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,
Corona Regional Medical Center; UHS of Delaware Inc., Defendants-Appellees.
and Submitted February 6, 2017 Pasadena, California
from the United States District Court for the Central
District of California D.C. No. 5:14-cv-00985-PSG-JPR Philip
S. Gutierrez, District Judge, Presiding
Jerusalem F. Beligan (argued) and Brian D. Chase, Bisnar
Chase LLP Newport Beach, California, for
Christina H. Hayes (argued), Khatereh Sage Fahimi, and Stacey
E. James, Littler Mendelson P.C., San Diego, California, for
Before: Andrew J. Kleinfeld, Sandra S. Ikuta, and Jacqueline
H. Nguyen, Circuit Judges.
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
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
NGUYEN, CIRCUIT JUDGE.
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. 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.
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.
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.
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.
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 ...