Apple Hill Growers v. El Dorado Orchards, Inc.

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 APPLE HILL GROWERS, No. 2:17–cv–02085–TLN–CKD

12 Plaintiff/Counter-

Defendant,

13 ORDER ON DEFENDANTS’ MOTION TO

v. REOPEN DISCOVERY & TO COMPEL

14 DEPOSITIONS & FOR SANCTIONS

EL DORADO ORCHARDS, INC., et al.,

15 (ECF No. 78)

Defendants/Counter-

16 Claimants.

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18 Presently before the court1 is defendants’ motion to (I) reopen discovery for the limited

19 purpose of deposing six of plaintiffs’ witnesses, (II) compel the depositions of these six

20 witnesses, and (III) impose sanctions against plaintiff Apple Hill Growers (“AHG”) or plaintiff’s

21 counsel for the conduct leading to this motion. (ECF No. 78.) Defendants filed a document

22 styled as a joint statement regarding the dispute but attaching a separate statement of plaintiff’s

23 position on the joint statement. (ECF Nos. 85, 85.1.) This was done at the suggestion of

24 plaintiff’s counsel, Catherine Ashley Straight, based on her position that defendants provided her

25 with the draft of their portion of the joint statement too late and in incomplete form. (ECF

26 Nos. 85.1, 86.)

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1 This matter was referred to the undersigned pursuant to Eastern District of California Local

28 Rule 302(c)(1) and 28 U.S.C. § 636(b)(1).

1 The court heard remote arguments on the motion on August 17, 2022. Ms. Straight

2 appeared for plaintiff; and Christopher Passarelli and Brett Leininger appeared for defendants.

3 For the following reasons, the court GRANTS IN PART AND DENIES IN PART defendants’

4 motion.

5 I. Motion to Reopen Depositions Period

6 Defendants request that the court reopen the period for taking depositions, which closed

7 on July 15, 2022, under the last approved extension of the depositions deadline. (All other fact

8 discovery has been closed since June 3, 2022, and defendants do not seek to modify that date.)

9 Defendants seek a two-week reopening of the deposition period for the limited purpose of

10 deposing six witnesses that defendants argue they were blocked from taking during the allotted

11 period.

12 Having considered the required factors for modifying a scheduling order, the court finds

13 good cause to reopen discovery for the limited purpose of defense counsel taking the depositions

14 of the six witnesses identified in the motion.2 See City of Pomona v. SQM North America Corp.,

15 866 F.3d 1060, 1066 (9th Cir. 2017) (six factors for ruling on motion to amend Rule 16

16 scheduling order to reopen discovery); Fed. R. Civ. P. 16(b)(4) (permitting modification “only for

17 good cause and with the judge’s consent”).3 Although defense counsel certainly could have been

18 more proactive in seeking to schedule the desired depositions of plaintiff’s witnesses, the court

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2 In addition, although this motion was filed after the depositions period expired on July 15, 2022,

20 the court finds that reopening is warranted because it was due to excusable neglect—as

determined under the Pioneer factors—that the motion was filed 5 days after the depositions

21 period ended. See Fed. R. Civ. P. 6(b)(1)(B) (where motion for extension is made after the time

has expired, the extension may be granted for good cause “if the party failed to act because of

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excusable neglect”); Mikell v. Baxter Healthcare Corp., 2014 WL 12588640, at *4-6 (C.D. Cal.

23 Sept. 16, 2014) (applying Pioneer factors to motion to reopen and finding that 24-day delay was

minimal enough to support excusable neglect); see also Pincay v. Andrews, 389 F.3d 853, 855

24 (9th Cir. 2004) (en banc) (setting forth four factors from Pioneer Inv. Servs. Co. v. Brunswick

Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)). Although defense counsel’s reason for filing the

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motion after the period closed (that lead counsel was out of town at the time) is questionable, the

court does not see any prejudice to plaintiff or other signs that the 5-day delay was brought about

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in bad faith.

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3 Because this motion seeks only to modify pre-trial discovery dates, it is appropriately addressed

28 to the undersigned, rather than the presiding district judge.

1 does not see this requested reopening as a product of lack of diligence. See Johnson v. Mammoth

2 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (schedule modification standard “primarily

3 considers the diligence of the party” seeking modification, and “[i]f that party was not diligent,

4 the inquiry should end”).

5 Over the course of the court’s frequent discovery hearings in this case, Ms. Straight’s

6 combative approach to the discovery process has become clear. This is not to say that her

7 positions are always (or even often) unfounded, but that both defense counsel and the court have

8 had to expend inordinate amounts of energy trying to resolve sundry discovery issues that

9 normally are readily achieved through compromise and cooperation between opposing counsel.

10 This pattern of consistently difficult discovery negotiations supports the court’s conclusion that it

11 was not pure lack of diligence that caused defense counsel to wait until late in the discovery

12 period to try to arrange the depositions of plaintiff’s witnesses. Ms. Straight’s delayed May 17,

13 2022 production of most of the discovery documents requested by defendants also contributed to

14 defendants’ inability to schedule depositions before that date.4 Although the court is skeptical

15 that it would take a mid-size litigation firm five weeks to review that production, and questions

16 defense counsel’s apparent failure to even attempt to informally schedule the desired depositions

17 before June 29, 2022, the court also recognizes that defense counsel faced difficulties in

18 determining which of the witnesses required subpoenas and that they were actively working to

19 schedule and defend Ms. Straight’s depositions of at least several of their own witnesses during

20 that period. Most importantly, the ultimate reason that none of defendants’ desired depositions

21 took place was that Ms. Straight filed a Motion for Protective Order / Motion to Quash (“MPO”)

22 on July 4, 2022 (ECF No. 75) and maintained that motion for almost the entire remaining period

23 for depositions (before ultimately withdrawing it)—at least arguably blocking defendants from

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4 After the hearing on this motion, and in response to Ms. Straight’s motion for sanctions, defense

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counsel Christopher Passarelli filed a declaration correcting or clarifying various statements

included in defendants’ portion of the “joint” statement for this motion. (ECF No. 91.) The

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precise number of documents produced by Ms. Straight before May 17, 2022, and the nature and

27 state of that production, does not change the court’s view of this issue because it is undisputed

that the large majority of plaintiff’s production did not occur until May 17, 2022, after an arduous

28 motion to compel.

1 proceeding with any depositions under the Local Rules over the remainder of the depositions

2 period. See E.D. Cal. L.R. 251(g) (“When a party files a motion for a protective order in

3 response to any discovery request, that party’s obligation to respond to the discovery request is

4 stayed pending resolution of the motion for a protective order.”). Thus, no amount of diligence

5 by defense counsel after July 4th would have allowed them to conduct the depositions within the

6 scheduled period.5

7 None of the other five ‘good cause’ factors—aside from plaintiff’s asserted opposition to

8 any schedule modification—weigh against a limited reopening of discovery. No trial date has yet

9 been set, nor will it be until the newly pending cross-motions for summary judgment are decided.

10 Plaintiff objects that reopening discovery would amount to rewarding what she sees as defense

11 counsel’s abusive litigation tactic of waiting to notice voluminous depositions to consume much

12 of the parties’ remaining time to prepare and file their motions for summary judgment. Without

13 finding the timing of defendants’ deposition notices necessarily abusive, the court does consider

14 the late timing of the large quantity of deposition notices sufficient reason to deny most of the

15 sanctions defendants seek in this motion. However, plaintiff’s counsel provided no argument as

16 to how permitting defense counsel to proceed with the six desired depositions now, with briefing

17 concluded on the summary judgment motions, would prejudice her or her client. Nor did

18 plaintiff’s counsel assert any substantive (as opposed to procedural) basis for preventing

19 defendants from taking the desired depositions—with the exception of the deposition of co-

20 counsel, Mr. West, which is addressed below.

21 Finally, the six depositions for which reopening is sought would undoubtedly lead to

22 relevant evidence. All six desired deponents are key witnesses whom defendants reasonably

23 expect to testify for plaintiff regarding any surviving infringement claims of plaintiff’s, any

24 surviving cancellation counter claim by defendants, defendants’ group boycott counter claim (as

25 to which neither side has moved for summary judgment), and defendants’ nominative fair use

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5 Even filing a counter motion to compel would have necessitated extending the period for

27 depositions beyond July 15, because the motion could not have been heard before then; and

moreover defendants reasonably believed that they would have a chance to argue for the

28 depositions to occur in the course of briefing plaintiff’s noticed MPO.

1 defense. Many (though not all) of these depositions may prove unnecessary if the court grants

2 summary judgment on certain claims and counter claims; but the court opts to allow the

3 depositions to go forward without awaiting adjudication of the summary judgment motions

4 because, due to the overburdened status of this district, it may well be a year or more before there

5 is a ruling on the summary judgment motions—during which time witnesses’ memories may

6 fade. Further, defendants do not intend to use these depositions to supplement their motion for

7 summary judgment, but rather to prepare for trial.6 (ECF No. 85 at 12.)

8 Accordingly, the court GRANTS defendants’ motion to reopen the period for discovery

9 for the limited purpose of defense counsel taking the depositions of the six witnesses identified in

10 this motion. Although defendants seek a two-week period to conduct these depositions, the court

11 orders a slightly longer period based on plaintiff’s counsel’s representations as to the availability

12 of the desired deponents.

13 II. Motion to Compel Depositions

14 Along with reopening discovery for these depositions, defendants simultaneously seek an

15 order (1) compelling the attendance of the four “party” witnesses at rescheduled depositions and

16 (2) ordering plaintiff’s counsel to make a good-faith effort to secure the attendance of the two

17 “non-party” witnesses and permitting defendants to serve subpoenas on them if necessary.

18 A. “Party” Witnesses

19 The four party witnesses are three directors of the board of plaintiff AHG—Chris Delfino

20 (President), Lynn Larsen (Historian), Kandi Tuso (Vice President)—and an individual yet to be

21 designated as AHG’s Rule 30(b)(6) witness. A Rule 30(b)(6) deponent necessarily qualifies as a

22 party witness, whose deposition can be noticed without a subpoena. Defendants also establish

23 that Delfino, Larsen, and Tuso—while not plaintiffs, themselves—are all current officers or

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6 The undersigned does not herein preclude the parties from using the forthcoming deposition

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testimony to supplement their summary judgment motions. However, the parties are cautioned

that a motion to supplement would have to be directed to the presiding district judge, who might

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well limit the movant solely to adding further evidentiary support for its existing arguments or to

27 raising new arguments not previously available to it in light of the new testimony—if he grants

the motion at all. See Pacesetter Consulting LLC v. Kapreilian, 2021 WL 4844324, at *2

28 (D. Ariz. May 3, 2021).

1 directors of AHG and can therefore be noticed for a deposition under Rule 30(b)(1). (ECF

2 No. 85.3 at 7, Ex. K.) See Calderon v. Experion Information Solutions, Inc., 290 F.R.D. 508, 516

3 (D. Id. 2013) (“If the party seeking the deposition wishes to depose a specific employee of the

4 corporation, it may identify a specific officer, director or managing agent to be deposed and

5 notice that person under [Rule] 30(b)(1).”); Rijhwani v. Wells Fargo Home Mortg., Inc., 2015

6 WL 848554, at *3 (N.D. Cal. Jan. 28, 2015). Therefore, they are also effectively party witnesses

7 whose depositions can be compelled by a notice of deposition—and then by the court, if

8 necessary—without a Rule 45 subpoena. See Fed. R. Civ. P. 37(a)(3)(B)(i) (permitting motion to

9 compel when a “deponent fails to answer a question asked under Rule 30 or 31”); Sali v. Corona

10 Reg’l Med. Ctr., 884 F.3d 1218, 1222 (9th Cir. 2018) (“As we have recognized, Rule 37(a)

11 encompasses an order to attend a deposition.”).

12 As defendants note, a witness can be found to have failed to attend a noticed deposition

13 when counsel gives advance notification that the witness will not attend. Henry v. Gill Indus.,

14 Inc., 983 F.2d 943, 947 (9th Cir. 1993) (in appeal of Rule 37 dismissal sanctions, rejecting

15 argument that prior notification that deponent would not appear does not constitute “failure to

16 appear”). That is effectively what happened here. Defendants’ amended notices of depositions

17 set depositions of Larsen and Tuso for July 13 and 14—and for Delfino and the Rule 30(b)(6)

18 designee on July 12 and 15. Defendants only cancelled those depositions after Ms. Straight filed

19 her MPO and stopped communicating with defense counsel until shortly before withdrawing the

20 MPO late on July 12. Before July 12, defendants tried to confirm with Ms. Straight whether her

21 witnesses would attend but upon receiving no response notified her that they were postponing the

22 depositions. This constitutes a failure to appear, and the court finds it appropriate to compel each

23 of these party witnesses to appear for a deposition by defense counsel in this case within the

24 following time frames:

25 Chris Delfino SHALL appear for a deposition during the week of September 19th,

26 2022—with the deposition to be conducted either in person in El Dorado County, or via

27 remote means.

28 ////

1 Lynn Larsen SHALL appear for a deposition during the weeks of November 21st or

2 28th, 2022—with the deposition to be conducted either in person in El Dorado County, or

3 via remote means.

4 Kandi Tuso SHALL appear for a deposition during the weeks of November 21st or

5 28th, 2022—with the deposition to be conducted either in person in El Dorado County, or

6 via remote means.7

7 As for the Rule 30(b)(6) deposition, plaintiff is hereby compelled to designate an

8 appropriate representative, upon counsel’s meet and confer regarding the topics to be covered.

9 See Fed. R. Civ. P. 37(a)(3)(B)(ii) (permitting motion to compel when “a corporation or other

10 entity fails to make a designation under Rule 30(b)(6)”). There is no support for Ms. Straight’s

11 position that defendants’ noticed Rule 30(b)(6) deposition cannot proceed because defense

12 counsel had not initiated meet and confer at the time the Notice of Deposition was served. See

13 Fed. R. Civ. P. 30(b)(6) (“Before or promptly after the notice or subpoena is served, the serving

14 party and the organization must confer in good faith about the matters for examination.”

15 (emphasis added)).

16 Counsel shall meet and confer no later than September 2, 2022 in an effort to narrow

17 the topics listed in defendants’ Rule 30(b)(6) notice of deposition. Plaintiff shall then

18 designate an appropriate witness no later than September 9, 2022. The Rule 30(b)(6)

19 deposition shall take place no later than September 23, 2022 and shall be conducted by

20 remote means unless the parties stipulate otherwise. At the hearing, Ms. Straight advised that

21 plaintiff’s Rule 30(b)(6) designee might be one of the other individual witnesses (Delfino, Larsen,

22 or Susan Boeger). If the Rule 30(b)(6) deposition is conducted in conjunction with any of their

23 ////

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7 At the hearing, Ms. Straight conveyed that the fall season is the height of operations for

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Ms. Larsen’s and Ms. Tuso’s seasonal small businesses, and during this time they work long

hours and cannot leave their businesses. While the court doubts that these witnesses could not

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spare a few hours to attend a remote deposition at any point in the next three months, the court

27 also sees no great urgency to conducting their depositions. Accordingly, the court orders their

depositions to take place during the weeks that Ms. Straight indicated they would again become

28 available.

1 personal depositions, it shall be conducted on the same date and by the same method as the

2 personal deposition—unless the parties agree otherwise.

3 B. “Nonparty” Witnesses

4 Defendants also seek an order compelling plaintiff’s counsel to make a good-faith effort to

5 secure the deposition attendance of two “non-party” witnesses: current co-counsel of record for

6 plaintiffs, R. Michael West, as well as plaintiff AHG’s former treasurer, Susan Boeger, who

7 remains a grower/member of AHG.

8 Defendants recognize that these individuals cannot be directly compelled to attend a

9 deposition without having first been served with a Rule 45 subpoena—which has not yet been

10 accomplished. However, the Ninth Circuit has held that a court can order a party to produce a

11 nonparty witness at a deposition, “and, if the party makes no effort to ensure that its witness

12 attends the deposition, sanction the party’s counsel when the witness fails to appear.” Sali, 884

13 F.3d at 1220. Although Sali dealt with the production of a nonparty expert witness—which

14 neither Mr. West nor Ms. Boeger are—the court sees no reason to limit its holding to the context

15 of expert witnesses. The Court of Appeals specifically countenanced a Rule 37 order directing a

16 party to “use its best efforts to secure the nonparty’s attendance at the deposition.” Id. at 1224.

17 And while the court encouraged prospective deposing parties to use the subpoena process, it also

18 recognized that “if the party seeking the deposition suspects that the opposing party is the

19 bottleneck—either directing or encouraging its witness not to appear—an order directed at the

20 opposing party may be fruitful.” Id. at 1224-25.

21 Ms. Straight’s objections to the notice of deposition for Mr. West make clear that she is

22 part of the reason that co-counsel Mr. West did not appear for a deposition. At the hearing,

23 Ms. Straight denied instructing Ms. Boeger not to cooperate or appear for a deposition in this

24 case; however, she informed the court that she does represent Ms. Boeger in connection with her

25 winery business. There is a close relationship with a substantial degree of authority and control

26 between plaintiff AHG and its counsel of record, Mr. West, and between AHG and its

27 grower/member Ms. Boeger. Likewise, there is a close relationship between Ms. Straight and her

28 co-counsel Mr. West and her client, Ms. Boeger. Because the court concludes that the

1 depositions of both Mr. West and of Ms. Boeger should go forward, the court hereby ORDERS

2 plaintiff AHG and plaintiff’s counsel Ms. Straight to use their best efforts to secure

3 Mr. West’s and Ms. Boeger’s attendance at the depositions to be rescheduled by defense

4 counsel in this case. If, despite plaintiff AHG and Ms. Straight’s good-faith best efforts, either

5 Mr. West or Ms. Boeger fail to appear at the respective re-set depositions, no sanctions will

6 follow against AHG or Ms. Straight. See Sali, 884 F.3d at 1224 (“[A] party won’t incur Rule 37

7 sanctions if, despite its efforts, a recalcitrant nonparty witness refuses to attend an ordered

8 deposition.”). In the meantime, given the limited reopening of the depositions period, defendants

9 are free to resume efforts to serve Mr. West and Ms. Boeger with Rule 45 subpoenas.

10 The court concludes that both Mr. West and Ms. Boeger are likely to give deposition

11 testimony relevant to various claims, defenses, and counter claims in this action—most

12 prominently, the nature and context of certain representations made to the U.S. Patent and

13 Trademark Office (“USPTO”) in the course of AHG’s 2015 and 2016 prosecution of its

14 application to register the second of its APPLE HILL marks.

15 This persuades the court to order plaintiff and plaintiff’s counsel to use their best efforts to

16 produce Ms. Boeger for a deposition on a date mutually agreeable to defense counsel, plaintiff’s

17 counsel, and Ms. Boeger. Based on Ms. Straight’s report of Ms. Boeger’s availability,

18 counsel shall endeavor to conduct Ms. Boeger’s deposition during the week of

19 September 19th, 2022—with the deposition to be conducted either in person in Placerville,

20 California, or via remote means.

21 By contrast, the relevance of Mr. West’s anticipated testimony does not, alone, necessarily

22 warrant an order for plaintiff to use its best efforts to produce him for deposition because he is

23 one of plaintiff’s attorneys in this litigation. The Federal Rules do not expressly prohibit the

24 taking of a party’s counsel’s deposition. However, attorney depositions are disfavored and

25 “should be employed only in limited circumstances.” ATS Prod., Inc v. Champion Fiberglass,

26 Inc., 2015 WL 3561611, at *3 (N.D. Cal. June 8, 2015) (citing Hickman v. Taylor, 329 U.S. 495,

27 513 (1947) (“The practice of forcing trial counsel to testify as a witness . . . has long been

28 discouraged.”).

1 Ms. Straight objected to defendants’ attempt to depose Mr. West because she believed him

2 presumptively immune from deposition by an adversary unless defendants could show “(1) no

3 other means exist to obtain the information than to depose opposing counsel [citation omitted];

4 (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the

5 preparation of the case.” Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986).

6 (See ECF No. 85.3 at 104, Ex. O.)

7 The Eighth Circuit’s Shelton test is indeed the “seminal case on the depositions of

8 attorneys” and is widely adopted by district courts in this circuit—in the absence of guidance

9 from the Ninth Circuit. Alba v. Velocity Investments, LLC, 2022 WL 3327382, at *4 (S.D. Cal.

10 Aug. 10, 2022). However, the Eighth Circuit has since expressly held the Shelton test

11 “inapplicable where a litigant seeks to depose opposing counsel about a prior closed case, as

12 opposed to a pending case.” Id.; see Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726, 730 (8th

13 Cir. 2002) (Shelton “was not intended to provide heightened protection to attorneys who

14 represented a client in a completed case and then also happened to represent that same client in a

15 pending case where the information known only by the attorneys regarding the prior concluded

16 case was crucial.”). “Consistent with this understanding, district courts within the Ninth Circuit

17 have clarified ‘the Shelton analysis applies only where the discovery sought concerns matters

18 relating to counsel’s representation of a litigant in the current litigation. It does not apply to

19 discovery of facts known to counsel as a percipient witness relating to matters that preceded the

20 litigation.’” Alba, 2022 WL 3327382, at *4 (emphasis added) (quoting Torrey Pines Logic, Inc.

21 v. Gunwerks, LLC, 2020 WL 6365430, at *2 (S.D. Cal. Oct. 29, 2020) and citing others). Thus,

22 district courts in California do not uniformly apply Shelton in every situation in which an attorney

23 deposition is sought. See Zetz v. Bos. Sci. Corp., 2022 WL 605356, at *6 n.4 (E.D. Cal. Mar. 1,

24 2022) (citing as one example Devlyne v. Lassen Mun. Util. Dist., 2011 WL 4905672, at *2 (E.D.

25 Cal. Oct. 14, 2011) (“[T]he Shelton criteria apply only when trial and/or litigation counsel are

26 being deposed and the questioning would expose litigation strategy in the pending case.”)).

27 When the Shelton test does not apply, “courts evaluate the propriety of the deposition of an

28 attorney ‘under the ordinary discovery standards of the Federal Rules of Civil Procedure and any

1 asserted privileges.’” Alba, 2022 WL 3327382, at *4 (quoting Pamida, 281 F.3d at 731).

2 Here, defendants seek to depose Mr. West regarding certain statements included in his

3 filings with the USPTO in prosecuting AHG’s trademark application in 2015 and 2016. Mr. West

4 was AHG’s counsel of record in the USPTO mark registration process and is also one of its two

5 attorneys of record in this litigation.8 As a result of Mr. West’s efforts, AHG’s trademark

6 registration ‘321 was issued in September 2016 (ECF No. 17, First Amended Complaint, ¶ 20),

7 thus concluding his representation of AHG in that matter. Mr. West’s prosecution of the

8 trademark registration concluded before AHG’s filed this litigation in October 2017, and his

9 communications with the USPTO on AHG’s behalf were not part of his representation of AHG in

10 this action. Accordingly, even assuming the Ninth Circuit had adopted the Shelton test, it would

11 not apply in this scenario.

12 Under the ordinary discovery standards, Mr. West’s testimony is relevant to at least

13 defendants’ nominative fair use defense. As for privilege concerns, defendants have “specifically

14 agreed not to examine Mr. West regarding matters covered by privilege and or work product

15 protections.” (ECF No. 85 at 25.) Defendants also “have already agreed to limit the deposition to

16 AHG’s asserted applications to register APPLE HILL with the USPTO, and to Mr. West’s

17 representations made therein.” (Id.; see Leininger Decl., ¶ 8.) Accordingly, Mr. West SHALL

18 make himself available for a deposition in this case, which shall be limited to AHG’s

19 applications to register the APPLE HILL mark with the USPTO, and to Mr. West’s

20 representations made therein, and not to include examination of matters covered by

21 attorney-client privilege or work product protections. Counsel shall confer on a mutually

22 agreeable date and endeavor to conduct Mr. West’s deposition no later than September 23,

23 2022—with the deposition to be conducted via remote means.

24 For these reasons, defendants’ motion is GRANTED as to the motion to compel.

25 ////

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27 8 Although Mr. West’s signature appears alongside Ms. Straight’s on various filings, he has only

appeared in court for one hearing, and as far as the court is aware Ms. Straight has conducted all

28 of the discovery communications in this case.

1 III. Motion for Sanctions

2 Finally, defendants seek a range of sanctions against Ms. Straight or plaintiff AHG for, in

3 their view, obstructing the depositions before the deadline, multiplying the proceedings, and

4 repeated bad-faith litigation tactics. Defendants seek (1) attorneys’ fees under Rule 37(a)(5) for

5 bringing this motion to compel, in an amount to be proven separately, (2) additional sanctions

6 under Rules 30(d)(2) & 37(d)(3) for obstructing the desired depositions, (3) sanctions under

7 28 U.S.C § 1927 for “multipl[ying] the proceedings . . . unreasonably and vexatiously” by

8 maintaining the MPO after the original objections were addressed in the Amened Notices of

9 depositions, and by then withdrawing that motion after defense counsel had worked up its part of

10 the anticipated joint statement, and (4) sanctions under the court’s inherent power, including

11 potential dismissal of plaintiff’s claims.

12 The court declines to impose any sanctions against plaintiff or plaintiff’s counsel, beyond

13 entertaining a request for reasonable expenses and attorneys’ fees associated with bringing this

14 motion. See Fed. R. Civ. P. 37(a)(5)(A) (upon granting discovery motion, court “must, after

15 giving an opportunity to be heard,” require payment of movant’s reasonable expenses including

16 attorney’s fees, unless opposing party’s conduct was “substantially justified” or “other

17 circumstances make an award of expenses unjust”). Although Ms. Straight’s conduct is far from

18 model, defendants also precipitated this discovery dispute by springing 16 noticed depositions on

19 plaintiff at the absolute last minute—noticing depositions for every day between July 6 and

20 July 15, which was just a few business days before the deadline to file dispositive motions. By

21 far the more preferable solution would have been to stipulate to a further extension of the

22 depositions deadline beyond the dispositive motions deadline; but the court cannot fault plaintiff

23 for reacting to this onslaught by filing its MPO on July 4, 2022. It does appear that the MPO was

24 purely meant to block defendants from taking any depositions during the remaining days of the

25 discovery period, given that plaintiff (1) did not withdraw the MPO when the objections asserted

26 therein were addressed by defendants’ Amended Notices of Deposition and (2) then withdrew the

27 MPO the night before the joint statement was due on the motion, three days before the close of

28 discovery. The court also appreciates that this last-minute withdrawal caused defense counsel to

1 unnecessarily expend resources preemptively preparing their portion of that joint statement.

2 However, the court finds both sides equally responsible for getting to this point in the first place:

3 defendants for not attempting to schedule the depositions sooner and then trying to notice an

4 excessive number of depositions in the final days of discovery, and plaintiff for its delayed

5 document production combined with a generally non-cooperative approach to discovery

6 throughout the case.

7 Having granted the motion to compel, the court is obliged to entertain any request for

8 attorneys’ fees that defendants may wish to file. See Fed. R. Civ. P. 37(a)(5)(A). However, the

9 court encourages defendants to consider whether they might forego seeking these fees in an effort

10 to focus on the desired depositions rather than expending further resources by the court and the

11 parties in determining whether plaintiff’s counsel’s conduct was substantially justified or whether

12 other circumstances make an award of expenses unjust.

13 Finally, the court acknowledges that just before the hearing on this motion, plaintiff filed a

14 motion for sanctions against defense counsel based on various assertedly false statements made in

15 bringing the present motion. (ECF No. 89.) The court will take that motion under submission

16 and accept adversarial briefing on the motion (rather than a joint statement), if plaintiff’s counsel

17 insists on maintaining it; however, at this point, the court is equally disinclined to impose

18 sanctions on defense counsel. The court encourages the parties to cooperatively schedule the

19 upcoming five or six depositions and move on.

20 ORDER

21 For the foregoing reasons, IT IS ORDERED that:

22 1. Defendants’ motion to reopen discovery, to compel depositions, and to impose sanctions

23 (ECF No. 78) is GRANTED IN PART and DENIED IN PART;

24 2. The court GRANTS defendants’ motion to reopen the period for discovery for the limited

25 purpose of defense counsel taking the depositions of the six witnesses identified in this

26 motion. The deposition period is hereby reopened until December 2, 2022;

27 ////

28 ////

1 3. The court GRANTS defendants’ motion to compel the depositions of the six witnesses

2 identified in this motion. These depositions shall take place within the parameters

3 specified above;

4 4. court DENIES defendants’ motion for sanctions, except to the extent defendants may

5 wish to request reasonable attorneys’ fees associated with bringing this motion, under

6 Rule 37(a)(5)(A);

7 a. Should defense counsel wish to seek these fees, their brief in support of the request

8 (including evidence of the reasonableness of their time and rates) is due no later

9 than September 2, 2022;

10 b. Plaintiff's counsel may then file any opposition no later than September 16, 2022,

1] and the matter will be taken under submission;

12 5. Plaintiff's August 16, 2022 motion for sanctions (ECF No. 89) is hereby taken under

13 submission, and the hearing set for October 5, 2022 is VACATED. Plaintiffs brief in

14 support of the motion, or notice of withdrawal of the motion, 1s due no later than

15 September 9, 2022; defendants’ opposition is due no later than September 23, 2022; and

16 plaintiff's optional reply is due no later than September 30, 2022. If the court determines

17 that a hearing is necessary, it will be scheduled at a later date; and

18 6. For any further discovery motions by any party in this case, the motion SHALL NOT be

19 filed on the docket until (1) the movant has scheduled a time with the undersigned’s

20 Courtroom Deputy for the parties to meet and confer in person in the Sacramento

21 courthouse, with the undersigned available to informally assist in the conferral, and

22 (2) such meet and confer has taken place without resolving the dispute.

23 | Dated: August 19, 2022 □□ / dp ai

CAROLYNK. DELANEY

25 UNITED STATES MAGISTRATE JUDGE

26

27

28 19, appl.2085

14