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Sali v. Corona Regional Medical Center

United States Court of Appeals, Ninth Circuit

March 19, 2018

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,
v.
Corona Regional Medical Center; UHS of Delaware Inc., Defendants-Appellees.

          Argued and Submitted February 6, 2017 Pasadena, California

         Appeal 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 Plaintiffs-Appellants.

          Christina H. Hayes (argued), Khatereh Sage Fahimi, and Stacey E. James, Littler Mendelson P.C., San Diego, California, for Defendants-Appellees.

          Before: Andrew J. Kleinfeld, Sandra S. Ikuta, and Jacqueline H. Nguyen, Circuit Judges.

         SUMMARY [*]

         Discovery

         The 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 ordered.

         The 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 this case.

          OPINION

          NGUYEN, CIRCUIT JUDGE.

         The 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.

         The 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.

         I.

         Marlyn 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.

         Defendants 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.

         The 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 ...


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