Zhou et al v. David et al

Filing 79

ORDER by Magistrate Judge Jacqueline Scott Corley denying 77 Motion for Protective Order (ahm, COURT STAFF) (Filed on 3/20/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Northern District of California

United States District Court

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ZHI YANG ZHOU, et al.,
Plaintiffs,

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v.

Case No.: C09-6059 JSC
ORDER DENYING PLAINTIFFS’
MOTION FOR A PROTECTIVE
ORDER (Dkt. No. 77)

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JIANG DAVID, et al.,
Defendants.

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Now pending before the Court is Plaintiffs’ motion for a protective order directing

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Defendants to depose Plaintiff Tony Chen telephonically. (Dkt. No. 77.) Tony Chen was

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scheduled for a deposition on February 1, 2012 at 10:30 a.m. This scheduled deposition did

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not occur because, according to Plaintiffs’ counsel, he “was tied up in an appearance in the

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Bankruptcy Court that went unexpectedly long.” (Dkt. No. 77.) Plaintiffs argue that Tony

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Chen should not have to travel from out of state for a rescheduled deposition because

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Defendants refused to accommodate Plaintiffs by deposing Tony Chen at 1:00 p.m. when

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Xue-Yun Chen was scheduled to be deposed.

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Plaintiffs’ motion for a protective order is DENIED. The February 1, 2012 depositions

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were scheduled to commence at 9:00 a.m. with Zhi-Yang Zhou followed by Tony Chen at

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10:30 a.m. and Xue-Yun Chen at 1:00 p.m. Rather than appear for those depositions, as

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agreed, Plaintiffs’ counsel Adam Wang chose to attend a bankruptcy court proceeding, and he

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did not advise Defendants that he was unavailable until 10:28 a.m, nearly an hour and a half

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after the depositions were scheduled to commence. Even then he merely reported that he was

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“caught up with a CMC in bankruptcy court” and would be there as soon as he was done.

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(Dkt. No. 76-3 at 2.) Defendants’ counsel ended the depositions, and sent the court reporter

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and translator home, at 11:00 a.m.—two hours after Plaintiffs’ counsel was supposed to have

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appeared. As Defendants were under no obligation to keep waiting for Plaintiffs’ counsel, it

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is squarely Mr. Wang’s responsibility that Tony Chen’s deposition did not go forward.

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Further, Mr. Wang’s representation that he was late to the depositions because the

Northern District of California

bankruptcy proceeding—Adversary Proceeding 11-4298 in the Northern District of

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United States District Court

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California—“went unexpectedly long” is misleading at best. While the bankruptcy

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proceeding may have been unexpectedly long, that is not why he did not appear at

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Defendants’ counsel’s office at 9:00 a.m. as he had agreed to do. Rather, the docket reflects

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that on January 18, 2012, the bankruptcy court held a status conference in the Adversary

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Proceeding and Mr. Wang did not appear. At Mr. Wang’s request, the bankruptcy court

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thereafter continued the status conference to February 1, 2012 at 9:30 a.m.—precisely the time

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he was supposed to be defending the depositions in this matter. In re Cameron, A.P. No. 11-

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4298, Jan. 23, 2012 Order (Dkt. No. 10).

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Accordingly, should Defendants wish to depose Tony Chen, Mr. Chen must appear in

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person for the deposition. As all parties in this case must appear in person for the April 5,

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2012 Settlement Conference scheduled before Judge Zimmerman, Tony Chen’s deposition, if

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sought, shall take place at the office of Defendants’ counsel on April 4, 2012.

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IT IS SO ORDERED.

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Dated: March 20, 2012

_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

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