KENDALL J. NEWMAN, Magistrate Judge.
On October 1, 2013, the court conducted a telephonic conference with respect to the parties' discovery dispute concerning the depositions of putative class members by defendants. (ECF No. 52.) The parties had encountered significant difficulties with the scheduling of these depositions, as outlined below. At the time of the telephonic conference, the parties had agreed on specific dates for the depositions, but plaintiff nonetheless objected to the depositions going forward on other grounds. (ECF No. 51.)
After considering the parties' joint letter brief filed September 30, 2013 (ECF No. 51), and for the reasons discussed with counsel at the conference, the court ordered the depositions of putative class members to go forward on the specified, agreed-upon dates. (ECF No. 53.) Additionally, the court permitted defendants to file a properly supported request for sanctions in the form of attorneys' fees and costs no later than 5 p.m. on Friday October 4, 2013. (
On October 4, 2013, defendants filed a timely request for sanctions, and on October 8, 2013, plaintiff filed a timely response to defendants' request for sanctions and the court's order to show cause. (ECF Nos. 54, 55.) Upon consideration of the parties' filings, the discussions at the October 1, 2013 telephonic conference, and the applicable law, the court grants defendants' request for sanctions in part, declines to sua sponte impose any additional sanctions, and discharges the order to show cause.
In this putative class action, plaintiff alleges that he and a putative class of current and former salaried warehouse supervisors working for defendants were misclassified as exempt employees. Based on the alleged misclassification, plaintiff claims that he and the putative class members were not provided with overtime pay, meal periods, and rest periods. The putative class includes approximately 110 current and former warehouse supervisors who worked exclusively in California. Plaintiff commenced the action on December 10, 2012 in the Sacramento County Superior Court, and the action was removed by defendants to this court on February 28, 2013. (ECF No. 1.)
During the parties' Rule 26 conference, it was agreed that each party could take 15 depositions of putative class members. (Declaration of Julie Yap, ECF No. 54-2 ["Yap Decl."] ¶ 2.) This agreement was memorialized in the parties' joint status report filed with the court on April 29, 2013. (ECF No. 23 at 5-6.)
On June 25, 2013, defendants' counsel Ms. Yap inquired via e-mail whether plaintiff's counsel would be available for depositions of putative class members between August 14 and August 23. (Yap Decl. ¶ 3, Ex. B.)
The following week, on July 2, 2013, defendants' counsel sent another e-mail to plaintiff's counsel, confirming plaintiff's counsel's availability for the last two weeks of September, and inquiring whether any of the other attorneys representing plaintiff (other than Mr. Aiwazian) may be available for putative class member depositions between August 14 and August 23 or the first couple of weeks of September. Defendants' counsel reasoned that, due to the number of depositions involved and potential scheduling conflicts that could arise, defendants wished to explore additional potential deposition dates. Defendants' counsel noted that at least some of plaintiff's attorneys may be available, given that there were two separate law firms and at least five different attorneys representing the named plaintiff.
On July 3, 2013, plaintiff's counsel Mr. Aiwazian sent defendants' counsel an e-mail regarding a different discovery matter. As part of defendants' counsel's response to that e-mail, defendants' counsel again inquired regarding further deposition dates, but received no response. (Yap Decl. ¶ 8, Ex. G.) Subsequently, in response to a July 9, 2013 e-mail from plaintiff's counsel Jill Parker regarding a different discovery matter, defendants' counsel Andrew McNaught also mentioned defendants' earlier request for additional deposition dates. (
At a July 19, 2013 telephonic conference concerning other discovery matters, plaintiff's counsel Ms. Parker represented that she had not received defendants' counsel's e-mails related to the deposition scheduling and promised to look into potential dates. (Yap Decl. ¶ 10.) That same day after the telephonic conference, defendants' counsel forwarded the prior e-mail correspondence regarding the depositions to Ms. Parker and other counsel for plaintiff, and requested further potential dates in addition to the last two weeks of September. (
On July 20, 2013, plaintiff's counsel Mr. Aiwazian responded: "We would be delighted to cooperate with you. Please provide us with the names of the folks you seek to depose along with their personnel files and we will provide you with our dates of availability. We will agree to treat the records according to the terms of the protective order." (Yap Decl. ¶ 12, Ex. J.)
Thereafter, on July 30, 2013, defendants' counsel confirmed plaintiff's counsel's availability for depositions on all weekdays in mid-to-late September, and reiterated defendants' request to schedule depositions in August or early September in order to complete all putative class member depositions by the end of September. (Yap Decl. ¶ 15, Ex. M.) Later that day, plaintiffs' counsel responded: "Again, we will object to any deposition of a putative class member going forward until we have their respective personnel files. When can you provide us the files?" (
On August 21, 2013, defendants served on plaintiff's counsel, via overnight mail, deposition notices and copies of deposition subpoenas served on the deponents. The depositions were noticed for September 17-18, and 24-26. (Yap Decl. ¶ 19.) On August 23, 2013, defendants' counsel sent an e-mail to plaintiff's counsel confirming service of the deposition notices and copies of the deposition subpoenas, the names of the deponents, and the dates of the depositions. Defendants' counsel requested plaintiff's counsel to confirm their availability for the noticed dates, and also stated:
Subsequently, on August 29, 2013, defendants' counsel sent out, along with copies of the stipulated protective order, the agreed-upon notices to the deponents regarding disclosure of their personnel files to plaintiff's counsel, which required the deponents to submit any objections by mail no later than September 6, 2013. (Yap Decl. ¶ 23, Ex. T.) In the meantime, on September 4, 2013, defendants' counsel again e-mailed plaintiff's counsel, confirming the dates of the putative class member depositions set for the last two weeks of September. Defendants' counsel added:
Then, on September 12, 2013, defendants' counsel received plaintiff's objections to the deposition of Michael Amato. The proof of service indicated that the objections were sent by U.S. Mail on September 9, 2013. The objections stated, inter alia, that plaintiff objected to the notice of deposition and subpoena of Mr. Amato "on the following grounds: 1) Defendant failed to set the deposition on a mutually agreed upon date; and 2) Mr. Amato and/or Plaintiff's counsel is/are unavailable on the scheduled date. Accordingly, Mr. Amato will not be appearing on September 17, 2013 for the noticed deposition. However, Plaintiff's counsel will cooperate with regard to the scheduling of Mr. Amato's deposition." (Yap Decl. ¶ 26, Ex. W.) That same day defendants' counsel also received identical objections by plaintiff as to the depositions of Danny Alvarez and Joseph Oliveira. The proof of service indicated that these objections were sent by U.S. Mail on September 10, 2013. (
That same day, defendants' counsel sent multiple e-mails to plaintiff's counsel, requesting alternate available dates for the depositions of Messrs. Amato, Alvarez, and Oliveira; seeking clarification as to whether plaintiff's counsel intended to appear at the remaining scheduled depositions as subpoenaed; and attaching the personnel files of Messrs. Amato, Alvarez, and Oliveira. (Yap Decl. ¶ 28, Ex. Y.) Because at least some of those e-mails with attachments appeared to have bounced back, defendants' counsel re-sent the primary e-mail the next day (September 13, 2013), noting that hard copies of the previously-sent personnel files were being forwarded by mail. (
Then, on September 19 and 20, 2013, without further communications from plaintiff's counsel, defendants' counsel received plaintiff's objections to the remaining scheduled depositions, likewise stating that defendants failed to set the depositions on a mutually agreed-upon date and that the deponents would not be appearing for their depositions. (
On September 23, 2013, defendants' counsel e-mailed plaintiff's counsel to request a discovery conference regarding the putative class member depositions pursuant to Local Rule 251. (Yap. Decl. ¶ 34, Ex. DD.) Plaintiff's counsel apparently did not respond to this e-mail either. However, at a September 26, 2013 motion hearing pertaining to a different discovery matter, defendants' counsel raised the issue of the putative class member depositions with the court. At that time, the court ordered the parties to further meet and confer with respect to the depositions, and set a telephonic conference with the court for October 1, 2013. The court also ordered the filing of a joint letter brief on September 30, 2013, in the event that the parties were unable to resolve their dispute informally. (ECF Nos. 49, 50.)
Pursuant to the court's order, the parties arranged a telephonic meet-and-confer session for September 27, 2013. (Yap Decl. ¶¶ 35-37, Exs. EE-GG.) Defendants' counsel described the meet-and-confer session as follows:
After the meet-and-confer session on September 27, 2013, defendants' counsel sent plaintiff's counsel an e-mail, confirming the available dates for the depositions and plaintiff's desire to proceed with the court telephonic conference in light of plaintiff's objection to the depositions going forward. Defendants' counsel requested plaintiff to prepare its portion of the joint letter brief, and indicated that defendants would submit their portion to plaintiff in advance of the 12:00 p.m. filing deadline on the following Monday September 30, 2013. (Yap Decl. ¶ 39, Ex. HH.) That same day, plaintiff's counsel responded: "Please send us the stmt ASAP . . . You should not wait until the last minute to send it to us." (
As noted above, the court ultimately ordered the depositions of putative class members to go forward on the specified dates agreed upon by the parties at their September 27, 2013 meet-and-confer session. (ECF No. 53.) With these background facts in mind, the court now turns to the issue of sanctions.
Defendants' Request for Sanctions
Defendants request that sanctions be imposed against plaintiff and plaintiff's counsel under both Rule 30 and Rule 37 of the Federal Rules of Civil Procedure. Rule 30 provides, in part, that "[t]he court may impose an appropriate sanction — including the reasonable expenses and attorney's fees incurred by any party — on a person who impedes, delays, or frustrates the fair examination of the deponent." Fed. R. Civ. P. 30(d)(2). Rule 37 provides, in part, that:
Fed. R. Civ. P. 37(a)(5)(A).
The parties' correspondence outlined above makes clear that plaintiff's counsel on numerous occasions entirely failed to respond to defendants' counsel's correspondence related to scheduling the putative class member depositions. At other times, plaintiff's counsel responded rather promptly, but provided little substantive information in response to defendants' counsel's scheduling requests. When defendants' counsel ultimately scheduled the depositions in the general time frame for which plaintiff's counsel had indicated their availability, and subsequently sought to confirm those depositions with plaintiff's counsel, plaintiff's counsel discourteously ignored defendants' communications and merely served objections by mail at the eleventh hour. Even after the depositions were cancelled, plaintiff's counsel failed to respond to inquiries regarding alternate deposition dates until the court ordered plaintiff's counsel to meet and confer. Whether plaintiff's counsel's conduct was the result of gamesmanship, lack of coordination between plaintiff's various attorneys, or mere carelessness or neglect, such conduct is entirely unacceptable and sanctionable.
Plaintiff's substantive objections to the depositions were also devoid of merit and sanctionable. In light of defendants' counsel's extensive meet-and-confer efforts and plaintiff's counsel's non-responsiveness, plaintiff's counsel could not credibly claim that the depositions were not set for mutually agreed-upon dates. Furthermore, given that plaintiff is represented by at least 5-6 attorneys, it seems implausible that all of those attorneys were suddenly unavailable for all of the scheduled depositions.
Even more troubling was plaintiff's counsel's assertions in some of the objections that the deponents themselves were not available for their scheduled depositions. To the contrary, because the putative class member deponents were employees of defendants, defendants had specifically arranged for the deponents to have specific days off work, at full pay, to attend their depositions. (ECF Nos. 51 at 1, 54-1 at 7.) Even though plaintiff's counsel may not have been aware of these arrangements, they certainly had no basis to raise any objections as to the availability of the deponents, whom they do not represent.
In that regard, plaintiff's counsel argues that their intention was merely "to communicate to Defendants that Plaintiff's counsel did not represent the deponents and did not know whether they were available or not." (ECF No. 55 at 5; Declaration of Edwin Aiwazian, ECF No. 55-1 ["Aiwazian Decl."] ¶ 2.) He explains that "Defendants' counsel only served Plaintiff with proofs of service that indicated service of subpoenas to Plaintiff's counsel; the proofs of service did not indicate whether the subpoenas were served upon the deponents. Therefore, I believed it was important to clarify that I did not represent the deponents and did not know whether they were available or not." (Aiwazian Decl. ¶ 3.) According to plaintiff's counsel, they also "represent various other putative class members who have asserted individual actions against Defendants. Therefore, I wanted to raise the point that it [sic] did not have control over or ability to produce these particular deponents for a deposition." (
Plaintiff also argues that defendants' counsel had delayed providing plaintiff's counsel with the personnel files of the deponents. The court agrees, at least in part, that defendants' counsel could have communicated and clarified at an earlier stage that they were willing to provide the personnel files subject to the protective order. As such, the court will make some reduction to the amount of sanctions awarded. Nevertheless, the court observes that defendants' counsel provided the personnel files for all of the deponents to plaintiff's counsel several days before each deponent's initially scheduled deposition date. Moreover, any shortcomings by defendants do not excuse plaintiff's counsel's own misconduct with respect to these depositions. Indeed, plaintiff's counsel has provided no authority for the proposition that they were entitled to receive the personnel files of the deponents prior to their depositions or that such receipt was a prerequisite for scheduling the depositions, especially given that plaintiff's counsel does not represent the deponents.
In a similar vein, plaintiff's counsel had no substantial justification for opposing the depositions going forward based on the deponents' purported rights to review their personnel files and prepare for depositions. None of the deponents asserted any objections to their depositions, and plaintiff's counsel does not represent the deponents.
In light of the above, the court concludes that defendants are entitled to an award of monetary discovery sanctions. Such sanctions are appropriate pursuant to Rule 30(d)(2) for plaintiff's counsel's conduct in delaying, impeding, and/or frustrating the depositions of the putative class members. Alternatively, sanctions are appropriate pursuant to Rule 37(a)(5)(A), because plaintiff opposed the depositions going forward, requested the court to resolve the matter, and the court ultimately ordered the depositions of the putative class members to take place. Additionally, for the reasons discussed above, plaintiff's counsel failed to show that their objections were substantially justified or that other circumstances make the award of sanctions unjust. Because the sanctions involve conduct by plaintiff's counsel, as opposed to any specific conduct by plaintiff himself, the sanctions are appropriately levied against plaintiff's counsel.
Defendants' counsel, Ms. Yap, represents that she "spent over ten hours drafting correspondence to Plaintiff's counsel regarding the scheduling of depositions, corresponding with my clients regarding their availability for depositions on the noticed dates, preparing the notices of depositions and deposition subpoenas, organizing proper service of the deposition subpoenas on the deponents, reviewing the piecemeal objections to the noticed subpoenas, and preparing the joint statement regarding these depositions. I have spent over five hours reviewing all of the communications relating to these depositions and preparing this request for sanctions." (Yap Decl. ¶¶ 48-49.) Defendants represent that although "at least three attorneys for Defendants have been involved in these efforts, including partners who bill at substantially higher rates, Defendants only request the time spent by Ms. Yap, an associate, relating to this matter." (ECF No. 54-1 at 9 n.4.) Ms. Yap's standard hourly billing rate is $365. (Yap Decl. ¶ 50.)
For purposes of this motion, the court finds Ms. Yap's billing rate and the number of hours spent, a total of 15 hours, to be reasonable, especially in light of the extensive meet-and-confer efforts made by defendants' counsel. Indeed, although plaintiff opposed the imposition of sanctions generally, plaintiff did not contest defendants' counsel's billing rate or the number of hours spent.
Nevertheless, the court finds that a reduction in the amount of sanctions is warranted, because defendants' counsel could have communicated and clarified at an earlier stage that they were willing to provide the personnel files subject to the protective order. Therefore, in its discretion, the court will not award defendants any fees related to the five hours defendants' counsel spent preparing the fee request. This reduction is quite generous given that defendants' counsel's shortcomings pale in comparison with plaintiff's counsel's egregious conduct with respect to these depositions.
In sum, the court awards defendants monetary sanctions for 10 hours spent at a rate of $365 per hour, for a total of $3,650.00. These sanctions shall be paid by plaintiff's counsel (i.e., plaintiff's various attorneys and/or law firms are jointly and severally liable for the sanctions), and plaintiff's counsel shall not attempt to directly or indirectly recover such sanctions from plaintiff.
Order To Show Cause
The court declines to impose any additional sanctions sua sponte. The court finds that the award of sanctions to defendants adequately compensates them for their time and money unnecessarily spent with respect to this discovery dispute, and also serves as sufficient deterrence for future discovery misconduct. The court acknowledges plaintiff's counsel's apology in its response to the order to show cause, and instead of imposing additional sanctions, the court encourages the parties to start anew on a course of responsiveness, cooperation, civility, and diligence with respect to discovery.
Accordingly, for the reasons outlined above, IT IS HEREBY ORDERED that: