Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 REBECCA LIMON, Case No.: 23-cv-01491-AJB-BJW 13 Plaintiff, ORDER ON PLAINTIFF’S EX 14 v. PARTE MOTIONS 15 THE CITY OF SAN DIEGO, et al., (Doc. Nos. 60, 61) 16 Defendants. 17 18 Before the Court are Plaintiff Rebecca Limon’s (“Limon”) Ex Parte Motion for 19 Imposition of Lesser Sanctions in Lieu of Exclusion of Plaintiff’s Expert Witnesses at Trial 20 (“Sanctions Motion”) (Doc. No. 60) and Ex Parte Motion for Reconsideration of 21 Magistrate Judge White’s Order Granting Defendants’ Motion for a Protective Order 22 (“Reconsideration Motion”) (Doc. No. 61.) 23 Defendants the City of San Diego, David Nisleit, Melissa Jackson, Stephanie Rose, 24 Silvia Satrom, and Gil Witte (collectively, “Defendants”) have not responded to these 25 motions. J. Battaglia Civ. Case Proc. § V.B. 26 For the following reasons, the Court (1) SETS a hearing for August 13, 2026, to 27 address the Sanctions Motion and (2) GRANTS IN PART AND DENIES IN PART the 28 Reconsideration Motion. 1 I. BACKGROUND 2 The Court incorporates its recitation of the relevant factual and procedural 3 background from its prior Orders. (See Doc. Nos. 49 at 2–5; 52 at 2.) 4 Following the Court’s July 2, 2026 Order, Plaintiff’s counsel Suzy Moore (“Moore”) 5 noticed the deposition of Defendant Stephanie Rose (“Rose”) for July 15, 2026 (Doc. No. 6 53-2 at 2–5), and three Defense experts for July 10, 2026 (id. at 6–20). Moore would depose 7 Rose, and Moore’s supervising attorney would depose the Defense experts. (Doc. No. 61-1 8 at 2–3 ¶¶ 5–6; see also id. at 18.) 9 On July 6, 2026, Defense counsel informed Moore that Rose could appear for a 10 deposition on July 8. (Doc. Nos. 53-1 ¶ 6; 61-1 at 2–3 ¶ 5.) The parties thus arranged for 11 Moore to depose Rose on July 8. (Doc. Nos. 53-1 ¶ 6; 61-1 at 2–3 ¶ 5.) 12 On July 8, 2026, however, Rose was unable to appear for the deposition because she 13 was suffering from a migraine. (Doc. Nos. 53-1 ¶ 6; 61-1 at 3–4 ¶ 8.) Defense counsel 14 offered to reschedule Rose’s deposition for July 10, which would require Rose to change 15 her vacation plans. (Doc. Nos. 53-1 ¶ 6; 61-1 at 3–4 ¶ 8.) Moore rejected the proposal 16 because she already had depositions scheduled on that day for a different matter. (Doc. 17 Nos. 53-1 ¶ 7; 61-1 at 3–4 ¶ 8.) Instead, Moore insisted on moving forward with deposing 18 Rose on July 15. (Doc. Nos. 53-1 ¶¶ 8–9.) 19 The following day, Defense counsel filed an ex parte motion for a protective order 20 to preclude Limon from deposing Rose and the three Defense experts. (Doc. No. 53.) In 21 support of the motion, Defense counsel argued that Limon did not provide sufficient notice 22 for any of the depositions. (Id. at 4–6.) Defense counsel added with regard to Rose’s 23 deposition that “[a]n attorney with Plaintiff’s counsel’s firm is available to take the 24 deposition of Rose on July 10, 2026.” (Id. at 5.) Defense counsel also asserted that Moore 25 did not provide 30-days’ notice to request document production from the experts, as 26 required by Federal Rule of Civil Procedure 34(b)(2)(A), and that Rule 32(a) “prohibits the 27 use of a deposition ‘against a party who, having received less than 11 [sic] days’ notice of 28 1 a deposition, has promptly upon receiving such noticed filed a motion for a protective order 2 . . . .” (Id. at 5–6.) 3 On July 10, 2026, following a status conference, Magistrate Judge Brian J. White 4 granted a protective order barring Limon from deposing Rose and the three Defense 5 experts. (Doc. No. 54.) 6 Concurrent with these events, on July 7, 2026, the parties filed a Joint Ex Parte 7 Motion for Order Retroactively Continuing Expert Disclosure and Expert Discovery 8 Deadlines. (Doc. No. 51.) On July 9, the Court denied the motion. (Doc. No. 52.) In its 9 denial, the Court explained that it “cannot say that the risk of Rule 37(c)(1) sanctions 10 warrants the parties’ requested continuances. Nevertheless, the Court is open to considering 11 other appropriate sanctions.” (Id. at 12.) 12 Limon now asks the Court to reconsider Magistrate Judge White’s protective order 13 and to impose a lesser sanction than exclusion of her experts’ testimony at trial. (Doc. Nos. 14 60; 61.) 15 II. LEGAL STANDARD 16 A. Reconsideration 17 Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of 18 finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 19 F.3d 877, 890 (9th Cir. 2000) (citation omitted); see also United Nat’l Ins. Co. v. Spectrum 20 Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 2009). “[A] motion for reconsideration should 21 not be granted, absent highly unusual circumstances, unless the district court is presented 22 with newly discovered evidence, committed clear error, or if there is an intervening change 23 in the controlling law.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 24 F.3d 873, 880 (9th Cir. 2009) (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 25 665 (9th Cir. 1999)). 26 B. Federal Rule of Civil Procedure 37 27 Pursuant to Federal Rule of Civil Procedure 37(c), 28 [i]f a party fails to provide information or identify a witness as required by 1 Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure 2 was substantially justified or is harmless. In addition to or instead of this 3 sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney’s 4 fees, caused by the failure; 5 (B) may inform the jury of the party’s failure; and (C) may impose other appropriate sanctions, including any of the orders 6 listed in Rule 37(b)(2)(A)(i)–(vi). 7 8 Rule 37 thus creates an “automatic” sanction “even when a litigant’s entire cause of action 9 or defense [would be] precluded.” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 10 1101, 1106 (9th Cir. 2001) (citations omitted). A litigant must prove that the discovery 11 violation “was substantially justified” or “harmless” to avoid Rule 37(c) exclusion. Id. 12 III. DISCUSSION 13 A. On or before July 31, 2026, Limon may depose only Rose. 14 In the Reconsideration Motion, Limon asserts that “exclusion of Captain Stephanie 15 Rose’s deposition and the deposition of non-party experts would preclude Plaintiff from 16 having her case heard on its merits.” (Doc. No. 61 at 2.) Limon points out that the Court 17 found that “good cause exists to grant Limon limited leave to depose Rose now that the 18 fact discovery deadline has lapsed.” (Id. at 4 (quoting Doc. No. 49 at 6).) Limon adds, 19 without much explanation, that “this case presents the type of highly unusual circumstance 20 warranting reconsideration.” (Doc. No. 61 at 5.) 21 The Court finds that the present circumstances are “highly unusual” and warrant 22 reconsideration. See Marlyn Nutraceuticals, 571 F.3d at 880. The Court previously found 23 that good cause exists to allow Limon to depose Rose by July 15, 2026. (Doc. No. 49 at 24 6–7.) Relying on the Court’s July 2, 2026 Order, Limon noticed Rose’s deposition for July 25 15, 2026—the last day on which Limon could depose Rose. (Doc. No. 53-2 at 2–5.) The 26 parties subsequently worked together to schedule Rose’s deposition for July 8, 2026. (Doc. 27 No. 61-1 at 2–3 ¶ 5; see also Doc. No. 53-1 ¶ 6.) On that date, however, Rose could not 28 appear for a deposition because she was suffering from a migraine. (Doc. No. 61-1 at 3–4 1 ¶ 8; see also Doc. No. 53-1 ¶ 6.) Defense counsel then offered to make Rose available for 2 a deposition on July 10, 2026, but Moore was not available on that date. (Doc. No. 61-1 at 3 3–4 ¶ 8.) Moore thus insisted on moving forward with Rose’s deposition on July 15, 2026. 4 (Id.) 5 Instead of working with Limon and Moore, Defense counsel moved for a protective 6 order to bar Rose’s deposition. (Doc. No. 53.) Defense counsel asserted that a protective 7 order was needed because Rose did not receive sufficient notice for a July 15 deposition 8 and that, instead, Moore’s co-counsel should take Rose’s deposition on July 10. (Id. at 9 4–5.) 10 Defendants’ objections to Rose’s deposition are unreasonable. On the issue of 11 notice, on the very same day that the Court granted Limon more time to depose Rose, 12 Moore noticed Rose’s deposition. (Doc. No. 53-2 at 2–5.) Additionally, Limon noticed 13 Rose’s deposition for July 15, 2026—the very last day that Limon could take Rose’s 14 deposition. (See Doc. No. 49 at 7, 11.) Limon thus provided Rose with the maximum 15 amount of notice possible under the Court’s Order. (See id.) Furthermore, given that 16 Defendants were able to make Rose available for deposition on both July 8 and 10 (see 17 Doc. No. 53-1 ¶ 6), it is clear that Rose had sufficient notice for the deposition. 18 On Defendants’ suggestion that Moore’s co-counsel could have deposed Rose on 19 July 10, the Court notes Moore’s co-counsel was preparing to depose three Defense experts 20 on that date. (Doc. No. 61 at 3.) Additionally, neither party was aware that Rose would be 21 unavailable for a July 8 deposition until the morning of the deposition. (See id.; see also 22 Doc. No. 53-1 ¶ 6.) It is unreasonable for Defendants to suggest that Moore’s co-counsel 23 should have completed preparations for Rose’s deposition within two days, while also 24 preparing to depose three experts. 25 26 27 28 1 However, the Court agrees with Defendants that a protective order was warranted to 2 bar the three Defense expert depositions.1 The Court has already denied two requests to 3 extend expert discovery deadlines. (Doc. Nos. 49; 52.) In denying the requests, the Court 4 noted that the parties have not been diligent in conducting discovery despite having a 5 pretrial schedule extending over more than 600 days. (See, e.g., Doc. No. 52 at 4–6, 9–10.) 6 Based on the information before the Court, Limon did not attempt to notice 7 depositions for any of the three Defense experts between November 4, 2024, and July 1, 8 2026—a span of 604 days. (See Doc. No. 61-1 at 2 ¶ 4.) On July 2, 2026, ten days before 9 the July 12, 2026 expert discovery deadline, Limon noticed depositions for the three 10 Defense experts for July 10, 2026. (Doc. No. 53-2 at 6–20.) In the notices, Limon sought 11 the production of “documents and materials.” (Id. at 10, 15, 20.) 12 In seeking a protective order against the Defense expert depositions, Defendants 13 asserted that they did not receive sufficient notice for the expert depositions, especially in 14 light of Limon’s combined request for document production. (Doc. No. 53 at 5–6.) 15 Defendants add that Federal Rule of Civil Procedure 32(a) would preclude Limon from 16 using the depositions at trial and that Limon did not serve subpoenas on the experts. (Id. at 17 6.) 18 In light of Limon’s waiting until the last minute to serve deposition notices for the 19 three Defense experts and the other deficiencies in Limon’s requests, Defendants’ 20 objections to the Defense expert depositions were reasonable. 21 Under these circumstances, the Court GRANTS IN PART AND DENIES IN 22 PART the Reconsideration Motion. (Doc. No. 61.) On or before July 31, 2026, Limon 23 24 25 1 The Court notes that Limon represented to the Court that the Reconsideration Motion would be limited to reconsidering Magistrate Judge White’s July 10, 2026 Minute Order as it pertains to Rose’s 26 deposition. (See Doc. No. 61-1 at 4–5 ¶ 12.) However, Limon’s Reconsideration Motion now appears to seek reconsideration of the entirety of the July 10, 2026 Minute Order. (See, e.g., Doc. No. 61 at 2 27 (protesting “exclusion of Captain Stephanie Rose’s deposition and the deposition of non-party experts” (emphasis added).) Accordingly, the Court also addresses the application of the protective order to the 28 1 may depose Defendant Stephanie Rose. Defendants must make Rose available for the 2 deposition. Limon may not depose any of the three Defense experts. 3 B. The Court will consider imposing other sanctions than the complete exclusion of Limon’s experts’ testimony. 4 The parties’ expert disclosure deadline lapsed on June 19, 2026. (Doc. No. 44.) 5 Limon did not comply with this deadline, instead serving Defendants the report of Matthew 6 S. Ferrante on July 7, 2026; and the report of Dr. Dennis P. Wood on July 9, 2026. (Doc. 7 No. 60 at 4–5.) Recognizing that Rule 37(c)(1) would impose an automatic sanction 8 precluding the use of these experts’ testimony at trial, Limon asks the Court to “impose an 9 appropriate lesser sanction in lieu of exclusion of Plaintiff’s experts.” (Id. at 8.) 10 In support of this request, Limon points out that Rule 37(c)(1) allows courts to 11 impose alternative sanctions. (Id. at 5–6 (quoting Merchant v. Corizon Health, Inc., 993 12 F.3d 733, 740 (9th Cir. 2021)).) Limon asserts that excluding her experts’ testimony 13 “would be a ‘fatal blow.’” (Id. at 6 (quoting Merchant, 993 F.3d at 740–41).) Limon adds 14 that 15 there is no surprise or prejudice for [Matthew Ferrante] to calculate the lost 16 earnings of the Latent Print Examiner; Plaintiff is willing to make her experts 17 immediately available for deposition; the trial date has not yet been set since the Pre-Trial Conference is approximately fourth months away and Plaintiff’s 18 counsel did not engage in bad faith or willfulness since both parties believed 19 an extension was forthcoming.

20 (Id.) 21 Under Ninth Circuit precedent, “if a Rule 37(c)(1) sanction will ‘deal[] a fatal blow’ 22 to a party’s claim, a district court must consider (1) ‘whether the claimed noncompliance 23 involved willfulness, fault, or bad faith’ and (2) ‘the availability of lesser sanctions.’” 24 Merchant, 993 F.3d at 740–41 (quoting R&R Sails, Inc. v. Ins. Co. of Pa., 673 F.3d 1240, 25 1247 (9th Cir. 2012)). These factors must be considered as part of Rule 37(c)(1)’s 26 harmlessness inquiry. Id. at 741 (quoting R&R Sails, 673 F.3d at 1247). An alternative 27 sanction may be imposed “on motion and after giving an opportunity to be heard.” Fed. R. 28 Civ. P. 37(c)(1). 1 In light of Rule 37(c)(1)’s requirements, the Court SETS a hearing for August 13, 2 2026, to provide the parties an opportunity to be heard. On or before July 31, 2026, the 3 parties may each file a 10-page supplemental brief addressing the following issues: 4 1. Whether exclusion of Matthew S. Ferrante’s or Dr. Dennis P. Wood’s 5 testimony would be a “fatal blow”; 6 2. Whether Limon’s failure to comply with the discovery schedule was 7 substantially justified; 8 3. Whether Limon’s failure to comply with the discovery schedule was 9 harmless; 10 4. Whether Limon’s failure to comply with the discovery schedule involved 11 willfulness, fault, or bad faith; and 12 5. What alternative sanction, including the sanctions identified by Rule 13 37(c)(1)(A)–(B) and Rule 37(b)(2)(A)(i)–(vi), is “appropriate.” 14 On Issue 3, Defendants must address how, if at all, they believe their pretrial and Daubert 15 motions (Doc. Nos. 56–59) may have differed if Limon had complied with the discovery 16 schedule.2 17 IV. CONCLUSION 18 For the foregoing reasons, the Court ORDERS: 19 1. On or before July 31, 2026, the parties may file 10-page supplemental briefs 20 addressing the above-identified issues related to Limon’s Sanctions Motion. 21 2. On August 13, 2026, at 10:00 a.m., the Court will hear the parties on whether 22 alternative sanctions are appropriate. 23 3. The Court will rule on Limon’s Sanctions Motion after the August 13, 2026 24 hearing. (Doc. No. 60.) 25 26 27 2 The Court notes that Defendants have filed a Motion in Limine to Exclude Expert Testimony of Dennis Patrick Wood. (Doc. No. 59.) Any ruling on Limon’s Sanctions Motion will not preclude 28 1 4. Limon’s Reconsideration Motion is GRANTED IN PART AND DENIED 2 || IN PART. (Doc. No. 61.) Limon may depose Defendant Stephanie Rose on or before July 3 ||31, 2026. No further continuances will be granted. Limon may not depose the three 4 || Defense experts. 5 IT IS SO ORDERED. 6 || Dated: July 22, 2026 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28