2012-00134706-CU-OE

Yamin T Scardigli vs. Lewis Brisbois Bisgaard & Smith

Nature of Proceeding: Motion for Protective Order RE: Location of Deposition

Filed By: Sachs, Derek S.

Plaintiff Yamin T. Scardigli’s (“Plaintiff”) motion to compel deposition is GRANTED and
Defendant Lewis Brisbois Bisgaard & Smith’s (“Defendant”) related motion for
protective order and request for sanctions are DENIED.

This case involves an employment dispute. Plaintiff is a lawyer and allegedly was
associated with Defendant beginning in June 2008. She alleges that Defendant paid
her less than her male counterparts. She alleges that, when she complained to
Defendant about the discrepancy, she received a $10,000 “non-merit based market
adjustment.” (Compl., ¶ 9.) Plaintiff alleges that other female associates who have
worked for Defendant have also received less pay than their male counterparts.
Plaintiff’s complaint contains two causes of action against Defendant for Violation of
Labor Code § 1197.5 [Equal Pay] and Violation of B&P Code § 17200. Plaintiff
advances her complaint personally and as a private attorney general.

The instant motions involve Plaintiff’s service of notice to take Defendant’s deposition
“by way of” Defendant’s founding partner, Robert Lewis (“Lewis”). (See Scardigli
Decl., Exh. A at 1.) (Plaintiff characterizes Lewis as Defendant’s managing partner,
but Defendant disputes the characterization.) The notice indicates that the deposition
will take place in Lancaster, which is within 75 miles of Defendant’s headquarters and
Lewis’ personal office. Lewis did not appear for deposition. Plaintiff moves for an
order compelling the deposition to take place in Lancaster.

In its countermotion for protective order, Defendant argues that the deposition may not
proceed in Lancaster because the proposed location is not within 75 miles of Lewis’ residence. In Defendant’s view, it is irrelevant that the place of deposition might be
within 75 miles of its headquarters or Lewis’ personal office. Although Defendant
asserts that Lewis’ knowledge of facts relevant to this case is limited, it does not
dispute Plaintiff’s entitlement to depose him. Rather, Defendant seeks an order
altering the place of deposition.

Defendant notes that, during the meet-and-confer process, it proposed a deposition
either at its Los Angeles office or at Plaintiff’s counsel’s Glendale office. Plaintiff’s
counsel rejected both proposals. The attorneys representing Plaintiff work out of a
Stockton office and they want the deposition in Lancaster as a matter of convenience
to them. Defendant asserts that the drive from Plaintiff’s counsel’s Stockton office is
only slightly closer to the Lancaster site than it is to Plaintiff’s counsel’s Glendale
office. Plaintiff, however, asserts that her counsel’s Glendale office is too small to
accommodate a deposition. Plaintiff further asserts that it is cheaper for her counsel to
drive to a deposition in Lancaster than to drive or fly to Defendant’s Los Angeles office.

At bottom, both motions currently before the court turn on the questions whether
Plaintiff’s counsel should be required to drive a little more to attend a deposition in
either Los Angeles or Glendale, or Lewis should bear that burden and drive to
Lancaster. Each side has spilled more than a bit of ink in order to obtain the court’s
answers.

The court GRANTS Plaintiff’s motion and DENIES Defendant’s because Defendant
has withheld Lewis’ address and thus has prevented Plaintiff and the court from
determining whether Lewis’ residence is in fact more than 75 miles from the proposed
deposition in Lancaster. Thus, Plaintiff’s notice of deposition appears to be valid, and
Defendant has failed to show good cause supporting a protective order.

In reaching its conclusion, the court is aware of Plaintiff’s argument that she is entitled
to depose Lewis within 75 miles of his Los Angeles office–not merely within 75 miles
of his residence–because the deposition notice is directed at Defendant, not Lewis.
This argument lacks merit for the reasons stated in Defendant’s papers: if Plaintiff
intended to depose Defendant, an entity, then she was required to serve a deposition
notice naming Defendant only, upon which it would be Defendant’s prerogative to
produce the appropriate individuals with knowledge of the subjects at issue. (CCP §
2025.230.) That Plaintiff’s argument is meritless is irrelevant, however, given
Defendant’s refusal to produce the information necessary to determine if the Lancaster
deposition is within 75 miles of Lewis’ residence.

The parties’ respective requests for monetary sanctions are DENIED.

Conclusion

Lewis shall appear for oral deposition in Lancaster within 30 days unless the parties
stipulate in writing to a subsequent date and/or a different place.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or
further notice is required.