
also ECF No. 87. That same day, defense counsel emailed
Intervenor asking him to provide alternate dates and times
for his deposition. Cirlin Decl. at 3, Exh. F. Intervenor
responded the next day that he was unavailable that week and
the following week due to his vacation with his children and
that he could not agree to schedule a deposition beyond the
Court's discovery deadline, “but if the Court
decides to extend discovery generally, we could then discuss
availability in late April or May.” Cirlin Decl. at 3,
Exh. G. Defense counsel followed-up via email on March 29,
2017 stating that he left a voicemail for Intervenor and
wanted to meet and confer about his deposition. Id.
at 3, Exh. H. Intervenor responded on March 30, 2017 that, as
previously mentioned, he was on vacation and unable to work
or take phone calls. Id. at 3, Exh. I.
March 30, 2017, counsel for Plaintiff, Mr. Edward F.
O'Connor, and counsel for Defendants, Mr. Jason N.
Cirlin, jointly contacted the court regarding the instant
discovery dispute. ECF No. 89. In accordance with the
Court's briefing schedule, the parties timely filed their
motions, oppositions, and reply. See Lobbin MTC, and
Lobbin Oppo. Fact discovery closed on April 3, 2017. ECF No.
68 at 1.
The scope of discovery under the Federal Rules of Civil
Procedure is defined as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case, considering the importance of the issues at stake
in the action, the amount in controversy, the parties'
relative access to relevant information, the parties'
resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within
this scope of discovery need not be admissible in evidence to
Fed. R. Civ. P. 26(b)(1).
courts have broad discretion to determine relevancy for
discovery purposes. See Hallett v. Morgan, 296 F.3d
732, 751 (9th Cir. 2002). District courts also have broad
discretion to limit discovery to prevent its abuse.
See Fed.R.Civ.P. 26(b)(2)(c)(i-iii)(instructing that
courts must limit discovery where the party seeking the
discovery “has had ample opportunity to obtain the
information by discovery in the action” or where the
proposed discovery is “unreasonably cumulative or
duplicative, ” “obtain[able] from some other
source that is more convenient, less burdensome, or less
expensive, ” or where it “is outside the scope
permitted by Rule 26(b)(1)”).
Civ. P. 30(a)(1) provides that “[a] party may, by oral
questions, depose any person, including a party, without
leave of court except as provided in Rule
30(a)(2).” Civil Local Rule
(“CivLR”) 83.4(a)(1)(g) states that “[a]n
attorney in practice before this court will: [w]hen possible,
confer with opposing counsel before scheduling or
rescheduling hearings, depositions, and meetings and notify
all parties and the court, as early as possible, when
hearings or depositions must be cancelled.”
argue that Intervenor should be compelled to appear for his
deposition because he is a party to the litigation, a central
figure in the dispute between the parties, and has
information directly at issue in the matter that is necessary
for Defendants' defense and opposition to
Intervenor's motion for summary judgment. Lobbin MTC at
12. Defendants also argue that CivLR 83.4 does not provide
grounds for Intervenor to refuse to appear for his deposition
and that Intervenor himself violated the local rule when he
failed to “notify all parties and the court, as early
as possible, when hearings or depositions must be
cancelled.” Id. at 13 (quoting CivLR
83.4(a)(1)(g)). Defendants note that Intervenor's
behavior is what made rescheduling the deposition before the
close of discovery impossible. Id. Defendants
further argue that Intervenor is not excused from complying
with the deposition because he served objections to the
deposition. Id. at 15. Defendants assert that the
burden was on Intervenor to seek relief from attending the
deposition if he could not come to an agreement with
Defendants, but that Intervenor “neither offered
alternative dates for his deposition or obtained relief from
the court.” Id.
objects to Defendants' motion and argues that an order
requiring his deposition is unwarranted and undeserved.
Lobbin Oppo. at 3-4. Intervenor explains that he did not
immediately respond to the deposition notice because he was
preoccupied with work in another matter and did not read the
notice until March 21, 2017. Id. at 2. Intervenor
contends that this would not have occurred if defense
counsel, in accordance with CivLR 83.4(a)(1)(g), had met and
conferred with Intervenor regarding his availability prior to
sending the notice. Id. Intervenor also contends
that this failure and the failure of defense counsel to meet
and confer with him prior to filing the instant motion,
should result in the denial of Defendants' motion.
Id. at 3-4. Intervenor next asserts that
Defendants' own lack of diligence lead to scheduling
problems as Defendants chose to notice Intervenor's
deposition for the last day of the discovery period without
knowing if he was available. Id. Intervenor contends
that Defendants waived their right to argue that Intervenor
failed to seek a protective order. Id. at 5.
Intervenor states that he did not offer alternative dates for
the deposition because he could not agree to violate the
Court's scheduling order which set an April 3, 2017
discovery cut-off. Id. Finally, Intervenor contends
that since he has already filed several declarations in this
matter there is no reason to have a deposition which
“would be a waste of time, and not proportional to the
needs of the case.” Id. at 6. Intervenor
states that there is no basis for sanctions. Id.
motion to compel the deposition of Intervenor is GRANTED.
Contrary to Intervenor's arguments, the deposition of
Intervenor seeks relevant information and is proportional to
the needs of this case. Further, the fact that Intervenor has
signed and filed declarations does not negate Defendants'
right to depose Intervenor. Accordingly, the parties are
ORDERED to meet and confer regarding a deposition date for
Intervenor. The deposition must occur by May 26,
2017. If the parties are unable to agree on a date for
the deposition, the deposition must take place on May 24,
2017 at 9:30 a.m.
properly and timely served the notice for Intervenor's
deposition. While Defendants should have contacted Intervenor
to coordinate the scheduling of Intervenor's deposition,
Defendants repeatedly advised Intervenor that they were
willing to reschedule his deposition to a convenient date.
Intervenor, on the other hand, refused to work with
Defendants to find a new date. This behavior is unacceptable.
It only would have taken Intervenor a few minutes to look at
his calendar and send defense counsel a list of dates he was
available to be deposed, on the condition that defense
counsel obtain court approval for the deposition to occur
after the close of discovery. Intervenor's refusal to
coordinate with defense counsel and his insistence that
Defendants file the instant motion to compel warrants the
imposition of sanctions. See Fed.R.Civ.P. 30(d)(2)
(providing that a court “may impose an appropriate
sanction - including the reasonable expenses and
attorney's fees incurred by any party - on a person who
impedes, delays, or frustrates the fair examination of the
deponent.”); see also Fed.R.Civ.P. 37(a)(5)
(requiring a court to order “the party or deponent
whose conduct necessitated the motion, the party or attorney
advising that conduct, or both to pay the movant's
reasonable expenses incurred in making the motion, including
attorney's fees” unless the movant failed to meet
and confer, the objection was substantially justified, or
other circumstances militate against awarding expenses.).
motion to compel discovery is granted, Rule 37(a)(5) requires
a court to order the “party or deponent whose conduct
necessitated the motion, the party or attorney advising that
conduct, or both to pay the movant's reasonable expenses
incurred in making the motion, including attorney's
fees” unless the movant failed to meet and confer, the
objection was substantially justified, or other circumstances
militate against awarding expenses. See Brown v. Hain
Celestial Group, Inc., 2013 WL 5800566, *5 (N.D. Cal.
Oct. 28, 2013) (“[t]he party that loses the motion to
compel bears the affirmative burden of demonstrating that its
position was substantially justified”) (internal
citations omitted). Rule 30(d)(2) provides that a court
“may impose an appropriate sanction - including the
reasonable expenses and attorney's fees incurred by any
party - on a person who impedes, delays, or frustrates the
fair examination of the deponent.” Bicek v. C &
S Wholesale Grocers, Inc., 2013 WL 5673418, *6-8 (E.D.
Cal. Oct. 17, 2013) (finding sanctions appropriate under both
Rules 30 and 37 as a result of counsel's delaying,
impeding and frustrating depositions, and for causing
opposing counsel to seek the court's intervention to
resolve the dispute).
determine if sanctions are warranted under Rule 30, the
court's inquiry is twofold. First, the court must
determine whether a person's behavior has impeded,
delayed, or frustrated the fair examination of the
deponent.” Lucas v. Breg, Inc., 2016 WL
2996843, at *2 (S.D. Cal. May 13, 2016) (quoting Dunn v.
Wal-Mart Stores, Inc., 2013 WL 5940099 (D. Nev. Nov. 1,
2013), citing Fed.R.Civ.P. 30(d)(2)). Second, the Court must
determine an appropriate sanction. Id. “The
Ninth Circuit provides District Courts with wide discretion
to fashion appropriate sanctions for discovery violations
under the Federal Rules.” Brady v. Grendene USA,
Inc., 2015 WL 5177760, at *2 (S.D. Cal. Sept. 4, 2015)
(citing Yeti by Molly, Ltd. v. Deckers Outdoor
Corp., 259 F.3d 1101, 1106 (9th Cir. 2001)).
reasons set forth above, the Court finds that
Intervenor's actions “impeded, delayed, or
frustrated the fair examination of the deponent.” The
Court further finds that paying defense counsel its
reasonable fees for drafting the motion to compel Intervenor
to attend deposition and supporting papers constitutes an
appropriate sanction. Defense counsel Mr. Cirlin declares
that “[a]ttorneys working under my supervision have
spent 13.3 hours drafting the motion to compel Lobbin to
attend deposition and supporting papers. My firm's hourly
rate for this case is $225 per hour.” Cirlin Decl. at
3. Intervenor does not object to the hourly rate Mr.
Cirlin's firm is charging for this case or to the number
of hours spent drafting the motion and related papers.
See Lobbin Oppo. In addition, this Court and other
courts in this district have found comparable and even higher
rates to be reasonable and the Court finds that in light of
the nature of the discovery dispute and the pleadings filed,
the 13.3 hours worked by defense counsel was reasonable.
Accordingly, the Court finds it appropriate to award the full
amount of costs and attorney's fees requested. Intervenor
is hereby ordered to reimburse defense counsel in the amount
of $2, 992.50 on or before June 2, 2017. Intervenor
is ordered to file a declaration verifying said payment no
later than June 9, 2017. Failure to comply with this
order may result in the imposition of additional sanctions.
MOTION TO COMPEL DEPOSITION OF MR. EDWARD O'
seek an order from the Court compelling Mr. Edward
O'Connor to appear for his deposition and to pay $2,
092.50 in sanctions to Defendants. O'Connor MTC at 15-16.
March 2, 2017, Defendant served a deposition notice on
Plaintiff for the deposition of Mr. O'Connor on March 30,
2017. O'Connor MTC at 5; see also ECF No. 100-2,
Declaration of Jason Cirlin In Support of Defendants'
Motion to Compel Deposition of Edward O'Connor at
Deposition (“Cirlin O'Connor Decl.”) at 2,
Exh. A. Mr. O'Connor is counsel for Plaintiff and was
formerly a partial owner of Plaintiff. O'Connor
Oppo. at 3. On March 13, 2017, defense counsel emailed Mr.
O'Connor to determine if he would be attending the
Fed.R.Civ.P. 30(b)(6) deposition as Plaintiff's
designated witness. Cirlin O'Connor Decl. at 2. Mr.
O'Connor clarified that he would be attending the
deposition by phone as counsel for Plaintiff and that Ms.
Jennifer Hamilton would be the 30(b)(6) witness. Id.
at 2-3, Exh. B. On March 23, 2017, defense counsel emailed
Mr. O'Connor stating that Defendants wanted to depose Mr.
O'Connor because he has personal knowledge of the matters
at issue and seeking to meet and confer about the deposition.
Id. at 3, Exh. B. Mr. O'Connor responded that he
only had information from privileged communications and no
personal knowledge. Id. Defense counsel responded
that Mr. O'Connor's deposition was “reasonable
and appropriate” and Mr. O'Connor did not respond.
Id. On March 29, 2017, the day before the noticed
date of the deposition, Mr. O'Connor's paralegal
emailed defense counsel stating that Mr. O'Connor would
not be attending the deposition since he was not subpoenaed
and lives in Florida and that Mr. O'Connor wished to meet
and confer prior to defense counsel filing any motions.
Id. at 4, Exh. C. In light of the email, defense