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Thomas Botell, et al v. United States of America

January 28, 2013

THOMAS BOTELL, ET AL., PLAINTIFFS,
v.
UNITED STATES OF AMERICA, DEFENDANT.



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

ORDER and MEMORANDUM

Previously pending on this court's law and motion calendar for January 17, 2013, was Plaintiffs' motion to compel depositions of four witnesses: Sean Eagan, Lassen former Volcanic National Park ("LAVO") environmental protection specialist, and further depositions of: Darlene Koontz, LAVO Superintendent, John Roth, LAVO Chief Ranger and Collateral Duty Safety Officer, and Joseph Pettegrew, former LAVO Trail Crew Leader. Steven Campora appeared for plaintiffs. J. Earlene Gordon represented defendant. After reviewing the joint statement filed January 10, 2013, and having heard oral argument, the court now issues the following order.

INTRODUCTION AND BACKGROUND

There is no need to detail the background of the case in detail, as these facts are well known to all concerned. Suffice it to say that the case involves in the main the alleged wrongful death of a child occasioned by the collapse of a retaining wall on a trail in the Lassen National Park. The factual issues surround the maintenance of the trail, or lack of it, and whether defendant's personnel should have foreseen the collapse of the wall and taken measures to not let it happen. The usual underlying issue of who knew what, when, is very much an issue in this case.

Plaintiffs contend that defendant has refused to produce Mr. Eagan for deposition without any justification. Since he resides in American Samoa, plaintiffs had offered to fly there to depose him or split the costs to fly Mr. Eagan here, but defendant refused. Plaintiffs contend that Eagan is a key witness who was intimately involved in matters pertaining to this case.

Plaintiffs also seek further depositions of witnesses Koontz, Roth and Pettegrew based on subsequent production of relevant documents and allegations of misconduct and spoliation of evidence made known to plaintiffs after their initial depositions took place.

Defendant contends that plaintiffs have exceeded the number of depositions permitted under the Federal Rules, and they could have deposed Mr. Eagan earlier this year when he was in the continental United States but failed to do so. Defendant disputes that he is a key witness or is intimately familiar with matters in this case. In regard to the three other witnesses already deposed, defendant contends that plaintiffs chose the order of their discovery and now seek to recover from a poor strategic decision they made.

By order of January 18, 2013, based on letters submitted after hearing by both parties concerning Sean Eagan's deposition, the undersigned reiterated that no formal order had been issued regarding this deposition, but the court had made only a tentative ruling at hearing that the parties should prepare the logistics for this deposition. In regard to the request for further depositions of Ms. Koontz and Mr. Roth, the undersigned ordered that they were to be taken by the current discovery cutoff of February 1, 2013, but that their testimony would be limited to the issue of shredding of documents only. The court directed that the further deposition of Joseph Pettegrew would not be permitted.

DISCUSSION

A. Sean Eagan's Deposition

Compelling, or not, the Eagan deposition involves three somewhat overlapping issues: its importance in overriding the agreement of counsel as to the number of depositions, who was "at fault" for not having the Eagan deposition taken long before he left the country, and the logistical difficulties involved in deposing a person residing far away from the forum, in this case American Samoa.

As to the first issue, the parties originally had an agreement to permit plaintiffs thirteen depositions, including that of Mr. Eagan, although defendant disputes that Eagan was on the original list. His deposition was originally noticed on February 10, 2012, but it was taken off at defense counsel's request. After some back and forth, Ms. Gordon informed Mr. Campora on May 14, 2012 that Mr. Eagan was going to be in the country in the first two weeks of June. Aside from the vagueness regarding the exact dates and location, this proposal was unacceptable to plaintiffs because they had learned of emails from Mr. Eagan and others which had not been produced as a result of their discovery requests. Mr. Eagan was also not on plaintiffs' list presented in July, 2012. In July, Ms. Gordon informed Mr. Campora of a number of Eagan emails which defendant had discovered on the computer he left in Utah, and it was not until September 4, 2012 that defendant produced the 830 emails. At this time plaintiffs became more aware of the significance of this witness.*fn1 The parties continued negotiation for Mr. Eagan's deposition, but defendant would not agree to pay for transportation to bring Eagan to the United States, and offered instead a deposition by phone. Plaintiffs formally noticed Eagan's deposition for a second time on November 14, 2012. Ms. Gordon never formally objected to the notice, but indicated she was checking on it, and then finally on November 30, 2012, instructed Mr. Campora to file a motion on the issue.

This history requires that plaintiffs be excused from the agreed-upon thirteen deposition limit. Mr. Eagan's true significance to the case did not become apparent until much later in the litigation, after his emails were discovered and produced. The Comptons coming forward regarding shredding of documents, and adding two depositions to plaintiffs' list, could not have been anticipated by plaintiffs. Mr. Eagan's involvement with the trail, video of the trail, communication to Dolan to take strong language out of the draft report pursuant to Koontz's request, retention of numerous emails on his computer in Utah, as well as other activities, all indicate a seemingly pervasive knowledge on the part of this deponent. The court finds this deposition to be sufficiently important to override the thirteen deposition limit.

Secondly, the court finds that no party is blameworthy for not taking the Eagan deposition while he was in the country last June. Defendant's document production, whether intentionally or unintentionally delayed, is either not plaintiffs' fault, or could not have been predicted. If Mr. Eagan resided in the contiguous United States, the timing of his deposition would not have created the conflict that it has. All of these mostly unforeseen circumstances do not ...


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