United States District Court, E.D. California
October 14, 2014
DARRELL ARCHER, et al., Plaintiffs,
CITY OF TAFT, et al., Defendants.
ORDER DENYING PLAINTIFFS' MOTION TO CONTINUE THE DEPOSITION OF DEFENDANT JILL GIPSON
JENNIFER L. THURSTON, Magistrate Judge.
Darrell Archer filed a motion "to continue the deposition of Jill Gipson" which was taken on June 9, 2014. (Doc. 66.) Plaintiff contends that he became ill during the deposition and was not able to continue. In opposition, Defendants provide a copy of the transcript which fails to show Mr. Archer made any statement indicating that he was ill and could not continue or that he wished to continue the deposition to another day. Instead, in calling the deposition to a close, Mr. Archer stated, "Okay. I think we've covered enough ground here." Because the Court concludes that Mr. Archer has not established good cause for a second deposition of Ms. Gipson, his motion is DENIED.
I. Relevant Background
Mr. Archer reports he took the deposition of Jill Gipson on June 10, 2014, but "because of an unexpected reaction to the deposition room or something in the air, Mr. Archer became ill and had to cut the deposition short." (Doc. 66 at 1.) Mr. Archer claims he "never got to ask the remainder of important questions he had laid out for this deposition." ( Id. at 3.) He claims he "was conducting the deposition, had prepared for it by himself so Plaintiff Darquea was unprepared to continue in Archer's absence." ( Id. at 2.) Therefore, Mr. Archer requests that "th[e] Court... authorize Plaintiffs to continue the Deposition of Jill Gipson." ( Id. at 3.)
Defendants contend they had no awareness of Mr. Archer's inability to complete the deposition. (Doc. 68 at 4) To the contrary, they provide a copy of the transcript of the deposition where, at its end, Mr. Archer stated, "Okay. I think we've covered enough ground here, " and called the deposition to a conclusion without any comment about illness. (Doc. 68-1 at 21-22)
II. Legal Standard
The Federal Rules of Civil Procedure govern the taking of depositions by oral examination. A party must obtain leave of the Court to conduct a deposition "if the parties have not stipulated to the deposition" and "the deponent has already been deposed in the case." Fed.R.Civ.P. 30(a)(2)(A)(ii). The Court shall grant such leave "to the extent consistent with the principles stated in Rule 26(b)(2), " which allows courts to limit discovery in instances in which the court determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or
(iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.
Fed. R. Civ. P. 26(b)(2)(C). Whether to reopen a deposition is a matter committed to the Court's discretion. Couch v. Wan, 2012 U.S. Dist. LEXIS 137216at *8 (E.D. Cal. Sept. 24, 2012) (citing Dixon v. Certainteed Corp., 164 F.R.D. 685, 690 (D. Kan. 1996)).
III. Discussion and Analysis
Review of the portions of the deposition of Gipson reveals that, despite any infirmity from which Mr. Archer was suffering, the interaction between the deponent and Mr. Archer was lively with both parties explaining in full the questions and the answers. ( See Doc 68-1) And, at the conclusion of the deposition, Mr. Archer did not comment about any difficulty experienced at the deposition and, from the face of the transcript, the Court sees no substantive factual area not addressed. Id. at 21-22.
Even still, Mr. Archer claims a second deposition is necessary to obtain information from Gipson related to:
Her definitions and understandings of the Taft Municipal Codes she is enforcing.
Her understanding of postal addresses as they relate to real property.
Her training as a reserve police officer.
Her allowances and limitations as a code officer.
Her understanding and awareness of state laws regarding abatement.
Any other questions that may come about as a result of her answers to the above questioning.
(Doc. 67 at 5.) Though identifying these additional topics for examination, Mr. Archer fails to explain how they bear on the questions presented in this litigation. At the hearing, he denied the topics would relate to any entitlement of punitive damages and, instead, relied upon his belief that this evidence would demonstrate liability. However, at issue in this action is only whether the defendants violated the Fourth Amendment by failing to obtain a warrant before entering Plaintiffs' property and seizing items located thereon and whether the defendants violated the Fourteenth Amendment by failing to have adequate pre- and post-deprivation processes in place. (Doc. 4, 7, 12) Despite conducting oral argument, the Court still has no satisfactory understanding as to how these topics bear on this case.
On the other hand, Mr. Archer notes that the deposition notice indicated that it would continue "from time to time." (Doc. 67 at 2) Mr. Archer does not explain why he thinks this language is important but the Court suspects he thinks this means he is entitled to have more than one session of a deposition; this is incorrect. Regardless of the language of the deposition notice, the rules prohibit a deposition extending beyond one day without leave of the Court. Fed.R.Civ.P. 30(d).
Importantly, the factors of Rule 26(b)(2)(C) weigh against the re-opening of the deposition here. As Defendant asserts, the information now claimed to be missing could have been obtained through written discovery, which would be "more convenient, less burdensome, [and] less expensive." Mr. Archer has had an "ample opportunity" to obtain this information because discovery commenced in April 2014 and months have passed since the deposition in June. ( See Doc. 30.) Finally, as noted above, Plaintiffs have not explained the importance of this information related to the issues presented in the case, and it appears "the expense of the proposed discovery outweighs its likely benefit."
Absent a sufficient showing to justify the second deposition, "like the "long passage of time with new evidence or new theories added to the complaint, " a court generally will not order a re-opening of a deposition. Dixon, 164 F.R.D. at 690. Likewise, a finding that the Rule 26(b)(2)(C) factors apply precludes reopening a deposition. Here, the Court finds that each of these factors are shown. Therefore, Mr. Archer has fail to show sufficient justification to re-open the deposition of Defendant.
IV. Conclusion and Order
In light of the foregoing, the Court exercises its discretion to decline to reopen the deposition of Defendant. See Couch, 2012 U.S. Dist. LEXIS 137216; Dixon , 164 F.R.D. at 690 (D. Kan. 1996)). Accordingly, IT IS HEREBY ORDERED:
1. Plaintiffs' motion to continue the deposition of Jill Gipson (Doc. 66) is DENIED.
IT IS SO ORDERED.