Employment Law Daily Counsel properly sanctioned under Rule 37 absent best efforts to have expert appear at deposition
Wednesday, March 21, 2018

Counsel properly sanctioned under Rule 37 absent best efforts to have expert appear at deposition

By Lorene D. Park, J.D.

Finding that Rule 45 is not the only mechanism for compelling a nonparty to appear at a deposition, the Ninth Circuit affirmed a federal magistrate judge’s contempt judgment imposing Rule 37 sanctions against plaintiffs’ counsel for failing to make any effort, much less his best effort, to have plaintiffs’ expert economist appear for a scheduled deposition, even though counsel represented to the court and to opposing counsel that the expert would be available (Sali v. Corona Regional Medical Center, March 19, 2018, Nguyen, J.).

Dispute over timing of expert depositions. Two nurses filed this suit against their former employer and its corporate parent for alleged violations of wage and hour laws. They subsequently moved for class certification with supporting declarations from their expert economist and expert statistician. In advance of the April 16, 2015, deadline for filing an opposition to class certification, the defendants sought to depose the experts but the parties’ attorneys could not come to an agreement over fees.

The defendants subpoenaed the expert economist to be deposed on March 30 and the plaintiffs objected on grounds the defense deemed “insufficient to prevent a subpoenaed deposition from moving forward.” Neither the expert nor plaintiffs’ counsel showed up. The defense threatened a motion for sanctions and counsel conferred, but they could not agree on a date because the plaintiffs’ attorney was about to go on vacation and the defense wanted to depose the experts by April 10, to allow time to incorporate the testimony in an opposition to class certification.

Motion to compel. The defendants applied ex parte to compel the experts’ depositions on April 9 and 10 respectively. In an April 7 order, a federal magistrate judge found both sides at fault but concluded the defense would have sufficient time to depose the expert economist before filing an opposition brief, given the plaintiffs’ agreement to make the expert available immediately after their attorney’s vacation. The order instructed the plaintiffs to produce the expert on April 13.

Sanctioned for no-show. Though the defendants subpoenaed the expert for that date, neither he nor plaintiffs’ counsel showed up. The defense moved for Rule 37 sanctions, which the magistrate granted after finding the plaintiffs were not substantially justified in disobeying the order. Counsel was sanctioned $15,112 for costs associated with the deposition and motion. Counsel didn’t pay and the court entered a contempt judgment.

Can compel a party to produce its nonparty witness. Affirming, the Ninth Circuit concluded that Rule 45 is not the exclusive means for compelling a nonparty to appear at a deposition and obtaining sanctions for noncompliance. It held that “under Rule 37’s general discovery enforcement provisions, a court can order a party to produce its nonparty expert witness at a deposition and, if the party makes no effort to ensure that its witness attends the deposition, sanction the party’s counsel when the witness fails to appear unless the failure to produce the expert ‘was substantially justified or other circumstances make an award of expenses unjust.’”

The appeals court rejected the plaintiffs’ argument that the order compelling them to produce the expert “defies common sense” because their counsel doesn’t represent him and they have no legal relationship enabling them to compel him to attend a deposition. While it’s true that a subpoena would be required to compel the expert to appear, the magistrate’s order in this case was directed at the plaintiffs, not the expert.

Use best efforts to avoid sanctions. The appeals court explained: “While an order to produce a deponent under Rule 37 and a subpoena under Rule 45 are intended to bring about the same outcome, the order’s focus and the consequences of noncompliance are different. A Rule 37 order is directed at the party. It compels the party to use its best efforts to secure the nonparty’s attendance at the deposition. But it doesn’t demand the impossible. The party can avoid sanctions by showing that it attempted in good faith to comply with the order but was unable to produce the nonparty—regardless of whether the nonparty’s absence was justified.”

While as a practical matter, a party seeking to compel a nonparty’s deposition would be wise to use Rule 45’s subpoena process, the court explained that there might be reasons to also seek an order compelling the opposing party to produce its nonparty witness, including instances where the opposing party is either directing or encouraging its witness not to appear.

Contempt judgment affirmed. Here, the magistrate judge ordered the plaintiffs to produce their expert for deposition, which was an order under Rule 37(a) to cooperate in discovery. There was no evidence the plaintiffs made any effort to secure his attendance, even after plaintiffs’ counsel represented to the court and opposing counsel that the expert would be available on April 13. To the contrary, counsel went on vacation knowing there was a pending motion and making no provision for responding to the court’s ruling. Counsel didn’t even read the order until after the time for the deposition had passed. Because there was no justification for this failure to attempt to comply, the court had authority under Rule 37(b)(2)(A) to “issue further just orders” in the nature of sanctions and the award of deposition-related costs wasn’t unjust. Rather, it was the mildest of the possible Rule 37 sanctions, concluded the appeals court.

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