Opinion
CV NO. 05-00524 JMS LEK.
April 6, 2007
MARR HIPP JONES WANG, A LIMITED LIABILITY LAW PARTNERSHIP, LYNNE T. T. TOYOFUKU 4958-0, JAN M. BOIVIN 8138-0, Honolulu, Hawaii, Attorneys for Defendant, HAWAIIAN AIRLINES, INC.
DEFENDANT HAWAIIAN AIRLINES, INC.'S MEMORANDUM IN OPPOSITION TO PLAINTIFF MARIA FINAZZO'S MOTION FOR PROTECTIVE ORDER FILED APRIL 4, 2007 [DOC. NO. 201]
Defendant Hawaiian Airlines, Inc. ("Hawaiian"), hereby responds to Plaintiff Maria Finazzo's ("Plaintiff") Motion for Protective Order (filed April 4, 2007) ("Motion"), as follows:
I. INTRODUCTION
Plaintiff, who has been ordered to submit to a six-hour, continued deposition scheduled for April 10, 2007, moves the Court with three business days' notice to "stay" her deposition "for a reasonable time to allow her to retain new counsel." See Motion at 4.
Hawaiian vigorously opposes Plaintiff's Motion, as Plaintiff has made no effort whatsoever to satisfy the good cause standard set forth in Rule 26(c) of the Federal Rules of Civil Procedure ("FRCP") and although counsel for Plaintiff has filed a Notice of Withdraw [sic], her counsel continue to be counsel of record and thus, Plaintiff has counsel to represent at her court-ordered deposition on April 10, 2007. In short, Plaintiff is not required to appear pro se at her deposition, as she claims. Moreover, as set forth herein, any further delay to the taking of Plaintiff's deposition will trigger corresponding delays in this already protracted litigation.
Given the groundless basis for the filing of the Motion, Hawaiian submits that Plaintiff and her counsel for Plaintiff should be sanctioned for presenting legal arguments in the Motion that are not warranted by existing law or by a nonfrivolous extension, modification, or reversal of existing law, or alternatively, for presenting the Motion for the improper purpose of causing delay and/or needless increase in the cost of litigation.
II. FACTUAL BACKGROUND
A. Plaintiff Has Until May 28, 2007 To Conduct Voluminous Discovery That She Contends Is the Reason That She Was Unable To Oppose Hawaiian's Motions For Summary Judgment
On March 16, 2007, the Court issued an Order Granting Plaintiff's Motion For Rule 56(f) Continuance, Deeming Withdrawn Defendant's Motions For Summary Judgment, And Vacating Trial Dates ("Rule 56(f) Order") based on Plaintiff's representation that she could not respond to Hawaiian's two dispositive motions without additional discovery. See Declaration of Lynne T. T. Toyofuku ("Toyofuku Decl."), ¶ 2, Exh. "A". When the Court sua sponte granted Plaintiff's procedurally deficient request for a continuance of discovery deadlines pursuant to Rule 56(f), the Court noted its reluctance in doing so, and emphasized that the parties would be required to proceed under a very strict schedule. The Court cautioned Plaintiff that she and/or her counsel would be sanctioned if the Rule 56(f) request was found to be a dilatory tactic.
Specifically, Hawaiian filed: (1) a Motion For Partial Summary Judgment On Count I (Title VII) And Count II (H.R.S. 378) Of Plaintiff's Second Amended Complaint Filed June 6, 2006 (filed January 24, 2007); and (2) a Motion For Partial Summary Judgment On Count III (Intentional Infliction of Emotional Distress) And Punitive Damages Claim Of Plaintiff's Second Amended Complaint Filed June 6, 2006 (filed January 24, 2007).
The Court ordered: the parties to meet and confer regarding outstanding discovery by March 23, 2007; Plaintiff to file "any motion regarding outstanding discovery by March 28, 2007"; and the parties to conduct outstanding discovery by May 28, 2007. See Exh. A, ¶¶ 4-6. In setting these deadlines, the Court noted that the Magistrate Judge would have the discretion to continue any deadlines should the parties demonstrate a need for doing so in a discovery conference calendared for March 27, 2007. The Magistrate Judge ultimately retained the May 28, 2007 discovery cut-off, and, in response to a motion to compel discovery filed by Hawaiian, ordered Plaintiff to appear for a six-hour, continued deposition set for April 10, 2007. See Toyofuku Decl., ¶ 4, Exh. "C". Corresponding deadlines for Hawaiian's expert disclosures, rebuttal disclosures, and the depositions of experts were likewise established. See Exh. C.
On April 2, 2007, the Court issued an Amended Rule 16 Scheduling Order retaining these three deadlines and setting trial for November 14, 2007. See Toyofuku Decl., ¶ 3, Exh. "B".
Hawaiian duly noticed the deposition of Plaintiff for April 10, 2007. See Toyofuku Decl., ¶ 5, Exh. "D". B. Plaintiff Has Retained Six Attorneys To Prosecute Her Case Over The Course Of One Year And Eight Months, All Of Whom Have Requested To Withdraw Before Conducting Discovery Plaintiff Represents Is Necessary To Avoid Summary Judgment
Plaintiff filed her Complaint, pro se, on August 15, 2005. Glenn Uesugi, Esq. and Michael Green, Esq. entered an appearance on behalf of Plaintiff on November 4, 2005. See Toyofuku Decl., ¶ 6, Exh. "E". Mr. Uesugi and Mr. Green prosecuted the case by issuing requests for production and for answers to interrogatories, to which Hawaiian responded in a timely fashion.
Mr. Uesugi filed a Motion to Withdraw, which was granted on May 8, 2006, without taking any further discovery on behalf of Plaintiff. See Toyofuku Decl., ¶ 7, Exh. "F". Mr. Green continued his representation of Plaintiff, along with Denise Hevicon, Esq., an associate in his office, until Brandee J.K. Faria, Esq. and John F. Perkin, Esq. entered their appearances (substituting for Mr. Green and Ms. Hevicon, who withdrew) on November 15, 2006, see Toyofuku Decl., ¶ 8, Exh. "G", followed by the pro hac vice admission of David E. Breskin, Esq., which was granted on December 15, 2006, see Toyofuku Decl., ¶ 9, Exh. "H". Notwithstanding Plaintiff assertions the she was precluded from taking the necessary discovery to oppose Hawaiian's Motions for Summary Judgement, the only discovery taken by Ms. Faria and Mr. Breskin is as follows: (1) issuing requests for production and for answers to interrogatories, many of which duplicated requests already made by Mr. Green and Mr. Uesugi; (2) noticing and taking the depositions of Lawrence Payne (February 9, 2007) and Robert Glasgow (February 12, 2007); (3) noticing but canceling the depositions of Michael Dudley (March 2, 2007) and Vance Tilley (March 16, 2007); and (4) scheduling but not noticing the deposition of Dr. Byron Eliashof (March 14, 2007). Although Plaintiff requested taking depositions of additional witnesses, to date she has made no attempt to identify the five witnesses that would take her up to her ten-deposition limit or notice any of the depositions despite Hawaiian's repeated offers to assist in the scheduling of same. See Toyofuku Decl., ¶ 12.
After Hawaiian filed its dispositive motions on January 24, 2007, and after the Court granted Plaintiff's Rule 56(f) request, on March 28, 2007, Ms. Faria and Mr. Breskin filed three letter briefs in violation of Local Rule 37.1, asking for leave to exceed the ten-deposition limit specified in FRCP 30(a)(2)(A) and asking for orders compelling Hawaiian to respond to the second set of discovery requests. John E. Wallace, Esq. then entered an appearance on March 29, 2007. These motions are set for hearing on April 30, 2006. See Toyofuku Decl., ¶ 11, Exh. "J".
The Court construed the letter briefs as motions. See Toyofuku Decl., ¶ 10, Exh. "I",
It is with this disposition that Plaintiff's underlying Motion for a "stay" was made. Plaintiff's failure to file a certificate of compliance pursuant to FRCP 26(c) is consistent with Plaintiff's failure to engage Hawaiian in any meet-and-confer discussion as to the topic at hand.
On April 5, 2007, after Plaintiff's Motion was filed, Ms. Faria, Mr. Breskin, and Mr. Wallace filed a "Notice of Withdraw"). See Toyofuku Decl., ¶ 12, Exh. "K". Mr. Perkin was not mentioned in the Notice of Withdraw.
III. STANDARD OF REVIEW
The federal rules provide for limitations on discovery to protect a person or party from "annoyance, embarrassment, oppression, or undue burden or expense." Fed.R.Civ.P. 26(c). A party must show good cause by demonstrating a particularized need for protection. See San Jose Mercury News, Inc. v. United States Dist. Ct., 187 F.3d 1096, 1103 (9th Cir. 1999) (party must make "particularized showing of good cause with respect to any individual document").
The "party seeking protection bears the burden of showing specific prejudice or harm will result if no protective order is granted." Phillips v. General Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002); accord 8 Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 2035 (Supp. 2007) ("The rule requires that good cause be shown . . . [t]his puts the burden on the party seeking relief to show some plainly adequate reason therefore [and] courts have insisted on a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements, in order to establish good cause.").
IV. ARGUMENT
A. Plaintiff's Motion Is Procedurally Defective As She Failed To Confer In Good Faith With Counsel For Hawaiian In An Effort To Resolve The Dispute Without Court Action
FRCP 26(c) requires a party to file a "certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action[.]" FRCP 26(c). Plaintiff did not, and indeed could not, file such a certificate of compliance with this rule because counsel for Plaintiff never notified to counsel for Hawaiian (or the Court during the March 26, 2007 discovery conference) that counsel for Plaintiff would be withdrawing from the matter and preferred not to defend Plaintiff's deposition on April 10, 2007. Plaintiff's Motion should be denied on this ground alone.
B. Plaintiff, Who Currently Has Four Attorneys With Appearances In This Matter, Failed To Make A Good Cause Showing As Required By FRCP 26(c)
In her Motion, Plaintiff did not even attempt to address the good cause standard set forth in FRCP 26(c) by setting forth, in detail, the specific prejudice or harm that will result if no protective order is granted.
Rather, Plaintiff's only ground for delaying Plaintiff's deposition was to allow her to obtain new counsel presumably so that new counsel can defend her during her deposition. Plaintiff's argument is fundamentally flawed because Plaintiff currently has four counsel with appearances on the record, namely, Ms. Faria, Mr. Perkin, Mr. Breskin, and Mr. Wallace, and none of these four individuals have been granted leave to withdraw from this case. In fact, Mr. Wallace just entered an appearance six days before Plaintiff filed her Motion.
To date, only Ms. Faria, Mr. Breskin and Mr. Wallace have filed a Notice of Withdraw.
Pursuant to Local Rule 83.6, withdrawals are effective only upon court order entered after service by the withdrawing attorney of a notice of withdrawal on all counsel of record and on the withdrawing attorney's client. Additionally, no attorney is permitted to be substituted as attorney of record in any pending action without leave of court.
The outcome of a motion or motions to withdraw will be tempered by Local Rule 83.3, which incorporates the standards of professional and ethical conduct required by members of the Hawaii State Bar. According to Rule 1.16(b) of Hawaii's Rules of Professional Conduct, a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client or if the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent, the lawyer reasonably believes that the client has used his or her services to perpetrate a crime or fraud, a client insists upon pursuing a objective that the lawyer considers repugnant or imprudent, the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given a reasonable warning that the lawyer will withdraw unless the obligation is fulfilled, the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client, or other good cause for withdrawal exists. Rule 1.16(c) further provides that a lawyer shall continue representation, notwithstanding good cause for terminating the representation, when ordered to do so by a tribunal.
Plaintiff currently has the benefit of four attorneys on the record who can represent her during her April 10, 2007 deposition. Thus, Plaintiff's only argument fails.
C. Hawaiian Will Be Severely Prejudiced By Any Delay In The Taking Of Plaintiff's Deposition
In Hawaiian's motion to compel Plaintiff's deposition, Hawaiian extensively briefed its attempts to depose Plaintiff since December 29, 2007. Plaintiff — not Hawaiian — made the tactical decision to subvert Hawaiian's efforts, first by refusing to submit to the deposition at all, and then, upon being ordered to do so on January 29, 2007, by failing to attend two duly-noticed depositions (February 14, 2007 and March 1, 2007). Having finally obtained a date certain, Hawaiian is now faced with Plaintiff's claim that she cannot attend her deposition because she is in the process of obtaining a new attorney. Plaintiff's current Motion smacks of bad faith dilatory tactics.
Hawaiian and its employee-witnesses have been waiting to achieve some sort of closure on a matter that has been ongoing for one year and eight months. The March 19, 2007 hearing date on Hawaiian's two dispositive motions was continued notwithstanding Plaintiff's culpability in waiting one year and seven months to take her first of two completed depositions and one year and eight months to move for leave to exceed her ten deposition limit when the identities of seventeen of Hawaiian's potential witnesses were made known to her as early as January 13, 2006 (eleven of whom also were present on Plaintiff's initial disclosures) and thirty-one potential witnesses were made known to her on December 22, 2006 (seventeen of whom also were present on Plaintiff's initial disclosures).
Plaintiff could have taken four depositions to date but Plaintiff chose to cancel the noticed depositions of Vance Tilley and Michael Dudley with very short notice (one day's notice for Tilley and one days' notice for Dudley), on the ground that the Court's decision on plaintiff's motion for leave to file a third amended complaint would affect the substantive questions raised during these depositions. The cancellations caused Hawaiian to incur fees in preparing these witnesses for their depositions and, for Tilley, expenses for travel from the mainland, a hotel stay, incident transportation and per diem costs, and the cost of removing Tilley from his flight line.
Hawaiian already has been forced to undergo significant expenses because of Plaintiff's dilatory tactics and failure to cooperate in discovery. First, Hawaiian was forced to compel Plaintiff to submit to an Independent Psychiatric Examination ("IPE") even though Plaintiff alleged an IIED claim and claimed emotional distress damages incident to her federal and state discrimination, harassment, and retaliation claims. Second, Hawaiian was forced to utilize the Court's expedited discovery procedure to obtain additional time to depose Plaintiff in light of her refusal to timely provide the identities and medical records of her treating physicians and the medical releases necessary for Hawaiian to independently obtain and authenticate Plaintiff's medical records. Third, Hawaiian was forced to compel Plaintiff to submit to her deposition on a date certain after Plaintiff twice failed to appear on the duly-noticed deposition dates. Fourth, Hawaiian was forced to answer duplicative discovery requests styled as "first" requests for answers to interrogatories and production of documents that duplicated in large part discovery requests issued by predecessor counsel earlier the same year. Fifth, Hawaiian was forced to brief, in the context of reply memoranda to its motions for summary judgment (as opposed to briefing a discovery motion), Plaintiff's deficient FRCP 56(f) request without the benefit of any specific facts Plaintiff believed she would discover through the taking of additional discovery, and an explanation of how these facts, if proven, would defeat Hawaiian's dispositive motions.
The details of Plaintiff's duplicative discovery requests will be addressed in detail in Hawaiian's oppositions to Plaintiff's three letter briefs seeking discovery orders from the Court.
Plaintiff's Motion proves that each additional day of delay imposes additional costs to Hawaiian.
D. The Court Should, Sua Sponte, Sanction Counsel For Plaintiff For Filing Plaintiff's Motion
Pursuant to Local Rule 11.1, the Court may impose sanctions for failure of counsel or of a party to comply with any provision of the Local Rules or the FRCP. Pursuant to FRCP 11, an attorney presenting to the Court a written motion certifies that, to the best of the attorney's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) the written motion is not being presented for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence, or, if specifically so identified, are reasonably based on a lack of information or belief.
Hawaiian submits that the argument (that a motion for protective order be granted as to a compelled deposition because counsel for a party is about to file a motion to withdraw) submitted by Plaintiff in her Motion was presented for an improper purpose pursuant to FRCP 11(b)(1) and was not warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law pursuant to FRCP 11(b)(2). Hawaiian requests monetary sanctions in the form of fees and costs related to Hawaiian's filing of this Opposition, the drafting of letters to opposing counsel on this topic, and preparation for (and attendance at) the April 9, 2007 hearing on the Motion, and such other sanctions as the Court deems appropriate.
V. CONCLUSION
Hawaiian, having been forced at every turn to take actions to compel Plaintiff to submit to discovery Hawaiian was entitled to, has been patiently awaiting the outcome of dispositive motions filed on January 24, 2007 in this costly and protracted matter. Hawaiian's employee-witnesses have been questioned over and over again about alleged harassment and/or discrimination occurring four years ago in April and May of 2003.
Plaintiff has been represented by counsel since November 4, 2005, and thus, Plaintiff must be held accountable for the prosecution she has undertaken thus far. Regardless of the Court's ultimate decision as to the anticipated motion by counsel for Plaintiff to withdraw, the fact remains that Plaintiff currently has the benefit of four attorneys on the record, all of whom (at the very least Ms. Faria, who represented to the Court on March 26, 2007 that she was available on April 10, 2007) can defend Plaintiff during the deposition Plaintiff was ordered to attend. Permitting the April 10, 2007 deposition to go forward is consistent with the strict schedule proposed by the Court in granting a limited discovery continuance solely to test the strength of Plaintiff's claims that Hawaiian provided deficient discovery responses. Permitting the April 10, 2007 deposition to go forward also will help Hawaiian to achieve the closure it and its employee-witnesses have sought since January 24, 2007.
For the reasons set forth in detail above, Hawaiian respectfully asks the Court to deny Plaintiff's motion in its entirety.