*1 On January 24, 2022, plaintiff and counterdefendant PerkinElmer Health Sciences, Inc. (“Plaintiff”) filed an Ex Parte Application (“Application”) to compel the deposition of defendant and counterclaimant SCR Living LLC dba Certus Analytics (“Defendant”). ECF Docket No. (“Dkt.”) 39. For the reasons set forth below, the Court GRANTS Plaintiff's Application.

On June 25, 2020, Plaintiff initiated the instant action in state court for money damages arising out of the sale and purchase of cannabis testing equipment. See dkt. 1, Ex. 2, Complaint.

On October 2, 2020, Defendant removed the action to this Court. Dkt. 1. On October 12, 2020, Defendant filed an Answer. Dkt. 12.

On February 12, 2020, the Court held a Scheduling Conference and issued a scheduling order setting an initial expert disclosure deadline of January 14, 2022, a discovery cut-off of February 25, 2022, and a Jury Trial for May 23, 2022. Dkts. 29, 30. On January 10, 2022, the Court granted the parties' stipulation to continue the expert disclosure deadline to February 4, 2022. Dkt. 37.

On January 4, 2022, Plaintiff served a notice of deposition on Defendant to appear for deposition pursuant to Federal Rule of Civil Procedure 30(b)(6) (“Rule 30(b)(6”) on January 21, 2022. Dkt. 29-1, Declaration of Jeffrey B. Bell (“Bell Decl.”), ¶ 2, Ex. 1.

On January 10, 2022, counsel for the parties met and conferred via telephone as required by Rule 30(b)(6). Id., ¶ 3. Defense counsel raised a potential objection that the notice purportedly called for employment records, but did not object to any of the categories for examination. Id.

On January 18, 2022, defense counsel sent Plaintiff's counsel an email requesting to meet and confer regarding Defendant's deposition. Id., ¶ 4. Later that day, defense counsel served a Notice of Objections and Response and shortly thereafter served an Amended Notice of Objections and Response. Id., ¶ 5, Ex. 2. The Amended Notice of Objections and Response identified the following five witnesses to testify regarding the various topics: Brandon Rainone, Matt Haskins, Mike Tunis, Ana Juarez, and Lindsay Lugar. Id.

On January 19, 2022, counsel for the parties met and conferred. Id., ¶ 6. Defense counsel stated no witnesses would appear for Defendant at the deposition that had been noticed for January 21, 2022. Id. Defense counsel also represented that he had no control over witnesses Tunis, Juarez, or Lugar and did not know how to contact them.[1] Id.

On January 21, 2022, Plaintiff's counsel appeared to take Defendant's deposition, but neither defense counsel nor any witnesses appeared on Defendant's behalf. Id., ¶ 8, Ex. 4.

On January 24, 2022, Defendant served a Second Amended Notice of Objections and Response to the deposition notice designating Rainone, Haskins, Tunis, and Juarez and witnesses and omitting any reference to Lugar. Id., ¶ 11, Ex. 6. In an email accompanying the Second Amended Notice, defense counsel represented that while Tunis and Juarez were no longer employees of Defendant, they are willing to cooperate and appear for their depositions. Id.

*2 On January 24, 2022, Plaintiff filed the instant Application. Dkt. 39. Defendant has not filed an opposition. The matter thus stands submitted.

A. APPLICABLE LAW

Unlike regularly noticed motions, applications for ex parte relief are “inherently unfair” and “pose a threat to the administration of justice” because “the parties' opportunities to prepare are grossly unbalanced.” Mission Power Eng'g Co. v. Continental Cas. Co., 883 F. Supp. 488, 490 (C.D. Cal. 1995). The opposing party “can rarely make its best presentation” on the short notice accompanying an ex parte application. Id. at 491. Hence, to justify use of ex parte procedures, a party seeking ex parte relief must show: (1) “the moving party's case will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures”; and (2) “the moving party is without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a result of excusable neglect.” Id. at 492.

B. ANALYSIS

Here, the discovery cut-off is February 25, 2022. See dkt. 30. Plaintiff did not have sufficient time to bring a properly noticed motion sufficiently in advance of the discovery cut-off after learning on January 19, 2022 that Defendants' designees would not be appearing for deposition on January 21, 2022. See Bell Decl., ¶ 6. Plaintiff's counsel promptly sought to meet and confer with defense counsel and Plaintiff promptly filed the instant Application on January 24, 2022 in hopes of obtaining Defendant's deposition before the February 4, 2022 expert disclosure deadline. The Court, therefore, finds Plaintiff is without fault in creating the crisis that requires ex parte relief. In addition, the Court finds Plaintiff would suffer prejudice by not being able to depose a material witness. Hence, Plaintiff has satisfied its burden to justify the use of ex parte procedures and the Court will address the merits of the Application.

A. APPLICABLE LAW

Federal Rule of Civil Procedure 30 (“Rule 30”) governs depositions by oral examination. See FED. R. CIV. P. 30. Rule 30(a)(1) provides that, subject to certain limitations, “[a] party may, by oral questions, depose any person, including a party, without leave of court ....” FED. R. CIV. P. 30(a)(1). In turn, Rule 30(b)(6) provides that:

FED. R. CIV. P. 30(b)(6). Once served with the deposition notice under Rule 30(b)(6), the responding party is required to produce one or more witnesses knowledgeable about the subject matter of the noticed topics. Great Am. Ins. Co. of N.Y. v. Vegas Const. Co., 251 F.R.D. 534, 538 (D. Nev. 2008). The responding party has “a duty to make a conscientious, good-faith effort to designate knowledgeable persons for Rule 30(b)(6) depositions and to prepare them to fully and unevasively answer questions about the designated subject matter.” Id. at 539 (internal citation and quotation marks omitted).

*3 A party's failure to appear at that party's 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).” FED. R. CIV. P. 37(d)(2); Paige v. Consumer Programs, Inc., 248 F.R.D. 272, 275 (C.D. Cal. 2008).

B. ANALYSIS

On January 21, 2022, Defendant failed to produce witnesses to testify for Defendant's properly-noticed deposition. Bell Decl., ¶ 8, Ex. 4. Defendant did not move for a protective order before failing to produce witnesses and was not otherwise excused from appearing at its properly-noticed deposition. See FED. R. CIV. P. 37(d)(2); Paige, 248 F.R.D. at 275. Accordingly, Plaintiff's Application to compel Defendant's deposition is GRANTED.[2]

For the reasons set forth above, Plaintiff's Application to compel Defendant's deposition is GRANTED. Within three (3) business days of the date of this Order, the parties shall meet and confer regarding mutually agreeable dates for Defendant's Rule 30(b)(6) designees to be deposed within fourteen (14) calendar days of the date of this Order. Defendant shall make a conscientious, good-faith effort to designate knowledgeable persons for Rule 30(b)(6) depositions and to prepare them to fully and unevasively answer questions about the designated subject matter.[3]

IT IS SO ORDERED.

In Defendant's Initial Disclosures pursuant to Federal Rule of Civil Procedure 26(a), Defendant identified Juarez, Tunis, and Lugar as potential witnesses and represented that they could be contacted through defense counsel. Id., ¶ 7, Ex. 3.

While the Court is cognizant of the imminent expert disclosure deadline and discovery cut-off, this Court is without authority to amend the Scheduling Order set by the District Judge. See United States v. Celgene Corp., No. CV 10-3165 GHK (SS), 2015 WL 9661172, at *1 (C.D. Cal. Oct. 16, 2015) (holding a magistrate judge “does not have the authority to order discovery after the deadline set by the District Judge”). Accordingly, Plaintiff shall promptly move for appropriate relief as necessary before the District Judge.

The Court is concerned by Plaintiff's counsel's representation that defense counsel “doesn't know who knows what,” Bell Decl., ¶ 6, but notes Defendant's Second Amended Notice of Objections and Response to the deposition notice specifically identifies which witnesses are knowledgeable about which topics, id., Ex. 6.