884 F.3d 1218 (9th Cir. 2018), 15-56389, Sali v. Corona Regional Medical Center

Docket Nº:15-56389
Citation:884 F.3d 1218
Opinion Judge:NGUYEN, Circuit Judge:
Party Name:Marlyn SALI, on behalf of themselves, all others situated and the general public; Deborah Spriggs, on behalf of themselves, all others situated and the general public; Bisnar Chase, LLP, Plaintiffs-Appellants, v. CORONA REGIONAL MEDICAL CENTER; UHS of Delaware Inc., Defendants-Appellees.
Attorney:Jerusalem F. Beligan (argued) and Brian D. Chase, Bisnar Chase LLP Newport Beach, California, for Plaintiffs-Appellants. Christina H. Hayes (argued), Khatereh Sage Fahimi, and Stacey E. James, Littler Mendelson P.C., San Diego, California, for Defendants-Appellees.
Judge Panel:Before: Andrew J. Kleinfeld, Sandra S. Ikuta, and Jacqueline H. Nguyen, Circuit Judges.
Case Date:March 19, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
SUMMARY

Under Fed. R. Civ. P. 37's general discovery enforcement provisions, a court can order a party to produce its nonparty expert witness at a deposition, and if the party makes no effort to ensure that its witness attends the deposition, sanction the party's counsel when the witness fails to appear unless the failure to produce the expert "was substantially justified or other circumstances make an... (see full summary)

 
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Page 1218

884 F.3d 1218 (9th Cir. 2018)

Marlyn SALI, on behalf of themselves, all others situated and the general public; Deborah Spriggs, on behalf of themselves, all others situated and the general public; Bisnar Chase, LLP, Plaintiffs-Appellants,

v.

CORONA REGIONAL MEDICAL CENTER; UHS of Delaware Inc., Defendants-Appellees.

No. 15-56389

United States Court of Appeals, Ninth Circuit

March 19, 2018

Argued and Submitted February 6, 2017 Pasadena, California

Page 1219

Appeal from the United States District Court for the Central District of California, Philip S. Gutierrez, District Judge, Presiding, D.C. No. 5:14-cv-00985-PSG-JPR

SUMMARY

[*]

Discovery

The panel affirmed the district court's contempt judgment arising after plaintiffs' counsel failed to pay sanctions when they did not produce their expert at a deposition as ordered.

The panel held that under Fed.R.Civ.P. 37's general discovery enforcement provisions, a court can order a party to produce its nonparty expert witness at a deposition, and if the party makes no effort to ensure that its witness attends the deposition, sanction the party's counsel when the witness fails to appear unless the failure to produce the expert "was substantially justified or other circumstances make an award of expenses unjust." Fed. Civ. P. 37(b)(2)(C). The panel held that the Rule 37 sanctions were reasonable in this case.

Jerusalem F. Beligan (argued) and Brian D. Chase, Bisnar Chase LLP Newport Beach, California, for Plaintiffs-Appellants.

Christina H. Hayes (argued), Khatereh Sage Fahimi, and Stacey E. James, Littler Mendelson P.C., San Diego, California, for Defendants-Appellees.

Before: Andrew J. Kleinfeld, Sandra S. Ikuta, and Jacqueline H. Nguyen, Circuit Judges.

OPINION

NGUYEN, Circuit Judge:

The discovery process in theory should be cooperative and largely unsupervised by the district court. But when required disclosures aren’t made or cooperation breaks down, Federal Rule of Civil Procedure 37 allows a party to move for an order compelling disclosures or discovery.

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If the order is disobeyed, the court can impose contempt and other sanctions. Federal Rule of Civil Procedure 45, which governs the issuance of subpoenas, also provides for contempt sanctions when a subpoena is disobeyed.

The question here is whether Rule 45 is the exclusive mechanism for compelling a nonparty to appear at a deposition and obtaining sanctions for noncompliance. We hold that under Rule 37’s general discovery enforcement provisions, a court can order a party to produce its nonparty expert witness at a deposition and, if the party makes no effort to ensure that its witness attends the deposition, sanction the party’s counsel when the witness fails to appear unless the failure to produce the expert " was substantially justified or other circumstances make an award of expenses unjust." Fed.R.Civ.P. 37(b)(2)(C). Because the Rule 37 sanctions were reasonable in this case, we affirm the district court’s judgment.

I.

Marlyn Sali and Deborah Spriggs are registered nurses who instituted a class action against their former employer, Corona Regional Medical Center, and its corporate parent, UHS of Delaware Inc., for alleged violations of wage and hour laws. Plaintiffs moved for class certification with supporting declarations from their expert economist, Mark Falkenhagen, and expert statistician, Dr. Richard Drogin. As defendants were preparing their opposition, the parties became embroiled in a discovery dispute.

Defendants sought to depose Falkenhagen and Drogin in advance of the April 16, 2015 deadline for filing the opposition to class certification. After an unproductive email exchange, in which the parties’ counsel dickered over fees, defendants subpoenaed Falkenhagen to be deposed on March 30, 2015. Plaintiffs interposed various objections, which defendants dismissed as " insufficient to prevent a subpoenaed deposition from moving forward." On the scheduled day of the deposition, neither Falkenhagen nor plaintiffs’ counsel showed up.

The next day, on April 1, defendants informed plaintiffs that they would be applying ex parte for sanctions and to compel Falkenhagen’s deposition. Counsel then met and conferred regarding the expert depositions as required under the local rules. See C.D. Cal. L.R. 37-1. Defendants agreed to pay Falkenhagen’s fee prior to his deposition. They sought to depose him on April 9, but plaintiffs’ counsel was taking a vacation that week and told defendants’ counsel that Falkenhagen would be unavailable then. Plaintiffs offered to produce Falkenhagen for deposition on April 13,[1] but defendants didn’t accept because they felt " it was imperative the depositions occur prior to April 10."

Defendants then applied ex parte to compel Falkenhagen’s and Drogin’s depositions on April 9 and 10, respectively. In an order dated April 7, 2015, the magistrate judge denied the request, finding that defendants were " not without fault in creating the circumstances" because they inexcusably waited to arrange the depositions. The magistrate judge acknowledged that plaintiffs’ counsel " exacerbated this situation by apparently failing to respond to inquiries from Defendants, having extremely

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limited availability, and failing to seek a protective order concerning the noticed depositions." However, given plaintiffs’ offer to make Falkenhagen available for deposition immediately after their attorney’s vacation, the magistrate judge found that defendants would have sufficient time to incorporate his testimony into their opposition to class certification. The order concluded: " Plaintiffs are, however, instructed to produce Falkenhagen for deposition on April 13." Defendants subpoenaed him for that date.

Once again, Falkenhagen and plaintiffs’ counsel failed to appear at the deposition.2 Defendants moved for sanctions under Rule 37. The...

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