Case Name: Garden City, Inc. dba Casino M8trix v. Swallow, et al.
Case No.: 2016-1-CV-295297

This is a business dispute. On March 29, 2017, cross-complainant and defendant Eric Swallow (“Swallow”) filed a first amended cross-complaint (“FAXC”) in which he alleged that plaintiff and cross-defendant Garden City, Inc. dba Casino M8trix (“GCI”), cross-defendants Peter Lunardi, Jeanine Lunardi (collectively, “the Lunardis”) and Swallow “formed a joint litigation group and exchanged confidential communications” subject to an oral joint defense agreement as part of a regulatory action, and that oral agreement was breached by the Lunardis and GCI, resulting in damage to Swallow. (See FAXC, ¶¶ 33, 82-84.) In response to discovery seeking persons with knowledge of the alleged breach, Swallow identified his attorney, Allen Ruby. (See Harrington decl. in opposition to motion to quash, ¶ 2.) On February 21, 2018, counsel for served a subpoena on Mr. Ruby. (See Vakili decl. in support of motion to quash, ¶ 2.) On March 20, 2018, the parties agreed to a deposition date of May 9, 2018. (See Vakili decl., ¶ 1; see also Harrington decl., ¶ 3.) On March 27, 2018, Swallow filed a motion to bifurcate the issues of the parties’ marital status from all other issues in Swallow’s divorce proceedings, setting a hearing date of May 9, 2018. (See Vakili decl., ¶3; see also Harrington decl., ¶ 4, exh. 1.) On April 30, 2018, counsel for Swallow then contacted counsel for GCI, informing her that he “recently learned that Eric [Swallow] has a conflict where he is required to be in Court in another matter on May 9th… [and a]s such, we will need to reschedule Allen’s depo to another date.” (See Vakili depo, ¶ 3, exh. 2; see also Harrington decl., ¶ 5, exh. 2.) The propriety of Mr. Ruby’s deposition was not raised. After GCI’s counsel refused to move the deposition, citing all parties’ agreement and meet and confer efforts regarding the May 9, 2018 deposition date, counsel for Swallow moved to quash the subpoena on Mr. Ruby, and for a stay to delay the deposition set for May 9, 2018. The deposition was then scheduled for July 13, 2018.

The motion for a stay to delay the deposition set for May 9, 2018 is MOOT. May 9, 2018 has long passed.

The newly scheduled date for Mr. Ruby’s deposition, July 13, 2018, has also passed. In Swallow’s belatedly filed reply brief, Swallow acknowledges that he received the full production of documents that Mr. Ruby intended to produce at his deposition, and that the deposition did not proceed on July 13, 2018. Swallow’s counsel also newly discusses his presentation of a protective order.

Here, the deposition of the identified witness of directly relevant information does not appear to involve privileged information. Contrary to Swallow’s unsupported assertions, there is extremely good cause for the deposition, regardless of whether Mr. Ruby may considered as “opposing counsel” in this case requiring such a showing. Moreover, Swallow’s counsel argues that “attempting to depose opposing counsel is improper when the information sought could be elicited with properly drafted interrogatories”; however, GCI’s counsel notes that such interrogatories have been propounded, but Swallow has failed to provide complete answers to them, requiring GCI to move to compel further responses. The Court finds that interrogatories are not an adequate alternative.

The motion to quash the deposition of Mr. Ruby is DENIED. Parties’ counsel are required to appear in person at the July 24, 2018 hearing in Department 9 to discuss a date for the deposition to proceed; parties shall meet and confer beforehand and discuss with the deponent as to availability. Appearance by Court Call is not allowed, unless the parties can report that an agreement has been reached as to a date and confirmed with Mr. Ruby.

Swallow’s request for monetary sanctions is DENIED as he has not substantially prevailed on the motion.

GCI requests monetary sanctions against Swallow and his counsel in the amount of $2,200.00. The request is code-compliant. However, as it is unclear as to whether sanctions should issue in favor of GCI. The Court will not issue a tentative ruling as to GCI’s request for sanctions.