Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association.

Excessive Deposition Delays Without Sufficient Justification Leads to Terminating Sanctions

Creed-21 v. City of Wildomar, 2017 WL 5484032,provides salient reminders regarding complying with local rules, scheduling depositions and most importantly, complying with court orders to avoid sanctions. The case also implicates the ethical duty of competence in managing one’s schedule, even when emergencies may arise.

The underlying case involved Creed-21’s challenge to a proposed Wal-Mart based on the California Environmental Quality Act (CEQA). The appellate court upheld a terminating sanction imposed after Creed-21 failed to comply with court orders requiring the deposition of a person most qualified (PMQ) regarding Creed-21’s standing in the case. The deposition, first noticed in August 2015 for September 2015, triggered objections as to the propriety of the discovery. The proponent’s efforts to resolve the dispute failed in part because Creed-21’s lead counsel Briggs was in trial. Ultimately, Briggs invited a motion to compel, or offered to file a motion for protective order.

In November, a motion to compel the PMQ deposition was filed. The court granted the motion, and awarded $3,000 in sanctions. An ex parte application seeking relief from the court’s order followed claiming that counsel for Creed-21 was not aware of the local rule requiring that he provide notice of appearance by telephone or in person, rather than via email. Wal-Mart argued that lack of knowledge of the local rules was “professional incompetence and not a mistake that justified relief.” At the hearing, attended by Creed-21’s attorney Kim, the court also directed that the deposition be scheduled on February 8, despite being informed by Kim that Briggs, who intended to defend the deposition, had a family emergency. The court indicated if that date did not work, any ex parte application would need to demonstrate good cause for another continuance. 

A petition for writ of mandate concerning the appropriateness of the discovery was summarily denied on February 5. An ex parte application followed to continue the deposition asserting that Briggs, an only child whose parent had undergone surgery, was needed to care for his parent for three weeks, and unable to work. Wal-Mart opposed, noting the five month lapse of time and pending briefing deadlines, and claiming attorney Kim could handle the deposition. The court denied the relief, suggesting a caregiver could watch Briggs’ parent so he could handle the deposition. Still the deposition did not go forward in Briggs’ absence. Upon his return to work, Briggs offered a deposition date one business day prior to the briefing deadline. Too late Wal-Mart said. 

The court then granted Wal-Mart’s motion for terminating sanctions for willful failure to obey the trial court’s earlier orders to produce the PMQ, noting Briggs not only failed to produce the PMQ witness, but also failed to produce documents related to the deposition, and had not paid the sanctions. The judge indicated, “Nothing had worked,” including multiple orders and sanctions. On review, the appellate court found no abuse of discretion given the lack of compliance with the court’s directives.

-- Carole J. Buckner

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**