1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAWN HENDON, Case No.: 21cv0505-RSH-MDD
12 Plaintiff, ORDER ON DISCOVERY 13 v. MOTIONS
14 CALIFORNIA STATE SENATE, et al., 15 Defendants. [ECF Nos. 28 and 30] 16 17 This is an employment race and disability discrimination case that also 18 alleges retaliation and sexual harassment. Plaintiff Dawn Hendon brings ten 19 claims against the California State Senate, three named individuals, and 20 twenty Does. (ECF No. 10 ¶ 14). Plaintiff began working as a District 21 Representative for Defendant Senator Ben Hueso at the California State 22 Senate 40th district in Chula Vista, California in April 2018. She alleges she 23 was constructively terminated in September 2019. (Id. ¶ 44). 24 Discovery closed November 14, 2022 (ECF No. 21), and Defendants’ 25 Motion for Summary Judgment is pending. (ECF No. 29). Plaintiff seeks to 26 compel both (1) deposition testimony from Defendant Senator Hueso, and (2) 1 production of documents from Defendant the California State Senate. (ECF 2 Nos. 28, 30). Defendants oppose the motions. (ECF Nos. 28, 32). Both 3 parties seek sanctions against the other in connection with the motions to 4 compel. (See ECF No. 28 at 7, 19-20; ECF No. 32). 5 LEGAL STANDARD 6 The Federal Rules of Civil Procedure authorize parties to obtain 7 discovery of “any nonprivileged matter that is relevant to any party’s claim or 8 defense and proportional to the needs of the case. . . .” Fed. R. Civ. P. 9 26(b)(1). “Information within the scope of discovery need not be admissible in 10 evidence to be discoverable.” Id. District courts have broad discretion to 11 limit discovery where the discovery sought is “unreasonably cumulative or 12 duplicative, or can be obtained from some other source that is more 13 convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C). 14 The party seeking to avoid discovery bears the burden of showing why 15 that discovery should not be permitted. Blankenship v. Hearst Corp., 519 16 F.2d 418, 429 (9th Cir. 1975); see also Carr v. State Farm Mut. Auto. Ins. Co., 17 312 F.R.D. 459, 469 (N.D. Tex. 2015) (concluding that the 2015 amendments 18 to discovery rules did not alter the allocation of burdens). The resisting party 19 must specifically detail the reasons why each request is irrelevant or 20 otherwise objectionable, and may not rely on boilerplate, generalized, 21 conclusory, or speculative arguments. F.T.C. v. AMG Servs., Inc., 291 F.R.D. 22 544, 553 (D. Nev. 2013). Arguments against discovery must be supported by 23 “specific examples and articulated reasoning.” E.E.O.C. v. Caesars Ent., 237 24 F.R.D. 428, 432 (D. Nev. 2006). 25 A court may deny a motion to compel when “failure to obtain the 26 requested documents is due to [the movant’s] own lack of diligence.” See 1 timing of a discovery motion, this Court’s Chambers’ Rules state: 2 Any motion related to discovery disputes must be filed no later than thirty (30) days after the date upon which the event giving rise to 3 the dispute occurred. . . For written discovery, the event giving rise 4 to the discovery dispute is the date of service of the response, not the date on which counsel reach an impasse in meet and confer 5 efforts. 6 Civ. Chambers Rule MDD § (V)(C)(2) (emphasis in original). Moreover, 7 The aggrieved party must provide the opposing party a reasonable 8 opportunity to contribute to the Joint Motion. Reasonableness 9 depends upon the extent and complexity of the dispute. A minimum of seven (7) business days prior to the anticipated filing date of the 10 Joint Motion is reasonable, but only barely, for a party to 11 participate meaningfully in the preparation of the joint motion. 12 An ex parte motion to compel only is appropriate when the opposing party, after being provided a reasonable opportunity to participate, 13 refuses to participate in the joint motion. . . Ex parte motions to 14 compel discovery from a party that do not contain a declaration certifying that at least the minimum reasonable opportunity to 15 participate was provided to the opposing party will be rejected by 16 the Court. 17 Id. § V(C)(3) and (V)(D) (emphasis provided). 18 Deposition Testimony 19 Deposition testimony is largely governed by Rule 30 of the Federal 20 Rules of Civil Procedure. Rule 30(d)(3) provides: 21 during a deposition, the deponent or a party may move to terminate 22 or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the 23 deponent or party. . . If the [objecting party] so demands, the 24 deposition must be suspended for the time necessary to obtain an order. 25 26 Fed. R. Civ. P. 30(d)(3)(A). Parties may raise deposition objections pursuant 1 An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to 2 answer only when necessary to preserve a privilege, to enforce a 3 limitation ordered by the court, or to present a motion under Rule 30(d)(3). 4
5 Fed. R. Civ. P. 30(c)(2). Instructing a deponent not to answer a question 6 on any grounds not delineated in Rule 30(c)(2) can warrant sanctions 7 under Rule 30(d)(2). See Nguyen v. LVNV Funding, LLC, et al., No. 8 15cv0758-LAB-RBB, 2017 WL 951026, at *12 (S.D. Cal. March 10, 2017). 9 Courts have found good cause to terminate a deposition, however, where 10 irrelevant questioning continues and persists. See Alexander v F.B.I., 186 11 F.R.D. 208, 213 (D.D.C. 1999). 12 Production of Documents 13 A party may request the production of any document within the scope of 14 Rule 26(b). Fed. R. Civ. P. 34(a). “For each item or category, the response 15 must either state that inspection and related activities will be permitted as 16 requested or state an objection to the request, including the reasons.” Fed. R. 17 Civ. P. 34(b)(2)(B). If the responding party chooses to produce responsive 18 information, rather than allow for inspection, the production must be 19 completed no later than the time specified in the request or another 20 reasonable time specified in the response. Id. 21 DISCUSSION 22 Plaintiff’s discovery motions ask the Court to: (A) order Defendant 23 Senator Ben Hueso (“Hueso”) to answer a question from a line of inquiry that 24 arose during his deposition; and (B) order Defendant the California State 25 Senate (“the Senate”) to respond to Request for Production (“RFP”) No. 14, 26 which seeks documents related to “any kind” of criticism toward Hueso’s 1 2020. The Court first considers the deposition testimony at issue, then the 2 document request; it denies both Plaintiff’s motions to compel and sanctions 3 Plaintiff’s counsel as explained below. 4 A. Attorney’s Fees are Warranted Against Plaintiff’s Counsel for (i) Asking Persistent, Harassing Deposition Questions, and 5 (ii) Failing to Adequately Meet and Confer 6 Brief Conclusion: The Deposition Dispute 7 Plaintiff’s counsel, Ms. Stacey Y. Mouton (“Mouton”), deposed 8 Defendant Hueso on October 28, 2022. The parties paused the deposition to 9 call the undersigned about a conflict that ultimately led to the current joint 10 motion. There are several problems with Plaintiff’s motion to compel 11 deposition testimony, which the Court will summarize here and then address 12 seriatim. 13 The first problem with Plaintiff’s motion is that counsel seeks to compel 14 an answer to a question Mouton never asked the deponent. Second, when 15 counsel called Chambers during the deposition, the Court warned Mouton 16 that if she persisted in harassing and oppressive questions about a non- 17 relevant subject matter, sanctions would issue. Third, Plaintiff’s counsel 18 failed to adequately meet and confer in good faith during the deposition and 19 prior to filing the motion to compel by: (1) refusing to clarify a vague and 20 confusing question she posed to the deponent; (2) drafting her motion and 21 sending it to opposing counsel without first communicating she had an issue 22 with the deposition testimony; and (3) refusing to consider Defendant’s 23 solutions unless opposing counsel was willing to pay her attorney’s fees. 24 For those reasons, the joint motion regarding deposition testimony is 25 resolved in Defendant’s favor, and sanctions of attorney’s fees shall enter 26 against Plaintiff’s counsel. 1 Factual Background: The Deposition Dispute & Joint Motion 2 Before calling Chambers about their deposition dispute, Mouton asked 3 Hueso eight questions about a 2014 “wet and reckless” driving offense,”1 to 4 which Hueso pled guilty. (See ECF No. 28-4 [Hueso Tr. at 150-52]). The 5 defense raised a concern about whether such questions, as a course of 6 conduct, tipped the scale on the slippery slope of harassing a deponent, as 7 Plaintiff’s employment with the senator did not begin until four years after 8 the 2014 driving offense. (See id.; see also ECF No. 10 [Am. Compl. ¶¶ 14, 9 41]). 10 Mouton ignored counsel’s inquiry and continued with her questioning. 11 (See ECF No. 28-4 [Hueso Tr. at 152-53]). She then asked six more questions 12 about the 2014 offense, including: “were there any terms and conditions set 13 based off of your plea to a wet and reckless?” (ECF No. 28-4 [Hueso Tr. at 14 154]). At that point, defense counsel asked Mouton to explain the relevancy 15 of her persistent questioning on that topic. (Id.). Mouton refused to engage 16 in Defendant’s repeated efforts to meet and confer, so the deponent’s counsel 17 instructed his client not to answer, and Mouton suggested counsel call the 18 Court for instruction, pursuant to this Court’s rules concerning deposition 19 conflicts. (Id.); see also Civ. Chambers Rules MDD § (V)(B). 20 During that call with the Court, the undersigned warned Plaintiff’s 21 counsel about persisting with harassing and oppressive questions about a 22 non-relevant subject matter. The Court also warned the deponent’s counsel 23 24 25 1 “Wet and reckless,” also called “wet reckless,” describes a conviction for 26 reckless driving in violation of California Vehicle Code section 23103.5(a), pursuant to a plea agreement involving an initial charge of driving under the 1 about the narrow grounds for objecting to deposition questions. The Court 2 instructed both parties, in relevant part, as follows: 3 The instruction not to answer has to be either based on privilege, a violation of court order, or unreasonable harassing, and here’s the 4 problem with this persisting in refusing to answer. 5 It must result in a motion which I will hear, and if the refusal to 6 answer is not justified, there will be sanctions. . . . I appreciate that 7 this is not relevant . . . .
8 My recommendation is let the answer be had . . . . It won’t be 9 admissible. I can’t see how it could be in this case. It’s certainly not relevant, but . . . under our rules that doesn’t justify a refusal 10 to answer. It does not—if you look at the rule the unreasonable 11 harassing generally is not a single question, it’s the course of conduct. 12
13 So as I say you’re taking [a] risk. There has to be a motion to compel brought or a motion [for] protective order brought following the 14 refusal to answer. If you continue [down this] path I’ll expect [a 15 motion] within five days. And if I find that this was not justified, there’s going to be a problem. . . . 16
17 [I]f I find . . that plaintiff’s persistence in this line of inquiry is, in fact, unreasonably harassing, there will be sanctions. So either 18 way, if I see this as a motion, there will be sanctions. . . . [I]f it’s a 19 line of inquiry that persists in irrelevance and the counsel for plaintiff won’t explain the connection of this to her case, 20 [Defendant] may have a point. 21 (ECF No. 28-4 [Hueso Tr. at 160-62]) (emphasis added). 22 After the Court’s telephonic admonition, counsel returned to the 23 deposition, and Plaintiff’s counsel restated her question: “Were there any 24 terms and conditions set as a result of your plea for wet and reckless?” (ECF 25 No. 28 at 4 [Hueso Tr. at 163-65]). The deponent’s counsel asked Mouton to 26 meet and confer about whether that question was the end of her wet and 1 reckless inquiry, or if there were more questions. (Id. [Hueso Tr. at 163-64]). 2 Defense counsel also asked Mouton to clarify whether she was asking the 3 witness about conditions set by the court or by the Senate. (Id. [Hueso Tr. at 4 164-65]). 5 Rather than answering counsel’s question or responding to defense 6 counsel’s request for clarification, Plaintiff’s counsel asked for a response to 7 her question. (Id. [Hueso Tr. at 165:5-6]). Defense counsel instructed his 8 client to answer the question as he understood it, which was what conditions 9 the court imposed, not what the Senate may have imposed. (Id.). Hueso 10 answered the question, stating that sanctions and penalties for his offense 11 were common throughout the state, a matter of public record, and set by the 12 court. (Id.). Plaintiff’s counsel then asked the witness eleven additional 13 questions on the same subject matter, which Hueso answered. (Id. [Hueso 14 Tr. at 166-67]). 15 Plaintiff’s counsel did not ask Hueso whether the Senate placed any 16 terms or conditions on him in connection with the wet and reckless plea. 17 (Id.). The deposition concluded shortly thereafter, and Plaintiff’s counsel 18 initiated no further discussions with opposing counsel. Defense counsel 19 explains that if Mouton had raised an issue with Hueso’s answers during the 20 deposition, he was prepared to seek a protective order. But, when she did not 21 challenge any deposition answers, he did not do so. (ECF No. 28 at 17-18 & 22 n.3). 23 Three days later, on October 31, 2022 at 4:09 p.m., Mouton sent defense 24 counsel a draft motion to compel via email seeking additional deposition 25 testimony from Hueso about whether the Senate imposed any conditions on 26 him after his wet and reckless plea. (ECF No. 28-1 [Yeung Decl. ¶ 6]). 1 within 48 hours to comply with the Court’s five-day deadline for filing such 2 motions. (ECF No. 28-1 [Yeung Decl. ¶¶ 5-7]). 3 Defense counsel explained to Mouton that he believed his client had 4 answered the question asked, and reminded Mouton of the requirement to 5 meet and confer before filing a motion to compel. (ECF No. 28-1 [Yeung Decl. 6 ¶ 7]). Mouton responded: “I’m pretty set on proceeding with the motion to 7 compel,” but she agreed to talk the next day to “get that part out of the way 8 earlier rather than later.” (Id. [Yeung Decl. ¶¶ 7-8]). 9 During a subsequent telephonic call, defense counsel offered two 10 solutions: (1) Hueso could execute a declaration responding to her question 11 under penalty of perjury; or (2) Hueso could supplement his testimony 12 pursuant to Rule 30(e)(1)(B) of the Federal Rules of Civil Procedure. (Id. 13 [Yeung Decl. ¶ 9]). Plaintiff’s counsel would only accept a solution if 14 Defendant paid some or all of her fees for having drafted the motion to 15 compel. (Id.). Defendant rejected that condition, asserting that the federal 16 rules justified his position and his client’s responses during the deposition. 17 (Id.). 18 Plaintiff now seeks sanctions of $1800 under Federal Rule of Civil 19 Procedure 30(d)(2) based on defense counsel impeding, delaying, or 20 frustrating a fair examination of Hueso in connection with a question that 21 she never specifically asked. (See ECF No. 28 at 7). Plaintiff also seeks costs 22 and fees to conduct another deposition of Hueso. (Id.). 23 Defendant objects, arguing the Court should sanction Plaintiff’s counsel 24 for: (1) impeding, delaying, and frustrating Hueso’s deposition with 25 harassing, persistent, irrelevant questions about a driving offense that 26 occurred four years before Plaintiff was hired, pursuant to Federal Rule Civil 1 deposition pursuant to Federal Rule of Civil Procedure 37(a)(1) and this 2 Court’s Chambers’ Rules § (V)(A). 3 Analysis: The Deposition Dispute 4 (i) Sanctions Against Plaintiff’s Counsel are Warranted Because She Impeded, Delayed, and Frustrated Hueso’s Deposition as a Result 5 of Her Persistent, Harassing Questions 6 Rule 30(d)(2) provides for sanctions against one who “impedes, delays or 7 frustrates the fair examination of the deponent.” Fed. R. Civ. P. 30(d)(2). 8 Rule 30(d)(2) sanctions do not require a finding of bad faith. BNSF Ry. Co. v. 9 San Joaquin Valley Rr. Co., No. 1:08-cv-01086-AWI-SMS, 2009 WL 3872043, 10 at *3 (E.D. Cal. Nov. 17, 2009); Manipoun v. Dibela, No. 17-cv-02325-AJB- 11 BGS, 2018 WL 5962674, at *2 (S.D. Cal. Nov. 13, 2018); Mewborn v. Abbott 12 Labs., No. CV 18-8732-DSF (PLAc), 2019 WL 8060095, at *8 (C.D. Cal. Oct. 7, 13 2019). The rule “explicitly authorizes the court to impose the cost resulting 14 from obstructive tactics that unreasonably prolong a deposition on the person 15 engaged in such obstruction” and the “sanction may be imposed on a non- 16 party witness as well as a party or attorney.” See Fed. R. Civ. P. 30 (advisory 17 committee notes) (1993 Amendments). 18 “The sanctions under Rule 30(d)(2) ‘may include attorney’s fees incurred 19 as a result of the improper conduct and the necessity of filing a motion with 20 the Court.’” Lee v. Pep Boys-Manny Moe & Jack of California, et al., No. 12- 21 cv-05064-JSC, 2015 WL 9268118, at *3 (N.D. Cal. Dec. 21, 2015) (citation 22 omitted). Rule 30(d)(2) sanctions are discretionary. Id. (citing Batts v. Cnty. 23 of Santa Clara, No. C 08-00286 JW, 2010 WL 545847, at *2 (N.D. Cal. Feb. 24 11, 2010). “Courts have imposed sanctions on attorneys for frustration [of] a 25 deponent's examination and unnecessarily prolonging proceedings under 26 Rule 30(d)(2).” Id. (citing Morales v. Zondo, Inc., 204 F.R.D. 50, 57 (S.D.N.Y. 1 2001)). “A magistrate judge has the authority to issue a sanction for dilatory 2 and obstructive tactics; such an order does not have a dispositive effect on the 3 case.” BNSF Ry. Co., 2009 WL 3872043, at *3 (citation omitted). 4 As a threshold matter, the Court asserts that relevance is generally not 5 a proper ground on which to instruct a party not to answer a question. See, 6 e.g., In Re Stratosphere Corp. Sec. Litig., 182 F.R.D. 614, 619 (D. Nev. 7 1998). That was not the issue here. 8 Instead, Plaintiff’s counsel repeatedly asked the deponent harassing, 9 frivolous, and oppressive questions about a topic the Court had already 10 warned was not relevant. While the law permits counsel to explore 11 inadmissible topics during a deposition, Plaintiff’s counsel took her line of 12 questioning too far. Then she remained unwilling to confer about it with 13 counsel or clarify any connection between her claims and her questions, or 14 explain how much longer she intended to pursue those questions. 15 After calling the Court and returning to the deposition, Mouton asked 16 the deponent eleven more questions on the same wet and reckless topic, but 17 she neglected to ask the one question she nonetheless pursued in her motion 18 to compel. That fact is fatal to her motion. Moreover, Mouton’s improper 19 conduct during the deposition, including her persistent harassing questions, 20 warrant sanctions against her because throughout the deposition and before 21 filing a motion to compel, she failed to adequately meet and confer with 22 opposing counsel as required by federal and local rules. 23 (ii) Sanctions Against Plaintiff’s Counsel are Warranted Based On Her Repeated Failure to Meet and Confer in Compliance with Federal, 24 Local, and Chambers’ Rules 25 A motion to compel “must include a certification that the movant has in 26 good faith conferred or attempted to confer.” Fed. R. Civ. P. 37(a)(1); see also 1 S.D. Cal. Civ. L.R. 26.1(a). Additionally, this Court’s Chambers’ Rules state: 2 Counsel must meet and confer on all issues before contacting the court. If counsel are located in the same district, the meet and 3 confer must be in person. If counsel are located in different 4 districts, then telephone or video conference may be used. Exchanging letters, facsimiles or emails does not satisfy the meet 5 and confer requirement. A party found by the Court to have failed 6 to participate or to participate meaningfully in a required meet and confer session, may be sanctioned. 7 Civ. Chambers Rules MDD § (V)(A). The failure to comply with the 8 requirement to meet and confer in good faith may by itself be grounds 9 for denial of a motion to compel. See Robinson v. Potter, 453 F.3d 990, 10 995 (8th Cir. 2006). 11 Mouton refused to communicate or engage with opposing counsel 12 during the deposition. Then, she sought the Court’s involvement, but 13 she did not adhere to its guidance. Immediately after hearing from the 14 Court, Mouton asked Hueso a vague question and refused to clarify its 15 meaning. Neither the deponent, his counsel, nor this Court could 16 reasonably conclude that Mouton’s question was meant to elicit an 17 answer about whether the Senate placed conditions on Hueso. 18 Mouton could have clarified the meaning of her question by asking 19 a proper follow-up question, but she did not. If Mouton had an issue 20 with Hueso’s answer she should have raised it at the deposition, or 21 properly met and conferred. Instead, she drafted and emailed a motion 22 to compel, then acquiesced to a cursory meet and confer, “to get it out of 23 24 the way.” (ECF No. 28-1 [Yeung Decl. ¶ 8]). A meet and confer is not a perfunctory obligation; it is designed to 25 “lessen the burden on the court and reduce the unnecessary expenditure 26 of resources by litigants, through the promotion of informal, 1 extrajudicial resolution of discovery disputes.” See Banks v. Freddie 2 Mac, No. 2:11-CV-00648-GMN, 2013 WL 1189995, at *1 (D. Nev. Mar. 3 21, 2013) (discussing requirements under Rule 37) (citation omitted). 4 “In order to serve its purpose, parties must treat the informal 5 negotiation process as a substitute for, and not simply a formal 6 prerequisite to, judicial review of discovery disputes.” Id. 7 Defendant’s brief explains that Hueso’s answer to the question not 8 asked would have been: “no, there were no restrictions placed on him 9 by the California State Senate.” (ECF No. 28 at 19). That explanation 10 reveals the plausible simplicity of resolving Mouton’s issue without the 11 Court’s intervention. Yet, when the defense offered to provide an 12 answer to the unasked question via declaration, Mouton refused to 13 accept that solution unless Defendant paid her fees, adding insult to 14 injury. 15 Accordingly, pursuant to Fed. R. Civ. P. 30(d)(2) and 37(a), as well as 16 Chambers’ Rules § (V) and Local Rule 26.1(a),2 the Court awards reasonable 17 attorney’s fees to Defendant in the amount specified in counsel’s declaration. 18 (ECF No. 28-1 [Yeung Decl. ¶ 10]). The Court finds that Chris Moores’ time 19 to draft Defendant’s portion of the motion to compel, i.e., four hours, at a rate 20 of $270/hour (or $1080), and Timothy Yeung’s time to revise the motion, i.e., 21 2.5 hours, at a rate of $375/hour (or $937.50) are reasonable fee amounts in 22 this case. Plaintiff’s counsel is ordered to pay Defendant Hueso $2017.50 in 23 attorney’s fees within 30 days of this Order. 24
25 26 2 “The court shall entertain no motion pursuant to Rules 26 through 37, Fed. R. Civ. P., unless counsel shall have previously met and conferred concerning 1 Next, the Court considers Plaintiff’s ex parte motion to compel the 2 Senate’s production of documents regarding a patently overbroad request, 3 despite the Senate’s offer of a reasonable alternative there as well. (See ECF 4 Nos. 30, 32). 5 B. Attorney’s Fees are Warranted Against Plaintiff’s Counsel for Failing to Adequately Meet and Confer and Timely Serve or Move to Compel 6 Defendant’s Production of Documents 7 Factual Background: The Non-Party Employee Files 8 Plaintiff’s failure to properly meet and confer also characterizes her 9 ex parte motion for production of documents. (ECF No. 30). A review of 10 scheduling order deadlines is helpful. On May 9, 2022, the initial Scheduling 11 Order set the close of discovery on October 11, 2022. (ECF No. 17). The 12 scheduling order established that all requests for production “must be served 13 at least thirty (30) days prior to the established cutoff date so that responses 14 thereto will be due on or before the cutoff date.” (Id.). Four months into the 15 five-month discovery period, Plaintiff served requests for production on 16 September 16, 2022, which was already outside the scheduling order 17 deadlines, as a response would not have been due until October 17, 2022, six 18 days after discovery closed. 19 Then, with only three weeks remaining in discovery, Plaintiff sought an 20 extension of 120 days to complete her discovery. (ECF No. 20). The Court 21 denied her request in large part, admonishing Plaintiff’s counsel for her 22 delay, but permitting a limited extension of 30-days for discovery based on 23 personal challenges counsel communicated to the Court. (ECF No. 21). The 24 Court moved the discovery cut-off deadline to November 14, 2022, but under 25 the Federal Rules of Civil Procedure, the discovery deadline technically fell 26 on November 15, 2022 due to the federal holiday. Fed. R. Civ. P. 6(a)(1)(C) 1 (deadline that falls on a legal holiday is continued to the end of the next day 2 that is not a holiday or weekend). 3 The document request in dispute sought: “All DOCUMENTS of any 4 kind criticizing the job performance of any of YOUR employees at Senator 5 Hueso’s office, excluding PLAINTIFF, from January 2, 2017, through 6 December 31, 2020.” (ECF No. 32-2 at 9). On October 14, 2022, Defendant 7 timely objected to that request as follows: 8 The term “criticizing the job performance” is vague, ambiguous, overbroad, unduly burdensome, and subject to subjective 9 interpretation. Defendant further objects to the extent responsive 10 documents may contain information protected by the right of privacy . . . [and] this request calls for production of documents 11 which are not relevant to the subject matter of this case. 12 Defendant is willing to meet and confer with Plaintiff regarding how to appropriately narrow the terms of this 13 request to address the basis for Defendant’s objections. 14 (Id.) (emphasis added). Plaintiff did not initiate the meet and confer process 15 until the eve of the discovery deadline. On November 8, 2022, she requested 16 a telephone call with defense counsel about “lingering” discovery issues, and 17 they scheduled a call for November 10, 2022 at 9:30 a.m. (ECF No. 30-1 18 [Mouton Decl. ¶ 4]). 19 Defendant’s main problem was that Plaintiff sought private, 20 confidential employment records of non-party employees, and counsel 21 explained that he would need to discuss production of those materials with 22 his client, the Senate, before producing them. (ECF No. 32 at 4). Defense 23 counsel asked Mouton to contact him if she felt a motion were required 24 because he believed they could reach a solution without a motion. (Id.). 25 Defense counsel was also working to finalize a motion for summary judgment 26 in this case that was due the same day. (Id. [Moores Decl. ¶ 6]). 1 Mouton next emailed defense counsel on November 10, 2022 at 9:25 2 p.m., stating that she wanted to file a joint discovery motion. (Id. [Moores 3 Decl. ¶ 7]). Defense counsel responded to her within the hour, reiterating his 4 need to speak with this client and Plaintiff’s delay in raising a timely dispute 5 before the close of business that day. Defense counsel also explained his view 6 of an insufficient meet and confer process regarding the disputed RFP. (Id.). 7 On Friday, November 11, 2022 both counsel had an all-day deposition of 8 a key witness in this case, and because Monday was a holiday, defense 9 counsel explained that he may not be able to resolve the privacy concerns 10 immediately. (ECF No. 32-1 [Moores Decl. ¶¶ 4-5]). Moores did not refuse to 11 produce documents, but instead expressed the need to speak with his client 12 about privacy issues before he could respond. (Id.). 13 Plaintiff offered to limit her discovery request to performance reviews 14 for seventeen employees who worked for Hueso’s district office during the 15 same time as Hendon. (ECF No. 30 at 4). Plaintiff argues those evaluations 16 are relevant to her allegation that a supervisor refused to give her a timely 17 performance evaluation, despite giving them to others during the relevant 18 time-period. (ECF No. 30 at 5). Plaintiff also contends she needs to test the 19 veracity of her supervisor’s statement that “Dawn Hendon’s performance 20 feedback was not the only one delayed” due the supervisor’s workload. (Id. at 21 6). 22 The defense suggested instead that they produce “a chart identifying 23 the hire dates of District Representatives, with corresponding dates of each 24 performance evaluation provided to those employees between 2017 and 25 2020.” (ECF No. 32-1 [Moores Decl. ¶ 9]). Plaintiff persisted in attempting to 26 obtain the evaluations themselves, rather than simply the dates of the 1 Analysis: The Non-Party Employee Files 2 Plaintiff’s motion to compel the production of performance evaluations 3 fails for several reasons. First, Plaintiff served the RFP too late for the 4 defense to respond or object before the close of discovery. Fortunately for 5 Plaintiff that deadline was later extended from October 11, 2022 to November 6 14, 2022. Yet still, having received objections on October 11, 2022, Plaintiff’s 7 counsel compounded her delays by failing to attempt to meet and confer until 8 November 8, 2022, which was too late for the defense to have a reasonable 9 amount of time to respond or participate in a joint motion in compliance with 10 Chambers’ Rules. Then, when they did confer, Plaintiff refused to accept a 11 reasonable alternative to her overly broad document request. 12 Mouton’s delays and her failure to properly meet and confer render her 13 motion to compel without merit. Under Rule 37(a)(5), sanctions are 14 appropriate unless the motion to compel is substantially justified or other 15 circumstances make an award unjust. Fed. R. Civ. P. 37(a)(5)(B) (If a motion 16 to compel is denied, the court must require the movant to pay the party “who 17 opposed the motion its reasonable expenses incurred in opposing the motion, 18 including attorney’s fees”). Mouton’s actions were not substantially justified, 19 nor is the Court aware of any circumstance that would make an award of fees 20 unjust. 21 The Court finds that sanctions against Plaintiff’s counsel are 22 warranted. See In re Baker, 744 F.2d 1438, 1442 (10th Cir. 1984) (“If the 23 fault lies with the attorney, that is where the impact of sanction should be 24 lodged. If the fault lies with the clients, that is where the impact of the 25 sanction should be lodged.”). Counsel’s rate of $270 per hour is reasonable, 26 and four hours was a reasonable amount of time for Defendant’s attorney to 1 || Decl. 11]). Accordingly, Plaintiff's counsel shall pay the Defendant 9 || California State Senate $1080 in attorney fees as a sanction for the untimely 3 unwarranted ex parte motion to compel. 4 CONCLUSION 5 The Joint Motion (ECF No. 28) is resolved in Defendant Hueso’s favor, 6 ||and Plaintiffs counsel is ordered to pay fees to Defendant Hueso in the 7 |jamount of $2017.50, within 30 days of this Order. 8 Plaintiff's Ex Parte Motion to Compel Production of Documents (ECF 9 || No. 30) is DENIED. Plaintiffs counsel is ordered to pay Defendant the 10 || California State Senate attorney’s fees in the amount of $1080 within 30 days 11 ||of this Order, in addition to the $2017.50 award of sanctions to Defendant 12 Hueso, for a total of $3097.50 in attorney’s fees against Ms. Mouton. 13 IT IS SO ORDERED. Dated: March 23, 2023 Vitel » [ Hon. Mitchell D. Dembin 16 United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27