Lagunas-Salazar et al v. Rockwell Collins, Inc. et al

Filing 45

ORDER Granting 42 Motion to Compel The Deposition of Dr. Andrew Cash. Signed by Magistrate Judge Cam Ferenbach on 9/30/2013. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MATGARITO LAGUNAS-SALAZAR, et al.,
Plaintiff,

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vs.

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2:12–cv–00867–APG–VCF

DALE SUMMERLIN, et al.,

ORDER
Defendant.

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Before the court is Defendants Dale Summerlin, et al.’s Motion to Compel the Deposition of Dr.

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Andrew Cash (#421). Plaintiffs Matgarito Lagunas-Salazar, et al. joined in the motion (#44).
BACKGROUND

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This matter involves Lagunas-Salazar, Clementia Monroe-Miranda, and Michelle Monroe’s

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negligence action against Dale Summerlin and Rockwell Collins Satellite Communications Systems,

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Inc. (Compl. (#1-1) at 4). The suit arises from a November 7, 2011, motor vehicle accident. (Def.’s Mot.

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to Compel (#42) at 3:12–13). Following the accident Lagunas-Salazar sought treatment from Dr.

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Andrew Cash. (Id.)

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The parties are currently in the midst of discovery. On July 25, 2012, and March 27, 2013,

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Rockwell Collins served Cash with a subpoena duces tecum in order to obtain discovery from Cash and

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prepare for his deposition. According to both Rockwell Collins and Lagunas-Salazar, Cash failed to

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comply with both subpoenas. (Id.)

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Parenthetical citations refer to the court’s docket.

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On May 14, 2013, May 22, 2013, and August 1, 2013, Rockwell Collins noticed the deposition

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of Cash. (Id. at 3:15–16). Cash, however, rescheduled the May 14, 2013, deposition and was engaged in

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another deposition during the time set for the May 22, 2013, deposition. (Id. at 4:1–6). The parties, then,

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rescheduled Cash’s deposition a third time, which began on August 1, 2013. (Id.)

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On August 1, 2013, Cash appeared for the deposition, which began at 4:30. (Id. at 4, Exhibit 5).

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However, it immediately became clear to both parties that Cash was relying on undisclosed medical

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records, which Rockwell Collins had previously requested, but Cash had refused to produce. (Id. at

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4:12–14). After conferring about Cash’s failure to comply with Rockwell Collins’ subpoenas, counsel

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for Plaintiffs and Defendants agreed to reschedule the deposition a fourth time. (Id. at 4:15–16).

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At 4:57, less than a half hour after it began, the deposition ended. (Id. at Exhibit 5).

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The end of the deposition, however, merely sparked the instant dispute. Cash indicated that he

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would be charging the parties for an hour of his time, even though (1) the deposition only lasted twenty-

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seven minutes and (2) Cash was solely responsible for derailing the deposition. (Id. at 4). What’s more:

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Cash also retained the entirety of the $1,500.00 deposit, which Rockwell Collins paid to Cash for the

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August 1, 2013, deposition. (Id. at 4:17–18, 5:27). On September 5, 2013, both parties moved the court

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to compel Cash to testify without further compensation.

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LEGAL STANDARD

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Federal Rule of Civil Procedure 26 empowers the court to order the “discovery regarding any

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nonprivildged matter that is relevant to any party’s claim or defense.” FED. R. CIV. P. 26(b)(1). Pursuant

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to Rule 37(a), a party propounding discovery or taking a deposition may seek an order compelling

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responses when an opposing party has failed to respond or has provided evasive or incomplete

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responses. FED. R. CIV. P. 37(a)(3)(B). The Court has broad discretion to manage discovery, and craft

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any order that justice requires. Hunt v. County of Orange, 672 F.3d 606, 616 (9th Cir.2012) (citation

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omitted); Jeff D. v. Otter, 643 F.3d 278, 289 (9th Cir.2011) (citing Little v. City of Seattle, 863 F.2d 681,

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685 (9th Cir.1988)).
DISCUSSION

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Rockwell Collins argues that Cash should be ordered to testify either without further

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compensation or at the lesser rate allotted for “treating physicians.” (See Def.’s Mot. to Compel (#42) at

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4 ,6). Plaintiffs, in response, join in Rockwell Collins’ motion. (See Pl.’s Joinder (#44) at 2).

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Rockwell Collins’ motion is granted. The court finds that Cash effectively failed to appear for

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the noticed deposition by, first, withholding requested information and, second, attempting to testify on

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the information that he withheld. Cash’s failure to produce the requested information required the parties

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to reschedule Cash’s deposition for a fourth time.

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Under Federal Rule of Civil Procedure 30(d), the court may “impose an appropriate sanction—

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including the reasonable expenses and attorney’s fees incurred by any party—on a person who impedes,

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delays, or frustrates the fair examination of the deponent. FED. R. CIV. P. 30(d)(2). The failure to appear

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need not be willful to warrant sanctions. Lew v. Kona Hosp., 754 F.2d 1420, 1426 (9th Cir. 1985). Even

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a negligent failure to allow reasonable discovery may be punished. Marquis v. Chrysler Corp., 577 F.2d

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624 (9th Cir. 1978). Further, Rule 45 empowers the court to hold in contempt “a person who, having

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been served [with a subpoena], fails without adequate excuse to obey the subpoena. FED. R. CIV. P.

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45(e).

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Cash has now prevented the parties from taking his deposition on three occasions and has also

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disregarded at least two of Rockwell Collins’ subpoenas duces tecum. Although the parties would most

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likely be entitled to an award of costs, if not sanctions, for Cash’s behavior, the court grants the parties’

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request to compel Cash to testify without further compensation. The court finds that this is appropriate

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because Rockwell Collins has effectively already paid for Cash’s testimony. On or about August 1,

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2013, Rockwell Collins paid Cash $1,500.00 to be deposed. (Def.’s Mot. to Compel (#42) at 5:27).

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When the parties discovered that the deposition could be not conducted because Cash had failed to

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produce requested documents, the deposition ended and Cash kept the deposit. (Id.) Ordering Cash to

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appear for a deposition without further compensation, therefore, gives Rockwell Collins what they paid

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for (i.e., Cash’s deposition). Additionally, the court also notes that this order spares Cash of having to

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pay costs and sanctions, which the parties would most likely be entitled to recover had they requested it.

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ACCORDINGLY, and for good cause shown,

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IT IS ORDERED that Defendants’ Motion to Compel (#42) is GRANTED.

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IT IS FURTHER ORDERED that Cash will appear for a deposition by October 25, 2013, and

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testify without further compensation.
IT IS FURTHER ORDERED that Cash will produce Lagunas-Salazar’s subpoenaed medical
records for Rockwell Collins’ review at least ten calendar days before the deposition.

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IT IS SO ORDERED.

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DATED this 30th day of September, 2013.

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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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