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Harold Anthony Funk v. Town of Paradise

June 28, 2011


The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge


Plaintiff Harold A. Funk ("Plaintiff") seeks monetary damages against the Town of Paradise, Police Chief Gerald Carrigan, and Officers Robert Pickering and Timothy Cooper (collectively "Defendants") arising out of Plaintiff's excessive force claims against the officers. Presently before the Court is Defendants' Request for Reconsideration of Magistrate Judge's Ruling as to various portions of the parties' cross-motions to compel ("Request") (ECF No. 37). For the following reasons, Defendants' Request is DENIED.


In reviewing a magistrate judge's determination, the assigned judge shall apply the "clearly erroneous or contrary to law" standard of review set forth in Local Rule 72-303(f), as specifically authorized by Federal Rule of Civil Procedure 72(a)*fn1 and 28 U.S.C. § 636(b)(1)(A). Under this standard, the Court must accept the magistrate judge's decision unless it has a "definite and firm conviction that a mistake has been committed." Concrete Pipe & Products of Cal., Inc. v. Constr. Laborers Pension Trust for So. Cal., 508 U.S. 602, 622 (1993). If the Court believes the conclusions reached by the magistrate judge were at least plausible, after considering the record in its entirety, the Court will not reverse even if convinced that it would have weighed the evidence differently. Phoenix Eng. & Supply Inc. v. Universal Elec. Co., Inc., 104 F.3d 1137, 1141 (9th Cir. 1997).


Defendants' instant Request arises out of the magistrate judge's ruling on the parties' cross-motions to compel.

A. Plaintiffs' Motion to Compel Further Depositions of Officers Pickering and Cooper

On August 5 and 9, 2010, Defendants Pickering and Cooper appeared at Plaintiff's counsel's office for their respective depositions. On numerous occasions during those depositions, defense counsel instructed deponents not to answer, interrupted questions and answers, interjected editorial comments, and coached or suggested information to witnesses. See e.g., Dep. of Cooper, 9:16-20, 12:6-17, 14:12-17, 35:2-16, 65:1-66:4, 66:19-68:16 (ECF No. 33-1); Dep. of Pickering. 18:6-21:15, 27:7-23, 37:1-38:18, 53:3-15, 73:3-75:11, 77:17-80:10, and 82:2-25 (ECF No. 33-1). Plaintiff consequently filed a motion to compel requesting, in pertinent part: 1) an order compelling the further depositions of Defendants Pickering and Cooper; and 2) $4,500 as reasonable costs and attorney fees incurred in connection with the motion proceedings.

After a hearing on the matter, the magistrate judge ordered the officers to appear for second depositions, limited to two hours each, with defense counsel paying the cost of the additional court reporter appearances. The magistrate judge also awarded Plaintiff $3,800 in reasonable expenses.

Defendants seek reconsideration of the magistrate judge's order in its entirety and ask the Court, at the very least, to limit the scope of the depositions.

Defendants' primary argument is that, during the hearing on Plaintiff's motion, the magistrate judge misstated Rule 30(c)(2). Even assuming, arguendo, that such a misstatement occurred, however, Defendants have still failed to demonstrate sufficient grounds to justify reconsideration here. The transcripts of the depositions make clear both that defense counsel's instructions not to answer were improper under Rule 30(c)(2) and that his behavior throughout the depositions independently warranted an order to conduct further proceedings.

First, Rule 30(c)(2) permits counsel to "instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3)." Rule 30(d)(3) in turn provides that "[a]t any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party." According to Defendants, their counsel's invocation of Rule 30(d)(3) was proper because both depositions were being conducted to harass deponents with continuous "irrelevant" questions. Request, 7:6-9. Defendants contend Plaintiff's counsel's "frequent or persistent inquiry into matters outside the permissible scope of discovery" was indicative of bad faith. Id., 7 n.6. (quoting W. R. Grace & Co. v. Pullman Inc., 74 F.R.D. 80, 84 (W.D. Okla. 1977)).

Defendants' argument is refuted by the record, however, which demonstrates that counsel began instructing his clients not to answer almost immediately during both depositions. Dep. of Cooper, 4:11-12; Dep. Of Pickering, 4:9-5:13. Even if the quantity of allegedly irrelevant questions from Plaintiff's counsel had eventually amounted to harassment, it would not excuse defense counsel's conduct here. Defendants' above authority thus provides no basis for relief.

Defendants' reliance on the magistrate judge's ultimate issuance of a protective order permitting redaction of certain personal information (e.g., addresses, phone numbers, etc.) from documents ordered produced is likewise not well-taken. See Order on Motions to Compel, 1:23-2:5 (ECF No. 36) ("Order"). A ruling that certain information is in fact irrelevant does not ...

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