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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 10 Northern District of California United States District Court 11 ZHI YANG ZHOU, et al., Plaintiffs, 12 13 v. Case No.: C09-6059 JSC ORDER DENYING PLAINTIFFS’ MOTION FOR A PROTECTIVE ORDER (Dkt. No. 77) 14 15 16 JIANG DAVID, et al., Defendants. 17 18 Now pending before the Court is Plaintiffs’ motion for a protective order directing 19 Defendants to depose Plaintiff Tony Chen telephonically. (Dkt. No. 77.) Tony Chen was 20 scheduled for a deposition on February 1, 2012 at 10:30 a.m. This scheduled deposition did 21 not occur because, according to Plaintiffs’ counsel, he “was tied up in an appearance in the 22 Bankruptcy Court that went unexpectedly long.” (Dkt. No. 77.) Plaintiffs argue that Tony 23 Chen should not have to travel from out of state for a rescheduled deposition because 24 Defendants refused to accommodate Plaintiffs by deposing Tony Chen at 1:00 p.m. when 25 Xue-Yun Chen was scheduled to be deposed. 26 Plaintiffs’ motion for a protective order is DENIED. The February 1, 2012 depositions 27 were scheduled to commence at 9:00 a.m. with Zhi-Yang Zhou followed by Tony Chen at 28 10:30 a.m. and Xue-Yun Chen at 1:00 p.m. Rather than appear for those depositions, as 1 agreed, Plaintiffs’ counsel Adam Wang chose to attend a bankruptcy court proceeding, and he 2 did not advise Defendants that he was unavailable until 10:28 a.m, nearly an hour and a half 3 after the depositions were scheduled to commence. Even then he merely reported that he was 4 “caught up with a CMC in bankruptcy court” and would be there as soon as he was done. 5 (Dkt. No. 76-3 at 2.) Defendants’ counsel ended the depositions, and sent the court reporter 6 and translator home, at 11:00 a.m.—two hours after Plaintiffs’ counsel was supposed to have 7 appeared. As Defendants were under no obligation to keep waiting for Plaintiffs’ counsel, it 8 is squarely Mr. Wang’s responsibility that Tony Chen’s deposition did not go forward. 9 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 11 United States District Court 10 California—“went unexpectedly long” is misleading at best. While the bankruptcy 12 proceeding may have been unexpectedly long, that is not why he did not appear at 13 Defendants’ counsel’s office at 9:00 a.m. as he had agreed to do. Rather, the docket reflects 14 that on January 18, 2012, the bankruptcy court held a status conference in the Adversary 15 Proceeding and Mr. Wang did not appear. At Mr. Wang’s request, the bankruptcy court 16 thereafter continued the status conference to February 1, 2012 at 9:30 a.m.—precisely the time 17 he was supposed to be defending the depositions in this matter. In re Cameron, A.P. No. 11- 18 4298, Jan. 23, 2012 Order (Dkt. No. 10). 19 Accordingly, should Defendants wish to depose Tony Chen, Mr. Chen must appear in 20 person for the deposition. As all parties in this case must appear in person for the April 5, 21 2012 Settlement Conference scheduled before Judge Zimmerman, Tony Chen’s deposition, if 22 sought, shall take place at the office of Defendants’ counsel on April 4, 2012. 23 24 IT IS SO ORDERED. 25 26 Dated: March 20, 2012 _________________________________ JACQUELINE SCOTT CORLEY UNITED STATES MAGISTRATE JUDGE 27 28 2

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