Most petty discovery disputes don't generate published opinions by the Ninth Circuit. If only because most of the resulting orders are interlocutory and eventually go away before judgment is entered.
Yet here we are. A routine discovery fight about when an expert deposition should take place. A type of fight that many of us have engaged in at some point -- or at many points -- during our legal careers.
The defendants want (and notice and issue a subpoena for) the deposition for March 30th, but the parties are fighting via e-mail about who should pay the expert's fees, so plaintiff's counsel and the expert don't show up. As a result, the next day, defendants say they're going to move ex parte for sanctions and for an order compelling the deposition to take place.
The parties then meet and confer, as required by the local rules. Defendants finally agree to pay the expert's fees. But the defendants want the deposition on April 9 (having failed to get one on March 30). Whereas counsel for plaintiffs says he's on vacation then. Plaintiff nonetheless says the expert would be available on April 13, as long as there's enough advance notice to set it up.
So the ex parte goes forward. Remember: the fight is about whether the deposition would take place on April 9 or (maybe) April 13. You can imagine how thrilled the magistrate judge must have been to hear that ex parte.
Perhaps not surprising, the magistrate judge denies the ex parte request for an April 9 deposition. But his order -- dated April 7 -- says that "given plaintiffs’ offer to
make Falkenhagen [the expert] available for deposition immediately
after their attorney’s vacation," the order concluded by saying: “Plaintiffs are, however, instructed to
produce Falkenhagen for deposition on April 13.”
Defendants then subpoena the expert for that date. And, yet again, the expert and plaintiff's counsel don't show up. At which point defendants again move for sanctions; this time, for the violation of an express court order. And the magistrate judge says, yep, I meant what I said, and imposes sanctions of $15,112. Which plaintiff's counsel promptly refuses to pay, resulting in the entry of a judgment of contempt.
Here's the thing, though. It's one thing to violate a court order. That's bold enough. It's another thing to have a pending ex parte application against you, to go on vacation anyway, and -- and here's what strikes me as the weirdest part of the whole story -- not even check your mail to see what the ex parte order says while you're on vacation. Yet all of that is what plaintiff's counsel seems to have done. (Or, as the Ninth Circuit put it, "There’s no
evidence that plaintiffs made any effort to secure
Falkenhagen’s attendance at the deposition, after counsel
affirmatively represented to the court and opposing counsel
that Falkenhagen would be available for deposition on April
13. To the contrary, plaintiffs’ counsel went on vacation for
a week knowing there was a pending ex parte application to
compel the deposition but making no provision for
responding to the court’s ruling. Counsel didn’t even read
the order until after the time for the deposition had passed.")
All of that is why, in part, the Ninth Circuit affirms the sanction order. As well as why, below, the district court refused to certify the class. ("In its order denying class certification, the district court cited this
incident as an example of plaintiffs’ counsel’s “lax approach” to
prosecuting the action. The court found that plaintiffs’ counsel wasn’t
adequate to represent the proposed class.")
Judge Nguyen's opinion on all this stuff is pretty darn good. A very good explication of why and when you subpoena an nonparty and how all those rules apply to party-affiliated witnesses such as retained experts. Well done.
Whereas plaintiff's counsel's strategic decisions could perhaps have used a bit more thought.
