2010-00087135-CU-BT

Paramount Petroleum Corporation vs. International Surfacing

Nature of Proceeding: Motion to Compel Compliance with Court Order Requiring Attendance at

Filed By: Jackson, Erik L.

Plaintiff Paramount Petroleum Corporation’s motion to compel compliance with “court
order requiring attendance of defendant’s witnesses at depositions” is ruled upon as
follows.

At the outset, the Court must express its frustration with the parties’ inability to resolve
basic discovery disputes without resort to judicial intervention. This is yet another in a
series of motions related to the scheduling of depositions, normally a routine matter
that should not require judicial intervention. It is a central precept to the Civil
Discovery Act of 1986 (§ 2016 et seq.) that civil discovery be essentially self-
executing. A self-executing discovery system is “one that operates without judicial
involvement.” (2 Hogan & Weber, Cal. Civil Discovery, § 15.4, pp. 15-7 to 15-8.)
Conduct frustrates the goal of a self-executing discovery system when it requires the
trial court to become involved in discovery because a dispute leads a party to move for
an order compelling a response. (Clement v. Alegre (2009) 177 Cal.App.4th 1277.)

On January 17, 2014, the Court granted Defendant International Surfacing Systems,
Inc.’s (“ISS”) motion to compel depositions of Plaintiff’s witnesses. On February 7,
2014, the Court issued a follow-up order which stated:

The parties are to meet and confer regarding scheduling of witness
depositions. The parties shall provide the court a joint letter reflecting the
depositions scheduled by Friday, February 14, 2014. That includes the 4
persons requested by [ISS] and the persons requested by Paramount. In
the absence of such agreement, the parties shall submit a letter each
enclosing the efforts made to reach agreement regarding the requested
discovery.

The parties eventually agreed upon a schedule and the depositions of ISS’s witnesses.
The deposition of Wendell Reed, ISS’s chairman was cancelled by ISS’s counsel after
counsel indicated that Reed may have suffered a stroke but then indicated that he may
have had a reaction to medication. Counsel provided a handwritten doctor’s note
indicating that Reed was not able to sit for a deposition and would be re-evaluated in
30 days.

Paramount argues that ISS and Reed violated the Court’s February 7, Order by
fabricating an excuse to cancel Reed’s March 14, deposition, which excuse evolved
over a period of days. Paramount argues that it is clear that the excuse was fabricated
as Reed’s son’s (Jeff Reed) assistant (receptionist at the Reed Center) told one of
Plaintiff’s employees that she was surprised to hear Reed suffered a stroke as he had
been in the office the previous day.

Despite the apparent shifting reasons for cancelling Reed’s originally agreed upon
deposition date, ISS has submitted a declaration from Reed’s doctor stating that he
treated Reed after he was brought in on March 7, for what was described as a stroke.
(Larson Decl. ¶ 2.) Reed exhibited confusion and memory loss and failed memory and
cognitive tests administered to patients with similar symptoms. (Id. ¶ 3.) Reed’s
doctor performed an EKG and concluded that while Reed did not suffer a stroke, he
had a severe reaction to medication and concluded that he was not physically and
mentally able to be deposed and needed to be reevaluated in 30 days. (Id. ¶ 4.)

Further, Reed’s personal caregiver took him to see the doctor on March 7 after she felt
based on Reed’s behavior that morning that he suffered a stroke. (Gallegos Decl. ¶¶ 3
-6.) These declarations are consistent with ISS’s counsel’s shifting reasons for
cancelling Reed’s March 14, deposition. The Court finds that ISS did not violate the
February 7, 2014, Order based on these circumstances as the medical evidence
shows that Reed was not capable of sitting for a deposition on that date. In addition,
ISS has offered to make Reed available for deposition on March 28, though it
conditioned such offer on Plaintiff making its witnesses Mr. Thorpe available (Mr.
Thorpe’s deposition was originally scheduled for March 13, but Plaintiff refused to
allow it proceed given the cancellation of Reed’s deposition).

Paramount also appears to argue that ISS violated the order when it postponed
Reed’s son Jeff Reed’s deposition that was originally scheduled for March 12, 2014 to
March 14. The Court disagrees as Jeff Reed traveled to Modesto to be with his father
on March 12 after he learned of his medical condition. (Jeff Reed Decl. ¶ 2.) It must
be remembered that the February 7, Order did not set specific dates for the subject
depositions but rather ordered that the parties meet and confer regarding scheduling of
depositions. Inherent in such a process is the allowance for practical flexibility to
accommodate matters such as a family medical emergency. Moreover, Jeff Reed’s
deposition took place on March 14, which was a date the parties had already
scheduled for a deposition anyway.

In sum, the Court finds that under the circumstances, ISS did not violate this Court’s
February 7, 2014, Order and thus will not award Paramount any sanctions, monetary
or otherwise.

However, the Court finds that in order to head off future disputes, that it must provide
specific guidance with respect to Reed’s deposition. Here, ISS offered to make Reed
available on March 28, provided that Paramount also make Mr. Thorpe available.
These are the only two depositions that the parties set dates for pursuant to the
Court’s February 7, 2014 Order requiring them to meet and confer that have yet to
proceed. (Jackson Decl. ¶ 6) The other witnesses for which dates were set (Brian
Orr, Jim Ryan and Jeff Reed), have been deposed. Given ISS’s willingness to
produce Reed on March 28, 2014, and the fact that Paramount was ordered to
produce Mr. Thorpe for deposition when the Court granted ISS’ motion to compel on
January 17, 2014, the Court now orders that ISS shall produce Reed for deposition
no later than April 11, 2014 and Paramount shall likewise produce Mr. Thorpe for
deposition no later than April 11, 2014. The Court fully expects that both
depositions will be completed by that date absent extraordinary circumstances and
reserves the right to issue substantial sanctions on any further motions related to these
two depositions. The Court should not have to micromanage these types of
scheduling issues/conflicts.

The Court declines to award issue and/or monetary sanctions in the event that Reed
does not appear for his deposition as such an order would constitute an invalid
conditional sanction. “When a discovery order contains an invalid provision of a
conditional future sanction, any order imposing that sanction is also invalid.” (Sole
th
Energy Co. v. Hodges (2005) 128 Cal.App.4 199, 210; see also Duggan v. Moss
(1979) 98 Cal.App.3d 735, 743 [discovery order purporting to provide for dismissal in
the event of disobedience exceed court’s jurisdiction].)

The Court declines to issue an order that Jeff Smith and Jack Van Kirk (ISS witnesses)
be deposed within 14 days of this order or that they be produced prior to any further
depositions of Paramount’s witnesses. Indeed, as seen from the moving papers, the
parties never agreed to firm dates on these two depositions. (Jackson Decl. ¶ 6 and
Exh. D) Indeed, Paramount indicated that it would take Jeff Smith’s deposition at a “later date.” (Id.) Further, Paramount presents no evidence that it has even noticed
the deposition of Jack Van Kirk or even met and conferred with ISS regarding a
deposition date for him. Thus, there has been no violation of any Court order with
respect to these depositions and the Court will not issue the requested order though it
fully expects the parties to cooperate to schedule dates.

The Court rejects ISS’ request for sanctions. While the motion was another
unfortunate example of the parties’ inability to resolve basic discovery matters,
specifically, routine scheduling issues, the Court does not find the motion was without
substantial justification. Indeed, ISS did not provide specific evidence of Reed’s
medical condition until it submitted its opposition to the instant motion on March 24
with declarations from Reed’s doctor and personal caregiver. The Court therefore
cannot fault Paramount for bringing the instant motion premised on an argument that
ISS canceled Reed’s deposition with no evidence that he was unable to attend.

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