Judge Kerry Bensinger, Case Number: 21STCV16180, Date: 2023-12-11 Tentative Ruling

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MOVING PARTY: Defendants Schlumberger Technology Corporation and Timothy Ramey

This is a discrimination, retaliation, and wrongful termination case. On April 29, 2021, Plaintiff Carlos Chavez (“Chavez” or “Plaintiff”) filed a Complaint against Schlumberger Technology Corporation (“Schlumberger”) and Timothy Ramey (“Ramey”) (collectively, “Defendants”), alleging causes of action for (1) Interference with Right to Medical Leave under the California Family Rights Act, (2) Retaliation for Taking Medical Leave under the California Family Rights Act, (3) Retaliation for Taking Medical Leave, (4) Discrimination, (5) Failure to Accommodate, (6) Failure to Engage in the Interactive Process, (7) Harassment, (8) Failure to Prevent Harassment, Discrimination, and Retaliation, and (9) Wrongful Discharge in Violation of Public Policy.

On February 26, 2024, Defendants filed this Amended Motion for Protective Order[1] to prevent a second deposition of Schlumberger’s person most qualified (PMQ).

Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order.¿ (Code Civ. Proc., § 2025.420, subd. (a).)¿ The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.¿ (Code Civ. Proc., § 2025.420, subd. (b).)¿ The motion shall be accompanied by a meet and confer declaration.¿ (Id., subd. (a).)¿ The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.¿ (Code Civ. Proc., § 2025.420, subd. (h).)¿

On April 4, 2024, Plaintiff filed an objection and motion to strike the Supplemental Declaration of Heather D. Hearne in Support of Defendants’ Reply for the Motion for Protective Order. Plaintiff argues that the Supplemental Hearne Declaration improperly includes new evidence (Exhibits H through K).

The objection is well-founded. “The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) Defendants improperly introduced new evidence with its Reply. The objection is therefore SUSTAINED. The court does not consider Exhibits H through K attached to the Supplemental Hearne Declaration.

Defendants seek a protective order to prevent a second deposition of Schlumberger’s PMQ based on undue burden. They argue a protective order is necessary because Plaintiff unilaterally noticed the second deposition of Schlumberger’s PMQ on 43 new topics and concurrently served 48 new requests for production all with little time to identify and prepare the persons most qualified. Further, the information Plaintiff seeks is readily obtainable by less burdensome means.

Defendants do not demonstrate good cause to prevent the deposition. Before, after or even during a deposition, “for good cause shown,” the court may grant a protective order to control the deposition proceedings or the information obtained thereby. (See Code Civ. Proc., § 2025.420.) The court is empowered to issue whatever order “justice requires” to protect a party or deponent against “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” [CCP § 2025.420(b); see Nativi v. Deutsche Bank Nat'l Trust Co. (2014) 223 CA4th 261, 316, 167 CR3d 173, 218—§ 2025.420(b) provides “nonexclusive list of permissible directions that may be included in a protective order” (emphasis in original)]. Generally, this requires a showing that the burdens involved in the deposition proceeding clearly outweigh whatever benefits are sought to be obtained thereby. [See CCP § 2017.020(a), ¶ 8:74].” (Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Group 2023) ¶ 8:675.)

Here, Defendants do not show how the burdens of a second PMQ deposition clearly outweigh the benefits sought.^{^[2]} Instead, they focus entirely on the amount of discovery requests that Plaintiff has served on Defendants.[3] This ground, alone, is insufficient to support a protective order. Defendants do not dispute that Plaintiff seeks relevant information or that an entity’s PMQ may deposed more than once. (See Code Civ. Proc. 2025.610, subd. (c)(1) [One subsequent deposition of a natural person who has previously been examined may be taken when the person was examined as a result of that person's designation to testify on behalf of an organization under Section 2025.230).)

The court, however, agrees that ten days (or fifteen days) is insufficient time to prepare a PMQ for the discovery sought. Accordingly, the court will order the second deposition of Schlumberger’s PMQ within 60 days of this order.

Defendants request an award of reasonable fees and costs for bringing this Motion and imposition of sanctions against Plaintiff’s counsel. If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction. Here, Defendants’ notice of motion does not indicate that they are seeking sanctions, let alone against whom the sanctions are sought.

Based on the foregoing, the motion for protective order is GRANTED in part, and DENIED in part.

Schlumberger’s PMQ is ordered to appear for a second deposition within 60 days of this order.

Kerry Bensinger

Judge of the Superior Court

[1] Defendants originally filed the motion for protective order on February 15, 2024.

[2] During his medical leave, Chavez’s abled-bodied colleague, Castellanos, temporarily assumed Chavez’s duties. After Chavez returned to medical leave, he alleges Castellanos continued working in Chavez’s former role. With the second PMQ deposition, Chavez seeks to show Defendants’ efforts to protect Castellanos. As Chavez alleges, transferring Castellanos to a different department ensured that Castellanos would not be compared to Chavez in the selection for inclusion in a reduction in force even though Castellanos possessed far less experience than Chavez.

[3] In Reply, Defendants raise new arguments about Plaintiff’s counsel’s conduct. As the argument is raised for the first time in Reply, the court does address or consider the argument any further.