Applied Professional Training, Inc. v. Mira Costa College et al
Filing
136
ORDER granting 133 Motion for Determination of Dispute re: Deposition of Janis Aydelott. Signed by Magistrate Judge Mitchell D. Dembin on 2/2/12. (Dembin, Mitchell)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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APPLIED PROFESSIONAL TRAINING,
INC.,
CASE NO. 10cv1372 DMS (MDD)
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ORDER ON PLAINTIFF’S MOTION
TO COMPEL DEPOSITION OF
JANIS AYDELOTT
Plaintiff,
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vs.
[DOC. NO. 133]
MIRA COSTA COLLEGE, et al.,
Defendants.
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Before the Court is the Plaintiff’s Motion for Determination of Discovery Dispute filed on
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January 30, 2012. (Doc. No. 133). This is the second motion regarding Plaintiff’s attempts to
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obtain the deposition of Janis Aydelott, a former defendant in this case. Ms. Aydelott was
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dismissed without prejudice from this case on September 21, 2011, on Plaintiff’s motion, as a
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consequence of her filing for bankruptcy. (Doc. No. 70). Ms. Aydelott is represented by the same
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counsel as represents all remaining Defendants in this case. Ms. Aydelott responded to the instant
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motion, through her counsel, on February 1, 2012. (Doc. No. 135).
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Previously, this Court reopened discovery, which had closed, to allow Plaintiff an
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opportunity to locate and serve Ms. Aydelott with a deposition subpoena under Fed.R.Civ.P. 45.
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The Court did so on the grounds that Plaintiff reasonably may have been confused regarding
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whether Ms. Aydelott’s counsel would accept a subpoena on Ms. Aydelott’s behalf. (Doc. No.
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125). During the more than three weeks allotted by the Court for this purpose, Plaintiff was unable
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to serve Ms. Aydelott despite exercising due diligence in attempting to locate and serve her.
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Discovery again is closed and Plaintiff seeks additional relief.
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Plaintiff has cited no authority to support the notion that this Court may compel Ms.
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Aydelott, a non-party, to appear for deposition unless and until she lawfully is served with a
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deposition subpoena. Plaintiff raises an issue, however, regarding Defendants’ compliance with
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Fed.R.Civ.P. 26 that bears on Ms. Aydelott.
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According to Plaintiff, Defendants included Ms. Aydelott in their initial disclosures,
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pursuant to Fed.R.Civ.P. 26(a)(1)(A)(i), as an individual likely to have discoverable information
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that Defendants may use to support their claims or defenses. That subsection requires that the
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name of the person and, if known, the person’s address and telephone number be disclosed.
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Plaintiff asserts that the address provided in the initial disclosure was the address of Defendants’
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(and Ms. Aydelott’s) counsel. Plaintiff claims that Defendants are required, under Rule 26(e)(1),
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either to supplement its disclosure and provide Ms. Aydelott’s address or to accept service on her
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behalf. In responding to the instant motion, counsel for Defendants and Ms. Aydelott did not
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address the Rule 26 issue raised by Plaintiff.
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The Court recognizes that counsel for Ms. Aydelott ethically may be bound not to provide
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her address to Plaintiff. On the other hand, that same counsel, by virtue of his representation of the
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remaining Defendants, has a legal obligation to supplement his Rule 26(a) disclosures. The failure
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to supplement Rule 26(a) disclosures, in this case failing timely to update the address of a potential
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witness, allows the Court, among other things, to preclude Defendants from using that witness
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unless the failure is substantially justified or is harmless. See Rule 37(c)(1).
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Counsel for Defendants and Ms. Aydellot cannot have it both ways – he cannot both shield
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her from process and seek to use her as a witness. Counsel’s ethical obligation to withhold Ms.
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Aydellot’s address may be in conflict with his obligations to his other clients, the remaining
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Defendants. If Ms. Aydellot’s testimony, by declaration or otherwise, is needed to support any of
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Defendants’ claims or defenses, counsel has placed himself between a rock and a hard place. The
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competing interests of his clients -- Ms. Aydellot’s interest in avoiding deposition and the
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remaining Defendants’ interest in having her testify in their case -- must be reconciled.
As matters now stand, this Court ORDERS that Defendants are PRECLUDED from using
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the testimony of Ms. Aydellot in any hearing or trial of this case unless she is produced for
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deposition by Plaintiff at a mutually agreeable time and place within ten (10) days of the date of
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this Order.
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IT IS SO ORDERED:
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DATED: February 2, 2012
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Hon. Mitchell D. Dembin
U.S. Magistrate Judge
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