Judge: Mark H. Epstein, Case: 23SMCV02244, Date: 2024-11-22 Tentative Ruling

Case Number: 23SMCV02244    Hearing Date: November 22, 2024    Dept: I

The motion to compel is GRANTED.  The request for sanctions is GRANTED in the amount of $4725 as against plaintiff and plaintiff’s counsel jointly and severally, payable within 30 days. 

This is a motion to compel plaintiff’s deposition.  Defendant has attempted diligently to take the deposition but plaintiff has done nothing but put up roadblocks.  Defendant wanted an early deposition date, but plaintiff provided none.  Defendant set a date unilaterally, but plaintiff objected and stated that he was too busy to do a deposition until four months later—and six months after defendant first started trying to take the deposition.  Even so, defendant agreed to a date plaintiff suggested—September 19.  Two days before the deposition, counsel called to make sure that the deposition was going forward, but plaintiff did not confirm.  Defense counsel sent a link for the deposition, but plaintiff never appeared and neither did counsel.

This has gone on long enough.  The motion is granted.  No later than noon on Tuesday November 26, 2024, plaintiff’s counsel will email to defense counsel three business days not sooner than December 9 and not later than December 27.  No later than midnight on Wednesday November 27, 2024, defendant will choose a deposition date.  The date will be a weekday that is not a holiday, and will not be one of the three dates plaintiff’s counsel gave if plaintiff provided timely dates.  The deposition will go forward on that date and will continue from day to day until completed, weekends, holidays, and plaintiff’s three dates excluded.  The deposition will be in person or remote, at defendant’s choosing.  If in person, it will be at defense counsel’s office.  The deposition will begin at 9 am each day, will recess for 45 minutes for lunch, and otherwise continue without interruption other than two 15 minute breaks—one in the morning and one in the afternoon.  It will end each day at 5:30.  (The court is not, by this order, ruling that the presumptive time limit does not apply; the court makes no comment on that one way or the other.  That said, the court reads the time limit as excluding any time that plaintiff’s counsel is on the record or any colloquy.)  The court believes that plaintiff has waived any hardship or convenience objections.  The parties may change the foregoing rules and procedures by written agreement without the need for an order of the court.

Both counsel would be well advised to put the war to one side and act professionally.  While the court has seen no evidence that defense counsel has been a problem, that does not mean that there are not enough slings and arrows on both sides to go around were the court to do a deep dive.  The parties do not want the court to have to take that dive.