Troyer v. Liberty Mutual Insurance Company

• Court: District Court, D. Nevada
• Decided: October 25, 2021
• Docket: 2:19-cv-01056
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 David Troyer, Case No. 2:19-cv-01056-APG-DJA 6 Plaintiff, 7 Order v. 8 Liberty Mutual Insurance Company, et al., 9 Defendants. 10 11 12 This is an insurance bad faith action arising out of an ATV rollover accident. Plaintiff 13 David Troyer sues Defendants Liberty Mutual Insurance Company, Liberty Mutual Corporation, 14 and LM General Insurance company for, in part, their failure to provide sufficient underinsured 15 motorist coverage. (ECF No. 1). Plaintiff moves to strike Defendants’ answer, arguing that 16 Defendants and their counsel have been unreasonably unresponsive and uncooperative in 17 conducting discovery. (ECF No. 33). Because the Court finds that Plaintiff has demonstrated 18 sanctionable conduct, but that case dispositive sanctions are not warranted, it grants the motion in 19 part and denies it in part. The Court finds these matters properly resolved without a hearing. LR 20 78-1. 21 I. Background. 22 Plaintiff and his wife joined their friends to ride their ATVs on a dry lakebed on 23 December 12, 2018. (ECF No. 33 at 12). Plaintiff’s wife was riding as a passenger in Plaintiff’s 24 ATV while it was being driven by third-party Emily Balanay. See id. Balanay accelerated and 25 made a sharp turn, causing the ATV to flip and roll, causing Plaintiff’s wife severe injuries and 26 resulting in the amputation of her right forearm. See id. Balanay’s insurance was insufficient to 27 compensate Plaintiff’s wife’s medical bills, past and future pain and suffering, future medical 1 treatment, or Plaintiff’s psychological and emotional damage. See id. On April 24, 2019, 2 Defendant denied Plaintiff coverage.1 See id. at 14. 3 A. Timeline of the parties’ participation in discovery 4 Along with the facts underlying the claims in the lawsuit, Plaintiff’s and Defendants’ 5 explanation of the discovery timeline displays a troubling lack of communication from 6 Defendants. 7 May 6, 2021 Plaintiff’s counsel calls Defendants’ counsel to discuss 8 Defendants’ responses to written discovery and depositions. 9 Plaintiff’s counsel continues to call Defendants’ counsel for two weeks with no response. (ECF No. 33 at 14-18). 10 However, Defendants’ counsel—Michael Dissinger— asserted in his declaration that he did not receive daily calls 11 or voicemails. (ECF No. 35-2 at 4).

12 May 11 or 20, 2021 Defendants’ counsel asserts that he and Plaintiff’s counsel 13 spoke regarding depositions on May 11, 2021. See id. Plaintiff’s counsel asserts that he did not reach Defendants’ 14 counsel until May 20, 2021. (ECF No. 33 at 14-18).

15 May 12, 2021 Defendants’ counsel asserts that he received an email from Plaintiff’s counsel accusing him of failing to communicate 16 for two months, despite the call the day before. (ECF No. 17 35-2 at 4). Defendants’ counsel does not explain whether he responded to this email. 18 May 26 or 27, 2021 The parties meet and confer to discuss depositions. See id; 19 (ECF No. 33 at 14-18).

20 June 7 or 10, 2021 The parties meet and confer to discuss depositions and come 21 to a tentative agreement to take depositions of Brant, Katharine Houlihan, and Defendants’ 30(b)(6) witness on 22 July 21, 2021. See id. Plaintiff’s counsel requested Defendants’ help in reaching Brant and Houlihan. See id. 23 Defendants’ counsel appears to assert that this communication took place on June 10, 2021 and that in that 24 meeting, he discussed that Houlihan—as a 30(b)(6) 25

26 1 Plaintiff adds certain facts related to his bad faith claim against Defendants, including his 27 allegation that a representative of Defendants impermissibly contacted him—and not his attorney—while he was represented. However, because these facts have no bearing on the witness—needed to appear remotely. (ECF No. 35-1 at 2- 1 3). 2 June 14, 2021 Plaintiff’s counsel served deposition notices for Brant, 3 Houlihan, and Defendants’ 30(b)(6) witness via mail and sent courtesy copies to Defendants’ counsel via email. 4 (ECF No. 33 at 14-18). These notices included a notice for a 30(b)(6) designee, Houlihan, and Brant. See id. at 50. 5 Defendants’ counsel asserts that there was no “specific 6 understanding Ms. Houlihan would also serve in the capacity as the representative witness.” (ECF No. 34 at 6). 7 The notices for Houlihan and Brant were for remote depositions, the notice for the 30(b)(6) witness specified that 8 the deposition would be in person. (ECF No. 35-2 at 5).

9 June 21, 2021 Plaintiff’s counsel emailed Defendants’ counsel asking for 10 help in reaching Brant and Houlihan. (ECF No. 33 at 14- 18). Plaintiff’s counsel did not receive a response. See id. 11 Between June 21, 2021 and July 20, 2021, Plaintiff’s counsel sent ten follow up emails, none of which were 12 acknowledged. See id.

13 July 20, 2021 Defendants’ counsel called Willoughby—who was out of 14 town for his wedding—and emailed Saggese, stating that Brant would be available for a deposition on July 29th or 15 30th and that Houlihan could be available on August 5th or 6th without a subpoena. See id. Defendants’ counsel added 16 that Houlihan “is available to appear in her individual capacity and as a representative (30(b)(6)) witness on either 17 of those dates.” See id. at 60. Plaintiff asserts that this was 18 the first time that Defendants’ counsel disclosed that Houlihan would be the 30(b)(6) witness.2 See id. at 79. 19 Defendants’ counsel did not acknowledge the previously unanswered emails. See id. at 60. 20 July 21, 2021 The in-person 30(b)(6) deposition went forward as a non- 21 appearance. See id. at 14-18. The remote deposition of 22 Brant went forward. Id. The deposition of Houlihan went forward as a non-appearance. See id. Houlihan appeared 23 remotely because, as Defendants’ counsel explains, he had 24

25 2 Defendants disputes this assertion but provides no written confirmation that they had established Houlihan as the 30(b)(6) witness. Compared with Plaintiff’s counsel’s emails—one of which 26 Defendants’ counsel responded to, confirming that he understood that Plaintiff wished to depose a 27 30(b)(6) witness who was not Houlihan—and notices, Defendants’ counsel’s assertions that the parties had previously discussed deposing Houlihan in a 30(b)(6) capacity is unconvincing. (ECF informed Plaintiff that Houlihan would be appearing as the 1 30(b)(6) witness. (ECF No. 35-1 at 4). It appears that 2 Houlihan appeared via a Zoom link that Defendants’ office sent Plaintiff’s counsel without context on the day of the 3 deposition, to which Plaintiff’s counsel responded via email “It is not by Zoom. It is an in-person deposition. Why did 4 you send that out?” (ECF No. 33 at 74-75). Defendants’ office did not respond to that email. See id. Regarding why 5 Plaintiff’s counsel did not believe Houlihan to be a proper 6 30(b)(6) witness, Plaintiff’s counsel put on the record at the non-appearance that she: “is not a viable or legitimate 7 30(b)(6) witness, as she is a percipient witness herself in this case, who herself was engaged in misconduct in the 8 underlying case. The evidence of this is in the transcript of Katherine Houlihan’s discussion with the at-fault party, 9 Emily Balanay…Katherine Houlihan was providing her 10 advice and counsel against her own insured, my client [Plaintiff and his wife].” Id. at 76-79. 11 July 23, 2021 Defendants’ counsel sent Plaintiff’s counsel a letter 12 asserting that Houlihan is an appropriate 30(b)(6) witness and asking Plaintiff’s counsel to provide authority to 13 support Plaintiff’s counsel’s objection. (ECF No. 35-14). 14 July 29, 2021 Plaintiff’s counsel called Defendants’ counsel and both 15 parties agreed that, unless the case resolved, the 30(b)(6) deposition and the deposition of Houlihan would go forward 16 on August 20, 2021. (ECF No. 33 at 14-18).

17 July 30, 2021 Plaintiff’s counsel sent a confirming email regarding the 18 deposition of Houlihan and the 30(b)(6) witness to be held on August 20, 2021 to Defendants’ counsel. See id. 19 Defendants’ counsel responded to confirm and stated “I need to confirm witness availability” but otherwise did not 20 mention Plaintiff’s counsel’s statement that the 30(b)(6) deponent was to be determined. See id. at 83. Defendants’ 21 counsel characterized Plaintiff’s counsel’s email as 22 “unilaterally cancelling the depositions set for August 5, 2021 and August 6, 2021” and that the August 20, 2021 date 23 was “unilaterally selected by Mr. Saggese.” (ECF No. 35-1 at 7). 24

25 August 3, 2021 Plaintiff’s counsel emailed Defendants’ counsel that, if the case did not resolve, then Plaintiff wanted to take the 26 deposition of Brant’s supervisor. (ECF No. 33 at 14-18). Defendants’ counsel did not respond. See id. 27 August 10, 2021 Plaintiff’s counsel emailed Defendants’ counsel again about 1 the possible deposition of Brant’s supervisor and requested 2 that Defendants’ counsel confirm receiving emails. See id. Defendants’ counsel did not respond. See id. 3 August 13, 2021 Plaintiff’s counsel emailed Defendants’ counsel again, 4 asking them to confirm receipt of emails. See id. Defendants’ counsel did not respond. See id. 5

6 August 16, 2021 Plaintiff’s counsel emailed Defendants’ counsel again, explaining that if the case had not settled, the 30(b)(6) 7 deposition and Houlihan’s deposition would be going forward in four days. See id. Plaintiff’s counsel also asked 8 Defendants’ counsel to provide the identity of the 30(b)(6) witness. See id. Defendants’ counsel did not respond. See 9 id. 10 August 17, 2021 Plaintiff’s counsel sent Defendants’ counsel more than 11 twenty emails asking them to respond. See id.

12 August 18, 2021 Defendants’ counsel responded via email without referencing the unanswered emails or the depositions that 13 were set to take place in two days. See id. Rather, 14 Defendants’ counsel stated that he “did not have anything definitive to report,” without context, but apparently 15 discussing the possibility of settlement. See id. This same day, Plaintiff’s counsel personally hand-delivered 16 deposition notices for August 20, 2021 for the 30(b)(6) witness and Houlihan to Defendants’ counsel’s office. See 17 id. 18 August 20, 2021 Defendants’ counsel sent Plaintiff’s counsel a letter one 19 hour before the deposition was set to begin, stating that the deposition notices were defective.3 See id. The depositions 20 went forward as non-appearances. See id.

21 August 25, 2021 Defendants’ counsel sent Plaintiff’s counsel another letter, 22 asking Plaintiff’s counsel to respond to Defendants’ offer of judgment. (ECF No. 35-6). Defendants’ counsel added 23 that, if Plaintiff chose to reject the offer of judgment, “deposition of Ms. Houlihan in all of her capacities can be 24 coordinated to proceed in short order if you are in 25 agreement with her remote appearance.” Id.

27 3 The letter contains other arguments, which, because they do not impact the Court’s decision, the August 26, 2021 Plaintiff’s counsel filed the instant motion. 1

2 B. Plaintiff’s motion to strike Defendants’ answer. 3 4 Plaintiff asserts in his motion that, due to Defendants’ counsel’s failure to communicate 5 effectively and in good faith, case terminating sanctions are appropriate. (ECF No. 33 at 20). 6 Plaintiff relies on Federal Rule of Civil Procedure 37(b)(2)(A), which outlines sanctions 7 appropriate to deposition non-appearances. See id. Under the Nevada Supreme Court’s factors, 8 Plaintiff asserts that: (1) Defendant has acted willfully in not responding to communications and 9 failing to show up for depositions; (2) that Plaintiff would be severely prejudiced by a lesser 10 sanction because Plaintiff has already had his case delayed, has wasted resources litigating the 11 case and setting up depositions, especially with limited resources to litigate against a large 12 company; (3) less severe sanctions will not change the fact that Plaintiff will have to extend 13 discovery and the case; (4) the sanction would not prejudice Defendant because “Plaintiff does 14 not believe that Defendants’ counsel is personally or individually responsible for the deceptive 15 and dilatory discovery tactics. Plaintiff believes that the blatant disrespect…comes directly from 16 Corporate Liberty Mutual.” See id. at 22-24. 17 In response, Defendant asserts that Plaintiff has “twisted and re-characterized the 18 circumstances.” (ECF No. 34 at 3). For example, Defendant asserts that Plaintiff unilaterally set 19 and cancelled depositions, rather than working together with Defendant to schedule them. See id. 20 at 4-11. Regarding Houlihan’s deposition, Defendant claims that that Plaintiff changed his 21 position that Houlihan could appear remotely and now “contends without any basis Ms. 22 Houlihan’s separate personal appearance is required for her representative witness capacity.” Id. 23 at 3. According to Defendant, this is an attempt to coerce Defendant to nominate a different 24 30(b)(6) witness. See id. at 11. Defendant believes that Plaintiff is using discovery to prompt 25 settlement negotiations and, to that end, agreed to suspend discovery to negotiate and then 26 improperly resumed depositions by hand delivering notices. See id. at 8-9. After sending a letter 27 following the cancelled August 20, 2021 depositions, Defendant claims that Plaintiff improperly 1 did not respond and failed to meet and confer before bringing the instant motion.4 See id. at 9-10, 2 15. Under the Ninth Circuit’s five-part test—which Defendant claims is proper, rather than the 3 Nevada test—Defendant argues that Plaintiff has not demonstrated the key factors of prejudice or 4 the unavailability of lesser sanctions. See id. at 12-13. Defendant claims that Plaintiff has not 5 suffered prejudice because it was Plaintiff who refused to proceed with depositions and Plaintiff 6 is unilaterally demanding that Defendant provide a separate 30(b)(6) witness in person. See id. 7 Defendant asserts that lesser sanctions are available because Houlihan is willing to appear 8 remotely for deposition. See id. at 13-14. Finally, Defendant accuses Plaintiff of attempting to 9 increase litigation costs. See id. at 16-17. 10 In reply, Plaintiff accuses Defendant of ignoring the “countless attempts to establish 11 communication by Plaintiff,” asserted in his motion. (ECF No. 36 at 3). Plaintiff explains that he 12 laid out the extensive and detailed factual scenario underlying the non-appearance depositions 13 and the failed attempts at scheduling a 30(b)(6) witness. See id. at 3-4. But Defendant did not 14 address or rebut these details. See id. Plaintiff provides proof that Defendants’ counsel has been 15 receiving emails but has been ignoring them. See id. at 5. Finally, Plaintiff reasserts that 16 Defendants’ silence warrants striking the answer. See id. at 6. 17 II. Discussion. 18 A. The Court applies Federal law to determine sanctions. 19 The Court may impose sanctions either under Rule 37 or its inherent authority. See IDX 20 Systems Corp., 464 F.3d 951, 958 (9th Cir. 2006). “[F]ederal courts sitting in diversity apply 21 state substantive law and federal procedural law.” Feldman v. Allstate Ins. Co., 322 F.3d 660, 22 666 (9th Cir. 2003) (quoting Erie R.R. v. Tompkins, 304 U.S. 64 (1938)). Federal courts apply 23 federal law when addressing sanctions, regardless of whether it is using its inherent authority or 24 Rule 37. See Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993). Here, although Plaintiff 25

26 4 Defendant also cites other portions of discovery, including document disclosures and 27 extensions, to assert that they have participated in discovery. (ECF No. 34 at 10-11). However, because these arguments do not have a bearing on the discovery disputes at issue, the Court does 1 applies Nevada law in making its arguments for sanctions, the Court applies Federal law in 2 determining sanctions. 3 B. Sanctions are warranted. 4 Federal Rule of Civil Procedure 37(d)(1)(A) authorizes the Court to impose sanctions 5 when a party fails to appear for a deposition. See Fed. R. Civ. P. 37(d)(1)(A)(i). The failure to 6 appear is not excused on the ground that the discovery sought was objectionable unless the party 7 failing to act has a pending motion for a protective order. See Fed. R. Civ. P. 37(d)(2). The 8 Court will first determine whether a discovery violation occurred and second, what sanction is 9 appropriate, if any. See Greene v. Wal-Mart Stores, Inc., No. 2:15-cv-00677-JAD-NJK, 2016 10 WL 829981, at *4 (D. Nev. Jan. 26, 2016). The Court has “great latitude” in fashioning 11 sanctions. See Lew v. Kona Hosp., 754 F.2d 1420, 1425 (9th Cir. 1985). 12 Here, sanctions are warranted because Plaintiff has demonstrated a pattern by which 13 Defendants ignore Plaintiff’s communications leading up to a deposition and then, at the last 14 minute, either object or assert new facts. Defendants’ counsel disputes some of the phone calls 15 leading up to the first round of depositions set to take place on July 21, 2021. But they do not 16 dispute that their office received copies of Plaintiff’s notices of deposition, that they did not 17 respond to emails between June 21, 2021 and July 20, 2021, and that the day before the 18 depositions, Defendants provided dates for the deponents, ignoring the notices of depositions and 19 missed communications. Defendants’ argument that Plaintiff unilaterally decided the deposition 20 date and failed to cooperate in picking a date is belied by Plaintiff’s assertion that counsel 21 discussed July 21, 2021 as a tentative date on June 7th or 10th and that Defendants’ counsel never 22 objected to the notices. Nor do Defendants explain the month of silence that preceded the 23 deposition or their last-minute revelation that Houlihan would be the 30(b)(6) witness. Even 24 though Houlihan remotely appeared on July 21, 2021, Plaintiff was reasonable in not proceeding 25 with the deposition where his counsel did not previously know the identity of the 30(b)(6) witness 26 or that the witness would be an existing fact witness. 27 While Plaintiff’s counsel did not respond to Defendants’ July 23, 2021 letter asking for 1 his arguments in an email and on the record at the continued deposition. Moreover, just a few 2 days later, on July 29, 2021 counsel for both parties discussed rescheduling the deposition and 3 that both the 30(b)(6) witness deposition and the deposition of Houlihan would go forward. 4 Defendants’ counsel even confirmed that the two depositions would be separate when he 5 responded to Plaintiff’s counsel’s follow up email outlining the call. Defendants’ counsel also 6 confirmed that the depositions on August 5th and 6th would be rescheduled when he responded to 7 Plaintiff’s counsel’s follow up email, but now argues that Plaintiff “unilaterally cancel[ed]” these 8 depositions. (ECF no. 35-1 at 7). 9 Once the depositions for Houlihan and the 30(b)(6) witness were re-set for August 20, 10 2021, Defendants’ counsel once again went silent. In the days leading up to the deposition, 11 Plaintiff asked about another possible deposition, asked Defendants’ counsel to confirm receipt of 12 emails, and asked for the identity of the 30(b)(6) witness. Defendants’ counsel did not respond 13 until August 18, 2021, stating that he had “nothing definitive to report” without context and 14 without acknowledging the other, unanswered emails. Plaintiff hand-delivered deposition notices 15 that same day, which Defendants now characterize as unilateral and improper even though they 16 noticed depositions for an agreed-upon day and agreed-upon witnesses. Defendants also did not 17 oppose these notices right away—even though the deposition was approaching—but waited until 18 one hour before the deposition to send a letter claiming that the notices were defective. After the 19 depositions again went forward as non-appearances, Defendants then sent a letter, unilaterally 20 providing new deposition dates and discussing an offer of judgment. Defendants now claim 21 Plaintiff was unreasonable to ignore this letter and file a motion. 22 In response to Plaintiff’s motion setting forth a detailed timeline of events, Defendants 23 offer only broad assertions that Plaintiff failed to keep promises, unilaterally set dates, and 24 unreasonably cancelled depositions. But Defendants mischaracterize events. Defendants’ failure 25 to properly oppose depositions, adequately communicate, and to provide witnesses for 26 depositions is sanctionable. 27 1 C. Failure to certify a meet and confer is not dispositive. 2 A party filing a motion for sanctions must certify that the movant met and conferred in 3 good faith with the party failing to act to obtain the answer or response without court action. See 4 Fed. R. Civ. P. 37(d)(1)(B). Here, however Plaintiff has demonstrated a pattern of non- 5 responsiveness. Plaintiff was reasonable to assume that a request for a meet-and-confer would be 6 met with similar silence. That Plaintiff did not certify that his counsel met and conferred with 7 Defendants’ counsel is not dispositive of this motion. 8 D. The Court will not impose case-dispositive sanctions. 9 Sanctions for failing to appear at a deposition may include striking the pleadings. Fed. R. 10 Civ. P. 37(b)(2)(A)(iii). In determining whether case dispositive sanctions are appropriate, “[a] 11 court must consider the following five factors before striking a pleading or declaring default: 12 ‘(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 13 docket; (3) the risk of prejudice to the other party; (4) the public policy favoring the disposition of 14 cases on their merits; and (5) the availability of less drastic sanctions.’” Hester v. Vision Airlines, 15 687 F.3d 1162, 1169 (9th Cir. 2012) (quotation omitted). “[T]he key factors are prejudice and 16 availability of lesser sanctions.” Id. The Ninth Circuit has found that the element of prejudice is 17 essential, and “sanctions [that] threaten or interfere with the litigants’ claim or defenses violate 18 due process when they are imposed ‘merely for punishment of an infraction that does not threaten 19 to interfere with the rightful decision of the case.’” Wanderer v. Johnston, 910 F.2d 652, 656 (9th 20 Cir. 1990). 21 Here, case dispositive sanctions are not warranted. First and second, although the public’s 22 interest in expeditious resolution of the case and the Court’s need to manage its docket both 23 weigh in favor of dispositive sanctions, they are outweighed by the other three factors. Third, it is 24 unclear to the Court whether the conduct at issue is attributable to Defendants or their counsel. 25 While Defendants do not explain these delays in their brief, without more, the Court cannot 26 impose case dispositive sanctions without risking prejudice to Defendants for conduct of which 27 they may not have been aware. Fourth, imposing case dispositive sanctions will mean that the 1 lesser sanctions are available to avoid this result and address Plaintiff’s concerns. Plaintiff 2 explains that he has been prejudiced by significant delay and expense in the litigation. The Court 3 agrees but does not find these prejudices incurable by other methods such that dispositive 4 sanctions are the only available. The Court thus denies Plaintiff’s request for case dispositive 5 sanctions but imposes lesser sanctions. 6 E. Defendant must pay for the missed depositions and produce Houlihan and a 30(b)(6) witness on an agreeable date. 7 8 “Instead of or in addition to [the available sanctions for non-appearance], the court must 9 order the disobedient party, the attorney advising that party, or both to pay the reasonable 10 expenses, including attorney’s fees, caused by the failure, unless the failure was substantially 11 justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). 12 The Court’s power to sanction also extends beyond the enumerated rules and includes the 13 inherent authority to manage its docket to permit the orderly, expeditious rendition of cases. See, 14 e.g., In re Keegan Management Co. Sec. Litig., 78 F.3d 431, 435 (9th Cir. 1996). This inherent 15 power includes the ability “to sanction a party for abusive discovery conduct” that “unreasonably 16 delays the discovery process.” Hackett v. Segerblom, No. 2:06-CV-01081-JCM-GWF, 2007 WL 17 2254708, at 4 (D. Nev. Aug. 3, 2007) (citing Leon v. IDX Systems, 464 F.3d 951 (9th Cir. 2006)). 18 “Because of their very potency, inherent powers must be exercised with restraint and discretion.” 19 Alutiq v. OIC Marianas Ins. Corp., 305 F.R.D. 618, 628 (D. Nev. Mar. 13, 2015) (quotations 20 omitted). 21 Here, the Court follows Rule 37 to find that monetary sanctions are appropriate and uses 22 its inherent authority to order that Defendants provide a 30(b)(6) witness who is not Houlihan. 23 There is nothing to suggest that Defendants’ failure to communicate regarding these depositions 24 or to properly object to them was substantially justified or that there are extenuating 25 circumstances that make an award of expenses unjust. As discussed more fully above, one of 26 Plaintiff’s main concerns is the money he has expended in putting on depositions that have not 27 gone forward. Defendants must pay the reasonable expenses that Plaintiff has expended in 1 spent bringing this motion and attending the depositions that did not go forward. Another of 2 Plaintiff’s concerns is the time and delay that Defendants’ actions have caused and the use of 3 Houlihan as a 30(b)(6) witness. Regarding Houlihan, Defendants have not sufficiently responded 4 to Plaintiff’s explanations that Houlihan is not an acceptable 30(b)(6) witness. Defendants also 5 failed to raise any opposition to having a separate 30(b)(6) witness in responding to Plaintiff’s 6 confirmation email outlining a call the parties had after Defendants sent a letter regarding 7 Houlihan. Defendants have thus waived their arguments for providing Houlihan as a 30(b)(6) 8 witness. Regarding the delay in depositions, Defendants’ counsel must contact Plaintiff’s counsel 9 within seven days from the date of this Order to set up a deposition for a 30(b)(6) witness and for 10 Houlihan for a mutually agreeable date and time. Further non-responsiveness in scheduling and 11 preparing for depositions will not be tolerated. 12 IT IS THEREFORE ORDERED that Plaintiff’s motion to strike the answer (ECF No. 13 33) is denied in part as it relates to Plaintiff’s request for the Court to recommend striking 14 Defendants’ answer. Plaintiff’s motion is granted in part insofar as it concerns sanctions. 15 IT IS FURTHER ORDERED that Defendants must: (1) pay Plaintiff’s reasonable 16 attorneys’ fees and costs in bringing this motion and for hiring a court reporter and attending the 17 depositions that went forward as non-appearances; (2) contact Plaintiff’s counsel within seven 18 days from the date of this order—by Monday, November 1, 2021—to set up depositions for both 19 a 30(b)(6) witness and for Houlihan on a mutually agreeable date and time; and (3) identify and 20 provide a 30(b)(6) witness who is not Houlihan. 21 IT IS FURTHER ORDERED that Plaintiff shall submit an affidavit of reasonable 22 attorneys’ fees and costs in bringing this motion, in attending the depositions that went forward as 23 non-appearances, and for hiring a court report for the depositions that went forward as non- 24 appearances. 25 DATED: October 25, 2021 26 DANIEL J. ALBREGTS 27 UNITED STATES MAGISTRATE JUDGE