Judge: Mark H. Epstein, Case: 21SMCV01765, Date: 2023-08-30 Tentative Ruling

Case Number: 21SMCV01765    Hearing Date: November 6, 2023    Dept: I

The court is concerned.  At the earlier hearing (in August), the court issued an order compelling certain discovery, including a deposition.  Because the timeline was tight and the trial was approaching, the court took the trouble to set forth the specific manner in which the date would be set.  Defendant ignored that order.  The court gave defendant the right to choose a few dates that worked for the deposition and ordered plaintiff to pick one.  But if defendant did not choose quickly, plaintiff was allowed to set the date unilaterally.  Defendant elected not to propose dates.  Plaintiff, consistent with the order, set a date, but defendant ignored it.  Defendant ultimately did not appear for the deposition, but did eventually propose some dates in an omnibus fashion.  In other words, they were dates that applied to a series of cases and it was up to plaintiff to choose.  That did not work, and plaintiff is now between a rock and a hard place.  Plaintiff brought this motion.  Defendant opposes on the theory that all ought to be forgiven because it has belatedly decided that it will graciously allow the deposition the court ordered three months ago.

That is not good enough.  The court issued an order with a timetable precisely to avoid this problem.  The application for an OST is GRANTED.  The court will discuss with the parties an appropriate date.  The court has little or no sympathy for defendant’s purported concern that it will be denied some vital constitutional right if it is not given its full statutory time to oppose the motion. 

The likely result of the motion will be an issue and evidentiary sanction.  The likely issue sanction will be that if plaintiff prevails concerning liability, the penalty will be imposed without the need for further proof.  The evidentiary sanction will be that defendant is precluded from introducing any evidence not previously turned over and is precluded from calling a witness to testify on the subjects that were part of the PMK deposition.  However, while this is where the court is at the moment, it is (of course) entirely possible that defendant will be able to explain its decision to ignore the court’s prior order such that no sanctions will be deemed appropriate.