Judge: Mark H. Epstein, Case: 23SMCV01058, Date: 2023-08-22 Tentative Ruling

Case Number: 23SMCV01058    Hearing Date: August 22, 2023    Dept: I

This is a motion for a protective order and motion to compel relating to the same deposition.  The case involves an easement dispute between neighbors.  Defense counsel identified a gardener, Mr. Sweeney, who defendant thought could provide helpful testimony for the defense following a phone call.  However, when counsel followed up, Sweeney took a different tack and would not cooperate.  Defendant served a deposition notice to which Sweeney—now represented by plaintiff’s counsel—objected.  The bases for the objection were two-fold.  The first was that the deposition date was not good for counsel or the witness.  The second was that plaintiff would not allow Sweeney’s deposition to be taken until defendant’s deposition was taken.  Plaintiff had already noticed defendant’s deposition and it was scheduled to go forward about four months later.  Plaintiff’s theory was that the Litigation Guidelines appended to the Local Rules stated that a party ought not schedule a deposition to jump the deposition line when another deposition by opposing counsel is scheduled “reasonably” soon and therefore plaintiff had established deposition priority.

At the last hearing, the court expressed its view that this Guideline did not give plaintiff a unilateral one-way deposition stay for four months, nor did it require defendant to adhere to some form of deposition priority.  Amazingly, the parties were unable to work this out amongst themselves, leading to two motions.  The prior tentative was to grant the motion to compel and impose sanctions.  Plaintiff’s counsel, however, stated that he had informed defense counsel orally during meet and confer that he would not stand on the priority argument and was willing to negotiate a workable deposition date for Sweeney whether or not it came before plaintiff’s deposition of the defendant.  If true, then the court’s view would be different.  If that were the case, then this is just a scheduling issue based on when people would be available and it should have been worked out between counsel.  As such, plaintiff’s claim that defendant refused to meet and confer had legs.  However, defense counsel denied that any such offer was made.  Unfortunately, though, counsel appearing at the hearing was not the counsel who was present when the alleged oral offer was made, so there was no evidence on this subject.

The court is hopeful that the merits of the two motions has become moot at this point.  Sweeney’s deposition will go forward.  (If it is not moot, then the motion will be GRANTED.  Defendant may set the date no earlier than 1 week from now and no later than 3 weeks from now.  Sweeney and counsel may, by day’s end, submit one black-out date.  No later than 1 day after that, defense counsel may unilaterally set the deposition date for any other business day.  Once started, the deposition will continue from day to day until completed, weekends and holidays excepted.  Sweeney’s counsel is admonished to avoid speaking objections or instructions not to answer other than as allowed by the Code of Civil Procedure.)  But the sanctions issue remains.  Sadly, the parties have not been able to work this out amongst themselves; each seems to want the court to adjudicate the issue.

In subsequent pleadings, defense counsel stated that no offer was ever made to take Sweeney’s deposition before defendant’s deposition.  The closest that plaintiff might have come was to indicate a willingness to move defendant’s deposition forward in time.  In response, plaintiff’s counsel filed a declaration, but that declaration does not really call defense counsel’s declaration into question.  In short, there is no actual evidence that plaintiff’s counsel was ever willing to engage in a conversation about Sweeney’s deposition; rather, perhaps plaintiff’s counsel was willing to discuss a schedule for all depositions.  It is certainly commendable to want to set up some kind of logic to depositions, but read in the context of the motion for a protective order and the emails in which plaintiff’s counsel insisted on priority, the only fair reading is that plaintiff was unwilling to allow Sweeney’s deposition to go first.  The court just does not see that there is any substantial justification for so insisting.

Plaintiff’s counsel also objects to the imposition of sanctions on Sweeney.  The problem with plaintiff’s counsel’s position is that plaintiff’s counsel was acting with Sweeney’s consent and approval (one must assume).  The court agrees that sanctions ought to be jointly imposed against Sweeney and counsel, though.  The court assumes that counsel will pay the sanctions rather than pass them along to Sweeney.  But the problem is that counsel presumably agreed with Sweeney to take a hard line on the subject.  Sweeney surely could have refused to do so and thereby avoid the sanctions.  That might not be in plaintiff’s best interest, but all that means is that plaintiff’s counsel had a conflict of interest.  The court strongly suspects that had Sweeney been retained by independent counsel, this issue would never have materialized due to the sanctions risk.

Before imposing sanctions, the court will inquire whether the issue of sanctions has been resolved.  If so, then the court need go no further.  If not, then the court will rule later today on the sanctions amount because the court was, and is, of the view that the priority of deposition position was without substantial justification given that defendant’s deposition was scheduled four weeks out.  That said, the court does not believe that the number of hours requested by defendant is fully reasonable.  The parties are very strongly urged to come to an agreement on this question and moot out the sanctions.