RG Abrams Ins. v. Law Offices of C.R. Abrams
RG Abrams Ins. v. Law Offices of C.R. Abrams
2021 WL 4974648 (C.D. Cal. 2021)
July 26, 2021
Audero, Maria A., United States Magistrate Judge
Summary
The Court considered the Federal Rule of Civil Procedure 26(b)(1) and Federal Rule of Evidence 401 in relation to ESI, finding that the discovery must be proportional to the needs of the case and that sanctions may be granted for a party's failure to appear at a deposition. However, no ESI was discussed in the case.
Additional Decisions
RG ABRAMS INSURANCE, and ROBIN GOLTSMAN, Plaintiffs,
v.
THE LAW OFFICES OF C.R. ABRAMS et al., Defendants.
AND RELATED CROSS-ACTIONS
v.
THE LAW OFFICES OF C.R. ABRAMS et al., Defendants.
AND RELATED CROSS-ACTIONS
Case No. 2:21-cv-00194-FLA-MAAx
United States District Court, C.D. California
Filed July 26, 2021
Counsel
Alden J. Parker, Fisher and Phillips LLP, Sacramento, CA, Drew M. Tate, Fisher and Phillips LLP, Los Angeles, CA, Michael A. Slater, Patricia L. Peden, Burke Williams and Sorensen LLP, Oakland, CA, for Plaintiffs.Timothy J. Donahue, Law Offices of Timothy Donahue, Orange, CA, for Defendants Christopher R Abrams, Rinelli Law Group, Sarah Rinelli, Jack R Mills, Robin Armstrong, Cynthia Wooten, The Law Offices of C.R. Abrams, P.C.
Audero, Maria A., United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION TO COMPEL DEFENDANTS' DEPOSITION ATTENDANCE; DENYING PLAINTIFF'S REQUEST FOR ATTORNEYS' FEES; DENYING DEFENDANTS' REQUEST FOR ATTORNEYS' FEES (ECF NO. 140)
I. INTRODUCTION
*1 Before the Court is Plaintiff Robin Goltsman's Motion to Compel Defendants' Deposition Attendance (“Motion”). (ECF No. 140.) The Motion was filed jointly by Plaintiff Robin Goltsman (“Plaintiff”), on the one hand, and Defendants Christopher Abrams (“Defendant Abrams”), Sarah Rinelli (“Defendant Rinelli”), Jack R. Mills (“Defendant Mills”), Cynthia Wooten (“Defendant Wooten”), and Robin Armstrong (“Defendant Armstrong”) (collectively “Defendants”), on the other, in the form of a Joint Stipulation as required by Central District of California Local Civil Rule [1] 37-2. However, it appears that this Motion does not contain Defendants' arguments, as the sections of the Motion entitled “Defendants' Position” have been left blank. (See id.) Through the Motion, Plaintiff seeks the following: an order compelling Defendants to attend their depositions (Mot. 6–10[2]); and (2) an award of attorneys' fees pursuant to Federal Rule of Civil Procedure [3] 37(a)(5)(A) in the amount of $4,235.00 (id. at 10–13). In support of her requests, Plaintiff filed the Declaration of Michael A. Slater (“Slater Declaration”) (Slater Decl., ECF No. 140-1, at 1–8), and its accompanying Exhibits A through N (Pl.'s Ex. A (ECF No. 140-1 at 9–13); Ex. B (id. at 14–18); Ex. C (id. at 19–21); Ex. D (id. at 22–26); Ex. E (id. at 27–29); Ex. F (id. at 30–33), Ex. G (id. at 34–38); Ex. H (id. at 39–41); Ex. I (id. at 42–45); Ex. J (id. at 46–48); Ex. K (id. at 49–53); Ex. L (id. at 54–61); Ex. M (id. at 62–66); Ex. N (id. at 67–70)).
Two days after Plaintiff's filing of the Motion, Defendants filed a separate Joint Stipulation, entitled “Defendant's [sic] Opposition to Motion of Plaintiff Robin Goltsman's Motion [sic] to Compel Defendants' Attendance at their Noticed Depositions,” which sets forth Defendants' arguments in opposition to the Motion (“Opposition”). (Opp'n, ECF No. 145.) In support of Defendants' Opposition, Defendants filed the Declaration of Timothy Donahue (“Donahue Declaration”) (Donahue Decl., ECF No. 145-1, at 1–6), and its accompanying Exhibits 1 through 4 (Defs.' Ex. 1 (ECF No. 145-1 at 7–20); Ex. 2 (id. at 21–23); Ex. 3 (id. at 24–25); Ex. 4 (id. at 26–30)).
Having read and considered the papers by the parties, the Court finds the Motion suitable for disposition without a hearing. See Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. Accordingly, the hearing set for August 3, 2021 is hereby VACATED and taken off calendar. For the reasons set forth below, Plaintiff's Motion is DENIED without prejudice, Plaintiff's request for attorneys' fees is DENIED, and Defendants' request for attorneys' fees is DENIED.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Plaintiff's Allegations
*2 This action is proceeding on the basis of Plaintiff's Complaint, which was filed February 20, 2020 in the U.S. District Court for the Northern District of California (“Complaint”). (Compl., ECF No. 1.) The case was transferred to the Central District of California on January 12, 2021. (Id.) The allegations of the Complaint are presented in great detail in the December 28, 2020 Order of Magistrate Judge Robert M. Illman (ECF No. 70) and, because of their length, need not be repeated here. Stated simply, Plaintiff alleges she employed the Defendants in her trust and estates business around the year 2000.[4] (Complaint 6–7.) In or around 2010, Plaintiff and Defendant Abrams restructured the business into two separate concerns—RG Abrams Insurance and the C.R. Abrams Law Firm. (Id. at 7.) In 2016, Plaintiff and Defendant Abrams restructured the business which, by 2019, proved to be a less than harmonious arrangement. (Id. at 8–9.) Plaintiff, along with two of the Defendants, started a separate business of pre-paid legal services without Defendant Abrams. (Id.) While Plaintiff was out of town in December 2019, Defendant Abrams and two other Defendants whom Plaintiff believed were working for her, took Plaintiff's client database, her marketing software, and her computer in order to start their own business. (Id. at 10.) On this basis, Plaintiff brings claims of violation of the Computer Fraud and Abuse Act (18 U.S.C. § 1030(g)), and a number of related state law claims. (Id. at 1.)
B. The Discovery Dispute
Plaintiff initially served each Defendant with deposition notices on June 1, 2021, and, following meet-and-confer efforts to identify mutually agreeable dates, served amended deposition notices for all Defendants except Defendant Armstrong on June 15, 2021.[5] (Mot. 4; Opp'n 3; Slater Decl. ¶ 3.) Plaintiff states that the depositions ultimately were noticed for the following dates: Defendant Armstrong on July 1, 2021; Defendant Wooten on July 9, 2021; Defendant Rinelli on July 12, 2021; Defendant Mills on July 14, 2021; and Defendant Abrams on July 16, 2021.[6] (Mot. 4; Opp'n 3; Slater Decl. ¶ 3.) Plaintiff further states that the deposition notices did not contain requests for production of documents. (Mot. 4; Opp'n 3; Slater Decl. ¶ 3.)
On June 25, 2021, Defendant Armstrong served a document entitled “Objection to Deposition,” in which she purported to “incorporate by reference” Plaintiff's objections to Plaintiff's Rule 30(b)(6) deposition, and further asserted that her notice of deposition was “improper, vague, ambiguous[,] and overbroad,” and was “designed to harass and was unilaterally noticed.” (Pl.'s Ex. B; see also Slater Decl. ¶ 4.)
On June 25, 2021, Plaintiff sent Defendants a meet-and-confer letter addressing Defendant Armstrong's objections. (Pl.'s Ex. C; see also Slater Decl. ¶ 5.) Although this letter was dated May 13, 2021 (see Pls.' Ex. C at 20), Plaintiff concedes that the May 13 date is an error and that the letter actually was sent on June 25 (see Mot. 7–8).
Next, Defendants sent Plaintiff a letter on June 29, 2021. (Pl.'s Ex. D; see also Slater Decl. ¶ 6.) Defendants' letter, which addressed several different topics, took issue with Plaintiff's “inexplicable insistence on deposition [sic] of Ms. Armstrong, while at the same time refusing to produce plaintiff [sic] for deposition.” (Pl.'s Ex. D at 23–24.) Defendants further stated: “You have falsely served a letter, alleging May 13, 2021 as constituting “Letter #1 pursuant to Judge Audero's modified discovery dispute resolution protocol”, allegedly relating to Armstrong deposition. Due to this material misrepresentation and inaccuracy, we will not be responding, unless a truthful record is made.” (Id. at 24 (emphasis in original).) Defendants also noted: “We have received innumerable wasteful and unnecessary meet and confer letters (including this one regarding Armstrong deposition) from your office.” (Id. at 25 (citing Fed. R. Civ. P. Rule 26(c)(1)).) Finally, in connection with Defendants' request that Plaintiff agree to a stipulated stay of discovery, Defendants asserted that “We are seeking a stipulation to stay, so that we do not have to waste time money and energy [sic] on Armstrong or any other discovery issues.” (Id. at 26.)
*3 Plaintiff then sent a follow-up meet-and-confer letter on June 29, 2021. (Pl.'s Ex. E; see also Slater Decl. ¶ 8.) Plaintiff stated that the May 13, 2021 date was a typographical error and argued that this error did not excuse Defendants from responding to the meet-and-confer request. (Pl.'s Ex. E at 28–29.) Plaintiff further argued that “the Federal Rules do not permit Ms. Armstrong to side-step her Rule 30(a)(1) obligations.” (Id. at 29.) Plaintiff contends that Defendants did not respond to this letter (Slater Decl. ¶ 8), and Defendants do not dispute this (see generally Opp'n).
Next, Plaintiff sent Defendants emails on June 30 and July 1, 2021, attempting to clarify whether the other Defendants also objected to their depositions and whether Defendants intended to appear for their noticed depositions. (Pl.'s Ex. F.) Plaintiff's July 1, 2021 email stated: “This email thread will confirm that Defendants Sarah Rinelli, Chris Abrams, Jack Mills and Cynthia Wooten object to and will not appear at their depositions.” (Id. at 31.) In this email thread, Plaintiff makes multiple references to an “attached email” by Defendants which Plaintiff interprets as stating that Defendants refuse to appear for their noticed depositions. (Id. at 31, 32.) However, Plaintiff has not provided any emails sent by Defendants as part of Exhibit F. (See id.) Plaintiff contends that Defendants did not respond to these June 30 and July 1 emails (Slater Decl. ¶ 9) and Defendants do not dispute this (see generally Opp'n).
On July 2, 2021, Defendant Wooten served a document entitled “Objection to Deposition,” raising the same arguments as Defendant Armstrong and further objecting that the depositions were noticed for a national holiday (July 5, 2021) and the date of hearing on Defendants' motion to dismiss (July 2, 2021).[7] (Pl.'s Ex. G; see also Slater Decl. ¶ 10.)
On July 6, 2021, Defendants sent Plaintiff an email regarding Plaintiff's objections to her Rule 30(b)(6) deposition. (Pl.'s Ex. H; see also Slater Decl. ¶ 11.) In that email, Defendants note that “defendant objected to deposition” on June 25, 2021 and again on July 2, 2021, citing Plaintiff's refusal to appear for her Rule 30(b)(6) deposition and to produce documents as part of the basis for their objections. (Pl.'s Ex. H at 41.)
On July 7, 2021, Plaintiff sent Defendants her portion of the Joint Stipulation that eventually would be filed as this Motion so that Defendants could incorporate their arguments into the Joint Stipulation. (See Slater Decl. ¶ 20.) Later that day, Defendants Mills and Rinelli sent Plaintiff a document entitled “Objection to Motion to Compel Depositions,” in which they raise the same arguments as Defendants Armstrong and Wooten and further assert that Defendants are willing to meet and confer and that Plaintiff has opted to “cancel” the noticed depositions by filing the Motion. (Pl.'s Ex. K; see also Slater Decl. ¶ 20.) On July 9, 2021, Defendant Abrams also sent Plaintiff an identical “Objection to Motion to Compel Depositions.” (Pl.'s Ex. M; see also Slater Decl. ¶ 24.)
*4 Between July 7 and July 9, 2021, Plaintiff and Defendants exchanged a series of emails in which Plaintiff attempted to ascertain whether Defendants' counsel intended the Defendants' Objections to Motion to Compel to serve as Defendants' portion of the Joint Stipulation. (Pl.'s Ex. L; see also Slater Decl. ¶ 21.) In an email sent to Plaintiff's counsel on July 9, 2021, at 5:19 p.m., Defendants' counsel stated, “So you can add this and file it now[.]” (Pl.'s Ex. L at 57.) Plaintiff's counsel sent a follow-up email on July 9, 2021, at 5:29 p.m., stating as follows:
“Since I think you may be confused, as a professional courtesy, I will give you an opportunity to reevaluate your position. One straightforward yes or no: do you want me to file Plaintiffs' motion to compel with (1) Mr. Abrams; ‘objection to motion to compel’ and (2) Ms. Rinelli and Mr. Mills' “objection to motion to compel” as your portion of the joint stipulation. Yes or no. Please advise. Thank you.”
(Id. at 56.)
On July 12, 2021, at 5:18 p.m., Plaintiff filed the Motion, seeking (1) an order pursuant to Rule 37(a) compelling Defendants to provide dates of availability for their depositions and thereafter to attend their depositions, and (2) an order pursuant to Rule 37(a)(5)(A) awarding Plaintiff the attorneys' fees she incurred in bringing the Motion and during the meet-and-confer process. (Mot.)
On July 14, 2021, Defendants filed the Opposition, which (1) sets forth Defendants' arguments in opposition to the Motion, and (2) seeks an order awarding Defendants the attorneys' fees they incurred in opposing the Motion. (Opp'n.)
III. ANALYSIS
A. Legal Standard
Rule 26(b)(1) governs the scope of discovery in federal cases and provides that parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense. Fed. R. Civ. P. 26(b)(1). Rule 401 of the Federal Rules of Evidence provides that evidence is relevant if: “(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401. But relevance alone does not justify discovery. As a general matter, Rule 26(b) is to be “liberally interpreted to permit wide-ranging discovery of information,” even if that information is not ultimately admitted at trial. Comcast of L.A., Inc. v. Top End Int'l, Inc., No. CV 03-2213-JFW(RCx), 2003 U.S. Dist. LEXIS 18640, at *6 (C.D. Cal. July 2, 2003).
In addition to relevance, Rule 26(b)(1) requires that the discovery be proportional to the needs of the case. Fed. R. Civ. 26(b)(1). Proportionality is determined by a consideration of the following factors: “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.” Id. “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id.
*5 Further, the court “must limit the frequency or extent of discovery” pursuant to Rule 26(b)(2) if:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).
Fed. R. Civ. P. 26(b)(2)(C).
Rule 30, which governs depositions by oral examination, 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).”[9] Fed. R. Civ. P. 30(a)(1). “A party who wants to depose a person by oral questions must give reasonable written notice to every other party. The notice must state the time and place of the deposition and, if known, the deponent's name and address.” Fed. R. Civ. P. 30(b)(1).
A requesting party that is dissatisfied with discovery responses made under the federal rules may move to compel further responses pursuant to Rule 37(a). Fed. R. Civ. P. 37(a). Under Rule 37(a)(3)(B)(i), a party may file such a motion if a “deponent fails to answer a question asked under Rule 30 or 31.” Fed. R. Civ. P. 30(a)(3)(B)(i).
Further, pursuant to Rule 37(d), the Court may grant a motion for sanctions if “a party ... fails, after being served with proper notice, to appear for that person's deposition.” Fed. R. Civ. P. 37(d)(1)(A)(i); see also Sali v. Corona Reg'l Med. Ctr., 884 F.3d 1218, 1222 (9th Cir. 2018) (Rule 37(d) “explicitly authorizes the court to sanction parties for failing to attend their own depositions.”). “No subpoena is needed. The only requirement is that the party be ‘served with proper notice’ of the deposition beforehand.” Sali, 884 F.3d at 1222 (quoting Fed. R. Civ. P. 37(d)(1)(A)(i)); see also Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146, 1158 (9th Cir. 2010) (“If a person is a party, a simple notice of deposition is sufficient to compel attendance, while a non-party's attendance can be compelled only by subpoena.”). Rule 37(d) provides that a failure to appear “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).” Fed. R. Civ. P. 37(d)(2); see also Koninklijke Phillips Elecs. N.V. v. KXD Tech., Inc., No. 2:05-cv-01532-RLH-GWF, 2007 U.S. Dist. LEXIS 100969, at *49 (D. Nev. Oct. 2, 2007) (“[I]f the noticing party refuses to reschedule a properly noticed deposition, it is incumbent on the party whose deposition is noticed to move for a protective order.”). Sanctions for a party's failure to appear at a deposition “may include any of the orders listed in Rule 37(b)(2)(A)(i)–(vi).” Fed. R. Civ. P. 37(d)(3). These sanctions are:
(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
*6 (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party.
Fed. R. Civ. P. 37(d)(3). Rule 37(d)(3) further provides as follows:
Instead of or in addition to these sanctions, the court must require the party failing to act, 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.
B. The Court Accepts Both the Motion and the Opposition Despite Their Respective Procedural Defects.
Defendants argue that the Motion was filed without their consent, in violation of Local Rule 37-2.2. (Opp'n 5–6.) However, Defendants' counsel's July 9, 2021 email stating “so you can add this and file it now” (Pl.'s Ex. L at 57), indicates that Plaintiff had Defendants' consent to file the Motion and to attach the “Objections to Motion to Compel Depositions” as Defendants' portion of the Joint Stipulation. Although it appears that Plaintiff did not send the completed Motion to Defendants for their counsel's signature prior to filing it with the Court, as required by Local Rule 37-2.2, Defendants' July 9, 2021 instruction to “add this and file it now” (Pl.'s Ex. L at 57), reasonably is construed to waive this requirement. In any event, Defendants are not prejudiced by any failure to comply with Local Rule 37-2.2 here because, as detailed below, the Court will consider the arguments raised in Defendants' Opposition.
As noted above, although the Motion was filed in the form of a Joint Stipulation as required by Local Rule 37-2, it does not contain Defendants' arguments. (See Mot.) Instead, Plaintiff attached Defendant Armstrong's and Defendant Wooten's Objections to Deposition (Pl.'s Exs. B, G) and Defendant Rinelli, Mills, and Abrams's Objections to Motion to Compel Depositions (Pl.'s Exs. K, M) to the Motion, and, pursuant to Defendants' counsel's instructions, filed these documents as Defendants' portion of the Joint Stipulation (see Mot. 6 n.7; Slater Decl. ¶¶ 20–25). However, under Local Rule 37-2.1, the Joint Stipulation “must contain all issues in dispute and, as to each such issue, the contentions and points and authorities of each party. The stipulation may not refer the Court to any other documents.” C.D. Cal. L.R. 37-2. Further, under the Court's Modified Discovery Dispute Protocol, the parties have waived their rights to file supplemental memoranda under Local Rule 37-2.3. (May 4, 2021 Order, ECF No. 115, at 2.) The Court considers Defendants' Opposition to be such a supplemental memorandum. Nevertheless, given the Court's preference to resolve disputes on the merits rather than on procedural grounds, the Court accepts the filing of Defendants' Opposition and considers the arguments set forth therein.
Accordingly, the Court accepts the filing of both the Motion and Opposition, and proceeds to resolve the parties' discovery dispute on the merits.
C. The Court DENIES Plaintiff's Motion to Compel.
*7 In the Motion, Plaintiff addresses Defendants' objections to their depositions and argues that these objections lack merit. (Mot. 6–10.) However, Plaintiff fails to address the legal standard for granting a motion to compel a deposition under Rule 37 and does not cite any case law in support of her motion. (See generally Mot.) For the reasons discussed below, based on the Court's independent review of the relevant case law, Plaintiff's Motion is DENIED without prejudice.
Although Rule 37(a)(3)(B)(i) generally is invoked when a deponent refuses to answer a particular question during a deposition, courts in this Circuit also have granted motions to compel under Rule 37(a)(3)(B)(i) in cases where a deponent failed to attend a noticed deposition. See Sali, 884 F.3d at 1222 (“As we have recognized, Rule 37(a) encompasses an order to attend a deposition.” (citing SEC v. Seaboard Corp., 666 F.2d 414, 416 (9th Cir. 1982))). Although this provision more commonly is used to compel the deposition attendance of non-party deponents, courts also have granted motions to compel a party's deposition under Rule 37(a). See, e.g., Hart v. P.A.E. Gov't Servs., No. CIV S-10-1672 KJM EFB PS, 2011 LEXIS 69342, at *5–8 (E.D. Cal. June 28, 2011) (granting defendant's Rule 37(a) motion to compel plaintiff's deposition and Rule 37(b) motion for sanctions based on plaintiff's failure to appear for his noticed deposition). However, Plaintiff has not cited any cases in which a court granted a Rule 37(a) motion to compel without evidence from the movant that the deponent actually had failed to attend a noticed deposition, and this Court's independent research has not revealed such cases.
Applying Rule 37(d), courts may grant sanctions based on a party's failure to attend a deposition. Fed. R. Civ. P. 37(d)(1)(A)(i); see also Sali, 884 F.3d at 1222 (Rule 37(d) “explicitly authorizes the court to sanction parties for failing to attend their own depositions.”). Such sanctions may include an order compelling a party's future deposition attendance. See, e.g., Mendez v. Cmty. Health Clinics, Inc., No. 1:16-cv-00425-DCN, 2020 U.S. Dist. LEXIS 12330, at *10–11 (D. Idaho Jan. 22, 2020) (ordering plaintiff to appear for deposition, to be scheduled based on the parties' agreement to a suitable date, in lieu of awarding case-terminating sanctions). The Ninth Circuit has held that a party's act of informing the opposing party that he would not attend his deposition the business day before the deposition was scheduled was sufficient to trigger Rule 37(d) sanctions. Henry v. Gill Indus., Inc., 983 F.2d 943, 947 (9th Cir. 1993). In Henry, the plaintiff argued that “he never ‘failed to appear’ for his noticed deposition because each such deposition was vacated by agreement of the parties” and “suggest[ed] that ‘the ordinary difficulties in coordinating calendars’ should not be grounds for discovery sanctions.” Id. The Ninth Circuit rejected this argument, reasoning as follows:
The record shows, however, and the district court found that Henry “twice notified defendants the business day before his properly noticed depositions were to have taken place that he would not attend ....” Henry thus asks this court to hold that, even though he twice forced cancellation of his deposition by notifying Gill at the last minute that he would not appear, such conduct does not constitute a “failure to appear” because Gill's counsel, instead of sitting in a conference room waiting for Henry not to arrive, attempted to reschedule the deposition. We reject the suggestion that an unreasonable refusal to be deposed must be met with an unreasonable refusal to reschedule in order to warrant sanctions under Rule 37.
*8 Id.
In this case, however, the Court cannot find a basis for granting the Motion under either Rule 37(a) or Rule 37(d) because Plaintiff has not provided sufficient evidence that Defendants failed to attend their noticed depositions. Instead, it appears that Plaintiffs declined to go forward with the depositions after receiving Defendants' objections. Although Plaintiff asserts that Defendants refused to attend their depositions, the only evidence Plaintiff cites in support of this contention is Defendants' July 6, 2021 email. Specifically, Plaintiff's counsel states as follows:
On July 6, defense counsel sent me an email in which Defendants, inter alia, refuse to attend their depositions because Plaintiff RG Abrams Insurance served timely objections to Ms. Rinelli's Rule 30(b)(6) PMQ deposition notice, which Defendants contend relieves them of their Rule 30(a)(1) legal obligation to appear for their depositions. Attached hereto as Exhibit H is a true and correct copy of defense counsel's July 6 email to me.
Slater Decl. ¶ 11. However, the language of Exhibit H contradicts this assertion. In the July 6, 2021 email at issue, Defendants' counsel primarily discusses Plaintiff's own alleged refusal to attend her Rule 30(b)(6) deposition. (See Pl.'s Ex. H.) Defendant's counsel's only reference to Defendants' depositions is the following:
On June 25, 2021, defendant objected to deposition, citing plaintiff's refusal to appear for the PMQ deposition, as part of the basis for the objection. You elected to ignore that and continue to do so. On July 2, 2021, defendant served an objection to deposition, again citing plaintiff's refusal to appear for PMQ deposition and produce documents, as part of the basis for the objection. Again you elected to ignore that and continue to do so.
(Pl.'s Ex. H at 41 (grammatical errors in original).)[10] Nowhere in this email does Defendants' counsel affirmatively state that any Defendants will not appear for their noticed depositions. (See id.) Thus, this case is distinguishable from Henry, in which the plaintiff notified the defendants that he would not be attending his noticed deposition on the business day before the deposition was scheduled to take place. See Henry, 983 F.2d at 947.
D. The Court DENIES Plaintiff's Request for Attorneys' Fees Expended in Bringing the Motion.
*9 Plaintiff asks the Court to award her the $3,080.00 in attorneys' fees she expended in the bringing of the Motion and the $1,155.00 she incurred during the meet-and-confer process—for a total attorneys' fees award of $4,235.00. (Mot. 10–13.) Rule 37(a)(5)(A) requires a Court to award the reasonable expenses incurred in the bringing of a discovery motion, including attorneys' fees, where a motion brought pursuant to Rule 37(a) is granted. Fed. R. Civ. P. 37(a)(5)(A). However, Plaintiff is not entitled to monetary sanctions pursuant to Rule 37(a)(5)(A) because, as detailed above, the Court denies her Motion. Accordingly, an order granting Plaintiff's reasonable expenses in bringing the Motion is not warranted and, as such, Plaintiff's request for an award of attorneys' fees under Rule 37(a)(5)(A) is DENIED.
E. The Court DENIES Defendants' Request for Attorneys' Fees Expended in Opposing the Motion.
In addition to opposing Plaintiff's sanctions request, Defendants seek monetary sanctions pursuant to Rule 37(a)(5)(B) should the Motion be denied. (Opp'n 20–21.) Where a motion to compel is denied, as is the case here, the court “may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both, to pay the party ... who opposed the motion its reasonable expenses incurred in opposing the motion, including attorneys' fees.” Fed. R. Civ. P. 37(a)(5)(B). Still, a court “must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.” (Id.)
Both the Ninth Circuit and the Supreme Court have offered guidance regarding the standard for establishing “substantial justification” sufficient to avoid a discovery sanction. The party contesting the discovery sanction under Rule 37 bears the burden of establishing substantial justification or that other circumstances make an award of expenses unjust. See Hyde & Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir. 1994). In Hyde, the Ninth Circuit stated that “a good faith dispute concerning a discovery question might, in the proper case, constitute ‘substantial justification ....’ ” Id. (citation omitted). The Supreme Court has explained that the standard is “satisfied if there is a ‘genuine dispute’... or ‘if reasonable people could differ as to the appropriateness of the contested action.’ ” Pierce v. Underwood, 487 U.S. 552, 565 (1998) (citations and alterations omitted).
With respect to the required “opportunity to be heard” before sanctions are awarded, the Ninth Circuit has made clear that “the opportunity to submit briefs” satisfies the “opportunity to be heard” requirement. Paladin Assocs. v. Montana Power Co., 328 F.3d 1145, 1164–65 (9th Cir. 2003) (holding that, because the Rule 37 sanctions issues to be resolved were such that an evidentiary hearing would not have aided the decisionmaking process, district court did not abuse its discretion by ruling on the briefing); see also Pac. Harbor Cap., Inc. v. Carnival Airlines, Inc., 210 F.3d 1112, 1118 (9th Cir. 2000) (“an opportunity to be heard does not require an oral or evidentiary hearing on the issue.” (citations omitted)); Lynch v. Cassavetes, 2014 U.S. Dist. LEXIS 195015, at *10 (C.D. Cal. Oct. 1, 2014) (finding that an opportunity to be heard is satisfied by an opportunity to respond in writing).[11]
*10 Here, while the Court concludes that the first exception to the sanctions mandate of Rule 37(a)(5)(B) does not apply, it finds that the second exception does. As to the first exception, the Court finds that Plaintiff's Motion is not substantially justified. As noted above, Plaintiff has not provided concrete evidence that Defendants failed to attend their noticed depositions—rather, the evidence suggests that Plaintiff herself canceled the depositions after receiving Defendants' objections. And Plaintiff has not cited any case law supporting a motion to compel under Rule 37 in such a situation. The Court finds that reasonable persons could not conclude that, given the facts attendant here, this Motion is appropriate.
However, the Court finds that the circumstances here would make an award of expenses to Defendants unjust. While there is no doubt that Plaintiff's Motion has caused Defendants to expend resources and money to defend it, Defendants also obstructed the required meet-and-confer process by responding belatedly to Plaintiff's June 25, 2021 meet-and-confer letter and failing to respond entirely to Plaintiff's June 29, 2021 meet-and-confer letter. (See Slater Decl. ¶¶ 6–8; Pl.'s Exs. C–D.) Defendants also did not respond to Plaintiff's June 30, 2021 and July 1, 2021 emails, which sought to clarify whether Defendants intended to appear for their noticed depositions. (See Slater Decl. ¶ 9; Pl.'s Ex. F.) Accordingly, the Court finds that it would be unjust to award expenses to Defendants under Rule 37(a)(5)(B).
On this basis, Defendants' request for an award of attorneys' fees under Rule 37(a)(5)(B) is DENIED.
IV. CONCLUSION
For the reasons stated above, the Court ORDERS as follows:
1. Plaintiff's Motion is DENIED without prejudice.
2. Plaintiff's request for attorneys' fees pursuant to Rule 37(a)(5)(A) is DENIED.
3. Defendants' request for attorneys' fees pursuant to Rule 37(a)(5)(B) is DENIED.
Footnotes
Unless otherwise stated, all further references to “Local Rules” shall be to the Central District of California Local Civil Rules.
Pinpoint citations of page numbers in the Order refer to the page numbers appearing in the ECF-generated headers of cited documents.
Unless otherwise stated, all further references to “Rules” shall be to the Federal Rules of Civil Procedure.
The Court summarizes the allegations and claims in the Complaint. In doing so, the Court does not opine on the veracity or merit of Plaintiff's allegations and claims, nor does the Court make any findings of fact.
Plaintiff did not attach the deposition notices as exhibits or provide the language of these notices in the Motion. (See Mot.; Pl.'s Exs.)
Plaintiff attaches a June 15, 2021 email from defense counsel agreeing to these dates for Defendants' depositions. (Pl.'s Ex. A at 11.)
Plaintiff's June 15, 2021 email to Defendants explains that Defendant Rinelli's deposition initially was noticed for July 5, 2021. (Pl.'s Ex. A at 12.) Plaintiff states that defense counsel “confirmed, and then declined because it is a court holiday.” (Id.) Given this conflict, Plaintiff offered July 12 or July 14 as alternative dates for Defendant Rinelli's deposition. (Id.) It does not appear that any depositions were scheduled for July 2, 2021—although Defendant Armstrong's deposition was noticed for July 1, 2021. (See id.)
Defense counsel appears to be referring to the Court's July 12, 2021 Order, which provides that meet-and-confer letters sent after 5 p.m. will be considered sent at 8 a.m. the following day. (ECF No. 139 at 2.) This provision does not apply here, as the emails at issue concerned the filing of the Motion, rather than the exchanging of meet-and-confer letters. Moreover, the Court rejects any concerns Defendants raise regarding the timing of Plaintiff's July 9, 2021 email as disingenuous, given that Defendants' email to Plaintiff also was sent after 5 p.m.
Neither party contends that the provisions of Rule 30(a)(2) apply here.
Defendants' quid pro quo approach to discovery is not only ill-founded, but previously was the subject of this Court's admonishment that such a discovery tactic is improper. As previously stated by the Court:
Plaintiff's faults in answering discovery ... are not before this Court. The Motion was brought to address disputes related to Plaintiff's discovery—not Defendants'—and defense counsel “should not seek this Court's approval of a ‘tit for tat’ approach to litigation.” Acushnet Co. v. Birdie Golf Ball Co., Inc., 166 F.R.D. 42, 43 (S.D. Fla. 1996). The Federal Rules do not contain a provision “authorizing a litigant to behave only as well as his opponent.” Id.
See ECF No. 128 at 18–19.
In any event, in an effort to streamline the discovery dispute resolution process, the parties have waived their right to an opportunity to be heard before sanctions are awarded. (ECF No. 115, at 3 (“The parties waive their rights under Rule 37(a)(5) to an opportunity to be heard where a discovery motion seeks reasonable expenses, including attorneys' fees, and, unless otherwise ordered by the Court, will submit to the Court's ruling on the papers as filed.”)