United States District Court, N.D. California
ORDER RE: PLAINTIFF'S MOTION FOR SANCTIONS RE:
DKT. NO. 54
JAGUQUELINE SCOTT CORLEY UNITED STATES MAGISTRATE JUDGE
Bernstein alleges violations of the Song Beverly Warranty Act
with respect to a vehicle manufactured and sold by Defendant
BMW of North America. During the course of discovery the
Court ordered Defendant to make percipient witness Nancy
McDonald available for deposition. Over a month after the
close of discovery, Plaintiff filed the now pending motion
for sanctions based on Defendant's failure to produce Ms.
McDonald for deposition. (Dkt. No. 54.) After considering the
parties' briefs, the Court concludes that oral argument
is unnecessary, see Civ. L.R. 7-1(b), VACATES the
July 18, 2019 hearing, and GRANTS IN PART and DENIES IN PART
Plaintiff's motion for sanctions.
March 25, 2019, the Court ordered Defendant to produce
percipient witness Nancy McDonald, who resides in New Jersey,
for deposition. (Dkt. No. 51.) Although Plaintiff had
previously offered to depose her via video to reduce expense,
Defendant declined. (Id.) Following the Court's
March 25 Order, Plaintiff issued a deposition notice for Ms.
McDonald for a deposition on Monday, April 29 at 10:00 am at
U.S. Legal Support at 206 East 161st Street, Bronx, NY. (Dkt.
N. 54-3.) On April 24-the Thursday before Ms. McDonald's
Monday deposition-Defense counsel, Mr. Curtis, emailed
Plaintiff's counsel, Mr. Barry, stating that Ms. McDonald
would be produced at a court reporter's office in New
Jersey at 25 East Spring Valley Avenue, Suite 320, Maywood,
N.J., rather than the location in the deposition
notice. (Dkt. No. 59-1 at 6.) Mr. Barry responded
by stating that the deposition would go forward in the Bronx
as previously noticed. (Dkt. No. 59-1 at 8.) The following
day, Mr. Barry was contacted by a Philip Semprevivo who
indicated that he represented Defendant BMW and who again
stated that Ms. McDonald would be produced in New Jersey at
the previously specified location. (Dtk. No. 59-3 at 6.) Mr.
Semprevivo also attests that he called and sent additional
emails to Mr. Barry although these emails are not attached to
his declaration. (Dkt. No. 59-3 at ¶¶ 4-7.) In any
event, there is no dispute that Mr. Barry did not respond to
Mr. Semprevivo's emails or calls. On April 29 at 10:00
am, Mr. Barry appeared at the court reporter's office in
the Bronx and Ms. Chou (an attorney with Mr. Semprevivo's
office) appeared at the court reporter's office in New
Jersey with Ms. McDonald. (Dkt. No. 54-3; Dkt. No. 59-2.)
Five weeks later, Plaintiff filed the now pending motion for
Rule of Civil Procedure 37(b) authorizes sanctions against a
party for failing to obey a discovery order. Fed.R.Civ.P.
37(b)(2)(A), (C). The district court has wide latitude in
exercising its discretion to issue sanctions under Rule
37(c)(1). Yeti by Molly, Ltd. v. Deckers Outdoor
Corp., 259 F.3d 1101, 1106 (9th Cir. 2001); see also
Liew v. Breen, 640 F.2d 1046, 1050 (9th Cir. 1981)
(“Imposition of sanctions under Rule 37(b), and the
selection of the particular sanction, are matters left to the
discretion of the trial court.”). However, the district
court's discretion to issue sanctions is subject to the
following limitations: (1) the sanction must be just and (2)
the sanction must specifically relate to the particular claim
at issue in the discovery order. See Navellier v.
Sletten, 262 F.3d 923, 947 (9th Cir. 2001). Further,
where a party seeks payment of expenses for failure to comply
with a court order, “the court must order the
disobedient party, the attorney advising that party, or both
to pay the reasonable expenses, including attorney's
fees, caused by the failure, unless the failure was
substantially justified or other circumstances make an award
of expenses unjust.” Fed.R.Civ.P. 37(b)(2)(C).
Plaintiff seeks evidentiary sanctions as well as monetary
sanctions under Rule 37(b)(2) based on Defendant's
failure to produce Ms. McDonald in response to the deposition
notice and this Court's Order. The Court is troubled by
the lack of professionalism apparent in both counsels'
conduct in this matter. Plaintiff's counsel refused to
acknowledge or communicate with Defendant's east coast
counsel. Defendant's counsel refused to acknowledge that
Plaintiff as the deposing party-and not Defendant-was
entitled to select the place of the deposition. See
Cadent Ltd. v. 3M Unitek Corp., 232 F.R.D. 625, 628
(C.D. Cal. 2005) (noting that generally, a party may notice
deposition of another party to take place wherever it
chooses). Defendant's insistence that the Court ordered
the deposition to occur in New Jersey is wrong-the Court
ordered Defendant to make her available for deposition, but
did not order anything regarding the location of the
deposition. (Dkt. No. 51.) If Defendant objected to the place
of the deposition, it was not entitled to unilaterally change
the location, and instead, was required to move for a
protective order to prevent the deposition. See Fed.
R. Civ. P. 37(d)(2) (“A failure [to appear for a
deposition] is not excused on the ground that the discovery
sought was objectionable, unless the party failing to act has
a pending motion for a protective order under Rule
26(c).”); see id. advisory committee's
note (1970) (“If [a party] desires not to appear or not
to respond, he must apply for a protective order.”).
Given Defendant's failure to move for a protective order,
its failure to produce Ms. McDonald for deposition was not
substantially justified. The Court thus ORDERS Defendant to
pay Plaintiff's reasonable expenses.
the Court in its discretion declines to impose any of the
evidentiary sanctions sought by Plaintiff. If Ms.
McDonald's testimony was as critical as Plaintiff now
insists, Plaintiff should have moved to compel her deposition
within the time allowed to do so by the Local Rules rather
than wait until a month after the close of fact discovery and
seek evidentiary sanctions instead; the delay suggests an
attempt to obtain a procedural advantage rather than
motion for sanctions is GRANTED IN PART and DENIED IN PART.
(Dkt. No. 54.) Lewis Brisbois Bisaard & Smith LLP shall
pay Plaintiffs reasonable attorney's fees and costs of
$3, 800. These sanctions must be paid within 30
days, by August 16, 2019. The motion for sanctions is DENIED
in all other respects.
IS SO ORDERED.
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