WILLIAM V. GALLO, Magistrate Judge.
Class-related discovery closed in this case on January 21, 2015. On January 20, 2015, Defendant conducted Plaintiff Linda Blair's deposition, and on January 21, 2015, Defendant conducted Plaintiff Shannon Collins' deposition. On February 20, 2015, Plaintiffs mailed Defendant hard copies of errata sheets to the deposition transcripts of both Plaintiffs Blair and Collins. Defendant received the two errata sheets on February 25, 2015. Upon receiving the errata sheets, Defendant determined that there was a dispute as to the validity of the errata.
Plaintiff Blair's errata sheet to her deposition listed the following errata, all of which Defendant disputed:
Plaintiff Collins' errata sheet to her deposition listed the following errata, all of which Defendant disputed:
On March 24, 2015, Defendant emailed Plaintiffs to inform them that Defendant disputed their errata sheets. Defendant requested to meet and confer by March 27, 2015. Plaintiffs did not respond to Defendant's email. On March 25, 2015, at 11:00 a.m., Defendant emailed Plaintiffs for a second time and requested to meet and confer that day. Defendant stated that if Plaintiffs did not meet and confer, Defendant would contact the Court. At 12:07 p.m. that day, Plaintiffs replied to the email and stated that they could make themselves available briefly to meet and confer telephoni-cally at 4:00 p.m. that day. At 3:15 p.m., that same day, before the parties had engaged in a meet and confer session, Defendant unilaterally notified the Court of the errata dispute. During its phone call to the Court, Defendant represented that Plaintiffs had not yet made themselves available for a meet and confer session. On March 25, 2015, at 4:00 p.m., the parties telephonically met and conferred regarding the errata dispute.
On March 26, 2015, the Court held a telephonic Discovery Conference with counsel for all parties. The Court ordered the parties to meet and confer in good faith regarding the two errata sheets at issue. (Doc. No. 146 at 2.) Subsequently, the parties resolved some of the disputes related to the errata sheets through meet and confer efforts, but disputes remained over three of the proposed errata on Plaintiff Collins' errata sheet.
On April 2, 2015, this Court issued an Order Setting Briefing Schedule for Orders to Show Cause, Striking Errata that Remain in Dispute. (Doc. No. 148.) The Court admonished the parties for filing their Joint Statement after the deadline, in direct violation of this Court's March 26, 2015, Order. (Doc. No. 148 at 3; citing Doc. No. 146.) Due to the parties' failure to file their Joint Statement in a timely manner, and failure to comply with this Court's Order, the Court denied the parties' request for guidance regarding the remaining three errata corresponding to Plaintiff Collins' deposition.
The Court issued a ruling regarding the errata dispute. (Doc. No. 148 at 4.) During the March 26, 2015, Discovery Conference, the Court had addressed the Ninth Circuit's interpretation of Rule 30(e), which governs depositions by oral testimony. Fed.R.Civ.P. 30(e). The Court again addressed the Ninth Circuit's interpretation in its Order.
The Court also ordered the parties to file separate briefs detailing why sanctions should not be imposed against them. (Doc. No. 148 at 6.) Plaintiffs were ordered to explain why sanctions should not be imposed for submitting disingenuous and meritless errata sheets after the discovery cutoff in an attempt to completely change deposition answers previously given under oath.
Plaintiffs argued that Defendant's request to strike Plaintiffs' errata sheets should have been denied on procedural grounds. They asserted that Defendant brought the dispute to the Court's attention past the deadline, without a meet and confer session, unilaterally called the Court without any notice to Plaintiffs, and ignored the Court's prior order that all such calls shall be made jointly.
Plaintiffs also argued that the errata sheets were consistent with Rule 30(e). They claimed that Plaintiff Blair and Collins realized they made a few misstatements during their depositions because they did not understand the questions. They argued that Defendant provided by stipulation on the record that Plaintiffs would have 30 days to review their deposition transcripts and make edits.
Plaintiffs' counsel acknowledged that Defense counsel did provide an instruction that Plaintiffs needed to ask for clarification if they did not understand a question, but noted there was a lot of pressure on Plaintiffs during the depositions. Afterwards, they sought to correct items where they previously made misstatements.
Plaintiffs noted that, after meet and confer efforts, they withdrew all but three of the disputed errata. They argued that if Defendant had met and conferred prior to bringing the dispute to the Court's attention, the other errata would possibly have been withdrawn before the Court became involved. They also argued that there are only a few errata, and even if the Court is correct in its interpretation of Ninth Circuit law, Plaintiffs' conduct is not sanctionable.
Plaintiffs argued that Plaintiff Blair was confused about the class representa-tive questions as phrased during her deposition. They explained that the terminology involving her duties of representation "threw her for a loop." In response to the Court's questioning, Plaintiffs indicated that Plaintiff Blair realized her confusion on her own and after discussion with Plaintiffs' counsel. Plaintiffs stated that all three named Plaintiffs called counsel's office after they reviewed their deposition transcripts because they wanted to know how to use the errata to change their deposition responses. They argued that there is a duty of candor to the Court, and Plaintiff Blair had to sign her deposition transcript to certify that the responses were true and correct.
Addressing Plaintiff Blair's response about whether she had reviewed any court documents before they were filed, Plaintiffs argued that she did not understand what was meant by "court documents." They claimed that it was not until she reviewed the court documents at home after her deposition that she realized she had made misstatements. Plaintiffs argued that she was also unsure about the questions related to reviewing discovery requests.
Plaintiffs claimed that Plaintiff Collins' deposition amendments were supported by the prior records in this case. They argued that, since Plaintiff Collins' addition to the litigation in May of —, it has been her position that she received autodialed calls to her cellular phone for which she provided no prior express consent. They asserted that, upon Plaintiff Collins' review of the deposition transcript, it became clear to her that she misunderstood the line of questioning and thus provided incorrect testimony during her deposition. Plaintiffs claimed, in order to certify that the transcript was true and correct, Plaintiff Collins' was obligated to clarify the record.
Defendant stated that it received the errata on February 25, 2015, and therefore, the 30 day deadline from the event giving rise to the dispute could have been March 25, 2015 [33 days (30 days, plus three for mailing) from the date of mail service]; or March 27, 2015 [30 days from the date of receipt]. Defendant contended that, out of an abundance of caution, it asked Plaintiffs to advance the meet and confer session to March 25, 2015, and notified the Court of the discovery dispute.
Defendant acknowledged its understanding of the Court's strong emphasis on strict compliance with its Chambers Rules and Scheduling Orders. Defendant asserted that it did not intend to act in violation of any Court Order. Further, Defendant noted its belief that it complied with the Court's discovery dispute process.
Defendant agreed that when it received Plaintiff's errata sheets on February 25, 2015, it recognized there was a discovery dispute because it believed Plaintiffs were changing critical representations regarding class representation and consent to be called. Defendant claimed this was the first time it had seen this type of errata, and therefore, this was the first time it had to review Rule 30(e).
Defense counsel stated his initial response after receiving the errata was to send the errata sheets to his client and the Defense team. In total, Defendant said there were approximately nine or ten individuals involved in the errata conversations. They were uncertain about whether this was a discovery dispute to be brought to this Court, or an issue to be addressed in a class certification motion. In support of its argument that there was legitimate confusion about how to handle the dispute, Defendant cited a recent case in this district where the parties were similarly confused.
Defendant asserted there was also concern about bringing the dispute to the Court's attention because of the history between the parties in this case, and the Court's Order Resetting Discovery which allowed for each party to bring only two additional discovery disputes to the Court's attention until a ruling was issued on Plaintiffs' motion for class certification.
Defendant explained that many emails and phone calls were exchanged between Defense counsel of record, the Defense team, and Defendant, in an effort to determine how to best proceed with this dispute. At the same time, Defendant was working on its Opposition to Plaintiffs' Motion for Class Certification, which at the time, was due by March 27, 2015. Defendant was also confronted with a dispute about Plaintiffs' expert disclosures.
To support its reason for unilaterally calling the Court on March 25, 2015, Defendant claimed it realized that the thirty day deadline to bring disputes to the Court's attention may expire that day. Defendant also disputed that Plaintiffs' email on March 26, 2015, at 12:07 p.m., "confirmed" a 4:00 p.m. meet and confer session. Defendant noted that Plaintiffs' counsel said they "may" make themselves available for a telephonic meet and confer session that day, but that was not confirmed. Defendant did not hear anything from Plaintiffs for two and a half hours, so it unilaterally notified the Court of the dispute.
Federal Rule of Civil Procedure 30(e) governs deposition review by the witness, as well as changes. Fed.R.Civ.P. 30(e). Rule 30(e) permits deponents to review the deposition transcript and make changes within thirty days of being notified that the transcript is available and if accompanied by a statement of reasons explaining the changes.
Even if the relevant erratum is contradictory, it may still be allowed so long as the alterations "have a legitimate purpose."
The Federal Rules of Civil Procedure "should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding." Fed.R.Civ.P. 1. A relatively recent addition, "[t]he purpose of . . . adding the words `and administered' . . . [was] to recognize the affirmative duty of the court to exercise the authority conferred by these rules to ensure that civil litigation is resolved not only fairly, but also without undue cost or delay." Fed.R.Civ.P. 1 advisory committee's note (1993 amend.).
Rule 16 addresses pretrial conferences, scheduling, and case management. See Fed.R.Civ.P. 16(a)-(e). Subsection (f) provides for the imposition of sanctions on parties or their attorneys for failure to comply with pretrial orders. Fed.R.Civ.P. 16(f). Rule 16(f) states,
Fed.R.Civ.P. 16(f) (emphasis added).
Rule 16(f) requires counsel to comply with pretrial orders and provides that the Court may order any "just" sanctions for non-compliance.
Federal Rule 16(f) applies to all pretrial orders.
This District's Civil Local Rules instruct counsel to avoid certain conduct. CivLR 83.4.a.2. For example, attorneys in practice before this district "must not . . . [e]ngage in excessive, abusive discovery, or delaying tactics." CivLR 83.4.a.2.g. Additionally, attorneys in practice before this district "must not . . .[k]nowingly participate in litigation or any other proceeding that is without merit or is designed to harass or drain the financial resources of the opposing party." CivLR 83.4.a.2.c. Similar to Federal Rule 16(f), this Court's Civil Local Rules also provide the Court with authority to impose sanctions for "[f]ailure of counsel or of any party to comply with these rules, with the Federal Rules of Civil or Criminal Procedure, or with any order of the court." CivLR 83.1.a. The Local Rules allow for "any and all sanctions authorized by statute or rule or within the inherent power of the court, including, without limitation, dismissal of any actions, entry of default, finding of contempt, imposition of monetary sanctions or attorneys' fees and costs, and other lesser sanctions."
Plaintiffs argued that they were denied an opportunity to respond to the Court's concerns regarding their errata sheets. However, Plaintiffs have been given three opportunities to be heard on the errata issue.
Plaintiffs were first given an opportunity to be heard on the issue of whether their errata sheets were proper during the March 26, 2015, Discovery Conference. The Court notified Plaintiffs' counsel of the Discovery Conference the day before it was held, and three of Plaintiffs' attorneys of record participated in the Conference. When scheduling the Conference, the Court required counsel for both parties to provide responses to five questions so that the Court would be fully informed about the issues prior to the Conference. Counsel were aware of the details of the dispute, and were on notice based on the Court's specific questions and the parties' prior experience with Discovery Conferences in this case and with this Court, that the Court was not convening a conference to simply set a briefing schedule. On March 25, 2015, the Court issued an Order setting the Discovery Conference, and again referenced the questions that counsel were to address prior to the Conference. (Doc. No. 144.) During the Conference, Plaintiffs argued their position regarding the errata sheets.
Plaintiffs' second opportunity to be heard on the errata issue was their OSC Response. Although the parties resolved seven of the errata issues and the Court struck the three remaining errata in its April 2, 2015, Order, it allowed Plaintiffs a second chance to educate the Court as to why they submitted the errata sheets for Plaintiffs Blair and Collins. The Court made clear in its Order that the OSC Response was Plaintiffs' second opportunity to argue their case as to why all of the proposed errata (not just the three remaining as to Plaintiff Collins) were not improper and therefore, why sanctions should not be imposed for submitting the errata sheets.
During the March 26, 2015, Discovery Conference, and again in the Court's April 2, 2015, Order, the Court detailed its concerns with Plaintiffs' errata sheets, and noted that Plaintiffs' attempt to completely alter their deposition responses after the opportunity for cross-examination under oath at the depositions had expired, did not comply with Ninth Circuit law. Plaintiffs were well aware of the Court's concerns, and were told during the Discovery Conference that they would have the opportunity to address those concerns in briefing to the Court. As instructed by the Court in its April 2, 2015, Order, "Plaintiffs shall explain in their Order to Show Cause (`OSC') Response why sanctions shall not be imposed for submitting disingenuous errata sheets after the discovery cutoff in an attempt to completely change deposition answers previously given under oath." (Doc. No. 148 at 6.)
Finally, Plaintiffs were provided a third opportunity to argue their position on the errata issue during the OSC Hearing on April 24, 2015.
At the beginning of the depositions for both Plaintiffs Blair and Collins, Defense counsel instructed the deponents,
Deposition of Plaintiff Blair; Page 151, Lines 19-25.
Deposition of Plaintiff Collins; Page 7; Lines 1-7.
During their depositions, both Plaintiffs followed this instruction and informed Defense counsel when they did not understand other questions. However, neither Plaintiffs nor their counsel asked clarifying questions or indicated that they did not understand the questions that Plaintiffs now claim they did not understand at the time. A reading of the deposition testimony makes clear that Defense counsel's questions were not convoluted or confusing, but if Plaintiffs did not understand the questions, they should have said so during the deposition.
Plaintiffs argued that they do not have any technical training, and that the class representative questions went beyond their personal knowledge. First, Defense counsel was prevented from delving deeper into the issue due to privilege objections by Plaintiffs' counsel. Second, the questions that Plaintiffs now claim they did not understand were very clear questions. Third, although Plaintiffs are not trained lawyers, the class representative questions should have been anticipated, as Plaintiffs' counsel more than likely had discussions with the named Plaintiffs regarding the expectations and responsibilities of class representatives.
Further, Plaintiffs' counsel was present during the depositions and obviously knew of the significance of Plaintiffs' responses. At no time did Plaintiffs' counsel ask any clarifying questions or attempt to rehabilitate his client regarding the responses in dispute, although that is a major part of counsel's role at the depositions. Plaintiffs' counsel certainly had the opportunity to rehabilitate the witnesses, but made the tactical decision to stay silent. Witnesses must be prepared to answer deposition questions truthfully and honestly. It is the attorney's job to prepare the witness before the deposition. Instead, Plaintiffs waited until they were in the privacy and comfort of their own homes, during consultation with their counsel, to make one hundred and eighty degree changes to critical deposition testimony. Counsel is not given a chance to prompt the witness, and similarly, counsel should not have the ability to prompt witnesses during or after the depositions. Here, when the errata sheets were produced, Defense counsel had no chance to ask follow-up questions.
The purpose of depositions is to determine the facts of the case while the witness is under the scrutiny of examination. The purpose is certainly not to find out how the witness answers questions with the ability to calmly reflect on the responses for 30 days in collaboration with counsel. Under Plaintiffs' theory that these errata are appropriate, the purpose of a deposition evaporates.
Plaintiffs violated Rule 30(e)'s substantive requirements. Almost all of Plaintiffs' changes are contradictory changes to issues of central importance to the case. The majority of the changes relate to issues of consent to be called and duties of the class representatives. These substantive changes are of great concern to the Court, as they materially altered Plaintiffs' testimony. If accepted, they have a significant impact on Plaintiffs' claims and Defendant's defenses. Plaintiffs counsel must have recognized these issues during the depositions, yet failed to ask clarifying questions or attempt to rehabilitate the witnesses, instead preferring to remain silent and not call unwanted attention to Plaintiffs' damaging testimony. Plaintiffs chose not to seek clarification or state that they did not understand. Ninth Circuit law precludes them from now asserting these new, contradictory responses to better suit their needs in the case.
Plaintiffs submitted frivolous errata in complete contradiction to Ninth Circuit law, and the Court has spent a considerable amount of time and resources dealing with the resulting dispute. The errata had no merit and sparked unwarranted litigation that required this Court's attention, including phone calls with the Court's clerk, a Discovery Conference, an OSC Hearing, and four Court orders. This Court cannot conceive of a more perfect example of a violation of this Court's Civil Local Rules which prohibit "abusive discovery, or delaying tactics," and knowingly participating in any proceeding that is without merit. CivLR 83.4.a.2.g; 83.4.a.2.c.
The Court was not at all fooled by the fact that these changes were the product of collaboration between attorney and client. In support of their argument that Plaintiffs were generally confused about the deposition questions, they argued that Plaintiffs are lay people, and asserted that they do not have any legal training. Plaintiffs cannot have it both ways. Plaintiffs are not so sophisticated that they realized on their own, without being coached by their attorneys, that they needed to materially alter these specific portions of their deposition testimony, but were naive to the importance of the questions and their unrehearsed responses at the time of the depositions. The significance of these answers were only apparent to the attorneys. The attorneys submitted the errata, even though they were not legally cognizable under Ninth Circuit law, and wasted the time and resources of opposing counsel and the Court. Accord-ingly, the Court finds that sanctions are appropriate against Plaintiffs' counsel for failing to meet the substantive requirements of FRCP 30(e), and violating this Court's Civil Local Rules.
The Court agrees with Defendant's calculations and finds that Defendant brought the errata dispute to the Court's attention within the 30 day deadline set by the Court's Chambers Rules. On February 25, 2015, Defendant received the two errata sheets. Defendant notified the Court of the dispute on March 25, 2015, 28 days after receiving the errata sheets.
Defendant was also within the 30 day deadline if the deadline was calculated from the date that the errata sheets were placed in the mail. Rule 6(d) allows for additional time after certain kinds of service, which includes mail service. Fed.R.Civ.P. 6(d). Rule 6(d) states that, when a party may or must act within a specified time after service and service is made under certain specific rules (mail service included), three days are added after the period would otherwise expire under the Rule that governs computing time.
Although Defendant timely (barely) brought the errata issues to the Court's attention, this does not end the inquiry. This Court's Chambers Rules are emphatic that counsel are to "promptly meet and confer regarding all disputes." Judge Gallo's Chambers Rule IV(A). The Chambers Rules also make clear that counsel are to meet and confer before contacting chambers.
This Court's Chambers Rules state,
Judge Gallo's Chambers Rule IV(A) (emphasis in the original).
Defendant is well aware of this requirement, as the Court has repeatedly reminded the parties of this rule throughout the litigation, ordered the parties to meet and confer on countless occasions (to even include the drastic measure of videotaping their meet and confer sessions), and quoted this section of its Chambers Rules in several Court Orders.
Despite the clear requirements in this Court's Chambers Rules and the numerous Court Orders explicitly ordering the parties to meet and confer in good faith and promptly bring disputes to the Court's attention, Defendant once again pushed the envelope, tested the Court's patience, and assumed the risk that the Court would agree with Defendant's approach. Defendant failed to "promptly" meet and confer once the errata dispute arose. Defendant received Plaintiffs' errata sheets on February 25, 2015, and did nothing to initiate a meet and confer conference with Plaintiffs until March 24, 2015, 27 days later. Although Defendant did notify the Court of the dispute within the 30 day deadline, Defendant's efforts via email to initiate a meet and confer session with Plaintiffs' counsel were not "prompt" or diligent, nor did they allow for a "thorough" and meaningful good faith meet and confer session in person, as required by this Court's Chambers Rules. Certainly, given the history between the parties in this contentious litigation, initiating meet and confer efforts one to three days before the deadline to bring the dispute to the Court's attention does not allow enough time for meaningful in person meet and confer efforts. This is amply demonstrated in the parties' Joint Statement. They noted that it took three meet and confer sessions just to narrow the dispute from ten errata to three errata. (Doc. No. 147 at 2.) Defendant's eleventh hour email request to meet and confer with Plaintiffs assumed that Plaintiffs would be available at Defendant's beckon call. The risk Defendant took by delaying the initiation of meet and confer efforts, especially given the lack of cooperation between counsel in this case and Defendant's knowledge of the Court's expectation of strict adherence to this requirement, amounts to failure to comply with the Court's Chambers Rules to promptly meet and confer once a dispute arises.
In addition, Defendant notified the Court of this dispute before any meet and confer efforts with Plaintiffs, another violation of the Chamber's Rules and pretrial Orders. Defendant unilaterally contacted the Court, in violation of the Court's Order that all phone calls to the Court in this case must be made jointly.
The Court is alarmed that these instances of non-compliance continue, despite all of its warnings, admonitions, and emphasis placed on the importance of the rules and its Orders. While Defendant was within the 30 day deadline to bring the errata dispute to the Court's attention, it failed to promptly meet and confer before contacting the Court. Accordingly, the Court finds that sanctions are appropriate against Defense counsel failing to comply with the discovery dispute requirements of the Chambers Rules and this Court's pretrial Orders, both of which the parties in this case are intimately familiar.
The bar bears a special responsibility in the judicial process independent from the public at large. Attorneys are officers of the Court. A monetary sanction for failure to carry out these responsibilities as an attorney differs from the imposition of attorney's fees as a sanction.
Here, the Court finds that Plaintiffs violated this Court's Civil Local Rules by submitting disingenuous and mostly meritless errata sheets well after the discovery cutoff
Additionally, the Court finds that Defendant violated this Court's Civil Local Rules and Federal Rule 16 by asserting untimely objections to Plaintiffs' errata sheets.
This Court's Civil Local Rules provide the Court with authority to impose sanctions for "[f]ailure of counsel or of any party to comply with these rules, with the Federal Rules of Civil or Criminal Procedure, or with any order of the court." CivLR 83.1.a. The Local Rules allow for "any and all sanctions authorized by statute or rule or within the inherent power of the court, including, without limitation, dismissal of any actions, entry of default, finding of contempt, imposition of monetary sanctions or attorneys' fees and costs, and other lesser sanctions."
The Court shall impose a reasonable monetary sanction against both Plaintiffs' counsel and Defense counsel, in the amount of $500 per side, for violating Federal Rule of Civil Procedure 16, the Civil Local Rules of this District, this Court's Chambers Rules, prior pretrial Orders issued by this Court, and for wasting the time and resources of the Court on a dispute that (a) would never have occurred but for Plaintiffs submission of disingenuous errata; and (b) could have been significantly narrowed or resolved before coming to the Court but for Defendant's failure to diligently, promptly, and in good faith initiate meet and confer efforts. The Court finds the imposition of the sanctions upon counsel to be more appropriate than penalizing the parties for the failures of their counsel.
On or before
