*1 On November 15, 2021, Defendant SF Markets, Inc. (“Defendant”) filed an ex parte application (“Application”) to compel the deposition of Plaintiff's non-retained expert Dr. Morteza Shamsnia. Dkt. No. 74. On November 16, 2021, Plaintiff filed an opposition. For the following reasons, the Application is DENIED.
On March 3, 2020, Plaintiff filed a complaint in Los Angeles County Superior Court alleging that she was injured after slipping and falling in Defendants' premises as a result of Defendants' negligence and failure to warn. Dkt. No. 1-1. On June 16, 2020, the case was removed to this Court on the basis of diversity jurisdiction. Dkt. No. 1.
On March 26, 2021, the District Judge granted the parties' joint stipulation to continue trial and pre-trial deadlines and set the discovery cut-off for November 19, 2021. Dkt. No. 42.
On October 14, 2021, Defendant's counsel served a deposition notice on neurologist Dr. Shamsnia, Plaintiff's non-retained witness, which deposition was ultimately noticed for October 29, 2021. Dkt. No. 67, Exhs. D, E. On October 27, Defendant's counsel received an invoice from Dr. Shamsnia's office, informing counsel that his hourly deposition fee was $2,750. Dkt. No. 67-7. On October 28, Defendant took the October 29 deposition off calendar, pending its application for a protective order from this Court setting a reasonable fee for the deposition testimony. Dkt. No. 67-13 at 1-2. That same day, October 28, Defendant filed an ex parte application for a protective order to set Dr. Shamsnia's deposition fee at $900 per hour, which Plaintiff did not oppose and which this Court subsequently granted. Dkt. Nos. 67, 68.
Defendant alleges that it emailed Dr. Shamsnia on November 2, 2021, asking about his availability for a deposition and requesting a response by November 4. Dkt. No. 74 at 2-3. After Dr. Shamsnia did not respond, on November 4, 2021, Defendant served a subpoena and deposition notice for November 12 on Dr. Shamsnia. Id. at 3. Almost immediately after the subpoena was served, Defendant's counsel represents that Plaintiff's counsel emailed to advise that Dr. Shamsnia had traveled to Iran on November 3 and would be there through November 19. Id. Subsequently, Dr. Shamsnia's office informed Defendant's counsel that Dr. Shamsnia would not be able to attend a deposition by video from Iran. Id.
On November 15, Defendant filed the instant Application, seeking an order to compel Dr. Shamsnia to appear by video for a deposition “within twelve days of the Discovery Cut-Off[,]” or, alternatively, an order precluding Plaintiff from introducing Dr. Shamsnia's testimony at trial “due to his persistent lack of cooperation in the expert discovery process.” Dkt. No. 74 at 3.
In response, Plaintiff represents that Defendant made no attempt to schedule Dr. Shamsnia's deposition until October 14, 2021, even though the discovery cut-off was November 19, 2021 and Plaintiff had produced Dr. Shamsnia's medical records in her initial disclosure of August 19, 2020. Dkt. No. 75 at 2. Plaintiff further represents that Defendant took the October 29 deposition date off calendar without first checking to determine whether Dr. Shamsnia would be available on another date prior to the discovery cut-off. Id. As a result, Plaintiff contends that Defendant's Motion should be denied as untimely. Id. at 5.
*2 There is no Federal Rule or Local Rule in this District that sets a time limit on filing a motion to compel. See, e.g., Aardwolf Industries, LLC v. Abaco Machines USA, Inc., 2017 WL 10339007, at *2 (C.D. Cal., Aug. 9, 2017) (citations omitted). Nevertheless, “[t]he district court is given broad discretion in supervising the pretrial phase of litigation, and its decisions regarding the preclusive effect of a pretrial order ... will not be disturbed unless they evidence a clear abuse of discretion.” Jorgensen v. Cassiday, 320 F.3d 906, 913 (9th Cir. 2003).
On March 26, 2021, Judge Blumenfeld granted the parties' joint stipulation to continue pretrial and trial deadlines but noted that no further continuances would be granted. Dkt. No. 42 at 1.
[1] His order set the discovery cut-off for November 19, 2021.
Plaintiff represents, and Defendant does not appear to state otherwise, that Defendant was in possession of Dr. Shamsnia's records from August 19, 2020, but did not attempt to schedule his deposition until October 14, 2021, a little over a month before the extended deadline. Plaintiff's Application was filed four days before the discovery cut-off. The Court concludes that it cannot grant the requested relief because it would require Dr. Shamsnia's deposition to take place after the discovery cut-off, in contravention of the District Judge's scheduling order. See, e.g., Aardwolf, 2017 WL 10339007, at *2 (“[S]everal courts have ... determined compliance with the discovery cutoff requires motions to compel be filed and heard sufficiently in advance of the cutoff so that the Court [can] grant effective relief within the allotted discovery time.”) (citation omitted); Gerawan Farming, Inc. v. Rehrig Pacific Co., 2013 WL 492103, at *4 (E.D. Cal. Feb. 8, 2013) (“When granting a motion to compel discovery would require amendment to the scheduling order, a part[y]'s failure to seek modification of the scheduling order is a sufficient reason to deny the motion.”); see also Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1307 (11th Cir. 2011) (“[A] district court's decision to hold litigants to the clear terms of its scheduling orders is not an abuse of discretion.”). For these reasons, Defendant's Application to compel Dr. Shamsnia's deposition at this juncture is DENIED.
As for Defendant's request in the alternative for an order precluding the use of Dr. Shamsnia's testimony at trial, that request must be filed as a pre-trial motion to be heard by the District Judge.
