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Johnson v. Couturier

August 21, 2009

GREGORY JOHNSON, ET AL., PLAINTIFFS,
v.
CLAIR COUTURIER, JR., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows U. S. Magistrate Judge

ORDER

Previously pending on this court's law and motion calendar for August 13, 2009, were plaintiffs' motion for order extending time limits for depositions of defendants Couturier and Johanson, and for order to complete the Johanson deposition in the presence of the magistrate judge; and defendant Couturier's motion to compel further discovery responses and deposition testimony. Also pending before the court is Couturier's motion to file a physician's statement under seal. Gary Greenwald represented all plaintiffs, and Terence Devine appeared for plaintiff Rodwell. Theodore Becker represented defendant Couturier, and Jeffrey Commissi appeared for defendant Johanson. After reviewing the joint statements and hearing oral argument, the court now issues the following order.

I. COUTURIER'S MOTION TO FILE PHYSICIAN'S STATEMENT UNDER SEAL

Couturier has requested that his physician's statement, which concerns the effect a further deposition may have on him, be filed under seal. (dkt. #594). Couturier's motion to file it under seal is granted; however, he shall serve the physician statement on plaintiffs.

II. PLAINTIFFS' MOTION FOR ORDER EXTENDING TIME LIMITS FOR DEPOSITIONS OF DEFENDANTS COUTURIER AND JOHANSON

Plaintiffs move to extend the time limits for the deposition of defendant Couturier by five hours, and for the deposition of defendant Johanson by six hours, and that Johanson's deposition be conducted in the presence of the magistrate judge.

Rule 30(d)(2) provides in relevant part:

Unless otherwise authorized by the court or stipulated by the parties, a deposition is limited to one day of seven hours. The court must allow additional time consistent with Rule 26(b)(2) if needed for a fair examination of the deponent.

The Notes of the Advisory Committee on the 2000 amendments to Fed. R. Civ. P. 30 explain:

Paragraph (2) imposes a presumptive durational limitation of one day of seven hours for any deposition. . . . The party seeking a court order to extend the examination, or otherwise alter the limitations, is expected to show good cause to justify such an order.

Parties considering extending the time for a deposition--and courts asked to order an extension--might consider a variety of factors. For example, ... in cases in which the witness will be questioned about numerous or lengthy documents, it is often desirable for the interrogating party to send copies of the documents to the witness sufficiently in advance of the deposition so that the witness can become familiar with them.

Here, plaintiffs contend that their seven hour deposition of Couturier was not long enough to cover all necessary topics, due to this defendant's lack of cooperation and responsiveness. Defense counsel represented at hearing that Couturier's series of strokes have left him with impaired memory and reading ability -- thus, defendant argues, plaintiffs mistake illness for being uncooperative. Based on counsel's representation that a three hour preparation session for the deposition ended up taking nine hours due to this impairment, along with a physician's statement regarding Couturier's condition, the court finds good cause to both continue his deposition to see if his condition improves, and to grant plaintiffs' request for an additional five hours to complete this deposition.

Couturier's further deposition will be permitted for a total of five more hours, but shall be continued to the beginning of October, 2009, prior to discovery cutoff, on a date agreed to by the parties. Said deposition shall take place earlier than October if Couturier files a summary judgment motion that contains a declaration*fn1 by Couturier. In such an event, Couturier shall present himself for deposition at least two weeks prior to the filing of the motion. Further deposition will not occur, in any event, if Couturier files an unequivocal statement prior to a scheduled further deposition stating that he will not testify at trial.

In regard to Johanson's further deposition, the court finds that this defendant's actions made the deposition taken thus far less than efficient.*fn2 Despite the fact that the vast majority of documents used at his deposition had been sent to Johanson's counsel prior to the deposition, this deponent took extensive time to purview each document as it was submitted to him notwithstanding that the question to be asked often did not require extensive review. Even if it did, Johanson does not presently relate why he did not review what he could prior to the deposition. Furthermore, although it is certainly possible that a deponent will not remember every action taken in a complex series of transactions occurring several years in the past, the sheer number of " I don't recall" responses, and the like, stretched the limits of credulity. Therefore, good cause is found for further deposition. Plaintiff's request for an additional six hours is granted.

The planned division of duties for questioning by plaintiff's counsel, as presented, is appropriate and need not be altered.

Johanson's request that his deposition be held in San Francisco is denied based on the high level of acrimony between the parties. This deposition shall be held in the jury deliberation room of the undersigned (Courtroom 24), initially, at least, outside the presence of the undersigned. The undersigned will be available for dispute resolution, however. If resolution is required, and the court finds that the dispute was unnecessary, sanctions will issue to the appropriate party. The parties shall agree to a date for ...


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