Opinion
1:21-cv-01258-JLT-BAM
09-18-2023
ALEX HORN, LANCE AYTMAN, and KEITH HOOKER, Plaintiffs, v. KRAFT HEINZ FOODS COMPANY LLC, Defendant.
ORDER GRANTING PARTIES' AMENDED JOINT STIPULATED MOTION TO COMPEL DEPOSITION OF DR. VALERIE GIBSON AND COMPELLING PLAINTIFF TO APPEAR FOR DEPOSITION ON SEPTEMBER 26, 2023
(Doc. 92)
BARBARA A. MCAULIFFE, UNITED STATES MAGISTRATE JUDGE
Currently before the Court is the parties' Amended Joint Stipulation to Compel Deposition of Dr. Valerie Gibson Pursuant to Local Rule 251 (Fed. R. Civ. P. 37). (Doc. 92.)The parties' stipulation requests the Court compel compliance of a subpoena for testimony served on non-party Dr. Valerie Gibson. (Id.) The parties' stipulation further requested the Court extend the deadline for expert disclosures. (Id at 5.) The Court previously addressed the parties' requests for extension of the expert disclosure deadline. (Doc. 91.)
The parties' Amended Joint Stipulation (Doc. 92) includes exhibits with proofs of service and supersedes the parties' initial Joint Stipulation requesting the same relief (Doc. 87).
The Court incorporates the stipulated facts from the parties' stipulation. (Doc. 92.) On June 22, 2023, Defendant served a subpoena for deposition set for July 18, 2023 on Dr. Gibson via email. (Id. at 12-19.) On July 17, 2023, Defendant then served an amended notice for deposition pursuant to the original subpoena set for August 9, 2023 on Dr. Gibson via email. (Id. at 21-31.) On July 25, 2023, Defendant subsequently served a second amended notice of deposition pursuant to the original subpoena set for September 12, 2023 on Dr. Gibson via email. (Id. at 33-43.) On September 8, 2023, Plaintiffs served a subpoena for the September 12, 2023 deposition on Dr. Gibson via service on a front desk employee. (Id. at 45-51.) Dr. Gibson then contacted and discussed the subpoena with Plaintiffs' counsel. (Id. at 4.) Defendant served the instant amended joint stipulation on Dr. Gibson via email on September 15, 2023. (Id. at 52-53.)
Rule 45 of the Federal Rules of Civil Procedure authorizes the issuance of a subpoena to command a nonparty to attend and testify at a specific time and place. Fed.R.Civ.P. 45(a)(1)(A)(iii); Fed.R.Civ.P. 30(a)(1) (“The deponent's attendance may be compelled by subpoena under Rule 45”). If necessary to enforce that subpoena, a party may move to compel a deposition of a nonparty in the court where the discovery is to be taken. Fed.R.Civ.P. 37(a)(1)-(2). Under Rule 45(d)(3), a party to which a subpoena is directed may move for an order quashing the subpoena. Otherwise, the party must respond. See Fed.R.Civ.P. 45(e). Rule 45(g) permits the Court to hold a non-party who fails to comply with a subpoena in contempt, including a finding that any objections have been waived. Fed.R.Civ.P. 45(g).
Based on the parties' stipulation, Dr. Gibson has disregarded the subpoena issued by Defendant and the one issued by Plaintiff. (Doc. 92 at 3-5.) Dr. Gibson has failed to appear and testify, despite being paid in advance the sum of $2,000. (Id.) Pursuant to Rule 45(g), the Court finds that Dr. Gibson is in contempt of Court. The Court further finds that Dr. Gibson has waived any objections to the subpoena. Accordingly, Dr. Gibson will now be ordered by this Court to comply the subpoena to appear for a deposition and give testimony.
Dr. Gibson is cautioned that failure to comply will result in the imposition of monetary sanctions, including an order to pay one or both parties' reasonable expenses as well as an order directing Dr. Gibson to pay a contempt sanction to the Court.
Accordingly, IT IS HEREBY ORDERED that the parties' stipulated motion to compel the deposition of Dr. Valerie Gibson (Doc. 92) is GRANTED as follows:
1. Dr. Gibson is in contempt of Court for failure to comply with Defendant's and Plaintiffs' subpoenas dated June 22, 2023 and September 7, 2023.
2. All objections to Defendant's and Plaintiffs' subpoenas are deemed waived.
3. Dr. Gibson is hereby ordered to appear for her remote deposition on September 26, 2023 at 9:00 AM PT pursuant to login instructions to be provided by the Defendant, with up to 6 hours on the record for Defendant and 3 hours on the record for Plaintiffs.
4. Defendant and Plaintiffs are each directed to serve a copy of this order on Dr. Gibson.
IT IS SO ORDERED.