Académique Documents
Professionnel Documents
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v.
THE CENTER FOR MEDICAL PROGRESS,
BIOMAX PROCUREMENT SERVICES LLC,
DAVID DALEIDEN (aka ROBERT SARKIS),
and TROY NEWMAN,
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Defendants.
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covered by this Courts TRO, and he claims that he has all of the videos covered by this Courts
Orders. (Dkt. No. 171-3 at 2.) The Court therefore permitted NAF to serve a deposition
subpoena on Johnson. (Dkt. No. 185 at 4.) Accordingly, NAF served a deposition subpoena
duces tecum on Johnson this Sunday. (Dkt. No. 194.) The deposition is scheduled for this
Friday, November 6 in Fresno. All defendants have consented to the deposition proceeding on
On Monday, November 2, however, counsel for Johnson filed a motion to quash the
subpoena. (Dkt. No. 193.) The hearing on that motion is not set until December 9, over a month
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after Johnson is scheduled to appear for deposition pursuant to the subpoena served on him. By
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separate email, counsel for Johnson indicated that Johnson would not appear for the noticed
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deposition because of the pending motion to quash. (Foran Decl., Ex. B.) Further, counsel for
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Johnson refuses to discuss any date for the deposition until after the hearing on the motion to
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quash. (Id.)
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Johnsons motion to quash does not operate to suspend his legal duty to attend the
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deposition as scheduled. It is black letter law that [m]erely filing a motion for protective order
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does not stop the deposition or excuse the deponent from attending. Tashima & Wagstaffe, Cal.
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Prac. Guide Fed. Civ. Pro. Before Trial, 11:1444 (The Rutter Group 2015). The Ninth Circuit
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made this point crystal clear in Pioche Mines Consolidated, Inc. v. Dolman, 333 F.2d 257, 269
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(9th Cir. 1964), cert. denied, 380 U.S. 956 (1965), when it held that it is for the court, not the
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deponent or his counsel, to relieve him of the duty to appear for a deposition. In Dolman, a
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party whose deposition was duly noticed contended that they need not appear at the deposition if
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a motion to quash is on file, even if the court has yet to act on it. Id. at 269. Their position, the
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Ninth Circuit held, was without merit: Any such rule would be an intolerable clog upon the
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discovery process. Id. Thus, absent a court order that postpones or dispenses with his duty to
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There are numerous other cases to the same effect. See e.g., Scott v. Palmer, No. 0901329, 2014 WL 6685813, at *3 (E.D. Cal. Nov. 26, 2014) ([T]he filing of a motion seeking
NAFS MEMORANDUM RE IN OPP. TO JOHNSONS MOT. TO QUASH
CASE NO. 3:15-cv-3522-WHO
sf-3592905
relief from a deposition does not relieve the deponent from being deposed. (original emphasis));
Huene v. U.S. Dept of Treasury, I.R.S., No. 11 -2110, 2013 WL 417747, at *3-4 (E.D. Cal. Jan.
31, 2013) (unless a party or witness files a motion for a protective order and seeks and obtains a
stay prior to the deposition, a party or witness has no basis to refuse to attend a properly noticed
deposition (original emphasis)); Charm Floral v. Wald Imports, Ltd., No. 10-1550, 2012 WL
424581, at *2 (W.D. Wash. Feb. 9, 2012) (same); In re FACTA Litig., No. 08-1980, 2010 WL
him in contempt, as well as attorneys fees and costs necessitated by his failure to appear. See,
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e.g., King v. Fid. Nat. Bank of Baton Rouge, 712 F.2d 188, 191 (5th Cir. 1983) (awarding
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sanctions where proposed deponent refused to attend deposition while motion to quash subpoena
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was pending); Stephen L. LaFrance Holdings, Inc. v. Sorensen, 278 F.R.D. 429 (E.D. Ark. 2011)
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(awarding sanctions after finding that the burden is on the movant to obtain a ruling on a motion
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to quash before cancelling a deposition, and given the timing of the filing of a motion to quash on
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the eve of the deposition, the plaintiff could hardly have expected in good faith to receive a court
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Johnsons claim that he was not provided with reasonable time to respond to NAFs
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request for documents is meritless. Rule 45 of the Federal Rule of Civil Procedure provides that
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Johnson be given a reasonable time to comply. What constitutes reasonable notice depends on
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the circumstances of each case, and courts routinely find that this requirement is met in cases that
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involve less than the maximum 30-day time limit set forth in Rule 45. See, e.g., Jones v. United
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States, 720 F. Supp. 355, 366 (S.D.N.Y.1989) (holding that eight days notice was reasonable);
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see also In re Sulfuric Acid Antitrust Litig., 231 F.R.D. 320, 327 (N.D. Ill. 2005) ([T]en business
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days notice [of a deposition] would seem to be reasonable); Natural Organics v. Proteins Plus,
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Inc., 724 F. Supp. 50, 52 n.3 (E.D.N.Y. 1989) (noting that one-day notice was reasonable
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because the parties were on an expedited discovery schedule, the need for a deposition arose
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NAFS MEMORANDUM RE IN OPP. TO JOHNSONS MOT. TO QUASH
CASE NO. 3:15-cv-3522-WHO
sf-3592905
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disclosing materials covered by the Courts TRO, he posted the following photo of himself and
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(Id. at 66:10-14; 67:10-21.) There is no earthly reason why Johnson should take longer
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than a week to print and bring with him to deposition a handful of emails and texts called for by
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the subpoena.
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The Court should not tolerate Johnsons refusal to appear for a deposition that all parties
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to this proceeding concede should take place this Friday, especially in light of his counsels point
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blank refusal to discuss any other date short of his improper motion to quash. The length of time
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necessitated by this delay could result in further disclosures of TRO materials and further threaten
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the integrity of these proceedings, as well as the safety and security of NAF members.
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NAFS MEMORANDUM RE IN OPP. TO JOHNSONS MOT. TO QUASH
CASE NO. 3:15-cv-3522-WHO
sf-3592905
For these reasons, NAF asks the Court to issue an order clarifying that Johnsons motion
to quash does not operate to suspend his legal obligation to comply with the subpoena served on
him.
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LINDA E. SHOSTAK
DEREK F. FORAN
NICHOLAS S. NAPOLITAN
CHRISTOPHER L. ROBINSON
MORRISON & FOERSTER LLP
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By:
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NAFS MEMORANDUM RE IN OPP. TO JOHNSONS MOT. TO QUASH
CASE NO. 3:15-cv-3522-WHO
sf-3592905