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Conforto v. Mabus

United States District Court, S.D. California

August 8, 2014



BARBARA L. MAJOR, Magistrate Judge.

Currently before the Court is Defendant's July 30, 2014 motion to compel the videotaped deposition of Plaintiff and the production of documents and Defendant's request for sanctions [ECF No. 29 ("MTC")], Plaintiff's August 5, 2014 opposition to the motion [ECF No. 30 ("Oppo.")], Plaintiff's August 6, 2014 addendum to opposition to motion to compel videotaped deposition and production of documents at deposition [ECF No. 31 ("Addendum")], Defendant's August 7, 2014 Reply [ECF No. 32 ("Reply")], and Plaintiff's August 8, 2014 Sur-Reply [ECF No. 33 ("Sur-Reply")]. For the reasons set forth below, Defendant's motion is GRANTED.


The above-entitled matter was initiated on June 1, 2012 when Plaintiff filed a complaint for gender and age discrimination and retaliation. ECF No. 1. Defendant filed a motion to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(1) and 12(b)(6) on October 19, 2012 [ECF No. 6] which was withdrawn on May 31, 2013. ECF Nos. 12 and 13. On November 26, 2013, Defendant answered the complaint [ECF No. 14] and the Court held an Early Neutral Evaluation Conference on December 20, 2013 [ECF No. 17]. After a January 27, 2014 telephonic Case Management Conference, the Court issued a Case Management Conference Order Regulating Discovery and Other Pretrial Proceedings. ECF No. 20.

On June 19, 2014, the parties jointly contacted the Court regarding a discovery dispute brought by Defendant concerning Plaintiff's objections to Defendants' request for an Independent Psychiatric Evaluation ("IPE") of Plaintiff. ECF No. 23. After the call, the Court issued a briefing schedule [id.] and the parties filed their pleadings in accordance with that schedule. See ECF No. 24-1, 25, and 26. On July 10, 2014, the Court issued an Order granting Defendant's motion to compel the IPE of Plaintiff. ECF No. 27. In reaching its decision, the Court noted that Plaintiff already would be in San Diego, where the IPE was set to take place, for her deposition. Id. at 6.

On July 25, 2014, Plaintiff and Mr. Smee arrived at the deposition and refused to proceed when they saw the videographer and recording equipment. ECF No. 29-1, Declaration of Ms. Dianne Schweiner ("Schweiner Decl.") at 3. Plaintiff and Mr. Smee argued that the deposition was improperly noticed and that Plaintiff was "not prepared for a videotaped deposition." MTC at Exh. F at 10-11. Ms. Schweiner contacted the Court regarding Plaintiff's objections to having her deposition videotaped.[1] ECF No. 28. The Court ordered the videotaped deposition to proceed forward and advised counsel that motions challenging the use of the videotape could be filed later. MTC at Exh. F at 8-12. Mr. Smee refused to proceed forward with the videotaped deposition. The Court subsequently issued a briefing schedule [see ECF No. 28] and the parties filed their pleadings in accordance with that schedule. See MTC, Oppo., Addendum, and Reply.


Defendant asks that the Court order Plaintiff to attend her videotaped deposition, which has been re-noticed for August 11, 2014, and "to produce all documents requested in Defendant's Notice of Deposition, including attorney's fees bills and tax returns." MTC at 11; Exh. I. Defendant further requests that the Court sanction Mr. Smee and/or Plaintiff for (1) the costs associated with the July 25, 2014 videotaped deposition ($200 to the videographer and $250 to the court reporter), (2) the attorney's fees incurred by defense counsel in preparing and filing the instant motion to compel ($1, 128.30), and (3) payment to the Court's non-appropriated fund "in an effort to cease continuing discovery abuses in this case and others." MTC at 10.

In support of the requests, Defendant argues that the deposition was properly noticed and that Mr. Smee - who was on notice about the videographer - failed to object to the presence of a videographer at the deposition, and therefore, waived any objections he may have had. Id. at 7. Defendant further argues that according to Federal Rule of Civil Procedure ("FRCP") 30(c), Mr. Smee should have stated his objection on the record and proceeded with the deposition. Id . Finally, Defendant argues that the 13 RFPs included in the original and amended deposition notices seek relevant documents that Plaintiff initially improperly refused to produce. Id. at 8. Defendant explains that Plaintiff has since agreed to produce all of the requested documents with the exception of "the attorney's fees bills... and Plaintiff's tax returns." Id . Defendant argues that federal authority mandates that Plaintiff produce the bills and tax returns since this is a Tile VII action where "Plaintiff is seeking reimbursement of attorneys fees from Defendant, and where the Plaintiff is seeking wage loss from the Defendant." Id.

Plaintiff contends that "Defendant is overreaching" and asks that the request for a videotaped deposition of Plaintiff be denied. Oppo. at 5; Addendum. Plaintiff also requests that she be "awarded her attorney's fees [of $1, 884] incurred in opposing this motion." Oppo. at 5. Plaintiff further requests that the Court deny Defendant's request for attorney billing statements, but that if it does not, the Court perform an in camera review of the billing statements prior to their disclosure. Id. at 12-13. In support, Plaintiff argues that (1) Defendant failed to participate in any further meet and confer efforts after the failed deposition attempt, (2) many of Plaintiff's attorney's billing statements are privileged, it would be overly burdensome to review the statements for privilege, and Defendant's request for the statements is overboard, (3) Plaintiff's tax returns are privileged, Plaintiff's husband has a right to privacy with respect to the tax returns, and there are less intrusive means of gathering the sought after information, and (4) the deposition was not property noticed as it only indicated that a videotaped deposition was possible, not that it was a certainty. Oppo. at 8-17.

Plaintiff initially agreed to participate in the August 11, 2014 videotaped deposition and agreed that all requested documents, with the exception of the attorney billing statements and tax returns, would be produced. Id. at 7-8. Plaintiff argues that since Defendant failed to ask her to pay for the videographer and court reporter prior to filing his motion, the motion should be denied and in the event that Defendant's motion is granted, Plaintiff should be ordered only to pay $450.00 for the court reporter and videographer bills as any "[s]anctions stemming from refusal to produce tax returns and billing entries would amount to an abuse of discretion." Id. at 18-19.

On August 6, 2014, Plaintiff changed her position on the August 11, 2014 deposition and in the addendum, Plaintiff states that she "is no longer inclined to voluntarily participate in a videotaped deposition" because she received notice on August 5, 2014, that her doctor believes "that a videotaped deposition is not medically advisable and may have an adverse impact on Plaintiff's health." Addendum at 1. Plaintiff requests that the Court grant Plaintiff a protective order and deny Defendant's motion to compel the videotaped deposition of Plaintiff "in order to avoid annoyance... oppression... undue burden... [and] expense." Id. at 2.

In his reply, Defendant states that defense expert Dr. Alan Abrams, who recently examined Plaintiff, is of the opinion that "there are no medical reasons that [Plaintiff] cannot participate in a videotaped deposition, other than her subjective discomfort." Reply at 7. Defendant further states that he is willing to do without Plaintiff's tax returns as long as Plaintiff produces her W-2s. Id. at 9. Defendant notes that Plaintiff previously refused to produce the W-2s that she now suggests would be more appropriate than her tax returns. Id.

A. Motion to Compel Videotaped Deposition

Plaintiff argues that Ms. Schweiner "falsely stated to Judge Major's law clerk that she had properly noticed' the videotaped deposition, " and that the notice was not proper because it said that the "deposition may also be recorded by videotape" and not that it would be videotaped. Oppo. at 8, 16; see also MTC at Exh. C. Plaintiff further argues that the deposition notice was intentionally misleading because Ms. Schweiner knew that the deposition would be recorded since she stated that she always videotapes her depositions. Oppo. at 8. Finally, Plaintiff now requests that the Court enter a protective order so that she does not have to participate in the videotaped deposition based on her doctor's recommendations. Addendum at 2.

1. Legal Standard

FRCP 30(a)(1) provides that "[a] party may, by oral questions, depose any person, including a party, without leave of court...." "A party who wants to depose a person by oral questions must give reasonable written notice to every other party. The notice must state the time and place of the deposition and, if known, the deponent's name and address." FRCP 30(b)(1). The notice must also state "the method for recording the testimony" and the "testimony may be recorded by audio, audiovisual, or stenographic means." FRCP 30(b)(3). Any objections during the deposition "whether to evidence, to a party's conduct, to the officer's qualifications, to the manner of taking the deposition, or to any other aspect of the deposition-must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection." FRCP 30(c)(2). Objections must be stated concisely in a nonargumentative and nonsuggestive manner and a deponent may only be instructed not to answer "when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3)." Id.

Upon a showing of good cause, the Court may "issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed.R.Civ.P. 26(c)(1). "For good cause to exist, the party seeking protection bears the burden of showing specific prejudice or harm will result if no protective order is granted." Phillips ex rel. Estates of Byrd v. General Motors Corp. , 307 F.3d 1206, 1210-11 (9th Cir. 2002), citing Beckman Indus., Inc. v. Int'l Ins. Co. , 966 F.2d 470, 476 (9th Cir. 1992) ("Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test"); see also Blankenship v. Hearst Corp. , 519 F.2d 418, 429 (9th Cir. 1975) (Under liberal discovery principles of the federal rules, those opposing discovery are required to carry a heavy burden of showing why discovery should be denied). The ...

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