United States District Court, N.D. California
ORDER TO SHOW CAUSE RE: SAHLEEM TINDLE'S FAILURE
TO APPEAR FOR DEPOSITION; ORDER RE: TINDLE'S MANDATORY
ATTENDANCE AT JULY 7, 2016 HEARING RE: DKT. NOS. 155, 156,
159- 163
Donna
M. Ryu, United States Magistrate Judge
On June
24, 2016, Defendants filed a discovery letter stating that
Plaintiff Sahleem Tindle failed to appear for his deposition
on June 17, 2016. [Docket No. 163.]
Mr.
Tindle is hereby ordered to appear in person at the July 7,
2016 hearing at 11:00 a.m. at the United States District
Court at 1301 Clay Street, Oakland, California to explain his
repeated violations of court orders, as well as his multiple
failures to attend his deposition.
A
detailed history of Tindle's failure to attend his
deposition is set forth in the court's June 3, 2016 Order
[Docket No. 155]. The court provides a brief history here. On
November 20, 2015, the parties filed a joint discovery letter
in which Defendants sought to compel Tindle to appear for his
deposition, or to stay the case if Tindle was not able to
give accurate deposition testimony. [Docket No. 112.] The
undersigned held a hearing on the dispute on November 30,
2015. [Docket No. 116.] At the hearing, Plaintiffs' pro
bono counsel represented to the court that Tindle was unable
to sit for his deposition due to the fact that he was
suffering from Post-Traumatic Stress Disorder, which rendered
him unable to recount the basic facts of the case. Counsel
stated that Tindle had started seeing a therapist in the last
two weeks and that counsel had requested a release from
Tindle and an assessment from the therapist, but had not been
able to obtain them. The court instructed Plaintiffs'
counsel to make best efforts to submit an assessment from
Tindle's therapist within a week. [Docket No. 116.]
Plaintiffs
did not submit the assessment. Instead, on December 11, 2015,
Plaintiffs filed a letter stating that Tindle would appear
for his deposition. Dec. 11, 2015 Letter from Plaintiffs'
counsel [Docket No. 120]. In light of this change in
position, the court instructed the parties to submit a
stipulated proposed deposition schedule, which they did.
[Docket Nos. 121-123.]
Prior
to the date of Tindle's deposition, Plaintiffs' pro
bono counsel filed a motion to withdraw as counsel of record.
Motion to Withdraw [Docket No. 127]. Judge Gilliam granted
the motion on February 19, 2016. Order Granting Motion to
Withdraw [Docket No. 136]. Tindle's deposition did not go
forward.
On May
10, 2016, Defendants served a notice for Tindle's
deposition for May 24, 2016, which Defendants state was the
only date that Plaintiffs had provided for Tindle's
deposition. Defendants' May 19, 2016 Unilateral Discovery
Letter [Docket No. 150 at 3]; Deposition Notice [Docket No.
150, Ex. 3]. On May 19, 2016, Defendants filed a unilateral
discovery letter asking the court to compel Tindle to appear
for his deposition on May 24, 2016. [Docket No. 150.]
According to Defendants, although Tindle had not objected to
the notice of deposition, neither had he confirmed his intent
to appear on the scheduled date. Id. On May 31,
2016, the court issued a clerk's notice requesting that
Defendants indicate whether Tindle had appeared for his
deposition. [Docket No. 152.] Defendants filed a letter
stating that Tindle's deposition did not go forward on
May 24, 2016 because Plaintiff Yolanda Banks-Reed informed
Defendants on May 20, 2016 that she could not confirm whether
or not Tindle would attend his deposition. Defendants'
June 1, 2016 Letter [Docket No. 153.] Defendants stated that
they took the depositions off calendar to avoid the expense
of the videographer and court reporter. Id.
On June
3, 2016, the court ordered Tindle to file a letter providing
at least five available weekday dates for deposition during
the weeks of June 6, 2016 and June 13, 2016 and instructing
Defendants to promptly re-notice Tindle's deposition for
one of his available dates. [Docket No. 155.] Tindle failed
to file the required letter, thereby violating this
court's order On June 7, 2016, the court ordered Tindle
to show cause for his failure to comply with the court's
June 3, 2016 order, and again ordered Tindle to file a letter
indicating at least three available weekday dates for his
deposition during the week of June 13, 2016. [Docket No.
156.] Tindle filed a letter on June 9, 2016 stating that he
was available for his deposition on June 15, 16, and 17,
2016. [Docket No. 157.] His letter did not explain his
failure to comply with the court's June 3, 2016 order,
thereby violating the court's order yet again.
Id.
On June
9, 2016, in light of the long history of difficulty in
securing Tindle's deposition, and the centrality of
Tindle's testimony to the case, the court ordered
Tindle's deposition to go forward, and instructed
Defendants to promptly re-notice Tindle's deposition for
June 15, 16 or 17, 2016. [Docket No. 159.] The court ordered
Tindle to appear for his deposition. The court warned Tindle
that failure to do so may result in sanctions, up to and
including dismissal of his claims for failure to prosecute
his case. Id. at 3.
As
noted above, Tindle once again violated a court order by
failing to appear for his June 17, 2016 deposition. He must
now show cause for his multiple failures to appear for
deposition, as well as his violations of court orders. If
Tindle intends to assert that he was unable to attend his
June 17, 2016 deposition due to his mental or emotional
state, Tindle shall submit a written evaluation from his
mental health care provider setting forth (1) his condition
and diagnosis, (2) an assessment of his ability to provide
deposition testimony, (3) an assessment of when he will be
able to provide deposition testimony, and (4) whether he
would require any special conditions. Tindle may lodge
(rather than file) the written evaluation with the court. The
written evaluation must be received by the court at the
Oakland address noted above by no later than 4:00 p.m. on
July 5, 2016. Tindle need not submit the evaluation if he is
not asserting mental health as the reason for not providing
deposition testimony.
Tindle's
failure to comply with this Order may result in sanctions, up
to and including dismissal of his claims ...