Opposition ObjectionsCal. Super. - 6th Dist.March 24, 202121CV381 1 1O Santa Clara - Civil R. Nguye COBLENTZ PATCH DUFFY & BASS LLP ONE MONTGOMERY STREET, SUITE 3000, SAN FRANCISCO, CALIFORNIA 94lO4-5SOO FAX 4|5.989.|663 4|5.39|.4800 - \OWQONUIhMNH NNNNNNNNNHHHHHHHHHH WQO‘NUIhMNHOwWQQUIhMNHO SCOTT C. HALL (State Bar No. 232492) SKYE LANGS (State Bar N0. 287908) EMLYN MANDEL (State Bar No. 3 10403) COBLENTZ PATCH DUFFY & BASS LLP One Montgomery Street, Suite 3000 San Francisco, California 94104-5500 Telephone: 415.391.4800 Facsimile: 415.989.1663 Email: ef-sch@cpdb.c0m ef-sdl@cpdb.com ef-erm@coblentzlaw.com Attorneys for Plaintiffs ANNE TING, JACK TING, and NICOLE TING-YAP Electronically Filed by Superior Court of CA, County of Santa Clara, on 8/27/2021 10:08 AM Reviewed By: R. Nguyen Case #21 CV381 1 1 0 Envelope: 7152801 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA ANNE TING, an individual; JACK TING, an individual; and NICOLE TING-YAP, an individual, Plaintiffs, V. PANIDA CHINSUPAKUL, an individual; and DOES 1 through 10, Defendants. 18786.001 4821-9986-7373.5 Case N0. 21CV381 1 10 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER Filed concurrently with Declaration ofSkye Langs and Declaration ofNicole Ting-Yap Judge: Hon. Christopher G. Rudy Date: Sept. 30, 2021 Time: 9 a.m. Dept: 7 Action Filed: March 24, 2021 Trial Date: None Set Case No. 21CV381110 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER COBLENTZ PATCH DUFFY & BASS LLP ONE MONTGOMERY STREET, SUITE 3000, SAN FRANCISCO, CALIFORNIA 94lO4-5SOO FAX 4|5.989.|663 4|5.39|.48OO \OWQONUIhMNH NNNNNNNNNHHHHHHHHHH WQO‘NUIhMNHOwWQQUIhMNHO INTRODUCTION On May 14, 2021, Defendant Panida Chinsupakul (“Defendant”) requested that Plaintiff Nicole Ting-Yap (“Plaintiff”) make herself available for a three t0 four hour remote deposition on one day during the week of June 14, or 0n June 25. (Declaration 0f Skye Langs (“Langs Decl.”), EX. A.) Plaintiff agreed t0 make herself available 0n the earliest of those dates, June 14, starting at 10 a.m. local time Where she resides in Malaysia. (Id., EX. B.) Defendant rejected this offer, and insisted that Plaintiff agree t0 a start time of 7:30 am. local time. (Id.) The parties met and conferred, but were unable t0 reach a compromise, prompting Defendant to file a motion for a protective order requiring Plaintiff’ s deposition to begin at 7 a.m. local time. PlaintiffNicole Ting-Yap is entitled to an order protecting her against Defendant’s unreasonable insistence 0n a deposition start time 0f 7 am. local time. Plaintiff is unavailable prior t0 10 a.m. local time in Malaysia due t0 fixed childcare obligations and nighttime prescription medication that makes her drowsy and unable to testify competently early in the mornings. (Declaration of Nicole Ting-Yap (“Ting-Yap Decl.”), W 3-4, EX. D.) Given professional guidelines instructing that Witnesses are t0 be reasonably accommodated, and Plaintiff s request for a later start time due t0 childcare and medical needs, Plaintiffs respectfully request that the Court deny Defendant’s motion for a protective order, and order that Plaintiff Ting-Yap’s deposition begin at 0r after 10 a.m. local time in Malaysia. ARGUMENT I. LEGAL STANDARD A court may, for good cause, order that a deponent be protected from “unwarranted annoyance, embarrassment, 0r oppression, 0r undue burden and expense.” (Code CiV. Proc., § 2025.420(b).) The protective order may include directions that “the deposition be taken at a different time,” that “certain matters not be inquired into,” that “the scope 0f the examination be limited to certain matters,” and that “trade secret 0r other confidential research, development, or commercial information not be disclosed 0r be disclosed only to specified persons 0r only in a specified way.” (1d,, § 2025.420(b)(2), (b)(9), (b)(lO), (b)(13).) The need t0 take into consideration the burden 0f discovery is especially acute When 18786.001 4821-9986-73735 2 Case No. 21CV381 1 10 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER COBLENTZ PATCH DUFFY & BASS LLP ONE MONTGOMERY STREET, SUITE 3000, SAN FRANCISCO, CALIFORNIA 94lO4-5SOO FAX 4|5.989.|663 4|5.39|.48OO \OWQONUIhMNH NNNNNNNNNHHHHHHHHHH WQO‘NUIhMNHOwWQQUIhMNHO foreign litigants are involved, given the additional expense and burden 0f foreign discovery. (See Société Nationale Industrielle Aerospatiale v. U.S. Dist. Courtfor Southern Dist. Oflowa (1987) 482 U.S. 522, 546.) In the context 0f remote depositions, the time difference must be taken into consideration t0 ensure that discovery is not wielded for improper purposes, “rather than finding relevant and probative evidence.” (Id.) II. DEFENDANT’S PROPOSED START TIME OF 7 A.M. LOCAL TIME IS UNREASONABLE DUE TO PLAINTIFF’S CHILD CARE AND MEDICAL NEEDS. While Plaintiff agreed to make herself available 0n the first deposition date proposed by Defendant, the parties have been unable to reach agreement 0n a start time for Plaintiff’ s deposition that takes into account her immovable child care obligations and medical issues. Specifically, Defendant has insisted 0n his preferred start time 0f 7 am. local time in Malaysia} Where Plaintiff resides, and has refused t0 make a reasonable accommodation for the deponent’s requested start time 0f 10 a.m. local time. Plaintiff cannot start her deposition at 7 am. Malaysia time because she has morning child care obligations that generally last until 9 a.m., and sometimes extend beyond that. (Ting-Yap Decl., 11 3.) While the Declaration 0f Panida Chinsupakul in Support of Defendant’s Motion for Protective Order suggests that Plaintiff has household staff and nannies that can assist With her child care obligations, Defendant’s beliefs are based on a Visit she made t0 Plaintiff s home over 10 years ago, and should be disregarded. Defendant has no first-hand knowledge 0f Plaintiff” s current personal circumstances or child care obligations. And in fact, Plaintiff has had no childcare help since February 0f 2020 due t0 the pandemic. (Id.) Additionally, as confirmed by her doctor, Plaintiff takes prescription medication that makes her drowsy in the morning, and Will impede her ability to give competent and accurate testimony prior to at least 10 a.m. (Ting-Yap Decl., fl 4, EX. D.) As a result, it is unreasonable for Defendant t0 demand a 7 am. start time for Plaintiff” s deposition. 1 Defendant’s Motion for Protective Order (“Motion”) asserts that Plaintiff resides in Australia. (Motion at pp. 2, 3.) This is incorrect. 18786.001 4821-9986-73735 3 Case No. 21CV381 1 10 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER COBLENTZ PATCH DUFFY & BASS LLP ONE MONTGOMERY STREET, SUITE 3000, SAN FRANCISCO, CALIFORNIA 94lO4-5SOO FAX 4|5.989.|663 4|5.39|.48OO \OWQONUIhMNH NNNNNNNNNHHHHHHHHHH WQO‘NUIhMNHOwWQQUIhMNHO Defendant’s insistence on a 7 a.m. start time appears t0 be based 0n the convenience of the parties located in California. (Langs Decl., EX. B.) However, the time 0f day for the Witness giving testimony must guide the assessment 0f what is a reasonable start time for a deposition. Indeed, the Federal Rules 0f Civil Procedure expressly recognize that a remote deposition “takes place Where the deponemf answers the questions.” (Fed. R. CiV. Pr0., § 30(b)(4) (emphasis added).) In this case, a start time 0f 7 a.m. where the deponent is located and Will be answering questions is unusually early; depositions routinely start at 9 or 9:30 a.m. Plaintiff s request for a 10 a.m. local start time is not unreasonable under any circumstances; but in light of Plaintiff s child care obligations and medical issues, her request is particularly reasonable and proper, and should be accommodated. Moreover, the Santa Clara County Bar Association Code 0f Professionalism advises that attorneys should “consider the scheduling interests of . . . Witnesses,” and not “arbitrarily or unreasonably withhold consent to a request for scheduling accommodations.” (Santa Clara County Bar Association: Code of Professionalism, October 2015, Section 3, Scheduling, available at https://WWW.sccba.com/page/professionalism#3; see also id. at Section 9, Discovery.) Defendant has, however, made n0 effort t0 accommodate the witness’ schedule, and has insisted 0n a 7 a.m. local start time. Defendant’s counsel has further stated that he opposes a 10 a.m. local start time because it would be inconvenient or unreasonable for the court reporter. (Langs Decl., EX. B.) However, court reporters are frequently engaged for late-night transcription proj ects. Indeed, Plaintiffs’ counsel recently had occasion t0 engage a court reporter for a public hearing that began at 6 p.m. and ended after 11 p.m. (Langs Decl., fl 4.)2 Moreover, given that the deposition will be conducted remotely, Defendant could select a court reporter working from anywhere in the world, including Malaysia. (See, e.g., https://WWW.optimajuris.com/location/malaysia-court-reporters/, providing Malaysian court reporters for U.S. depositions.) 2 Defendant also complains that, if the deposition takes seven hours, it will last until 2 a.m. PST. (Motion at p. 2.) However, Defendant initially indicated he expected the deposition t0 last approximately three to four hours, not seven. (Langs Decl., EX. A.) 18786.001 4821-9986-73735 4 Case No. 210/381 1 10 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER COBLENTZ PATCH DUFFY & BASS LLP ONE MONTGOMERY STREET, SUITE 3000, SAN FRANCISCO, CALIFORNIA 94lO4-5500 FAX 4|5.989.|663 4|5.39|.4800 - \DwflGNUIhDJNH NNNNNNNNNHHHHHHHHHH WQONUI£MNHG©WQONUI£MNHO Because of Plaintiff s morning child care obligations, and medication that causes morning drowsiness, and because Defendant has not shown good cause for requiring an earlier start time, Plaintiffs respectfully request that the Court issue a protective order preventing a deposition start time at or before 10 a.m. Malaysian time. CONCLUSION Plaintiff respectfully requests that the Court deny Defendant’s request for a protective order, and provide that the deposition of Plaintiff Ting-Yap start no earlier than 10 am. local time in Malaysia. DATED: August 27, 2021 COBLENTZ PATCH DUFFY & BASS LLP By: XWB SKYE Ngb Q Attorneys for Plaintiffs ANNE TING, JACK TING, and NICOLE TING-YAP 18786.001 4821-9986-7373.5 5 Case No_ 210/381 1 10 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER COBLENTZ PATCH DUFFY & BASS LLP ONE MONTGOMERY STREET, SUITE 3000, SAN FRANCISCO, CALIFORNIA 94lO4-5SOO FAX 4|5.989.|663 4|5.39|.48OO \OWQONUIhMNH NNNNNNNNNHHHHHHHHHH WQO‘NUIhMNHOwWQQUIhMNHO PROOF OF SERVICE Anne Ting, Jack Ting, and Nicole Ting-Yap vs. Panida Chinsupakul Santa Clara County Superior Court Case N0. 21CV381 1 10 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO At the time of service, I was over eighteen years of age and not a party t0 this action. I am employed in the County 0f San Francisco, State of California. My business address is One Montgomery Street, Suite 3000, San Francisco, California 94104-5500. On August 27, 2021, I served a true copy 0f the foregoing document described as PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER on the interested parties in this action as follows: Attorney for Defendant Panida Chinsupakul: Michael G. Ackerman, Esq. The Law Offices of Michael G. Ackerman 2391 The Alameda, Suite 100 Santa Clara, California 95050 Telephone: 408.261.5800 Facsimile: 408.261.5900 E-Mail: mga@mgackermanlaw.com sls@mgackermanlaw.com BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy 0f the document t0 be sent from e-mail address dcampos@coblentzlaw.com t0 the persons at the e-mail addresses listed above. I did not receive, Within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. I declare under penalty 0f perjury under the laws of the State of California that the foregoing is true and correct. Executed 0n August 27, 2021, at Pacifica, California. mm flmflcg - I Dlana Campos 18786.001 4821-9986-73735 6 Case No. 210/381 1 10 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER