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Penny Arnold v. County of El Dorado

February 22, 2012


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


On February 16, 2012, the parties, by and through their counsel, were heard in connection with a motion to compel discovery and for protective order filed by defendants County of El Dorado, Ken Brown and Scott Crawford. Plaintiff appeared in pro se. Andrew Caulfield appeared on behalf of all defendants. After reviewing the motion, opposition and reply, and hearing oral argument, the court issues the following order.


This action was filed on November 19, 2010. Plaintiff brings suit against El Dorado County and two deputy sheriffs, Ken Brown and Scott Crawford, in regard to their treatment of her during two visits to the El Dorado County courthouse.

After various motions, the case is proceeding on the second amended complaint, but outstanding are this court's findings and recommendations, issued November 23, 2011, recommending that the first claim be dismissed, that the second and third claims be construed to state claims for excessive force only, that all references to unreasonable or wrongful seizure be stricken, and that plaintiff's Monell claim against the County proceed only on the excessive force claim.


Defendants seek an order compelling plaintiff to appear for her deposition on February 20, 2012, that she appear without bodyguards or third parties, that she produce responses to defendants' request for production of documents without objections within three days of this order, and for monetary sanctions in the amount of $2,220. At the hearing, defendants added a request that plaintiff be required to produce initial disclosures in accordance with Fed. R. Civ. P. 26(a).

Defendants demonstrate, without a contrary factual assertion by plaintiff, that they have rescheduled plaintiff's deposition multiple times, but that after agreeing to a second rescheduling they warned plaintiff that they would not agree to a third rescheduling. Plaintiff attempted to unilaterally reschedule a third time and then failed to appear at her January 24, 2012 deposition. She also failed to produce documents by January 24, 2012, after being given multiple extensions of time.

Plaintiff's declaration in opposition, filed January 30, 2012, states only that the motion is moot because she agreed to appear at her deposition on February 3, 2012, and to bring documents at that time. As a result plaintiff requests that the court drop the matter from the calendar. Defendants dispute these statements, claiming that plaintiff made this statement knowing it to be false, and that there was no agreement to take her deposition on February 3rd. They therefore request terminating sanctions in addition to monetary sanctions.

I. Deposition and Discovery Production

Defendants present a history indicating that plaintiff failed to honor her deposition commitment on a number of occasions. Defendants sent plaintiff a letter on November 29, 2011, suggesting a number of dates for her deposition. She did not respond. On December 8, 2011, defendants served plaintiff with a notice of deposition, scheduling it for January 13, 2012. At this time, defendants propounded their requests for production of documents, responses to which were due by January 13, 2012. On January 11, 2 012, plaintiff called defense counsel and requested that her deposition be rescheduled to January 19, 2012. Defendants agreed to the request and also permitted plaintiff to produce responsive documents by January 19, 2012. On January 13, 2012, plaintiff called defense counsel and again requested rescheduling of her January 19th deposition. Defendants agreed and rescheduled the deposition and production of documents to January 24, 2012. Defendants confirmed the change by letter, warning plaintiff that if she failed to appear and produce documents on January 24th, they would move to compel. On January 23, 2012, plaintiff attempted to reschedule the deposition, but defendants responded the same day that no further extension would be granted. Plaintiff did not appear at her deposition on January 24th and did not produce discovery responses that date.

At hearing, plaintiff claims she was ill on January 23, 2012; however, defense counsel and their staff indicated that none of plaintiff's communications indicated illness as a reason for moving the last deposition until later in the day on the 23rd. Plaintiff also represented at hearing that she has since produced partial discovery to defendants.

At hearing, the parties agreed, and were ordered, to hold plaintiff's deposition at defense counsel's office on February 21, 2012 at 9:00 a.m. No bodyguards or third parties will be permitted. Plaintiff shall produce the remainder of documents responsive to defendants' request for production of documents, and shall provide written responses to defendants' requests, as well as initial disclosures in accordance with Federal ...

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