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Defendants’ Motions for Terminating Sanctions and to Depose Plaintiff for More than Three Hours are Denied

Posted on January 3rd, 2018

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Follow our blog to learn more about ESIThe Plaintiff in Alexis v. Rogers, No. 15cv691-CAB (BLM), (S.D. Cal. Mar. 21, 2017) filed a complaint in 2015 alleging intentional and negligent infliction of emotional distress, sexual harassment, and retaliatory, wrongful termination.  The Plaintiff also alleged the right to be awarded general damages, lost earnings, punitive and exemplary damages, pre-judgment interest, costs of suit, and attorneys’ fees, and an injunction restraining Defendants from continuing to engage in unlawful and unfair business practices.

In December 2016, the court considered Defendants’ motions for terminating sanctions, and to depose the Plaintiff in a supplemental deposition for a time period in excess of three hours.  The Court issued an order allowing Defendants an additional three hours of time to depose Plaintiff, but did not agree with Defendants that time in excess of three hours was warranted.  Further, the three hour time period the Court did allow was granted with the caveat that the scope be limited to questions pertaining solely to emails and documents produced after Plaintiff’s first deposition.

With regard to the request for terminating sanctions, Defendants argued that the Court should grant such sanctions against Plaintiff prospectively, taking the position that Plaintiff already made clear she would not obey the  Court’s Order imposing a Protective Order on confidential material, and she would also not obey the new order to appear for the supplemental depositon. To support this argument, Defendants stated that they designated as confidential all of the emails exchanged between the parties memorializing Plaintiff’s consultancy relationship with Defendants, and that Plaintiff designated portions of her medical records. Defendants further explained that Plaintiff posted an inflammatory YouTube video based in part on this confidential material. Defendants argued that terminating sanctions were appropriate because Plaintiff refused to remove the offending video.  However, upon further examination, Defendants admitted that Plaintiff ultimately agreed to remove the video from the internet.

In making its determination, the Court stated that it was not clear whether the documents were properly designated confidential.  The Court also found that Defendants failed to establish that Plaintiff knowingly violated the Protective Order, and even if a violation were found, a terminating sanction in this instance would not be the appropriate remedy.  Based upon these findings, the Court denied Defendants’ motions for terminating sanctions and to depose Plaintiff for more than three hours. However, the Court granted the Defendants’ motion to compel an additional deposition of Plaintiff for three hours, with the scope limited to questions regarding the emails and documents produced after Plaintiff’s first deposition.

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