FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARLYN SALI, on behalf of 

themselves, all others situated and 

the general public; DEBORAH 

SPRIGGS, on behalf of themselves, all 

others situated and the general 

public; BISNAR CHASE, LLP,

Plaintiffs-Appellants,

v.

CORONA REGIONAL MEDICAL 

CENTER; UHS OF DELAWARE INC.,

Defendants-Appellees.

No. 15-56389

D.C. No.

5:14-cv-00985-

PSG-JPR

OPINION

Appeal from the United States District Court

for the Central District of California

Philip S. Gutierrez, District Judge, Presiding

Argued and Submitted February 6, 2017

Pasadena, California

Filed March 19, 2018

Before: Andrew J. Kleinfeld, Sandra S. Ikuta,

and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge Nguyen
2 SALI V. CORONA REG’L MED. CTR.

SUMMARY*

Discovery

The panel affirmed the district court’s contempt 

judgment arising after plaintiffs’ counsel failed to pay 

sanctions when they did not produce their expert at a 

deposition as ordered.

The panel held that under Fed. R. Civ. P. 37’s general 

discovery enforcement provisions, a court can order a party 

to produce its nonparty expert witness at a deposition, and if 

the party makes no effort to ensure that its witness attends 

the deposition, sanction the party’s counsel when the witness 

fails to appear unless the failure to produce the expert “was 

substantially justified or other circumstances make an award 

of expenses unjust.” Fed. Civ. P. 37(b)(2)(C). The panel 

held that the Rule 37 sanctions were reasonable in this case.

COUNSEL

Jerusalem F. Beligan (argued) and Brian D. Chase, Bisnar 

Chase LLP Newport Beach, California, for PlaintiffsAppellants.

Christina H. Hayes (argued), Khatereh Sage Fahimi, and 

Stacey E. James, Littler Mendelson P.C., San Diego, 

California, for Defendants-Appellees.

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
SALI V. CORONA REG’L MED. CTR. 3

OPINION

NGUYEN, Circuit Judge:

The discovery process in theory should be cooperative 

and largely unsupervised by the district court. But when 

required disclosures aren’t made or cooperation breaks 

down, Federal Rule of Civil Procedure 37 allows a party to 

move for an order compelling disclosures or discovery. If 

the order is disobeyed, the court can impose contempt and 

other sanctions. Federal Rule of Civil Procedure 45, which 

governs the issuance of subpoenas, also provides for 

contempt sanctions when a subpoena is disobeyed.

The question here is whether Rule 45 is the exclusive 

mechanism for compelling a nonparty to appear at a 

deposition and obtaining sanctions for noncompliance. We 

hold that under Rule 37’s general discovery enforcement 

provisions, a court can order a party to produce its nonparty 

expert witness at a deposition and, if the party makes no 

effort to ensure that its witness attends the deposition, 

sanction the party’s counsel when the witness fails to appear 

unless the failure to produce the expert “was substantially 

justified or other circumstances make an award of expenses 

unjust.” Fed. R. Civ. P. 37(b)(2)(C). Because the Rule 37 

sanctions were reasonable in this case, we affirm the district 

court’s judgment.

I.

Marlyn Sali and Deborah Spriggs are registered nurses 

who instituted a class action against their former employer, 

Corona Regional Medical Center, and its corporate parent, 

UHS of Delaware Inc., for alleged violations of wage and 

hour laws. Plaintiffs moved for class certification with 

supporting declarations from their expert economist, Mark 
4 SALI V. CORONA REG’L MED. CTR.

Falkenhagen, and expert statistician, Dr. Richard Drogin. As 

defendants were preparing their opposition, the parties 

became embroiled in a discovery dispute.

Defendants sought to depose Falkenhagen and Drogin in 

advance of the April 16, 2015 deadline for filing the 

opposition to class certification. After an unproductive 

email exchange, in which the parties’ counsel dickered over 

fees, defendants subpoenaed Falkenhagen to be deposed on 

March 30, 2015. Plaintiffs interposed various objections, 

which defendants dismissed as “insufficient to prevent a 

subpoenaed deposition from moving forward.” On the 

scheduled day of the deposition, neither Falkenhagen nor 

plaintiffs’ counsel showed up.

The next day, on April 1, defendants informed plaintiffs 

that they would be applying ex parte for sanctions and to 

compel Falkenhagen’s deposition. Counsel then met and 

conferred regarding the expert depositions as required under 

the local rules. See C.D. Cal. L.R. 37-1. Defendants agreed 

to pay Falkenhagen’s fee prior to his deposition. They 

sought to depose him on April 9, but plaintiffs’ counsel was 

taking a vacation that week and told defendants’ counsel that 

Falkenhagen would be unavailable then. Plaintiffs offered 

to produce Falkenhagen for deposition on April 13,1 but 

defendants didn’t accept because they felt “it was imperative 

the depositions occur prior to April 10.”

 1 According to defendants’ counsel, plaintiffs’ counsel 

“affirmatively stated that [he would be] available for Mr. Falkenhagen’s 

deposition on [April 13].” Plaintiffs’ counsel asserted that he told them 

“maybe, maybe” he could produce Falkenhagen then, but he needed to 

know before he left on vacation in order to set it up. The magistrate 

judge found that, regardless of context, plaintiffs never disputed that they 

represented Falkenhagen was available on April 13.
SALI V. CORONA REG’L MED. CTR. 5

Defendants then applied ex parte to compel 

Falkenhagen’s and Drogin’s depositions on April 9 and 10, 

respectively. In an order dated April 7, 2015, the magistrate 

judge denied the request, finding that defendants were “not 

without fault in creating the circumstances” because they 

inexcusably waited to arrange the depositions. The 

magistrate judge acknowledged that plaintiffs’ counsel 

“exacerbated this situation by apparently failing to respond 

to inquiries from Defendants, having extremely limited 

availability, and failing to seek a protective order concerning 

the noticed depositions.” However, given plaintiffs’ offer to 

make Falkenhagen available for deposition immediately 

after their attorney’s vacation, the magistrate judge found 

that defendants would have sufficient time to incorporate his 

testimony into their opposition to class certification. The 

order concluded: “Plaintiffs are, however, instructed to 

produce Falkenhagen for deposition on April 13.” 

Defendants subpoenaed him for that date.

Once again, Falkenhagen and plaintiffs’ counsel failed 

to appear at the deposition.2

 Defendants moved for 

sanctions under Rule 37. The magistrate judge found that 

plaintiffs weren’t substantially justified in disobeying the 

order to produce Falkenhagen for deposition and sanctioned 

counsel $15,112 for defendants’ costs associated with the 

deposition and motion for sanctions. When counsel didn’t 

 2 In its order denying class certification, the district court cited this 

incident as an example of plaintiffs’ counsel’s “lax approach” to 

prosecuting the action. The court found that plaintiffs’ counsel wasn’t 

adequate to represent the proposed class.
6 SALI V. CORONA REG’L MED. CTR.

pay, the district court entered a contempt judgment, from 

which plaintiffs and their counsel appeal.3

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We 

review de novo whether the magistrate judge had the power 

under Rule 37 to order the plaintiffs’ counsel to produce their 

expert at a deposition and sanction them for noncompliance. 

See Unigard Sec. Ins. Co. v. Lakewood Eng’g & Mfg. Corp., 

982 F.2d 363, 367 (9th Cir. 1992) (per curiam) (citing 

Halaco Eng’g Co. v. Costle, 843 F.2d 376, 379 (9th Cir. 

1988)). The sanctions order is reviewed for abuse of 

discretion, and the underlying factual findings for clear error. 

Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1052 

 3 Defendants contend that we lack jurisdiction to review the 

underlying order compelling plaintiffs to produce Falkenhagen because 

plaintiffs didn’t timely appeal it. But an order to produce discovery isn’t 

immediately appealable. Mohawk Indus., Inc. v. Carpenter, 558 U.S. 

100, 108 (2009). The subsequent sanctions order and contempt 

judgment were likewise interlocutory and non-appealable until entry of 

final judgment. See Cunningham v. Hamilton County, 527 U.S. 198, 210 

(1999). Although “certain exceptions are recognized in cases involving 

orders and sanctions against non-parties,” David v. Hooker, Ltd., 

560 F.2d 412, 415 (9th Cir. 1977), the discovery order and sanctions here 

were directed at plaintiffs and their counsel—not Falkenhagen. 

Subsequently, pursuant to the parties’ stipulation, the district court 

entered a final order dismissing all claims and counterclaims. Plaintiffs 

and their counsel then timely appealed the sanctions order and contempt 

judgment. Therefore, we have jurisdiction to consider those orders as 

well as the underlying discovery order. See, e.g., In re Rains, 428 F.3d 

893, 901 (9th Cir. 2005) (“[O]nce a final judgment is entered, an appeal 

from an order that otherwise would have been interlocutory is then 

appealable.” (quoting In re Eastport Assocs., 935 F.2d 1071, 1075 (9th 

Cir. 1991))).
SALI V. CORONA REG’L MED. CTR. 7

(9th Cir. 1998) (citing Anheuser-Busch, Inc. v. Nat. 

Beverage Distribs., 69 F.3d 337, 348 (9th Cir. 1995)).

III.

Plaintiffs and their counsel contend that the district court 

lacked authority to compel Falkenhagen’s deposition under 

Rule 37(a) and impose sanctions under Rule 37(b). They 

also contend that their actions were substantially justified 

and the sanctions unjust.

A.

When interpreting the scope of a Federal Rule of Civil 

Procedure, we begin with the text. See Krupski v. Costa 

Crociere S. p. A., 560 U.S. 538, 547 (2010). Rule 30 

authorizes a party to take the deposition of “any person,” 

generally without the court’s permission. Fed. R. Civ. P. 

30(a)(1). “The deponent’s attendance may be compelled by 

subpoena under Rule 45.” Id. If the deponent disobeys the 

subpoena, the district court can hold the deponent in 

contempt. Fed. R. Civ. P. 45(g). While a subpoena’s 

judicial imprimatur and the threat of sanctions for 

noncompliance is one way to ensure that a deponent shows 

up for a deposition, it isn’t the only way.

The magistrate judge issued sanctions under Rule 37(b), 

which empowers the court to take remedial action if a party 

“fails to obey an order to provide or permit discovery, 

including an order under Rule . . . 37(a).” Fed. R. Civ. P. 

37(b)(2)(A). Rule 37(a) provides generally that “a party may 

move for an order compelling disclosure or discovery.” Fed. 

R. Civ. P. 37(a)(1). In particular, Rule 37(a) permits a party 

to seek to compel “an answer, designation, production, or 

inspection” under certain circumstances, Fed. R. Civ. P. 

37(a)(3)(B), including when “a deponent fails to answer a 
8 SALI V. CORONA REG’L MED. CTR.

question asked under Rule 30 or 31,” Fed. R. Civ. P. 

37(a)(3)(B)(i). Plaintiffs were ordered to produce their 

expert, Falkenhagen, for deposition, where he would be 

required to respond to questions and disclose his expert 

views, see Fed. R. Civ. P. 30. As we have recognized, Rule 

37(a) encompasses an order to attend a deposition. See SEC 

v. Seaboard Corp., 666 F.2d 414, 416 (9th Cir. 1982) (“Since 

the [Rule 37(a)] order required [the cross-defendant] not 

only to pay money, but also to give his deposition, it was 

clearly also ‘an order to provide or permit discovery.’” 

(quoting Fed. R. Civ. P. 37(b)(2))).

In the context of Rule 37(b) sanctions, we “read broadly” 

the term “order” under Rule 37(a). Unigard, 982 F.2d at 368 

(citing Henry v. Sneiders, 490 F.2d 315, 318 (9th Cir. 1974)). 

Both the advisory committee notes and case law suggest that 

Rule 37’s “requirement for an ‘order’ should . . . include any 

order relating to discovery.” Halaco Eng’g, 843 F.2d at 379; 

see Fed. R. Civ. P. 37(b) advisory committee’s note to 1970 

amendment (“The scope of Rule 37(b)(2) is broadened by 

extending it to include any order ‘to provide or permit 

discovery’ . . . . Various rules authorize orders for discovery

. . . . Rule 37(b)(2) should provide comprehensively for 

enforcement of all these orders.”).

Rule 37 explicitly authorizes the court to sanction parties 

for failing to attend their own depositions. See Fed. R. Civ. 

P. 37(d)(1)(A)(i). No subpoena is needed. The only 

requirement is that the party be “served with proper notice” 

of the deposition beforehand. Id.; see 7 James Wm. Moore 

et al., Moore’s Federal Practice § 30.21 (3d ed. 2017); see 

also Jules Jordan Video, Inc. v. 144942 Can. Inc., 617 F.3d 

1146, 1158 (9th Cir. 2010) (observing that “a simple notice 

of deposition is sufficient to compel [a party’s] attendance”).
SALI V. CORONA REG’L MED. CTR. 9

Although a nonparty’s attendance generally can be 

compelled only by subpoena,4 Jules Jordan Video, 617 F.3d 

at 1158, here the court’s discovery order and sanctions were 

directed not at the retained expert but rather at the parties 

themselves and their counsel. Rule 37 is largely silent as to 

whether the court can compel a party to produce its general 

employees or persons over whom the party might reasonably 

be expected to exert influence or control. However, the rule 

isn’t entirely silent. Rule 37(b)(2)(B) provides for sanctions 

“[i]f a party fails to comply with an order under Rule 35(a) 

requiring it to produce another person for [physical or 

mental] examination.” Rule 35(a), in turn, authorizes the 

court “to order a party to produce for examination a person 

who is in its custody or under its legal control.” Fed. R. Civ. 

P. 35(a)(1). This means, for example, that “that a parent or 

guardian suing to recover for injuries to a minor may be 

ordered to produce the minor for examination.” Id. advisory 

committee’s note to 1970 amendment.

 4 There are exceptions to this rule. If the party is a corporation or 

other organization, its officers, directors, managing agents, and persons 

the organization designates to testify about the deposition’s subject 

matter can be sanctioned for disobeying a court order to appear. See Fed. 

R. Civ. P. 30(b)(6), 37(b)(2)(A). Some courts have expanded this 

principle to include witnesses who are effectively under the party’s 

control, such as family members, see Robbins v. Abrams, 79 F.R.D. 600, 

602 (S.D.N.Y. 1978), and officers of wholly owned subsidiaries, see

Martin Eng’g Co. v. Vibrators, Inc., 20 Fed. R. Serv. 2d (Callaghan) 486

(E.D. Ark. 1975). See Moore et al., supra § 30.21. Because it isn’t 

necessary for us to decide, we assume that a typical expert witness like 

Falkenhagen has too attenuated a relationship with the party engaging 

his services to be personally subject to court sanctions absent a subpoena. 

But cf. In re Hanford Nuclear Reservation Litig., 534 F.3d 986, 1016 

(9th Cir. 2008) (holding that testimony of opposing party’s expert was 

properly introduced as admission of party opponent).
10 SALI V. CORONA REG’L MED. CTR.

As to whether courts can order parties to produce 

nonparties generally, our interpretation of Rule 37(a)(5) is 

relevant. Rule 37(a)(5) requires, upon a party’s successful 

motion to compel discovery, that the court order “the party 

or deponent whose conduct necessitated the motion, the 

party or attorney advising that conduct, or both to pay the 

movant’s reasonable expenses incurred in making the 

motion, including attorney’s fees.” “It applies,” we have 

explained, “to . . . motions to compel nonparties to attend 

depositions.” Pennwalt Corp. v. Durand-Wayland, Inc., 708 

F.2d 492, 494 n.4 (9th Cir. 1983).5

Thus, Pennwalt strongly suggests that the district court’s 

discovery order and sanctioning of plaintiffs for disobeying 

that order was within the scope of its Rule 37 powers. Other 

circuits have approved of similar orders and sanctions. See

Barrett v. Atl. Richfield Co., 95 F.3d 375, 380 (5th Cir. 1996) 

(concluding district court properly sanctioned plaintiffs for 

violating discovery-related scheduling order in part “by 

failing to produce their experts for scheduled depositions”); 

Taylor v. Medtronics, Inc., 861 F.2d 980, 986 (6th Cir. 1988) 

(affirming sanction for discovery abuses under Rule 37(b)(2) 

where plaintiffs repeatedly failed to make their expert 

available for deposition); Nat’l Life Ins. v. Hartford Accident 

& Indem. Co., 615 F.2d 595, 600 (3d Cir. 1980) (concluding 

district court should have granted Rule 37 motion to compel 

accountant to appear for deposition without asserting 

privilege indiscriminately). We see no reason why Rule 37, 

which broadly empowers the district court to issue orders 

 5 Pennwalt refers to Rule 37(a)(4), which was recodified as 

subdivision (a)(5) in 2007. See Linde v. Arab Bank, PLC, 706 F.3d 92, 

104 n.39 (2d Cir. 2013). The rule’s substance is unchanged. Pennwalt’s 

statement in this regard was dictum because that case involved a 

nonparty’s failure to comply with a subpoena duces tecum.
SALI V. CORONA REG’L MED. CTR. 11

enforcing a party’s discovery obligations, wouldn’t allow 

the court to compel a party to produce its expert for 

deposition.

Citing Pennwalt, plaintiffs concede that “Rule 37 used to 

authorize courts to compel nonparties to attend depositions,” 

but claim without explanation that “that authority has since 

been eliminated.” The rule’s language, however, is the same 

as it was when Pennwalt was decided. We therefore 

disagree with plaintiffs that its meaning has changed.

Plaintiffs argue that the order compelling them to 

produce Falkenhagen “defies common sense” because their 

counsel doesn’t represent him and they have no legal 

relationship with him that would enable them to compel him 

to attend a deposition against his will. It’s true that without 

a subpoena neither plaintiffs nor the court could have 

compelled Falkenhagen to appear at the deposition. See

Jules Jordan Video, 617 F.3d at 1158. But plaintiffs 

misunderstand the nature of the order.

While an order to produce a deponent under Rule 37 and 

a subpoena under Rule 45 are intended to bring about the 

same outcome, the order’s focus and the consequences of 

noncompliance are different. A Rule 37 order is directed at 

the party. It compels the party to use its best efforts to secure 

the nonparty’s attendance at the deposition. But it doesn’t 

demand the impossible. The party can avoid sanctions by 

showing that it attempted in good faith to comply with the 

order but was unable to produce the nonparty—regardless of 

whether the nonparty’s absence was justified. See Falstaff 

Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 784 n.8 

(9th Cir. 1983) (“[T]he use of Rule 37 sanctions must be 

tempered by due process. . . . [I]t is improper to dismiss a 

claim or to exclude evidence if the failure to comply with a 

discovery order is due to circumstances beyond the 
12 SALI V. CORONA REG’L MED. CTR.

disobedient party’s control.”); see also Société 

Internationale Pour Participations Industrielles et 

Commerciales, S.A. v. Rogers, 357 U.S. 197, 212 (1958) 

(“Rule 37 should not be construed to authorize dismissal of 

this complaint because of petitioner’s noncompliance with a 

pretrial production order when it has been established that 

failure to comply has been due to inability, and not to 

willfulness, bad faith, or any fault of petitioner.”).

Thus, a party won’t incur Rule 37 sanctions if, despite its 

efforts, a recalcitrant nonparty witness refuses to attend an 

ordered deposition. Even if the party could have produced 

the nonparty but fails to do so, the party can still avoid 

incurring “reasonable expenses . . . caused by the failure” if 

it “was substantially justified or other circumstances make 

an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C).

A subpoena under Rule 45, in contrast, is directed at the 

nonparty. It obligates the nonparty to appear at the 

scheduled deposition at pain of being held in contempt. 

None of the other sanctions available under Rule 37 are 

available against the nonparty.6

 And the standard for a 

 6 These include:

(i) directing that the matters embraced in the order or 

other designated facts be taken as established for 

purposes of the action, as the prevailing party 

claims;

(ii) prohibiting the disobedient party from supporting 

or opposing designated claims or defenses, or 

from introducing designated matters in evidence;

(iii) striking pleadings in whole or in part;
SALI V. CORONA REG’L MED. CTR. 13

contempt finding differs from a Rule 37 sanction. The court 

“may hold in contempt a person who, having been served, 

fails without adequate excuse to obey the subpoena or an 

order related to it.” Fed. R. Civ. P. 45(g). Although 

“[i]nability to comply with an order is ordinarily a complete 

defense to a charge of contempt,” United States v. Asay, 

614 F.2d 655, 660 (9th Cir. 1980), as it is with a motion for 

Rule 37 sanctions, the focus is on the deponent’s rather than 

the party’s ability to comply.

As a practical matter, a party seeking to compel a 

nonparty’s deposition would be wise to use the subpoena 

process. Still, there may be good reason to seek an order 

compelling the opposing party to produce its witness. For 

example, if the party seeking the deposition suspects that the 

opposing party is the bottleneck—either directing or 

encouraging its witness not to appear—an order directed at 

the opposing party may be fruitful. Or the opposing party 

“may have . . . practical reasons for not wanting its own 

witness to be served with a subpoena,” and “service of an 

unnecessary subpoena . . . against the wishes of [the 

opposing party’s] counsel would [be] unseemly and 

inordinately bellicose.” In re Keystone Foods, Inc., 134 B.R. 

828, 830 (Bankr. W.D. Pa. 1991).

 (iv) staying further proceedings until the order is 

obeyed;

(v) dismissing the action or proceeding in whole or in 

part; [and]

(vi) rendering a default judgment against the 

disobedient party . . . .

Fed. R. Civ. P. 37(b)(2)(A).
14 SALI V. CORONA REG’L MED. CTR.

B.

The magistrate judge ordered Sali “to produce 

Falkenhagen for deposition on April 13, 2015,” an order 

under Rule 37(a) to cooperate in discovery. There’s no 

evidence that plaintiffs made any effort to secure 

Falkenhagen’s attendance at the deposition, after counsel

affirmatively represented to the court and opposing counsel 

that Falkenhagen would be available for deposition on April 

13. To the contrary, plaintiffs’ counsel went on vacation for 

a week knowing there was a pending ex parte application to 

compel the deposition but making no provision for 

responding to the court’s ruling. Counsel didn’t even read 

the order until after the time for the deposition had passed.

There was no justification for plaintiffs’ failure to 

attempt to comply with the court’s order. Accordingly, the 

court had authority under Rule 37(b)(2)(A) to “issue further 

just orders” in the nature of sanctions, including ordering the 

payment of expenses “unless the failure was substantially 

justified or other circumstances make an award of expenses 

unjust.” Fed. R. Civ. P. 37(b)(2)(C). Here, the award of 

defendants’ deposition-related costs wasn’t unjust. Rather, 

it was the mildest of the possible Rule 37 sanctions.

* * *

For the foregoing reasons, the district court’s contempt 

judgment is AFFIRMED.