PRODOX, LLC, Plaintiff, v. PROFESSIONAL DOCUMENT SERVICES, INC., Defendant Case No. 2:20-cv-02035-JAD-NJK United States District Court, D. Nevada Filed April 28, 2022 Counsel F. Christopher Austin, Weide & Miller, Ltd., Las Vegas, NV, Lance C. Venable, Pro Hac Vice, Law Office of Lance C. Venable, PLLC, Chandler, AZ, for Plaintiff. Brent Blakely, Pro Hac Vice, Blakely Law Group, Manhattan Beach, CA, Brian K. Walters, Craig J. Mariam, Gordon Rees Scully Mansukhani, LLP, Las Vegas, NV, for Defendant. Koppe, Nancy J., United States Magistrate Judge ORDER [Docket No. 72] Pending before the Court is Plaintiff's motion for sanctions for Defendant's failure to appear for its deposition. Docket No. 72; see also Docket No. 76 (corrected image). Defendant filed a response in opposition. Docket No. 77.[1] Plaintiff filed a reply. Docket No. 78; see also Docket No. 79 (corrected image). The motion is properly resolved without a hearing. See Local Rule 78-1. For the reasons discussed below, the motion for sanctions is GRANTED in part and DENIED in part.[2] I. BACKGROUND On December 22, 2021, Plaintiff noticed the continuation of Defendant's Rule 30(b)(6) deposition for 10:00 a.m. on January 12, 2022. Docket No. 70-1 at 11.[3] At 5:22 p.m. on January 11, 2022, Defendant filed a motion for protective order. Docket No. 70.[4] At 9:39 a.m. on January 12, 2022, the Court denied the motion for protective order as untimely. Docket No. 71.[5] At 10:12 a.m. on January 12, 2022, the Rule 30(b)(6) deposition began with a record showing that Defendant and defense counsel failed to appear. Docket No. 76-6 at 5. The parties are now before the Court on Plaintiff's motion for sanctions arising out of that failure to appear for deposition. II. STANDARDS Courts may impose sanctions for the failure of a party or a party's officer, director, or managing agent to appear for his deposition. Fed. R. Civ. P. 37(d)(1)(A)(i). The sanctions that may be imposed include those listed in Rule 37(b)(2)(A)(i)-(vi), some of which contemplate severe sanctions such as dismissal. See Fed. R. Civ. P. 37(d)(3). In addition, courts must award reasonable expenses, including attorneys’ fees, unless the failure to appear was substantially justified or other circumstances make an award of expenses unjust. See id. The parties facing an award of expenses bear the burden of establishing substantial justification or circumstances making an award of expenses unjust. Hyde & Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir. 1994). A finding of bad faith is not a prerequisite for awarding expenses under Rule 37(d), although a lack of bad faith may be considered in determining whether the imposition of sanctions would be unjust. See id. The Court has “great latitude” in imposing sanctions under Rule 37. Lew v. Kona Hosp., 754 F.2d 1420, 1425 (9th Cir. 1985). III. ENTITLEMENT TO SANCTIONS The Court begins by evaluating whether Defendant and its counsel engaged in sanctionable conduct by failing to appear for Defendant's Rule 30(b)(6) deposition. They did. Defendant had three weeks’ notice of the deposition,[6] but in direct contradiction of governing law and common-sense Defendant filed a motion for protective order after hours the night before the deposition was set to take place and then did not show up for the deposition. Making matters worse, Defendant engaged in this tactic despite repeatedly agreeing that Plaintiff could finish this deposition after the discovery cutoff. See, e.g., Docket No. 76-3 at 7; Docket No. 76-4 at 2. Making matters even worse, Defendant engaged in a similar tactic earlier in this case and was expressly rebuffed for doing so. Docket No. 34. Defendant's attempt to avoid the instant deposition by filing a late-night motion for protective order is behavior “dredged up from the cesspool of ‘Rambo’ litigation [that] cannot be countenanced.” Caraway v. Chesapeake Exploration LLC, 269 F.R.D. 627, 628 (E.D. Tex. 2010). The conduct is properly the subject of sanctions. Defendant seeks to avoid sanctions by relying extensively on arguments that the deposition was improper. When a motion for protective order is denied prior to a deposition, a party may not avoid repercussions for failing to appear at that deposition by arguing that it was objectionable. See Fed. R. Civ. P. 37(d)(2) (a failure to appear for a deposition “is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c)”). Defendant's attempt to avoid sanctions by arguing objections to the deposition notice is a tactic that has been “expressly eliminated” by the governing rule. Lee v. Walters, 172 F.R.D. 421, 425 (D. Or. 1997).[7] Nonetheless, Defendant proffers a novel theory that it may continue to press the same objections raised in its untimely motion for protective order because the Court denied the motion for “procedural reasons.” Resp. at 12. No legal authority is provided to justify that position and the law is to the contrary. “When an attorney knows of the existence of a dispute and unreasonably delays in bringing that dispute to the Court's attention until the eleventh hour, the attorney has created the emergency situation and the request for relief may be denied outright.” Cardoza v. Bloomin’ Brands, Inc., 141 F. Supp. 3d 1137, 1143 (D. Nev. 2015) (emphasis added) (citing, inter alia, Allstate Ins. Co. v. Nassiri, No. 2:08-cv-00369-JCM-GWF, 2011 WL 4905639, at *1 (D. Nev. Oct. 14, 2011)). The failure to seek a protective order in a timely manner will “preclude later objection.” 8A Wright, Miller, & Marcus, Federal Practice and Procedure, § 2035, at 152 (2010); see also Telluride Management, 55 F.3d at 467 n.3; CCB LLC v. Banktrust, No. 3;10cv228/LAC/EMT, 2010 WL 4038740, at *1 (N.D. Fla. Oct. 14, 2010). That is precisely what happened here: Defendant sought protection from deposition and the relief was denied. Docket No. 71. Defendant's attempt to rely on the already-denied objections to avoid sanctions is unavailing. Indeed, it would make little sense that a court would deny protection from an imminent deposition based on the untimeliness of a motion for protective order as simply a means to kick the can by allowing the movant to avoid the deposition and consequent sanctions based on the same untimely arguments raised at an even later date after the deposition was supposed to take place. Defendant's suggested approach “would be an intolerable clog upon the discovery process,” Pioche Mines, 333 F.2d at 269, and is not contemplated by the rules, Fed. R. Civ. P. 37(d)(2). Not surprisingly, other courts faced with untimely challenges to depositions have focused on the timing of the events rather than the merits of the late challenges. See, e.g., Societe Civile Succession Richard Guiono v. Beseder Inc., No. CV 03-1310-PHX-MHM, 2007 WL 3238703, at *11 (D. Ariz. Oct. 31, 2007), aff'd sub nom., Societe Civile Succession Richard Guiono v. Renoir, 305 Fed. Appx. 334, 338 (9th Cir. 2008).[8] Accordingly, the Court agrees with Plaintiff that Defendant engaged in sanctionable conduct by skipping out on the deposition.[9] IV. APPROPRIATE RELIEF Having determined that Defendant engaged in sanctionable conduct, the Court turns to the appropriate relief to be awarded. Plaintiff seeks various relief, which the Court will address in turn below. A. Further Deposition Plaintiff seeks an order requiring Defendant to appear for deposition. Mot. at 18-19. Courts have wide discretion in controlling discovery. Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). Courts may order a party to sit for deposition testimony as a means to rectify prior deposition misconduct. See, e.g., in re Air Crash Disaster at Detroit Metro. Airport on Aug. 16, 1987, 130 F.R.D. 627, 630 (E.D. Mich. 1989); Cardinali v. Plusfour, Inc., No. 2:16-cv-02046-JAD-NJK, 2019 WL 12435670, at *2 (D. Nev. Mar. 29, 2019). In this case, Defendant and its counsel thwarted Plaintiff's ability to obtain Rule 30(b)(6) deposition testimony and Plaintiff should be permitted to obtain that testimony. Accordingly, the Court agrees with Plaintiff that Defendant must sit for deposition. Defendant raises several procedural objections to Plaintiff taking this deposition. As an overarching issue, and as discussed above, the time for raising these objections has passed because they should have been addressed in a timely motion for protective order before the deposition. See, e.g., Cardoza, 141 F. Supp. 3d at 1143. The Court is not persuaded that the objections suffice to avoid deposition at any rate. For example, Defendant argues that Plaintiff did not obtain an order allowing a second Rule 30(b)(6) deposition. Resp. at 21. This argument is disingenuous. Even assuming that holding a “continued deposition” constitutes a “second deposition” for purposes of Rule 30(a)(2), which seems doubtful,[10] Defendant ignores the plain text of that rule: (2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(1) and (2): (A) if the parties have not stipulated to the deposition and: ... (ii) the deponent has already been deposed in the case... Fed. R. Civ. P. 30(a)(2) (emphasis added). Hence, leave of court must be obtained for a second deposition only in instances in which “the parties have not stipulated to the deposition.” Id.; see also Fed. R. Civ. P. 29(b). In this case, Defendant agreed to this deposition. See, e.g., Docket No. 76-3 at 7; Docket No. 76-4 at 2. As there was an agreement on this issue, Plaintiff did not need to seek leave to conduct the deposition based on Rule 30(a)(2). Defendant also objects that Plaintiff did not obtain an order to take the deposition after the discovery cutoff. See, e.g., Resp. at 17. To repeat, defense counsel explicitly agreed to taking the deposition after the discovery cutoff. See, e.g., Docket No. 76-3 at 7; Docket No. 76-4 at 2. The Court will not countenance an attorney's attempt to renege on his prior agreement as a means to gain a litigation advantage. See M2 Software, Inc. v. M2 Commc'ns, LLC, 217 F.R.D. 499, 500 (C.D. Cal. 2003) (refusing to rigidly enforce discovery cutoff given movant relied to its detriment on representations from opposing counsel); see also Patrick v. Teays Valley Trustees, LLC, 297 F.R.D. 248, 255 (N.D.W.V. 2013).[11] While the proper course for Plaintiff was to file a request to extend the discovery cutoff for purposes of this deposition,[12] the circumstances of this case warrant allowing the deposition to proceed despite the expiration of the discovery cutoff.[13][14] Accordingly, this aspect of the motion for sanctions will be granted and Defendant must sit for deposition. The parties must confer on a date for that deposition, but it must take place by May 19, 2022. B. Recovery of Expenses Plaintiff also seeks an award of its expenses incurred as a result of Defendant's non-appearance at the deposition. See, e.g., Mot. at 17. Courts must award reasonable expenses, including attorneys’ fees, unless the failure to appear was substantially justified or other circumstances make an award of expenses unjust. See Fed. R. Civ. P. 37(d)(3). The parties facing an award of expenses bear the burden of establishing substantial justification or circumstances making an award of expenses unjust. Hyde & Drath, 24 F.3d at 1171. Defendant has not met its burden here to avoid an award of expenses. As noted above, Defendant argues that expenses should not be imposed because it contends that the deposition was untimely and was an improper “second deposition” sought without leave. The appropriate vehicle for objecting to the deposition was in a motion for protective order. Defendant forfeited the ability to present these arguments by waiting until after hours the night before the deposition to file its motion. See, e.g., Cardoza, 141 F. Supp. 3d at 1143. Hence, the motion for protective order was denied on that ground.[15] What is more, Defendant was on notice that this would be the outcome for the motion for protective order not only because of the ample case law, but also because the Court denied an earlier motion for protective order from deposition that Defendant had also filed in an untimely manner, Docket No. 34.[16] Defendant was not substantially justified in skipping out of its deposition based on arguments it presented at the eleventh hour in a motion for protective order. See Pioche Mines, 333 F.2d at 269 (“unless [a deponent] has obtained a court order that postpones or dispenses with his duty to appear, that duty remains”); see also Air Crash Disaster, 130 F.R.D. at 630 (deponent was not substantially justified in failing to attend deposition despite raising objections after the fact). Moreover and significantly, Defendant's motion for protective order was denied prior to the start of the deposition, so the ship has clearly sailed on Defendant relying on its objections to avoid sanctions. See, e.g., Fed. R. Civ. P. 37(d)(2) (a failure to appear for a deposition “is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c)”). Failing to appear for deposition was not substantially justified and an award of expenses is appropriate.[17] Nonetheless, the Court is also cognizant that Plaintiff shares at least a portion of the blame for the underlying issues, as it should have obtained an order to proceed with the deposition after the discovery cutoff. See, e.g., Rakhra, 2014 WL 99302, at *2-3. Given the circumstances, Defendant must pay 80% of Plaintiff's costs and fees. Cf. Societe Civile, 2007 WL 3238703, at *11 (apportioning expenses under Rule 37(d) to account for shared blame).[18] Accordingly, this aspect of the motion for sanctions will be granted in part. Defendant and its counsel (Brent Blakely) are jointly and severally liable[19] to pay for 80% of the expenses reasonably incurred by Plaintiff that were caused by the failure to appear for deposition. To the extent the parties cannot agree amongst themselves on an amount of expenses to award, Plaintiff must file a “Motion to Calculate Expenses” by May 12, 2022. C. Additional Sanctions Plaintiff also seeks additional, more severe sanctions. The Court is not persuaded that additional sanctions are warranted at this time. As to the first proposed sanction, Plaintiff asks the Court to “dismiss” Defendant's motion for summary judgment. Mot. at 17. Plaintiff has identified no rule providing for such relief, nor any court decisions imposing it. Moreover, such relief would be counterproductive. Motions for summary judgment weed out cases from trial when there is no genuine issue of material fact and no reasonable jury could find for the nonmovant. See Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “The principal purpose of summary judgment is ‘to isolate and dispose of factually unsupported claims.’ ” Estate of Sauceda v. City of N. Las Vegas, 380 F. Supp. 3d 1068, 1075-76 (D. Nev. 2019) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). The Court fails to discern a benefit from removing the summary judgment mechanism from the case; if there are no genuine issues of material fact, then the parties and the Court should not waste their resources proceeding to a trial that is unnecessary. The Court will not “dismiss” the motion for summary judgment as a discovery sanction. Plaintiff also asks that certain facts be deemed established. Mot. at 16-17. Such relief is generally appropriate upon a showing that the opposing party has been prejudiced in preparing its case in light of the discovery violation. See in re Heritage Bond Litig., 223 F.R.D. 527, 530 (C.D. Cal. 2004). In this case, the Court is requiring that Defendant sit for deposition. See Section IV.A. The Court is not persuaded that deeming facts established as a sanction is warranted. Cf. Hyde & Drath, 24 F.3d at 1166-67 (noting distinction for sanctions purposes when depositions were delayed but eventually occurred).[20] Accordingly, these aspects of the motion for sanctions will be denied. V. CONCLUSION For the reasons discussed above, the motion for sanctions is GRANTED in part and DENIED in part. IT IS SO ORDERED. Footnotes [1] Pin-citations to this response are made to the CMECF pagination. [2] Defendant takes a scattershot approach in its briefing, raising numerous issues often in cursory and undeveloped manner. The Court has endeavored to address many of the arguments made. Any arguments not addressed herein have been rejected to the extent they are inconsistent with the outcome of this order. See, e.g., Herndon v. City of Henderson, 507 F. Supp. 3d 1243, 1248 n.8 (D. Nev. 2020). [3] The Rule 30(b)(6) deposition began on June 29, 2021, at which time counsel placed on the record their agreement to continue the deposition until a later date. Docket No. 76-3 at 7. [4] During the intervening time, the parties engaged in motion practice regarding the briefing schedule on the motion for summary judgment. See Docket No. 67, 68. United States District Judge Jennifer A. Dorsey resolved that scheduling issue without opining on the parties’ dispute as to the deposition now at issue. See Docket No. 69. [5] Defendant did not object to this order and the deadline for doing so has expired. Local Rule IB 3-1(a). Defendant cannot argue at this juncture that there was any error in denying its motion for protective order as untimely. See Fed. R. Civ. P. 72(a) (“A party may not assign as error a defect in the order not timely objected to”); see also Glenbrook Homeowners Ass'n v. Tahoe Reg. Planning Agency, 425 F.3d 611, 619-20 (9th Cir. 2005). The only issue before the Court is what consequences (if any) flow from Defendant's subsequent failure to appear for deposition. [6] Sanctions are triggered when a party fails to appear at a deposition after being “served with proper notice.” Fed. R. Civ. P. 37(d)(1)(A)(i). This provision requires that “the noticing party provide ‘reasonable written notice’ of the ‘time and place of the deposition.’ ” UMG Recordings, Inc. v. Am. Home Assurance Co., No. CV 07-3257-GAF (AGRx), 2008 WL 11343399, at *2 (C.D. Cal. July 25, 2008). Although Defendant at times casts the deposition notice as “invalid” or “improper,” e.g., Resp. at 21, Defendant does not argue in direct fashion that it was not “served with proper notice” for purposes of Rule 37(d)(1)(A)(i). Given the weeks of notice and the identification of the place and time of the deposition, Docket No. 76-5 at 3, the requirement in Rule 37(d)(1)(A)(i) to be “served with proper notice” has been satisfied in this case. See, e.g., UMG Recordings, 2008 WL 11343399, at *2. At any rate, Defendant should have timely filed a motion for protective order if it believed the notice was improper. See, e.g., Telluride Mgmt. Sols., Inc. v. Telluride Inv. Grp., 55 F.3d 463, 467 n.3 (9th Cir. 1995) (“If Steel believed the notice was improper he could have sought relief from the court. His failure to do so indicates that the magistrate judge's reliance on the notice in imposing sanctions was not an abuse of discretion”), abrogated on other grounds, Stanley v. Woodford, 449 F.3d 1060, 1065 (9th Cir. 2006). [7] The filing of a motion for protective order does not obviate the duty of a witness to appear for deposition. See, e.g., Nationstar Mort., LLC v. Flamingo Trails No. 7 Landscape Maintenance Ass'n., 316 F.R.D. 327, 336-37 (D. Nev. 2016). Such an appearance is excused only if the Court enters an order providing that relief. Pioche Mines Consol., Inc. v. Dolman, 333 F.2d 257, 269 (9th Cir. 1964). Hence, even in instances in which a motion for protective order is pending at the time of a deposition, a non-appearance may result in the imposition of sanctions. Flamingo Trails, 316 F.R.D. at 336-37. In this case, the motion for protective order was denied before the deposition. [8] In Societe Civile, the plaintiff had agreed to depositions in France only to raise last-minute challenges to those depositions in reliance on the Hague Convention and then did not appear for the depositions. 2007 WL 3238703, at *11. The court determined that it need not resolve the merits of the Hague Convention arguments because the “primary concern is the timing of Plaintiff's counsel's objection to these depositions.” Id. The court reasoned that the plaintiff's arguments should have been raised earlier “such as in a timely motion for protective order” so that “the Court would then have evaluated the relevance and applicability of the Hague Convention” without the parties incurring the expenses associated with the scheduled depositions. Id. Because the plaintiff raised these concerns in an untimely manner, the Court found that the imposition of monetary sanctions was warranted regardless of the merits of the objections. See id. [9] Defendant argues that the Plaintiff's motion for sanctions is improper for lack of a pre-filing conference. Resp. at 7, 20-21. A meet and confer is not required for a motion for sanctions arising out of a failure to appear for deposition. Flamingo Trails, 316 F.R.D. at 335-36. [10] Without meaningful explanation, Defendant casts Plaintiff as seeking to depose Defendant “a second time.” Resp. at 21 (emphasis in original). The initial deposition proceeded for a matter of minutes before it was continued based on agreement of counsel. See Docket No. 76-3. As Defendant itself highlights in its papers, no questions were asked of the deponent. E.g., Resp. at 18. Hence, in the words of defense counsel, the proceeding at issue was meant to be the completion of an existing deposition, as opposed to a second Rule 30(b)(6) deposition. See, e.g., Docket No. 76-3 at 7 (agreeing on the record of the deposition that it would be “continued” to a later date); Docket No. 76-4 at 1 (email from defense counsel stating that there is no objection to “completing” this deposition). No legal authority or meaningfully developed argument has been provided that completing an existing deposition triggers Rule 30(a)(2)(A)(ii). The Court assumes for purposes of this order that it does because Defendant's argument fails anyway. [11] Defendant advances a stunning argument that it is “irrelevant” whether its counsel “bamboozled” opposing counsel with respect to scheduling the disputed deposition after the discovery cutoff. Resp. at 17 n.4. Defendant is flat wrong. See M2 Software, 217 F.R.D. at 500; see also Asea, Inc. v. S. Pac. Transp. Co., 669 F.2d 1242, 1246 (9th Cir. 1981) (“The discovery process is subject to the overriding limitation of good faith”); Cardoza, 141 F. Supp. 3d at 1145 (counsel engaging in discovery must “strive to be cooperative”). [12] Defendant relies extensively on a decision by United States Magistrate Judge Peggy A. Leen that parties cannot take discovery after the discovery cutoff. Rakhra v. PHW Las Vegas, LLC, No. 2:12-cv-01287-JAD-PAL, 2014 WL 99302, at *2-3 (D. Nev. Jan. 3, 2014). The undersigned wholeheartedly agrees with Judge Leen's assessment that parties should not be taking depositions after the discovery cutoff without obtaining a court order. Moreover, the Court is left without a clear understanding as to why Plaintiff did not seek such an order here. As will be discussed below with respect to monetary sanctions, the Court will take Plaintiff's own portion of the blame into consideration. Nonetheless, that an order was not entered allowing this deposition after the cutoff does not entirely save the day for Defendant. An overarching problem with this argument is that defense counsel himself agreed on multiple occasions to continue this deposition after the discovery cutoff. To the extent Defendant was legitimately concerned about taking a deposition after the discovery cutoff by agreement without leave of court, Defendant could have filed a timely motion for protective order raising that concern. It did not do so. Instead, it sought to avoid the deposition to which it repeatedly agreed by filing a motion for protective order after hours the night before the deposition and then it skipped out on the deposition. [13] Defendant highlights that the deposition will take place months after the discovery cutoff. E.g., Resp. at 15. While that may be true, such argument ignores the fact that the deposition was set shortly after Plaintiff received the documents that Defendant had been ordered to produce upon resolution of Plaintiff's motion to compel. See Docket No. 76-1 at ¶¶ 10-18; see also Docket No. 52 at 33 (“ProDox needs these documents to conduct its deposition under 30(b)(6)”). [14] Defendant argues that Plaintiff failed to confer about the matters for examination at the deposition prior to noticing it. Resp. at 21. This argument does not persuade the Court that Defendant should avoid deposition. First, Defendant presents this argument in a few sentences, which is not meaningfully developed argument as is necessary to preserve an issue. E.g., Kor Media Grp., LLC v. Green, 294 F.R.D. 579, 582 n.3 (D. Nev. 2013). Second and relatedly, Defendant does not explain whether a conference occurred prior to the start of the deposition last June or whether a new meet-and-confer is required for continued depositions. Third, the Rule envisions discussion “about the matters for examination,” Fed. R. Civ. P. 30(b)(6) (emphasis added), and Defendant has not meaningfully briefed concerns with respect to the deposition topics. Defendant proffers no justification for avoiding deposition based on an alleged failure to confer on issues that do not appear to be in dispute. Cf. V5 Techs v. Switch, Ltd., 334 F.R.D. 297, 302 (D. Nev. 2019) (courts may waive conferral requirements). Defendant also argues in a footnote that the deposition notice was “improper” because Plaintiff did not confer as to the time and place of the deposition. Resp. at 21 n.6. Again, this argument fails from the outset because it is not meaningfully developed. Kor Media, 294 F.R.D. at 582 n.3. At any rate, “there is no requirement in the Rule that the date or location be agreed upon by all parties.” Douglas v. Shasta Cnty., No CIV S-08-2058-FCD-CMK, 2010 WL 760643, at *2 (E.D. Cal. Mar. 4, 2010). To the extent Defendant disputed the date or location of the deposition, it was required to file a timely motion for protective order to obtain relief. See, e.g., Anoruo v. Shinseki, No. 2:12-cv-01190-JCM-GWF, 2013 WL 4546795, at *2-3 (D. Nev. Aug. 27, 2013), aff'd sub nom., Anoruo v. McDonald, 670 Fed. Appx. 571, 572 (9th Cir. 2016). [15] Had Defendant filed a timely motion for protective order, the Court would have rejected the arguments presented on their merits for the reasons identified above. See Section IV.A. [16] That deposition notice was served on June 2, 2021, setting the deposition for June 24, 2021. See Docket No. 34 at 2. On June 22, 2021, Defendant filed a motion for protective order seeking relief from the deposition. Docket No. 33. On June 22, 2021, the Court denied the motion for protective order as untimely. Docket No. 34 at 2-3. The Court ordered that “[t]he Fed. R. Civ. P. 30(b)(6) deposition must proceed as scheduled, and any failure to appear may result in the imposition of sanctions.” Id. at 3. Despite that order issued in this case, Defendant again attempted the same maneuver with respect to the deposition notice at issue now. This pattern of behavior is relevant to the Court's consideration of appropriate sanctions. See, e.g., Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1411-12 (9th Cir. 1990) (courts imposing sanctions may view the record as a whole rather than the specific incident at issue). [17] The Court likewise does not find an award of expenses to be unjust. [18] Invoking Rule 16(f) of the Federal Rules of Civil Procedure, Defendant seeks to recover its own attorney's fees based on Plaintiff noticing the deposition after the discovery cutoff. See, e.g., Resp. at 25-26. The Court possesses broad discretion in deciding whether to impose sanctions under Rule 16(f). Official Airline Guides, Inc. v. Goss, 6 F.3d 1385, 1397 (9th Cir. 1993). The Court will not impose sanctions on Plaintiff inuring to Defendant's benefit based on Plaintiff engaging in a course of conduct to which Defendant agreed. E.g., Docket No. 76-4 at 2 (“As to Mr. Lum, I did agree not to object to you completing his deposition after the June 29, 2020 [sic] discovery deadline”). Accordingly, Defendant's request for sanctions is denied. [19] An award of expenses may be made against “the party failing to act, the attorney advising that party, or both.” Fed. R. Civ. P. 37(d)(3). When it is not clear from the record whether the party or the attorney is to blame for the misconduct at issue, courts will impose joint and several liability for the expenses awarded. E.g., Flamingo Trails, 316 F.R.D. at 338. Plaintiff's motion expressly seeks joint and several liability. See, e.g., Mot. at 20. Defendant's papers do not meaningfully address this issue. The Court finds from the record here that joint and several liability for the expenses is appropriate. [20] The Court is denying this sanction based on the circumstances as they currently exist and given that the Court expects Defendant to comply with its obligations moving forward. Defendant is cautioned that it may face severe sanctions (including case-dispositive sanctions) if it fails to abide by the order to appear for deposition, pay the expenses awarded, or otherwise comply with its discovery obligations. Cf. Hyde & Drath, 24 F.3d at 1167 (in affirming dismissal sanctions, noting that “the district court initially ordered appellants to pay attorneys’ fees incurred because of their no-show at scheduled depositions. In ordering these sanctions, the court explicitly stated that it hoped these sanctions would encourage appellants to abide by the schedule of depositions. Further, the court pointedly threatened appellants with harsher sanctions, including dismissal, if they ignored depositions again. Thus, the court both attempted less severe sanctions and issued warnings, to no avail”).