United States District Court, D. Nevada
WEKSLER UNITED STATES MAGISTRATE JUDGE.
before the court is Defendants' Motion for Protective
Order Re: Steve Ehrenpreis & Jedso, Inc. (ECF No. 111),
filed on March 25, 2019. Plaintiffs and Third-Party Defendant
David Richardson filed a response (ECF No. 119) on April 8,
2019. Defendants filed a reply (ECF No. 120) on April 15,
court held a hearing on Defendants' motion for a
protective order on June 4, 2019. (Mins. of Proceedings (ECF
No. 128).) As stated in that hearing, the court denied in
part and granted in part Defendants' motion for a
protective order. The motion was denied to the extent that
the depositions of Mr. Ehrenpreis and Jedso, Inc. will not be
precluded. The motion was granted to the extent that these
depositions will be limited in scope and certain documents
must be produced before these depositions, as stated during
the hearing. The court also took the parties' requests
for sanctions under submission. This Order addresses the
parties' requests for sanctions.
motion for protective order is granted in part and denied in
part, the court may apportion the reasonable expenses for the
motion. Fed.R.Civ.P. 37(a)(5)(C). It is within the
court's broad discretion to control discovery, “and
its rulings will not be overturned in the absence of a clear
abuse of discretion.” Tradebay, LLC v. eBay,
Inc., 278 F.R.D. 597, 601 (D. Nev. 2011) (citing
Little v. City of Seattle, 863 F.2d 681, 685 (9th
Cir. 1988)). The court has considered the parties'
memoranda of points and authorities and the arguments
presented by counsel at the hearing regarding sanctions. For
the reasons discussed below, the court in its discretion
declines to apportion expenses and will deny both
parties' requests for sanctions.
one hand, the court observes that the motion for a protective
order was filed just days before Mr. Ehrenpreis and Jedso,
Inc.'s depositions were scheduled to take place. The
timing of this filing caused Plaintiffs to incur costs that
they would have otherwise not incurred. On the other hand,
Defendants provided e-mails showing that they were trying to
informally reach an agreement with Plaintiffs limiting the
scope of the deposition up until this motion was filed. While
Plaintiffs were not required to come to an agreement
regarding the scope of the deposition, Plaintiffs have been
on notice, at least as of February 20, 2019 (the date on
which Judge Gordon held a hearing on the Motion to Stay) and
later through subsequent e-mail communications, that
Defendants would be requesting court involvement regarding
the scope of Mr. Ehrenpreis' deposition if the parties
could not come to a mutual agreement. The case was and
continues to be stayed, and Plaintiffs could have waited
until this court resolved the motion for a protective order
before attempting to take the deposition.
Plaintiffs had properly subpoenaed Mr. Ehrenpreis, and Mr.
Ehrenpreis did not object to the subpoena. The court does not
look favorably on the communications between defense counsel
and counsel for Mr. Ehrenpreis regarding the need for Mr.
Ehrenpreis to attend the deposition, as Mr. Ehrenpreis'
attendance at the deposition was compelled by subpoena and
the court had not entered a protective order or stayed the
deposition pending resolution of the motion for protective
order. See Fed. R. Civ. P. 45(g) (providing that the
court issuing the subpoena “may hold in contempt a
person who, having been served, fails without adequate excuse
to obey the subpoena.”); Jules Jordan Video, Inc.
v. 144942 Canada Inc., 617 F.3d 1146, 1158 (9th Cir.
2010) (stating that a non-party's attendance at a
deposition is compelled by subpoena). Despite the
Defendants' conduct, Plaintiffs could have determined
that the deposition would still go forward as noticed and
move for sanctions against Mr. Ehrenpreis if he did not
attend. Instead, Plaintiffs decided that they would not move
forward with the deposition based on the inconveniences and
interruptions to Plaintiffs' counsel's deposition
preparation caused by Defendants. Given these competing
considerations, the court in its discretion finds that the
parties should bear their own fees and expenses.
the Rule 37 sanctions, Defendants requested sanctions under
Federal Rule of Civil Procedure 45(d)(1) (ECF No. 111 at 10),
which provides that “[a] party or attorney responsible
for issuing and serving a subpoena must take reasonable steps
to avoid imposing undue burden or expense on a person subject
to the subpoena. The court . . . must enforce this duty and
impose an appropriate sanction . . . on a party or attorney
who fails to comply.” As stated at the hearing, the
court finds that Plaintiffs did not impose an undue burden or
expense on non-parties Steve Ehrenpreis or Jedso, Inc. by
subpoenaing them for their depositions. This is most clearly
evidenced by the fact that they did not object to their
subpoenas. To the extent Defendants argue the depositions
caused them undue burden or expense, the court addressed that
concern by limiting the scope of the depositions as stated at
Plaintiffs and Richardson's request for sanctions, they
did not file a stand-alone motion, but the court nevertheless
has considered their argument that Defendants and their
counsel should be sanctioned for intentionally interfering
with Plaintiffs' subpoena. (ECF No. 119 at 20.) While
Plaintiffs and Mr. Richardson cite persuasive authority that
condemns interference with subpoenas issued to non-parties,
the court in its discretion declines to sanction Defendants
for the reasons discussed in this order.
THEREFORE ORDERED that the parties' request for sanctions
is DENIED. It is further ordered that each party must bear
its own costs and fees related ...