United States District Court, D. Nevada
LOUIS A. CARDINALI, Plaintiff(s),
PLUSFOUR, INC., et al., Defendant(s).
ORDER [DOCKET NO. 129]
J. Koppe United States Magistrate Judge
before the Court is Defendant Experian's renewed motion
for sanctions arising out of the deposition of nonparty
Haines & Krieger. Docket No. 129. Haines & Krieger
filed a response in opposition, and Experian filed a reply.
Docket Nos. 133, 138. The Court finds the motion properly
decided without a hearing. See Local Rule 78-1.
& Krieger filed a motion to quash a deposition subpoena.
Docket No. 85. The Court denied that motion and ordered
Haines & Krieger to appear for deposition. Docket No. 95.
Haines & Krieger did not object to that order pursuant to
Rule 72(a) of the Federal Rules of Civil Procedure and,
instead, agreed to appear for the deposition on November 1,
2018. Docket No. 96. Nonetheless, it is abundantly clear that
Haines & Krieger did not comply with its obligations to
provide deposition testimony, instead offering a Rule
30(b)(6) witness who was not prepared to testify, who
regularly provided evasive and ridiculous answers to
questions posed, and who was improperly coached by counsel
(Miles Clark). That conduct is troubling and wrong. The heart
of the issue before the Court is the proper remedy to address
the briefing conflates the provisions of Rule 37 and Rule 45
of the Federal Rules of Civil Procedure with respect to the
range of potential sanctions. “The Federal Rules of Civil
Procedure distinguish between parties and non-parties in
establishing available discovery devices.” Jules
Jordan Video, Inc. v. 144942 Can. Inc., 617 F.3d 1146,
1158 (9th Cir. 2010). “While an order to produce a
deponent under Rule 37 and a subpoena under Rule 45 are
intended to bring about the same outcome, the order's
focus and the consequences of noncompliance are
different.” Sali v. Corona Reg. Med. Ctr., 884
F.3d 1218, 1224 (9th Cir. 2018). Rule 37 provides a laundry
list of potential sanctions for a party's non-compliance
with a discovery order. See Fed. R. Civ. P.
37(b)(2)(A). A subpoena issued under Rule 45 “obligates
[a] nonparty to appear at the scheduled deposition at pain of
being held in contempt. None of the other sanctions available
under Rule 37 are available against the nonparty.”
Sali, 884 F.3d at 1224.
Experian's moving papers at times reference contempt, the
motion does not sufficiently develop a request to initiate
contempt proceedings. Moreover, the sanctions that are
otherwise sought by Experian arise out of provisions in Rule
37, such as a request that the Court deem admitted the fact
that Haines & Krieger acted as a credit repair
organization. See Docket No. 129 at 16-19. Given the
nonparty status of Haines & Krieger, it is not clear that
the cited provisions of Rule 37 apply here.
Court has wide discretion in controlling discovery.
E.g., Little v. City of Seattle, 863 F.2d
681, 685 (9th Cir. 1988). Given the circumstances of this
case, the Court will defer ruling on the issue of sanctions.
Instead, the Court will order Haines & Krieger to appear
for a redeposition no later than April 18, 2019. The deponent
for Haines & Krieger must be properly prepared and must
answer fully and non-evasively. Mr. Clark or any other
attorney appearing for Haines & Krieger must not impede
the deposition through coaching or improper objections. The
Court has now addressed this deposition through a fulsome
order resolving numerous baseless objections posed by Haines
& Krieger (Docket No. 95) and through this order
addressing misconduct by Haines & Krieger at the
deposition. The Court expects strict compliance with this
order and will view any further noncompliance as a very
for the reasons outlined above, the Court
ORDERS Haines & Krieger to appear for a
redeposition. In all other respects, the renewed motion for
sanctions is DENIED without prejudice.
 Haines & Krieger has not raised
the concerns identified herein as to the scope of potential
sanctions available, but the Court is loath to issue an order
that may stretch beyond its authority.
 There are potential exceptions when
there is a sufficiently close relationship between a party
and a nonparty deponent. Sali, 884 F.3d at 1222 n.4.
The briefing on the instant motion does not discuss whether
Haines & Krieger's role as co-counsel for Plaintiff
impacts the analysis of the potential consequences for its
failure to comply with its obligations at the deposition. For
purposes of this order, the Court assumes without deciding
that Haines & Krieger should be treated as a nonparty.
Nothing herein prevents the parties from arguing otherwise in
 As noted above, contempt proceedings
may be initiated in the event of noncompliance. Furthermore,
pursuant to Canon 3(B)(5) of the Code of Conduct for United
States Judges, “[a] judge should take appropriate
action upon learning of reliable evidence indicating the
likelihood that . . . a lawyer violated applicable rules of
professional conduct.” To the extent Mr. Clark (or any
other attorney) violates this order, the Court will determine
whether the circumstances justify his referral to the state
bar for disciplinary proceedings. See, e.g., Weddell v.
Stewart,261 P.3d 1080, 1085 n.9 (Nev. 2011). To the
extent that a further motion for sanctions is necessary,
nothing herein limits the remedies that may be sought