1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARCUS G. MCGINNIS, Case No. 20-cv-01695-SI

8 Plaintiff, ORDER COMPELLING DISCOVERY 9 v. AND SETTING SCHEDULE

10 EARL JONES, et al., Re: Dkt. No. 20 11 Defendants.

12 13 This is a pro se prisoner’s civil rights action under

in which plaintiff claims 14 that defendants were deliberately indifferent to his medical/dental needs. The matter is now before 15 the court for consideration of defendants’ unopposed motion to compel plaintiff to attend his 16 deposition and answer questions at that deposition. 17 In general, parties may obtain discovery regarding any matter, not privileged, that is 18 “relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 19 26(b)(1). Factors to consider include “the importance of the issues at stake in the action, the amount 20 in controversy, the parties’ relative access to relevant information, the parties’ resources, the 21 importance of the discovery in resolving the issues, and whether the burden or expense of the 22 proposed discovery outweighs its likely benefit.”

An item need not be admissible in evidence 23 to be discoverable.

One of the available discovery tools is a deposition. “A party may, by oral 24 questions, depose any person, including a party without leave of court,” except that leave is required 25 under certain circumstances not present here. Fed. R. Civ. P. 30(a)(1). 26 A motion to compel discovery is appropriate when a party refuses to engage in or produce 27 discovery. See Fed. R. Civ. P. 37(a)(2). The movant must certify that he or she has in good faith 1 information or material without court action. See Fed. R. Civ. P. 37(a)(1). The court also may 2 award sanctions if a party “fails after being served with proper notice, to appear for that person’s 3 deposition.” Fed. R. Civ. P. 37(d)(1)(A). “A motion for sanctions for failing to answer or respond 4 must include a certification that the movant conferred or attempted to confer with the party failing 5 to act in an effort to obtain the answer or response without court action.” Fed. R. Civ. P. 37(d)(1)(B). 6 Defendants demonstrate to the satisfaction of the court that plaintiff (who is now out of 7 custody) failed to appear for the scheduled deposition after they located him and arranged a date for 8 his deposition. Defendants served a notice of plaintiff’s deposition scheduled for April 1, 2021; 9 plaintiff acknowledged his awareness of the scheduled deposition; and plaintiff failed to appear at 10 the time and place scheduled for his deposition. See Docket No. 20-2 at 9-10, 12, 22-25. The 11 discovery sought by defendants – i.e., plaintiff’s deposition – is relevant to the claims and possibly 12 the defenses in this action. A party’s deposition, scheduled to last no more than seven hours, appears 13 to be proportional to the needs of the case. Therefore, the deposition is within the proper scope of 14 discovery. See Fed. R. Civ. P. 26(b)(1). 15 The only wrinkle here concerns defendants’ efforts to meet and confer to attempt to resolve 16 the discovery dispute. Defense counsel made several efforts to contact plaintiff in the days leading 17 up to the scheduled deposition date of April 1, 2021. On March 26, defense counsel spoke with 18 plaintiff by telephone and learned that plaintiff was “looking into” hiring an attorney and did not 19 want to speak with defense counsel without an attorney. See Docket No. 20-2 at 2, 18. Defense 20 counsel sent a follow-up email that day expressing defendants’ willingness to continue the 21 deposition if plaintiff wanted to do so.

. Plaintiff did not respond. Defense counsel sent 22 another email on March 30, 2021, again trying to learn whether plaintiff wanted to continue the 23 deposition and stating that, if plaintiff did not respond by the end of the day, defense counsel would 24 “assume you are prepared and ready to move forward on Thursday,” i.e., the day set for the 25 deposition.

. Plaintiff did not respond. Plaintiff did not appear at his scheduled deposition 26 on Thursday, April 1.

. There is no evidence that defense counsel thereafter attempted to 27 contact plaintiff before filing the motion to compel. 1 Although a court may deny a motion to compel based on the moving party’s failure to meet 2 and confer to attempt to resolve a discovery dispute, a court may instead decide the motion on the 3 merits despite the failure to meet and confer. Rogers v. Giurbino,

(S. D. Cal. 4 2012); see also V5 Techs. v. Switch, Ltd.,

, 302 (D. Nev. 2019) (“the Court retains 5 the discretion to waive the meet-and-confer requirements with respect to any particular motion based 6 on the circumstances of that case.”). Under the circumstances here, the court will decide the motion 7 to compel, notwithstanding defendants’ failure to meet and confer with plaintiff about his failure to 8 attend his deposition after he missed the deposition. As explained above, defense counsel made two 9 attempts in the days leading up to the deposition date to learn whether plaintiff wanted to postpone 10 the deposition and plaintiff simply ignored defense counsel. It serves no purpose to require defense 11 counsel to have made a post-deposition effort to meet and confer regarding plaintiff’s missed 12 appearance when the plaintiff had ignored the two emails sent just before the deposition.1 13 For the foregoing reasons, defendants’ motion to compel plaintiff’s deposition is 14 GRANTED. Docket No. 20. Defendants must schedule plaintiff’s deposition to occur no later than 15 June 25, 2021. Plaintiff must appear at the scheduled deposition and answer the questions posed to 16 him at the deposition. His duty to attend and answer questions exists regardless of whether he is 17 trying to hire an attorney or does hire an attorney. 18 The court assumes that plaintiff now understands that he must attend and participate in his 19 deposition, but wants to be very clear about the consequences if he fails to attend and participate in 20 his deposition. Plaintiff is now cautioned that failure to engage in discovery, such as a deposition, 21 may result in sanctions. The sanctions that may be imposed include, but are not limited to: monetary 22 sanctions, an order prohibiting plaintiff from supporting or opposing designated claims or defenses, 23 an order prohibiting plaintiff from introducing evidence in support of his claim, an order striking 24 pleadings, and an order dismissing claims or the action. See Fed. R. Civ. P. 37(b)(2) and 37(d)(3). 25 26

27 1 Although the court will waive the meet and confer requirement for the motion to compel, 1 The court now sets the following new briefing schedule for dispositive motions: Defendants 2 must file and serve their dispositive motion no later than August 6, 2021. Plaintiff must file and 3 serve on defense counsel his opposition to the dispositive motion no later than September 3, 2021. 4 || Defendants must file and serve their reply brief (if any) no later than September 17, 2021. 5 Plaintiff is reminded that, because he is no longer in custody, he does not receive the benefit 6 || of the prisoner mailbox rule and therefore must be sure his opposition is filed — not merely mailed 7 || — by the deadline. 8 IT ISSO ORDERED. 9 || Dated: May 6, 2021 Site WU tee 10 Wl SUSAN ILLSTON United States District Judge 12

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