Case Number: BC657092 Hearing Date: November 28, 2018 Dept: 2

Defendant’s Motion for Protective Order Re: Sequence of Timing of the Parties’ Expert Witness Depositions, filed on 11/16/16, is GRANTED. Defendant has shown good cause for a protective order requiring that Plaintiff’s expert, Dr. Linam appear for his deposition at least five to seven days prior to the deposition of defense expert, Dr. Forman.

The Court can issue a protective order to protect any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense, including an order that a deposition be taken at a later time, or on certain conditions for good cause shown. Cal Code Civil Procedure § 2025.420.

Plaintiff’s counsel concedes that the parties did meet and confer about the timing of both parties’ expert depositions, with Plaintiff contending that Defendant’s position was erroneous. Lerman Declaration ¶ 8.

On 8/28/18, Defendant served a Notice of Taking Deposition of Dr. Linam (Plaintiff’s expert) set for 9/7/18, later continued to 9/28/18.

On 9/27/18, Plaintiff’s counsel unilaterally took Dr. Linam’s off calendar without providing any new dates for rescheduling. Declaration of Danielle Doumar, ¶ 13. Defense counsel advised that Dr. Forman’s deposition would have to be taken off calendar given that Plaintiff was rescheduling his expert’s deposition. Motion, Ex. D.

Plaintiff never provided new dates, although Plaintiff’s counsel claims that was not his fault. Opposition, 3:26-27. Regardless, Plaintiff’s counsel did not provide further dates for the taking of his expert’s deposition, and instead, took a notice of non-appearance at Dr. Forman’s deposition and incurred unnecessary costs, although defense counsel already informed Plaintiff’s counsel that Dr. Forman’s deposition would not go forward. Motion, Ex. D. Lerman Declaration ¶ 7.

Defendant has shown substantial justification for taking Dr. Forman’s deposition of 10/2/18 off calendar. Plaintiff had unilaterally taken his expert’s deposition off calendar; Dr. Forman would not have been meaningfully prepared to give his testimony.

The courts have acknowledged that there is an advantage from securing discovery first and that a party should not be deprived of the advantages that normally flow from prompt action. Poeschl v. Superior Court of Ventura County (1964) 229 Cal. App. 2d 383, 386.

The court can change the “normal timing” of discovery, but not without good cause. Poeschl v. Superior Court of Ventura County (1964) 229 Cal. App. 2d 383, 386.

The “normal” timing of the sequence of discovery was established when Defendant first served Notice of Taking Deposition of Plaintiff’s expert. Plaintiff has not shown good cause for altering the normal order of discovery by failing to give defense counsel continued dates for Dr. Linam’s deposition and persisting in the taking of Dr. Forman’s deposition first.

The Court imposes sanctions of $1,380 against Plaintiff, Daniel Dawson, and counsel, Steven Lerman, who have not shown substantial justification for their conduct. Cal. Code Civil Procedure § 2025.420. Sanctions against Plaintiff and counsel are also permitted under Cal. Code Civil Procedure §2023.010, for misuse of the discovery process. Such sanctions are payable within thirty (30) days.

Moving party is ordered to give notice.