The opinion of the court was delivered by: Gregory G. Hollows U.S. Magistrate Judge
Previously pending on this court's law and motion calendar for September 9, 2010, was plaintiff's accelerated motion to compel further deposition testimony of defendant Piano.*fn1
Having heard oral argument and reviewed the papers, the court now issues the following order.
Plaintiff's counsel argues that at defendant Piano's September 1, 2010 deposition, Piano's counsel improperly instructed her client not to answer certain deposition questions on the basis of privacy. The deposition questions for the most part pertained to Piano's reasons for being placed on administrative leave for an extended period, followed by his resignation, and the reasons for that leave/resignation. When plaintiff's counsel attempted to inquire into the nature of the "personal reasons," the questions were met with a privacy privilege objection and an instruction not to answer. Piano maintained that he resigned for "personal reasons" not related to the excessive force incident in question in this case.
The deposition transcript filed on September 7, 2010, indicates that defense counsel interposed an inordinate number of premature instructions not to answer. Moreover, the party asserting the privilege has the burden of establishing its applicability. See United States v. Graf, 610 F.3d 1148, 1156 9 (9th Cir. 2010). Prior to hearing, the court invited Piano's counsel to supply the court with documentary support of the privacy privilege invoked, if even in camera; however, counsel demurred. Normally, the court would have no difficulty in finding the privilege asserted here inadequately established given the above circumstances.
However, other circumstances weigh in favor of ultimately denying plaintiff's motion to compel further deposition answers. First, no party disputes here that a privacy privilege, if established, may be a valid ground on which to withhold evidence/testimony. No party disputes that the privilege would be validly asserted concerning the "personal reasons" for leave and resignation, if those reasons had nothing to do with the possible issues in this litigation. The court will therefore dispense with a discussion on privacy privilege in federal law, especially because there is a need for immediate decision.
Secondly, because this is not a documents motion, it was not absolutely necessary that the privilege be established via documentation. Once the privacy privilege was made, Piano's counsel quickly modified it to allow all questioning in areas which would have reasonably possible relevance to this suit. That is, if the "personal reasons" had any connection to the incident germane to the complaint, dishonesty in general, excessive force in general, or false arrest in general, plaintiff was free to ask questions on those issues. Even after defense counsel properly spelled out these areas, plaintiff's counsel did not follow up on this line of questioning. He either was myopically concerned with the precise wording on official resignation document(s) (which probably only reiterated the "personal reasons" rationale), as opposed to discussions underlying those documents, or when starting down an appropriate line of inquiry, inexplicably changed topics prior to the answer being given. See e.g. Piano Depo. at 41:12-21; 104:16-105:3. It was not inappropriate for Piano's counsel to require that plaintiff's counsel at least exhaust the questioning areas related to the relevant-to-this case reasons for Piano's being placed on leave or resigning, in order to preserve the asserted private, non-relevant reasons from seeing the light of day.
Furthermore, denying this motion results in no cognizable injury to plaintiff given the timing of plaintiff's motion. This is not a case where plaintiff has time left in the allowable discovery period to attempt to formally investigate Piano's anticipated denials of relevant reasons for being placed on leave or his resignation. Even if plaintiff were given the opportunity for a continued deposition in order to properly pursue relevant questions, he would, because of the late date, either have to accept Piano's answers or would have to impeach them. The same outcome would result if plaintiff asks these questions of Piano at trial. Plaintiff's counsel would then either have to accept the answers or have to use what evidence, if any, that he has now to impeach this witness' answers. In other words, denying a continuation of the deposition is not likely to lead to a loss of admissible evidence that plaintiff will not otherwise be able to pursue at trial. Given the last moment taking of this deposition, and a need for possibly seeking a change in the scheduling order if a further deposition were granted, no real harm results from waiting to question this defendant further at trial.
Accordingly, IT IS ORDERED that: plaintiff's motion to compel further deposition testimony of defendant Piano, filed September ...