Opinion
1:19-cv-00484-ADA-SAB
05-10-2023
MARIA SOCORRO VEGA, Plaintiff, v. DNC PARKS & RESORTS AT ASILOMAR, INC., et al., Defendants.
ORDER FOLLOWING INFORMAL DISCOVERY DISPUTE HEARING (ECF NOS. 95, 96)
Plaintiff initiated this putative class action on April 12, 2029. (ECF No. 1.) Pursuant to the amended scheduling order, the pre-certification discovery cutoff was set for December 14, 2022. (ECF No. 81.) Plaintiff filed a motion to certify class on February 17, 2023. (ECF No. 82.) The hearing on the motion was originally set for April 26, 2023. (See ECF Nos. 87, 94.) On March 23, 2023, the Court continued the pre-certification discovery deadline to June 9, 2023; granted Defendant leave to depose all 16 putative class witnesses who submitted declarations in support of Plaintiff's class certification motion; and extended the briefing and hearing deadlines for the class certification motion. (ECF No. 94.)
On May 10, 2023, the parties appeared by videoconference for an informal discovery conference. As noted in the joint informal discovery dispute letter brief (ECF No. 96) and at the hearing, Defendant has been unable to depose four of the declarant-witnesses: Kalli Southwood, Reina Oviedo, Alfredo Marquez, and Sandra Diaz. Counsel for Plaintiffs originally maintained that she represented these witnesses and coordinated with defense counsel to set deposition dates. However, these four witnesses failed to appear at their depositions on two separate occasions; thereafter, defense counsel was informed plaintiffs' counsel had lost contact with these witnesses and Defendant was required to subpoena the witnesses for deposition directly.
Plaintiffs' counsel does not have current addresses for Ms. Southwood or Ms. Diaz, and it is believed they now reside in another state or country. As to these witnesses, Defendant made three unsuccessful attempts to serve subpoenas at their last known addresses. Thereafter, Ms. Southwood and Ms. Diaz each failed to appear for her third duly-noticed deposition.
The parties appear to have current addresses for Ms. Oviedo and Mr. Marquez; however, these witnesses will no longer respond to Plaintiff's counsel's communications and they refuse to appear for depositions. On Defendant's third attempt to notice the depositions of Ms. Oviedo and Mr. Marquez, Defendant served subpoenas on these witnesses. However, neither witness appeared for the duly-noticed deposition.
Plaintiffs' counsel cannot provide any further available deposition dates for any of these four witnesses and indicates she has lost contact with them. On this record, the Court concludes that issuing an order to compel attendance at a deposition would be futile and needlessly costly for all parties, as counsel would encounter the same difficulties in serving a court order as she did with serving the subpoenas, and there is no reason to conclude that the witnesses who disregarded the legal authority of the subpoenas would accord greater deference to a court order.
Accordingly, IT IS HEREBY ORDERED that:
1. The parties SHALL MEET AND CONFER to determine the propriety of a stipulation to strike some or all of the declarations of the aforementioned witnesses Kalli Southwood, Reina Oviedo, Alfredo Marquez, and Sandra Diaz from Plaintiff's motion for class certification;
2. Any such stipulation SHALL BE FILED no later than the close of business, May 16, 2023;
3. If the parties are unable to reach a stipulation to strike the witnesses' declarations,
Defendant is GRANTED LEAVE to file a motion for discovery sanctions, including a request for reasonable fees and costs, pursuant to Federal Rule of Civil Procedure 37 no later than May 31, 2023, with the hearing on such motion to be set for July 19, 2023; and
4. If Defendant files a Rule 37 motion, the Court shall sua sponte continue the briefing and hearing dates for the class certification motion.
IT IS SO ORDERED.