On October 21, 2009, this case was before the undersigned for a hearing on defendants' motion to compel plaintiff to appear for a further deposition, to compel plaintiff to respond to certain document requests, and for sanctions. Dckt. Nos. 77, 86. Attorney Jennifer Plescia appeared on behalf of defendants; plaintiff failed to appear.
The hearing on defendants' motion was originally scheduled for September 23, 2009, and on September 18, 2009, plaintiff filed a belated request to continue the hearing. Dckt. No. 81. Therefore, on September 21, 2009, the court continued the hearing to October 21, 2009. Dckt. No. 82. On October 7, 2009, plaintiff filed a "revised joint statement re: discovery disagreement," setting forth her opposition to defendants' motion to compel. Dckt. No. 83. She stated in her opposition that she would not be able to appear in person for oral argument and requested that matters be decided without oral argument. Id. at 13. The matter was not taken off calendar but plaintiff nonetheless failed to appear at the hearing. Accordingly, the court ordered plaintiff to show cause why sanctions should not be imposed for her failure to appear. Dckt. No. 87.
Plaintiff filed a response to the order to show cause (dckt. No. 88) which contends that her "right knee and right foot went out, making it impossible for [her] to travel from her home in Desert Hot Springs, CA to Court in Sacramento on the designated hearing date." Id. at 2. She also explains that she "has experienced severe osteoarthritis for years," and at present her "knee is locking up and numerous sesmoid bones in her right foot are growing, both conditions being extremely painful." Id. at 3. She contends that she has been actively moving forward with her case and that, therefore, her case should not be dismissed for failure to prosecute.
In light of plaintiff's response, and her request for consideration of the matter without oral argument, the order to show cause is discharged,*fn1 defendants' motion to compel is submitted without oral argument, and the following order issues on that motion.
Plaintiff's first amended complaint, filed April 6, 2007, alleges that defendants violated her Fourth Amendment right to be free from unreasonable searches and are therefore liable to plaintiff under 42 U.S.C. § 1983. Dckt. No. 42, Compl. ¶ 1. Specifically, the amended complaint alleges that on or about October 20, 2004, plaintiff called the Solano County Sheriff's Department to report an attempted burglary of her home; that when Solano County Sheriff's deputies arrived, plaintiff stated that she had already searched and secured the premises and did not want her home searched; but that the deputies threatened plaintiff and broke into and searched her home, including her confidential legal files. Id. ¶¶ 10-13. The amended complaint alleges that the next day, the deputies "reported substandard living conditions they had observed to county compliance officers," and that as a result, the compliance officers "yellow-tagged the house, thus diminishing the value of the property[,] causing plaintiff to sell the house at a distressed price," denying her occupancy of the home, and rendering her homeless. Id. ¶¶ 14-16.
Plaintiff further alleges that between July 1, 2005 and September 30, 2005, defendant James "delayed six weeks in informing Plaintiff of violations on her home; failed and refused to return Plaintiff's telephone calls regarding said violations and repair of same; cited Plaintiff for areas not in violation; made veiled threats against potential buyers; told one potential buyer that his actions in his official capacity as a County agent were of a personal nature; and made unwarranted threats to Plaintiff's liberty." Id. ¶ 20. Plaintiff also alleges that James "told potential buyers that he was within days of having Plaintiff's home condemned and eventually having it abated as a nuisance." Id. ¶ 21. Plaintiff seeks unspecified compensatory damages, punitive damages, fees, and costs. Id. at 6. On May 24, 2007, defendants County of Solano and Deputies Gilliam, Knight, and Munck filed an answer to plaintiff's first amended complaint, denying liability, and on November 17, 2007, defendant James did the same.*fn2 Dckt. Nos. 51, 57.
Defendants filed the instant motion to compel plaintiff to appear for a further deposition, to respond to defendants' Requests for Production of Documents, Sets Two and Three, and for sanctions. Dckt. Nos. 77, 86.
A. Deposition of Plaintiff
Pursuant to an April 24, 2009 order compelling plaintiff to appear for a further deposition, plaintiff appeared for deposition on May 20, 2009. However, according to defendants, the deposition was not finished that day because plaintiff failed to cooperate with counsel, substantially delayed the deposition, and refused to answer certain questions. Dckt. No. 80 at 2. According to defendants, throughout the deposition, plaintiff instructed defense counsel to "wait" before she responded to questions posed of her during the deposition so that she could "copy each word down" on a note tablet by hand. Id. Defendants also contend that "[a]t some point in the proceedings, counsel for Defendants became aware Plaintiff was apparently surreptitiously recording the deposition and conversations in the room during breaks by way of an audio recording device in her purse," and that as a result, "counsel for Defendants was forced to stop the normal course of questioning and inquire into this urgent matter of great concern." Id. at 3. Defendants add that plaintiff "generally refused to respond to questions regarding Defendant David James, on the purported grounds that he had never been served," despite defendants' counsel's assertions that James was represented and had appeared in the action. Id. According to defendants, plaintiff also "refused to answer questions regarding the type of pain medication she was on the morning of the alleged incident or what ailment the medication was treating," "refused to answer why she exited her house while a suspect was attempting to break into her home," and "refused to answer and/or was evasive to questions regarding notes she took contemporaneous to the alleged incident." Id. at 3-4.
Plaintiff counters with allegations that the deposition started 25 minutes late and that defendants' counsel "accosted" her in the hallway and "verbally harangued her for several minutes."*fn3 Dckt. No. 83 at 2. She also states that it was defense counsel who delayed the deposition, not her, by haranguing throughout the deposition. Id. She contends that she "tried to take a few notes to steady herself at the start of the deposition," but that her note-taking time was less than one and a half minutes.*fn4 Id. at 2-3. She says that she took notes because she was suspicious in light of a highly edited and biased earlier deposition transcript, which plaintiff contends did not incorporate changes plaintiff had made thereto.*fn5 Id. at 4. She also contends that she allowed the deposition to go on longer than the seven hours permitted by the Federal Rules of Civil Procedure so that they could finish the topic they were discussing, but that when defense counsel brought up a new topic -- David James -- she refused to answer the questions because the deposition had lasted more than seven hours, and her driver had to be elsewhere for an afternoon appointment. Id. at 3.
Plaintiff contends that she was talking to a court reporter during a break about the edited transcript, when defense counsel came into the room and started accusing plaintiff of secretly recording the deposition. Id. Plaintiff "denies any unethical or illegal activity connected with any surreptitious recording of the deposition." Id. at 6. Finally, plaintiff contends that she did not refuse to answer questions about the type of pain medication she took on the date of the incident and that she only objected for relevance when defense counsel asked her what part of her body she had surgery on. Id.
Federal Rule of Civil Procedure 30(d)(1) provides that although depositions are typically limited to one day of seven hours, a "court must allow additional time consistent with Rule 26(b)(2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination." See also Fed. R. Civ. P. 30(a)(2)(A)(ii) ("A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(2): (A) if the parties have not stipulated to the deposition and: . . . (ii) the deponent has already been deposed in the case. . . ."). Rule 26(b)(2) provides that a "court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (I) the discovery sought isunreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the informationby discovery in the action; or (iii)the ...