morning judge kleinfeld good morning to huda good morning judge when i want to thank you very much for taking your time to hear this matter i would like to reserve three minutes a rebuttal time please watch the clock yes  honor i know you guys have a very important other matters before your calendar so i'm going try to make my points as concisely as i can first i want to concede a point to attend his deposition and to sanction plaintiff's counsel it would have been within the magistrates judges abuse of discretion to conclude to make the conclusion that she did with that in mind i to focus this court on whether or not the district court and the magistrate judge did have that authority and what i want to do specifically address three questions number one did the magistrate judge have authority under rule thirty seven to issue an order compelling a nonparty to attend a deposition and to sanction plaintiff's counsel so the order was actually to the attorneys right the order addressed the parties and said you have to produce your expert if the order wasn't directed at the expert as it's the scrapyard so we don't have a case in the ninth circuit directly on point is that that's what i understood from reading the briefs some months i do you do you agree with that we do not have no no we do not your honor but the sixth circuit has ruled in taylor tronics and indicated that the judge would have the ability under rules thirty seven to do at that that that's not correct your honor explain to me the court of firm a district court exclusion of expert opinion testimony under water thirty seven in unit guard in a ninth circuit published decision this court held that a district court judge does not have authority under rule thirty seven to exclude a player expert witness testimony because that does cover a related misconduct was not encompass within the rule therefore that case does precedent well your honor i think it's not only contrary to one circuit president precedence but the rule you know the law is clear rule thirty seven and the rule forty five are separate and apart help me on something there my recollection from as the text of the rules and also practice was sometimes they are sometimes they aren't where for example the discovery is that oh say a subpoena ducasse taken of the person in charge of records that the clients either the plaintiffs or the defendants business and that can there can be an order to compel and then sanctions for violating it under rule thirty seven now with an outside expert ordinarily the degree of control that a lawyer has over his outside expert neither party nor neither plaintiff nor defendant is limited basically in a p f personal injury case you have to negotiate with the doctor for when he can make available products case you have to negotiate with the engineer and business case you have to negotiate with the economists and various other people but sometimes you have control over them employee of the corporation your art i've been practicing for sixteen years now and i have retained extra experts and deposed experts independent expert depositions and we are subject to their calendar they just like us have a busy calendar in which they've already things pending for example trial other deposition her you call up you call up a doctor who say an expert and to say the other side is no to stuff your deposition for eleven on tuesday morning he just laughs at you and tells you when the deposition is going to be what i want to know is in the record in this either you personally or your firm to attempt to secure his appearance to cooperate with the opposing counsel in securing his appearance on the date that would be available to the expert you are i i believe there was an e mail in the record in which i had a bite of the defense counsel that i had e mailed the experts to determine whether he was available on march thirty first so we did attempt your honor to try to make him available unfortunately due to the compressed time schedule he was not available to attend the state yet may have the reference that i can  two seven five and that's the evidence in the record on whether you had control or not and whether he could have made himself available i guess it's more whether he could have made himself available on the day that the pin that wanted correct is there anything in there worry says except for that i go where ever point is to turn he tells me whenever he tells me or the opposite no good morning in may please the court my name is christina hayes and i represent the defendant of holly's in this action it sure was hard ball boy with this hard ball the only real deadline that faced anybody that generated this headline this deadline was the time for the time step regarding the class certification motion you know was there any negotiation about just extending the time so that the deposition could know we practiced i remember begging doctors and doctors that was the most frequent expert there plenty of others too and then telling me when they could make themselves available not me telling them when they were going to be available and completely understand that that was not the fact in this case the facts and what's the what's the evidence to show with that that he could have been made available for the date he wanted so there's no evidence the plaintiff's counsel ever even contacted the expert to see if he was about to hold on now and i'm not sure you understood my question i asked your adversary what evidence shows either control or availability and he gave me an  excerpt reference regarding availability now i'm asking you the same question and that is the only evidence in the record one way or the other whether the expert was available and he said that he thought he had an appointment but he wasn't sure so it was very vague why didn't you make the other deposition that you were subpoenaed to attend and he says i believe i had another appointment that i could not break yes and that is the only evidence and they don't say he is not sure whether members  communicate with plaintiff's counsel for several weeks before we even went in ex parte and creative counsel simply refused to engage in any of those e mails we call plaintiff counsel we offered to change the dates they simply refused to engage with us see e mails to that effect yes and so this had to do with the more thirty first i would have to check to find that exactly your honor it would be in part of the ex parte relief in the ex and the record there so the reason that we had to go when they did respond to our e mails they would never affirmatively say whether the effort was available or not so we had contacted them we had an issue a subpoena of the expert from march thirty first march thirtieth and we had contacted places counsel several times to fine whether or not understanding that because of the failure to cooperate of this if your perspective more not by some documents than the record that the failure of the opposing party to cooperate in securing the discovery with an impending death might as well as collated it to a situation where you felt like you had to seek sanctions that is absolute crap remind me if the requests for sanctions include other options for sanctions that would be open to the court short sanctioning council yes absolutely so we also wanted to have the because plaintiffs council had submitted evidence from this expert witness in support of their motion for crossfire to pick a gin another option would have been to strike that evidence simply because we had not had the opportunity to depose the expert in support of our opposition to the motion for class certification and so we also asked the court to simply strike that testimony basically afraid it was not able to get his expert witness who he had hired who he had paid and who was now relying on that expert's testimony to appear for deposition and honestly there's no evidence that he actually asked the expert for them let me ask you now now your response is going toward whether the exercise of discretion was appropriate let me move you back to the point your adversary raised on the rules yes we ordinarily rule thirty seven sanction is imposed when there's a previous order to compel the council has violated correct for third party witnesses there cannot be ordinarily motion to compel under rules twenty six through thirty seven discovery rules ordinarily the way the third party expert is there with this a subpoena under rule forty five and then a motion lawyer who had retained the expert had encouraged the expert to defy the subpoena why can you get a rule thirty seven sanction in this case since the rule forty five procedure was doesn't say fight that it says if a party or parties officer director or managing agent or witness designated under thirty b six or thirty one a four fails to obey an ordinarily i've actually seen cases as a lawyer and as a district judge where the sanctions were against the third party witness i remember putting a doctor in jail for that the court ordered plaintive to produce their expert witness it was plaintive counsel who was refusing to produce the expert witness in the case you're saying that under thirty seven c two a the party or the parties lawyer did not appear for the deposition and again you can't have a situation where plaintive can retain an expert use that i think any better be just great i mean if if the expert shows up in opposing counsel and you can just do whatever he want in order to be able to use that expert's testimony in support of your case it can't be the result that the court can allow plaintiff to retain an expert use that expert deposition are used that expert declaration in support of their case and then plaintiff's counsel have no responsibility to make that expert available that the other side can depose him in a way to prepare their own opposition so we've never interpreted this language and that way does the six circuit case go that far the opposing counsel says oh yes it does both the fifth the sixth and the eighth circuit have all imposed sanctions under rule thirty seven b two where a plaintiff refused to produce their expert witness or let's say the expert witness was not prepared for the depositions contacted defense counsel and we could have tried to move it to the twelfth or the fourteenth we there was no effort whatsoever and you know it could very well be that a sanction should have been imposed for failure to expert was available he simply would not do that and that's why the court ordered the expert to appear on a certain date plaintiff's counsel never said his expert was unavailable on that date that was never said to the court it was never set the defense counsel they simply both chose not to show up but it was sanctioned for not producing the expert not for failing to call you and tell you that it would be a waste of time to show up that is correct your honor he was sanctioned for violating the court's discovery order always come back to my question is there evidence in the record that he could have made his expert show up there's really no evidence either way other than that one portion of the transcript that you mentioned before goes the other way the expert says i could've shown up and again he never actually made that argument to the district court so the district court never even had the opportunity to hear that because he never said that his expert was unavailable there was simply no communication with defense counsel one way or the other and it can't be the result that you can simply violate of course discovery order because you choose to ignore it and that's exactly what plaintiff's counsel did in this case and under the court's either inherent authority or its authority under rule thirty seven b two or three in one of those non response was taking place when you knew the opposing counsel was counsel refused to tell us whether or not the expert would appear on march thirtieth and he refused doing it we offered several other dates we said march thirty is does not work for you we are available on all of these other day please choose one he refused to engage with us he waited to engage with us intel two days before his vacation and then use his vacation as the excuse for why his expert can be produced in time for us to be able to use that deposition testimony in support of our opposition to the motion for class certification thank you thank y your honor i just want to address a couple of the points that counsel mention regarding the authority from the fifth six and eight circuit those cases don't stand for the proposition that the parties may be sanctioned for failing to make the experts available for deposition in barrett your honor the bearer confirmed or affirmed in district court exclusion of an expert opinion testimony under rule thirty seven however this court in unit guard has already concluded that district courts lack the authority to exclude expert opinion it was in you know your honor it was it was done without any you know sis unlike you know guard in unit guard look the court this court will close the application of rule thirty seven to anything else that other than what's included in that section you know there was no analysis of what similar to what the ninth circuit in you know guard to determine whether that alleged discovery must conduct fell within the rule what wa to barrett and admiral feeder corp this this case is factually anomalous this is a case that went to trial and during trial the defendants were permitted to depose plaintiff's expert doing a recess in trial but the expert had not arrived at his final pinions were prepared they exhibit which intended to use at trial and instructed held that the district court acted within its discretion in fashioning george if you were to win no no you can't have a sanction plaintiff's attorney from are producing is expert you can sanction him for not returning phone calls and e mails and arranging a date to produce the expert and then  and not even calling and saying the expert and you weren't going to show up and then you get the same section you know you're right that is an important question because to me this goes beyond just the facts specific to this case but application of the rule to me i think this is gives a clear precedent to not only that so you're saying i may get that care victory but at least it would be supportable under the rule i i all confirmed that in the statute itself also the the practical problem i see with the interpretation you want to take i think there's a good textual support for your argument the practical problem is that well this probably never happens in california in alaska we constantly have expert witnesses who are in washington or california or new york and it's quite a song and dance to get a subpoena so we really do depend on counsel to arrange those in california i don't imagine that would come up but why shouldn't the rule be interpreted so the council has to use its best efforts to try to arrange the appearance of the expert because of the reasons we just spoke of your honor there are just things that are outside of our control including nonparty as you know the i've had experts who were in vacation and therefore had to do it but here there is no evidence of best efforts no calls back and forth between the lawyers and the plaintiff's lawyer in the expert no we did communicate i did tell honor but this report did make that finding right that the situation was class made it by the failure to respond to increase to my having strongly limited availability in failing to seek a protective order concerning the notice depositions those are specific factual the expert to try to produce him for his deposition so that they can depose him prior to his opposition before and your art before we even got to the point where we set a date there was negotiation i was going to be negotiations that were going in between the two firms because the expert was unwilling to be to submit for a deposition until he could confirm that he is going to be paid for his call for his preparation time and deposition time we had to reach and i had to negotiate with the defense counsel to ensure that that would be the case otherwise they export isn't going to appear for his deposition that's another part of that control that you we only have a certain amount of control among non parties and if they don't want to comply then why should we as the practicing attorney potentially be liable for