2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CONRAD RELOJ, on behalf of himself and Case No.: 21cv1751-L (MSB) others similarly situated, 12 DISCOVERY ORDER Plaintiff, 13 [ECF NO. 178] v. 14 GOVERNMENT EMPLOYEES INSURANCE 15 COMPANY INC., 16 Defendant. 17 18 19 Currently before the Court is Defendant Government Employees Insurance 20 Company’s (“GEICO” or “Defendant”) ex parte motion seeking to compel thirteen opt-in 21 plaintiffs to appear for depositions and for $20,155.95 in sanctions. (ECF No. 178 22 (“Motion”).) GEICO explains that the $20,155.95 represents the “reasonable costs and 23 attorney fees incurred by Defendant in connection with plaintiffs’ failure to appear and 24 this proceeding.” (Id. at 2.) Plaintiff Conrad Reloj and the Putative Collective and Class 25 (collectively, “Plaintiffs”) filed an Opposition on November 2, 2023, explaining that while 26 they “do not contest the issuance of an order compelling deposition attendance for the 27 Opt-in Plaintiffs at issue, Plaintiffs vehemently oppose the imposition of monetary 2 the Court GRANTS GEICO’s motion to compel depositions for the thirteen Opt-In 3 Plaintiffs at issue and DENIES GEICO’s request for monetary sanctions. 4 I. BACKGROUND 5 a. Procedural History 6 Plaintiff is a former non-exempt, hourly Auto Damage Adjuster for GEICO in San 7 Diego, California. (ECF No. 1 at 2.) On October 8, 2021, Plaintiff filed a complaint on 8 behalf of all similarly situated non-exempt adjusters in California alleging, among other 9 things, violations of the Fair Labor Standards Act (“FLSA”), California Labor Code, and 10 California Business and Professions Code (“Unfair Competition Law”). (Id.). Specifically, 11 Plaintiff alleged GEICO failed to: (1) pay for all hours worked; (2) pay minimum wage; (3) 12 pay overtime wages; (4) make available uninterrupted rest and meal breaks; (5) provide 13 accurate itemized wage statements; and (6) pay all wages due upon termination of 14 employment. (Id.) On March 30, 2023, the Court granted Plaintiff’s motion to 15 conditionally certify a FLSA collective action. (ECF No. 101.) On September 8, 2023, the 16 Court granted Defendant’s motion for summary judgment as to the claim alleging 17 violations of California’s Unfair Competition Law but denied it in all other respects. (ECF 18 No. 166.) 19 The case is currently in discovery, with the parties set to complete expert 20 discovery by December 21, 2023. (See ECF No. 175 at 2.) Relevant to the instant 21 Motion, on June 26, 2023 the Court ordered that the parties take the depositions of 22 thirty opt-in plaintiffs (“Opt-In Plaintiffs”), with each side selecting half.1 (ECF No. 131 at 23 2.) The Court’s Order provided for the depositions to “begin as soon as possible . . . on 24 dates that are mutually agreeable for the witness and counsel for both sides.” (Id. 25

26 27 1 The Court’s Order formalized the terms the parties set forth in their “Joint Motion Concerning Opt-In 2 rolling productions as to the selected Opt-In Plaintiffs is now November 30, 2023. (ECF 3 Nos. 170 & 175.) 4 b. Factual Background 5 GEICO represents that on approximately August 25, 2023, the parties agreed to 6 designate new Opt-In Plaintiffs to be deposed because thirty depositions had not yet 7 been completed.2 (Mot. at 4; ECF No. 178-2 at 3.) On September 15, 2023, GEICO’s 8 counsel provided Plaintiffs’ counsel with the list of the final group of Opt-In Plaintiffs to 9 be deposed. (Mot. at 4; ECF No. 178-3 at 2.) After multiple attempts to coordinate 10 depositions—and due to the looming discovery deadline—GEICO’s counsel asserts it 11 was forced to unilaterally notice depositions on September 29, 2023. (Mot. at 4–5.) 12 The notices of depositions went out to thirteen Opt-In Plaintiffs: Angela Davila, Robert 13 Anzalone, Jesse Arce, Asad Amin, Miguel Bahena, Courtney Miller, Robert Cangiano, 14 Enrique Lim, Katie Jones, Natalie Gonzalez, Tanja Cardoza, Jose Melendez, and Harutyun 15 Agdayan. (ECF No. 178-4.) 16 Plaintiffs’ counsel contends that throughout the opt-in discovery process, it 17 diligently worked to coordinate depositions and provided ample notice that “it was 18 experiencing difficulty in securing availability for a considerable number of Opt-in 19 Plaintiffs.” (Opp’n at 3–4.) On October 5, 2023 and October 24, 2023, Plaintiffs’ counsel 20 served objections to the unilaterally noticed depositions, which stated in relevant part: 21 As the notice of deposition unilaterally set a deposition date . . . Opt-in Plaintiff objects that the notice of deposition fails to comply with the 22 Court’s Order Granting Joint Motion Concerning Opt-in Discovery and 23 Plaintiff’s Set Two Discovery Requests. See ECF No. 131 (depositions for Opt-in Plaintiffs will proceed “on dates that are mutually agreeable 24 for the witness and counsel for both sides.”). 25

26 2 The parties engaged in several rounds of substitutions for unresponsive Opt-In Plaintiffs. (Opp’n at 27 9.) Additionally, between August 28, 2023 and October 26, 2023, Plaintiffs’ counsel filed notices of 2 “that because of plaintiffs’ failure to provide available dates for the depositions, the 3 depositions would go forward as noticed and if plaintiffs failed to appear GEICO would 4 take nonappearances.” (Mot. at 5; ECF No. 178-3 at 2.) GEICO’s counsel indicated the 5 cost of nonappearances was approximately $550. (Mot. at 7; ECF No. 178-3 at 2.) The 6 depositions went forward, and GEICO took the nonappearances for the thirteen Opt-In 7 Plaintiffs listed above. (Mot. at 5; ECF No. 178-6.) 8 c. Instant Discovery Dispute 9 On October 31, 2023, the undersigned held an Informal Discovery Conference 10 (“IDC”), during which the parties discussed the nonappearances of the thirteen Opt-In 11 Plaintiffs and GEICO’s counsel stated its desire to file a motion to compel their 12 depositions. (ECF No. 174.) Plaintiffs’ counsel responded that it did not oppose this 13 request; thus, the Court gave GEICO permission to proceed with filing its motion. 14 Notably, at no point during the IDC did GEICO’s counsel disclose that it would be 15 pursuing fees and costs. Based on the representations of counsel, the Court also agreed 16 to continue the deadline to complete depositions and rolling productions as to the Opt- 17 In Plaintiffs until November 30, 2023. (ECF No. 175.) 18 In the instant Motion, GEICO asks the Court to issue an order compelling the 19 thirteen Opt-In Plaintiffs to appear for depositions and imposing sanctions of $20,155.95 20 on Plaintiffs and their counsel. (Mot. at 4.) GEICO says it incurred $11,187.50 in costs 21 for counsel taking the appearances, appearing at the IDC, and preparing this Motion, 22 plus $8,968.45 in court reporter costs for the nonappearance transcripts. (Mot. at 6, 9; 23 ECF 178-1 at 4.) As was the case at the IDC, Plaintiffs do not contest the issuance of an 24 order compelling the depositions of the Opt-In Plaintiffs at issue. (Opp’n at 2.) 25 However, they oppose the imposition of sanctions, arguing “GEICO unilaterally noticed 26 deposition dates in violation of the Court’s Order . . . [and] had attorneys and court

27 reporters show up at depositions that it knew were not going forward.” (Opp’n at 2.) 2 situation that it willfully contrived.” (Id.) 3 II. LEGAL STANDARD 4 The Federal Rules of Civil Procedure authorize parties to obtain discovery 5 regarding any unprivileged matter that is relevant to any claim or defense and 6 proportional to the needs of the case, “considering the importance of the issues at stake 7 in the action, the amount in controversy, the parties’ relative access to relevant 8 information, the parties’ resources, the importance of the discovery in resolving the 9 issues, and whether the burden or expense of the proposed discovery outweighs its 10 likely benefit.” Fed. R. Civ. P. 26(b)(1). Relevant information need not be admissible at 11 trial to be discoverable. Id. District courts have broad discretion to determine relevancy 12 for discovery purposes. See Hallett v. Morgan,

(9th Cir. 2002). 13 Similarly, district courts have broad discretion to limit discovery where the discovery 14 sought is “unreasonably cumulative or duplicative, or can be obtained from some other 15 source that is more convenient, less burdensome, or less expensive”; the requesting 16 party “has had ample opportunity” to obtain discovery; or the discovery sought is 17 beyond the scope of Federal Rule of Civil Procedure 26(b)(1). Fed. R. Civ. P. 26(b)(2)(C). 18 Federal Rule of Civil Procedure 30 authorizes parties to take the deposition of 19 “any person,” generally without the court’s permission. Fed. R. Civ. P. 30(a)(1). “If a 20 person is a party, a simple notice of deposition is sufficient to compel attendance, while 21 a non-party’s attendance can be compelled only by subpoena.” Jules Jordan Video, Inc. 22 v. 144942 Canada Inc.,

(9th Cir. 2010.). When cooperation breaks 23 down, Federal Rule of Civil Procedure 37 allows parties to seek orders compelling 24 disclosure or discovery. See Fed. R. Civ. P. 37(a)(3). “The party seeking to compel 25 discovery has the burden of establishing that its request satisfies the relevancy 26 requirements of Rule 26(b)(1).” Bryant v. Ochoa, No. 07cv200-JM(PCL),

1390794, at *1 (S.D. Cal. May 14, 2009) (internal citations omitted). “The party who 2 Unified Sch. Dist.,

, 655–56 (C.D. Cal. 2005) (citing Blankenship v. Hearst 3 Corp.,

(9th Cir. 1975)). Under Rule 37, district courts have broad 4 discretion to impose sanctions in response to litigation misconduct. If a motion to 5 compel discovery is granted, Rule 37 ordinarily requires a court to order the “party or 6 deponent whose conduct necessitated the motion, the party or attorney advising that 7 conduct, or both to pay the movant’s reasonable expenses incurred in making the 8 motion, including attorney's fees.” Fed. R. Civ. P. 37(a)(5)(A)). However, the rules 9 provide that the court need not order payment if: 10 (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; 11

12 (ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or 13

14 (iii) other circumstances make an award of expenses unjust. 15 Fed. R. Civ. P. 37(a)(5)(A)(i)–(iii). 16 III. DISCUSSION 17 a. Motion to Compel Depositions 18 GEICO’s counsel argues that the thirteen Opt-In Plaintiffs’ failure to appear for 19 properly noticed depositions is not justified. (Mot. at 6–8.) Although Plaintiffs’ counsel 20 disagrees with the way GEICO unilaterally noticed depositions, it does not oppose 21 issuance of an order compelling these individuals to be deposed. (Opp’n at 2.) Pursuant 22 to Rule 30(a)(1), GEICO is permitted to depose the Opt-In Plaintiffs because they are 23 parties to this case. Fed. R. Civ. P. 30(a)(1). When a deposition is properly noticed, the 24 opposing party must obtain a protective order before the deposition date to relieve the 25 deponent of the duty to appear. See Pioche Mines Consol., Inc. v. Dolman,

(9th Cir. 1964) (finding that unless a proposed deponent obtains a court order 27 that postpones or dispenses with his duty to appear for a noticed deposition, the duty 2 having trouble securing availability of numerous individuals, this did not relieve the Opt- 3 In Plaintiffs of their duty to appear, absent a protective order. See Elizondo v. SeaWorld 4 Parks & Ent., Inc., No. 20cv829-GPC(BGS),

, at *9 (S.D. Cal. May 13, 5 2021) (holding a party’s “notification that he was not going to appear at the depositions 6 is not a substitute” for a protective order). 7 Based on the foregoing and because Plaintiffs do not oppose the request, the 8 Court finds good cause exists to GRANT GEICO’s motion to compel the depositions of 9 the Opt-In Plaintiffs at issue. Angela Davila, Robert Anzalone, Jesse Arce, Asad Amin, 10 Miguel Bahena, Courtney Miller, Robert Cangiano, Enrique Lim, Katie Jones, Natalie 11 Gonzalez, Tanja Cardoza, Jose Melendez, and Harutyun Agdayan are ORDERED to 12 appear for depositions within approximately two weeks from the Court’s order, on 13 business days, and during business hours that are mutually agreeable for the witness 14 and counsel for both sides. 15 b. Request for Sanctions 16 GEICO also seeks $20,155.95 in “reasonable costs and attorney fees incurred by 17 Defendant in connection with plaintiffs’ failure to appear and this proceeding.” (Mot. at 18 2, 8–9.) Plaintiffs vehemently oppose the imposition of sanctions, contending GEICO 19 should not be rewarded for needlessly incurring costs and violating the Court’s Order on 20 opt-in discovery, which required the parties to select “mutually agreeable” deposition 21 dates. (Opp’n at 10–11.) The Court agrees with Plaintiffs. 22 If a motion to compel discovery is granted, Federal Rule of Civil Procedure 37 23 normally requires the court to order the “party or deponent whose conduct 24 necessitated the motion, the party or attorney advising that conduct, or both to pay the 25 movant’s reasonable expenses incurred in making the motion, including attorney’s 26 fees.” Fed. R. Civ. P. 37(a)(5)(A). However, there are exceptions if the movant failed to

27 meet and confer, the opposing party was substantially justified, or other circumstances 2 Cal. May 12, 2017). Here, the totality of the circumstances weigh against awarding 3 GEICO sanctions. As an initial matter, GEICO failed to disclose that it would be pursuing 4 fees and costs at the IDC on October 31, 2023, but one day later filed the instant Motion 5 seeking more than $20,000 in sanctions. (ECF Nos. 174 & 178.) GEICO’s lack of 6 transparency regarding sanctions is troubling, particularly considering the other side’s 7 willingness to not oppose the motion to compel depositions. Second, the Court agrees 8 with Plaintiffs that the June 26, 2023 Order explicitly required opt-in depositions to 9 proceed on dates that are “mutually agreeable” for the witness and both sets of 10 counsel. (ECF No. 131 at 2.) By unilaterally noticing depositions, GEICO violated the 11 Court’s Order and the parties’ joint agreement. (ECF Nos. 130 & 131.) Third, GEICO was 12 put on notice that the thirteen Opt-In Plaintiffs at issue were unlikely to appear for their 13 depositions, yet proceeded to repeatedly accrue attorney and reporter fees to take their 14 nonappearances. (Opp’n at 9.) Instead of this gamesmanship, GEICO could have sought 15 the Court’s intervention much earlier than October 27, 2023—when it first reached out 16 to request an IDC. (ECF No. 173.) 17 Further, the Court finds Plaintiffs’ counsel acted reasonably by substituting 18 numerous Opt-In Plaintiffs who were non-responsive and diligently working to secure 19 deposition availability. (Opp’n at 3, 9, 12.) As of November 2, 2023, Plaintiffs reported 20 that the parties had completed twenty-four opt-in depositions— thus, it appears 21 Plaintiffs have made a good faith effort to complete the agreed-upon thirty depositions 22 as expeditiously as possible. (Id. at 3.) Finally, in the context of FLSA cases, Ninth Circuit 23 courts have routinely required defendants to obtain court orders to compel the 24 participation of non-responsive opt-in plaintiffs prior to imposing sanctions. See, e.g., 25 Dreith v. Nu Image, Inc.,

(9th Cir. 2011) (holding that dismissal is a 26 “harsh penalty imposed only in extreme circumstances”); Zissa v. Cnty. of Los Angeles,

27

, at *2 (C.D. Cal. Nov. 25, 2020) (denying motion for default 1 || Westgate Planet Hollywood Las Vegas, LLC, No. 2:08CV722,

, at *3 (D. 2 || Nev. Nov. 8, 2010) (dismissing opt-in plaintiffs only after they “completely disregarded 3 court's [discovery] order and failed to respond”). Considering these circumstances, 4 || the Court finds monetary sanctions are not warranted. Should the thirteen Opt-In 5 || Plaintiffs fail to abide by the Court’s new Order to appear for depositions, they may face 6 sanctions. 7 IV. CONCLUSION 8 For the foregoing reasons, the Court GRANTS GEICO’s motion to compel 9 || depositions for the thirteen Opt-In Plaintiffs at issue and DENIES GEICO’s request for 10 || monetary sanctions. 11 IT IS SO ORDERED. 12 || Dated: November 17, 2023 _ as 1 _ 7” 64 Honorable Michael S. Berg United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28