Pham et al
Filing
216
CONDITIONAL ORDER re 150 plaintiffs' Motion to Compel Deposition of Allen Christensen; ALTERNATIVE REPORT AND RECOMMENDATIONS re Evidentiary Sanctions. Objections due by 5/23/2011. Signed by Magistrate Judge Howard R. Lloyd on 5/9/2011. (hrllc2, COURT STAFF) (Filed on 5/9/2011)
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*E-FILED 05-09-2011*
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NOT FOR CITATION
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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For the Northern District of California
United States District Court
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No. C08-00201 JW (HRL)
IN RE COMUNITY LENDING,
INCORPORATED,
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Debtor
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CHRISTINA PHAM, et al.
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CONDITIONAL ORDER RE
PLAINTIFFS’ MOTION TO COMPEL
DEPOSITION OF ALLEN
CHRISTENSEN
ALTERNATIVE REPORT AND
RECOMMENDATION RE
EVIDENTIARY SANCTIONS
Plaintiffs,
v.
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COMUNITY LENDING INCORPORATED
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[Re: Docket No. 150]
Defendant.
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AND RELATED CROSS-ACTIONS
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Plaintiffs have for years been interested in deposing Allen Christensen, the former Chief
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Financial Officer of defendant ComUnity Lending, Inc. (ComUnity). ComUnity previously was
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represented by the Murray & Murray law firm, who told plaintiffs that they also represented
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Christensen with respect to his noticed deposition. After the bankruptcy court converted
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ComUnity’s Chapter 11 proceeding to a Chapter 7 liquidation, Trustee John Richardson was
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appointed, and the Luce Forward Hamilton & Scripps firm was appointed as the Trustee’s
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counsel. Christensen’s deposition never went forward because, shortly after, the court granted
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summary judgment in plaintiffs’ favor and the Trustee appealed.
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After the Ninth Circuit’s remand, plaintiffs renewed their request for Christensen’s
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deposition. Initially, Trustee’s counsel did not object to the dates proposed by plaintiffs,
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indicated that they would check on Christensen’s availability for deposition, and stated that
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Christensen had advised them that mid-March or later was best for him. (Borden Decl. Ex. 13).
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Plaintiffs say that such communications led them to believe that opposing counsel would
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produce Christensen for deposition—that is, up until a few days before the noticed deposition
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date when the Trustee advised that he did not represent Christensen and could not require him
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to appear for a deposition. (Id.). The deposition did not proceed as noticed, and plaintiffs say
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that their efforts to find and subpoena Christensen on their own have been unsuccessful. (See
Lindstedt Decl. ¶¶ 2-6). The Trustee says that he has Christensen’s cell phone, but no other
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For the Northern District of California
United States District Court
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information as to his whereabouts—except to say that Christensen reportedly is now somewhere
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in Idaho tending to his mother.
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There seems to be no dispute that Christensen is an important witness. This court is told
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that he prepared statements pertaining to ComUnity’s financial condition during the relevant
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period at issue in this action, and also submitted a declaration that ComUnity relied upon in
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summary judgment and in the Ninth Circuit appeal. Additionally, plaintiffs say that defense
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experts rely on documents prepared by Christensen; that Christensen is listed on the defense list
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of witnesses; and that the Trustee refuses to serve Fed. R. Civ. P. 26(e) supplemental or
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amended disclosures as to Christensen in any way.
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The Trustee claims that he does not control Christensen and, further, that Christensen
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wants nothing to do with the Trustee and refuses to speak with Trustee’s counsel.1
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Nevertheless, it seems that, at a minimum, the Trustee breached a good faith obligation to give
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plaintiffs all contact information available to him re Christensen, particularly when the Trustee
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has listed Christensen among its own witnesses. At oral argument, Trustee’s counsel indicated
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that he knows of sources at Diablo Management Group (DMG), or possibly other unexplored
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For this reason, the Trustee repeatedly suggested at oral argument that he is
justified in refusing to produce Christensen as a Fed. R. Civ. P. 30(b)(6) witness. But, the
record indicates that plaintiffs are seeking to depose Christensen only in his individual
capacity. (See Borden Decl. Ex. 14).
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sources, who might have additional information as to where Christensen might be found. The
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Trustee says that he did not provide this information to plaintiffs because they never asked him
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for it.
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Discovery is now closed. And, trial is set to begin in just under a month. Although the
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instant motion is styled as one to compel Christensen’s deposition, plaintiffs now believe that
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evidence preclusion is the only viable remedy.
should be given an opportunity to locate and depose Christensen. This order, however, is
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conditioned on the presiding judge’s determination that the period for fact discovery and expert
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disclosures should be re-opened to permit plaintiffs an opportunity to take the deposition and to
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For the Northern District of California
In the interests of resolving this action on the merits, this court finds that plaintiffs
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United States District Court
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prepare expert disclosures that take that testimony into account. Additionally, this court
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recommends that a special master be appointed to address any further discovery disputes that
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may arise.
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Alternatively, if the presiding judge decides that modification of the scheduling order is
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not warranted, then this court recommends that he consider imposing evidentiary sanctions
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which may be requested by plaintiffs, including that the Trustee be precluded from offering at
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trial any testimony or evidence from Christensen, or any expert opinions based on Christensen’s
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testimony or documents prepared by Christensen.
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Dated:
May 9, 2011
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HOWARD R. LLOYD
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UNITED STATES MAGISTRATE JUDGE
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5:08-cv-00201-JW Notice has been electronically mailed to:
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Hong-Nhung Thi Le
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Jeffrey L. Fillerup
nle@luce.com
nle@luce.com, aworthing@luce.com
jfillerup@luce.com, aazarmi@luce.com, aleverton@luce.com,
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Jesse Landis Hill
JLBHill@aol.com, JLBHill@aol.com
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John Walshe Murray
jwmurray@murraylaw.com
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Jonas Noah Hagey
hagey@braunhagey.com
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Matthew Brooks Borden borden@braunhagey.com, cross@braunhagey.com,
lindstedt@braunhagey.com
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Robert Anthony Franklin
Ronald Scott Kravitz RKravitz@LinerLaw.com, jchau@linerlaw.com, jwong@linerlaw.com,
mreyes@linerlaw.com
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Suzanne L. Decker
For the Northern District of California
United States District Court
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rfranklin@murraylaw.com, bobF_94303@yahoo.com
suzannedecker@sbcglobal.net
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Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.
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