Rodriguez v. County of San Diego

• Court: District Court, S.D. California
• Decided: March 17, 2020
• Docket: 3:19-cv-00424
• Status: Unknown

Opinion

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7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9

10 JULIE RODRIGUEZ, Case No.: 19cv0424-L-MDD 11

Plaintiff, 12 ORDER ON JOINT MOTION v. FOR DETERMINATION OF 13 DISCOVERY DISPUTE: COUNTY OF SAN DIEGO, et al., 14 DEFENDANTS’ MOTION TO Defendants. COMPEL PLAINTIFF’S 15 DEPOSITION AND FOR 16 MONETARY SANCTIONS

17 [ECF No. 20] 18 19 Before the Court is the Joint Motion of the parties for determination of 20 a discovery dispute filed on March 16, 2020. (ECF No. 20). The Joint Motion 21 presents the Defendants’ motion to compel Plaintiff’s deposition and seeks 22 reimbursement of costs for two aborted depositions of Plaintiff. 23 LEGAL STANDARD 24 Fed. R. Civ. P. 30(b)(1) provides that a party may take the deposition of 25 any person, including a party, by reasonable notice. A party whose 26 deposition has been noticed may seek a protective order under Rule 26(c). 27 Absent a protective order or an order staying the deposition, the party must 1 appear for a properly noticed deposition. Terry v. State Farm General Ins. 2 Co., No. EDCV 16-2096-JGB-KKx, 2017 WL 5714518 *2 (C.D. Cal. 7/27/2017); 3 Bishop v. Potter, No. 2:08-cv-0726-RLH-GWF, 2010 WL 2771763 *1 (D. Nev. 4 6/14/2010). 5 Fed. R. Civ. P. 37(d)(1)(A)(i) provides that a court may order sanctions if 6 a party fails to appear for a properly noticed deposition. Sanctions available 7 for failing to appear are provided at Rule 37(b)(2)(A)(i)-(vi). Instead of or in 8 addition to these sanctions, the court must require the party failing to act, 9 the attorney advising the party, or both to pay reasonable expenses caused by 10 the failure unless the failure was substantially justified or other 11 circumstances make award of the sanctions unjust. Rule 37(d)(3). 12 DISCUSSION 13 The complaint in this case, charging the use of excessive force by 14 Defendants, was filed on March 4, 2019. (ECF No. 1). The Early Neutral 15 Evaluation and Case Management Conference was held on June 17, 2019. 16 (ECF No. 7). The first Scheduling Order was issued that same day and set a 17 discovery deadline of December 18, 2019. (ECF No. 8). On September 6, 18 2019, upon joint motion of the parties, the Court amended the Scheduling 19 Order because Plaintiff had terminated her attorney and was hospitalized for 20 a time in August. The discovery deadline was extended to February 17, 2020. 21 (ECF No. 13). On January 7, 2020, upon joint motion of the parties based 22 upon Plaintiff’s inability to be deposed due to illness, the Court again 23 extended the discovery completion deadline to March 18, 2020. (ECF No. 17). 24 And, finally, on February 5, 2020, the Court granted a joint motion to extend 25 the discovery deadline to the current deadline of May 18, 2020, again due to 26 the inability to obtain Plaintiff’s deposition. (ECF Nos. 18, 19). 27 1 These facts appear undisputed: 2 1. Plaintiff was scheduled for deposition on December 18, 2019. On 3 December 16, 2019, Plaintiff sought and was given a continuance by 4 Defendants, due to her illness, to January 6, 2020. (ECF No. 20 at 5 2). 6 2. On January 6, 2020, Plaintiff appeared for deposition but claimed to 7 be unable to proceed due to laryngitis. By agreement, the deposition 8 was scheduled to resume on January 15, 2020. (Id.). 9 3. On January 13, 2020, because her laryngitis had not resolved, the 10 parties agreed to continue her deposition to January 23, 2020. (ECF 11 No. 20 at 3). 12 4. On January 22, 2020, counsel for Plaintiff sought another extension 13 because Plaintiff’s voice had not returned. The parties agreed to 14 continue to deposition to January 31, 2020. (Id.). 15 5. On January 30, 2020, counsel confirmed Plaintiff’s availability for 16 the next day. On January 31, 2020, Plaintiff appeared but stated 17 that she remained too ill to provide testimony. (Id.). 18 Defendants now seek an order compelling Plaintiff to appear for her 19 deposition and seek recovery of their costs, excluding attorney’s fees, for the 20 two depositions that were commenced but not conducted. Defendants have 21 provided evidence that they incurred costs totaling $1923.00 for court 22 reporting and videography for the two aborted depositions. Plaintiff asserts 23 that an order is not needed as Plaintiff is willing to be deposed but 24 consistently unable to do so. 25 CONCLUSION AND ORDER 26 Defendants’ motion to compel and for sanctions, as presented in this 27 1 || Joint Motion is GRANTED. Plaintiff must submit to deposition no later 2 ||than April 16, 2020, absent agreement of the parties or further Order of the 3 ||Court. The Court finds that Plaintiff could and should have notified 4 || Defendants of her medical condition (laryngitis) prior to the commencement 5 the depositions on January 6 and 31, 2020. No reason has been given for 6 those failures. Consequently, Plaintiff must reimburse Defendants for the 7 ||$1923.00 in costs incurred by Defendants for court reporting services, 8 ||including videography. The reimbursement must be made with 60 days of 9 || the filing of this Order, absent a contrary agreement of the parties or further 10 || Order of the Court. All other dates remain as previously set. 11 IT IS SO ORDERED. Dated: March 17, 2020 Mitel » : [> Hon. Mitchell D. Dembin 14 United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27