United States District Court, D. Arizona
ORDER
STEVEN
P. LOGAN, UNITED STATES DISTRICT JUDGE
Before
the Court are Plaintiff's Motion to Modify Subpoena Duces
Tecum (Doc. 69), to which there is no response;
Defendant's Motion for Sanctions, Dismissal and Expenses
for Plaintiff's Failure to Appear for Deposition (Doc.
54), Plaintiff's Response (Doc. 63), and Defendant's
Reply (Doc. 67); Plaintiff's Motion for Protective Order
Relating to Plaintiff's Confidential Health Information
and Motion for Giving Permission to File a Motion for Leave
to Amend Pleadings (Doc. 62), Defendant's Response (Doc.
64), and Plaintiff's Reply (Doc. 68); and the
parties' Joint Notice of Discovery Dispute (Doc. 75).
I.
Motion to Modify
Having
reviewed the motion to modify Plaintiff's subpoena duces
tecum, the Court will grant it. Accordingly, it is ordered
that Plaintiff's Motion to Modify Subpoena Duces Tecum
(Doc. 69) is granted.
II.
Motion for Sanctions
A court
may sanction a party, upon motion, for failing to appear for
the party's own deposition. Fed.R.Civ.P. 37(d)(1)(A)(i);
see Sali v. Corona Reg'l Med. Ctr., 884 F.3d
1218, 1222 (9th Cir. 2018). In doing so, the Court may order
any item listed under Rule 37(b)(2)(A)(i)-(vi) as a sanction
against the offending party. Fed.R.Civ.P. 37(d)(3).
Additionally, the court must require the offending party to
pay the reasonable expenses, including attorney's fees,
caused by its failure to appear at its own deposition.
See Fed. R. Civ. P. 37(d)(3).
After
reviewing the briefing, the Court finds that Defendant has
been prejudiced by Plaintiff's failure to appear for his
deposition. However, the Court is unwilling to dismiss
Plaintiff's complaint as a remedy.[1] Instead, the
Court will require Plaintiff to pay the reasonable expenses,
including attorney's fees, caused by Plaintiff's
failure to appear for his own deposition. To the extent
Plaintiff has still not appeared for his deposition, this
Order also puts Plaintiff on notice that any future failure
to appear for his deposition could result in the dismissal of
his case or any other sanction pursuant to Rule 37(d).
Defendant will have fourteen (14) days to submit its costs
and fees associated with bringing this motion. Accordingly,
Defendant's motion for sanctions (Doc. 54) is
denied in part and granted in
part, to the extent the Court will not dismiss
Plaintiff's complaint but will assess him the appropriate
fees and costs.
III.
Motion for Protective Order and Leave to Amend
Plaintiff
seeks a protective order to seal his confidential health
information he has disclosed to Defendant. (Doc. 62 at 1.) He
also seeks permission for leave to amend his pleadings. (Doc.
62 at 1.) Defendant does not object to a protective order
protecting Plaintiff's confidential information from
disclosure to third parties. (Doc. 64 at 1.) However,
Defendant does object to Plaintiff's request to amend his
pleadings. (Doc. 64 at 1.)
a.
Protective Order
Having
considered the Plaintiff's Motion for Protective Order
and the proposed Stipulated Protective Order, and finding
good cause appearing, the Court will grant a
protective order to seal Plaintiff's resume and
application materials.
b.
Leave to Amend
Plaintiff
argues that certain documents obtained from a subpoena of
HealthFitness reveal HIPAA violations and that certain EEOC
documents are “missing” from Defendant's
disclosure. (Doc. 62 at 2-3.) He also argues that the
Government shutdown caused delay in obtaining certain EEOC
documents. (Doc. 62 at 3-4.) Defendant argues that Plaintiff
is simply attempting, yet again, to extend the discovery
deadline and to delay this litigation. (Doc. 62 at 1.)
Defendant argues that Plaintiff did not act reasonably in
pursuing discovery and has not shown any reason to reopen the
pleadings more than a year after the filing of his complaint.
(Doc. 64 at 2.) Having reviewed the briefing, the Court finds
that Plaintiff has not shown good cause for amending his
Complaint at this date in the litigation. Thus, the Court
denies Plaintiff's request for
permission for leave to amend his pleadings.
Accordingly,
the Court grants in part and denies
in part Plaintiff's Motion for Protective Order
Relating to Plaintiff's Confidential Health Information
and Motion for Giving ...