Marlyn Sali v. Corona Regional Medical Center
884 F.3d 1218
| 9th Cir. | 2018Background
- Plaintiffs Sali and Spriggs filed a wage-and-hour class action and submitted expert declarations (economist Falkenhagen and statistician Drogin) in support of class certification.
- Defendants sought to depose the experts before filing their opposition; defendants subpoenaed Falkenhagen for March 30, 2015, but Falkenhagen and plaintiffs’ counsel did not appear.
- After meet-and-confer exchanges and a magistrate order, the court directed plaintiffs to produce Falkenhagen for deposition on April 13, 2015; plaintiffs’ counsel had represented Falkenhagen would be available that date.
- Falkenhagen and plaintiffs’ counsel again failed to appear for the April 13 deposition.
- The magistrate sanctioned plaintiffs’ counsel under Fed. R. Civ. P. 37 for failing to obey the discovery order; the district court entered a contempt judgment when sanctions were not paid. Plaintiffs appealed after final judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 37 authorizes ordering a party to produce a nonparty expert for deposition and sanctioning the party for nonproduction | Rule 37 no longer authorizes compelling nonparties; cannot force counsel to produce someone they do not represent | Rule 37 authorizes broad enforcement of discovery orders directed at parties to produce witnesses they can reasonably procure | Court: Rule 37 can be used to order a party to produce its nonparty expert and sanction the party/counsel for failing to secure attendance (distinct from Rule 45 subpoena remedies) |
| Whether plaintiffs were substantially justified in failing to produce the expert | Counsel asserted limited availability and disputed dates; claimed lack of legal control over expert | Defendants argued counsel affirmatively represented availability and made no effort to secure attendance; counsel went on vacation and didn’t act | Court: Plaintiffs made no effort to comply; failure was not substantially justified |
| Whether sanctions (cost award and contempt judgment) were proper and within Rule 37 scope | Sanctions were unjust because plaintiffs could not compel the expert absent a subpoena | Sanctions were a permissible, mild Rule 37 remedy because directed at the party’s obligation to use best efforts to secure the nonparty | Court: Sanctions were reasonable and affirmed; Rule 37(b) remedies applicable unless failure was substantially justified |
| Whether appellate jurisdiction exists to review the discovery/sanctions orders | Plaintiffs argued some orders were interlocutory and not timely appealed | Defendants argued reviewable after final judgment and appeal of sanctions/contempt is timely | Court: Jurisdiction proper because final judgment was entered and appeal of sanctions/contempt is timely; underlying discovery order reviewable on appeal |
Key Cases Cited
- Unigard Sec. Ins. Co. v. Lakewood Eng’g & Mfg. Corp., 982 F.2d 363 (9th Cir.) (scope of Rule 37 enforcement interpreted broadly)
- Halaco Eng’g Co. v. Costle, 843 F.2d 376 (9th Cir.) (Rule 37’s reach includes orders relating to discovery)
- Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 492 (9th Cir.) (Rule 37(a)(5) expense-shifting applies to motions to compel nonparty depositions)
- Jules Jordan Video, Inc. v. 144942 Can. Inc., 617 F.3d 1146 (9th Cir.) (a subpoena is generally required to compel a nonparty; notice can compel a party)
- Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770 (9th Cir.) (inability to comply is defense to Rule 37 sanctions; sanctions require due process)
- Société Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197 (U.S. Sup. Ct.) (Rule 37 dismissal inappropriate where failure to comply is due to inability rather than willfulness)