United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO
COMPEL TESTIMONY AT DEPOSITION AND FOR SANCTIONS [ECF NO. 56]
AND GRANTING IN PART REQUEST FOR A PROTECTIVE ORDER [ECF NO.
Ruben B. Brooks United States Magistrate Judge
October 27, 2016, Plaintiff Tony Nguyen filed a “Motion
to Compel Testimony at Deposition and for Sanctions”
(the “Motion to Compel”) with a Memorandum of
Points and Authorities, a declaration of Stephen G. Recordon,
a declaration of Clinton Rooney, and several exhibits [ECF
No. 56]. Defendants Michael S. Hunt and Janalie A. Henriques
filed a “Memorandum of Points and Authorities in
Opposition to Plaintiff's Motion to Compel Deposition
Testimony and for Sanctions; Request for a Protective
Order” (the “Opposition”) on November 30,
2016, with a declaration of Tomio B. Narita and multiple
exhibits [ECF No. 57]. There, the Defendants request a
protective order preventing further deposition questions that
seek information protected by the attorney-client privilege
and the work-product doctrine. (Opp'n 12-13, ECF No. 57.)
On December 7, 2016, Nguyen filed a Reply with a declaration
of Stephen G. Recordon [ECF No. 58]. For the reasons
discussed below, Plaintiff's Motion to Compel [ECF No.
56] is GRANTED in part and DENIED in part, and
Defendants' request for a protective order [ECF No. 57]
is GRANTED in part.
filed his lawsuit against Defendants LVNV Funding, LLC;
Michael S. Hunt; and Janalie A. Henriques on April 7, 2015.
(Compl. 1, ECF No. 1.) In his First Amended Complaint, Plaintiff
asserts claims against the three Defendants for violations of
the Fair Debt Collection Practices Act (“FDCPA”)
and the Rosenthal Act. (First Am. Compl. 5-6, ECF No. 39.)
Nguyen contends that on April 17, 2014, Hunt and Henriques
filed a complaint against him in San Diego Superior Court on
behalf of LVNV. (Id. at 3.) In the state court
action, Hunt and Henriques alleged that LVNV was the assignee
of a debt owed by Plaintiff and that LVNV had enforceable
claims against Nguyen. (Id. at 4.) Plaintiff
maintains that the claims against him were time-barred and
unenforceable. (Id.) He seeks actual damages,
statutory damages, litigation costs, and attorney's fees.
(Id. at 6-7.)
filed his First Amended Complaint on April 7, 2016 [ECF No.
39]. United States District Court Judge Larry Alan Burns
consolidated this case with a related case involving the same
parties on April 20, 2016 [ECF No. 43], and the Defendants
answered shortly after [ECF Nos. 44, 45, 46]. Defendants Hunt
and Henriques were deposed on September 28, 2016. (Mot.
Compel 2, ECF No. 56.) Several times during the depositions,
defense counsel objected to questions by Plaintiff's
counsel and instructed his clients not to answer.
(Id. Attach. #1 Mem. P. & A. 7-14.) Subsequent
communications between counsel were unsuccessful in resolving
these issues, (id. at 14-15), and the Motion to
Compel was filed on October 27, 2016 [ECF No. 56].
Plaintiff's Motion to Compel
well established that a party may obtain discovery regarding
any nonprivileged matter that is relevant to any claim or
defense and proportional to the needs of the case.
Fed.R.Civ.P. 26(b)(1). Relevant information need not be
admissible at trial to be discoverable. Id.
Relevance is construed broadly to include any matter that
bears on, or reasonably could lead to other matters that
could bear on, any issue that may be in the case. See
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 350-51
(1978) (footnote omitted) (discussing relevance to a claim or
defense, although decided under 1978 version of Rule 26 that
authorized discovery relevant to the subject matter of the
action (citing Hickman v. Taylor, 329 U.S. 495, 501
(1947))). Rule 37 of the Federal Rules of Civil Procedure
enables the propounding party to bring a motion to compel
responses to discovery. Fed.R.Civ.P. 37(a)(3)(B). The party
opposing discovery bears the burden of resisting disclosure.
Miller v. Pancucci, 141 F.R.D. 292, 299 (C.D. Cal.
Federal Rule of Civil Procedure 30(a)(1), “[a] party
may, by oral questions, depose any person, including a party,
without leave of court except as provided in Rule
30(a)(2).” Fed.R.Civ.P. 30(a)(1). Rule 30(c)(2)
provides the following guidance regarding objections during a
An objection at the time of the examination -- 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. An objection must be stated
concisely in a nonargumentative and nonsuggestive manner.
Id. 30(c)(2). “As a general rule,
‘instructions not to answer questions at a deposition
are improper.'” Cohen v. Trump, Civil No.
13-CV-2519-GPC (WVG), 2015 WL 2406094, at *1 (S.D. Cal. May
19, 2015) (quoting Detoy v. City and Cty. of San
Francisco, 196 F.R.D. 362, 365 (N.D. Cal. 2000)).
“A person may instruct a deponent not to answer only
when necessary to preserve a privilege, to enforce a
limitation ordered by the court, or to present a motion under
Rule 30(d)(3).” Fed.R.Civ.P. 30(c)(2). “If a
party believes that a particular question asked of a deponent
is improper for any other reason, that party may object;
however, the examination still proceeds; the testimony is
taken subject to any objection.” Mendez v. R
Carriers, Inc., No. CV 11-02478-CW (JSC), 2012 WL
1535756, at *1 (N.D. Cal. Apr. 30, 2012) (citations omitted)
(internal quotation marks omitted).
the case even when deposition questions appear to seek
irrelevant information. See 7 James Wm. Moore et
al., Moore's Federal Practice § 30.43,
at 30-89 (3d ed. 2016).
If deposing counsel engages in irrelevant or repetitious
questioning, the appropriate course for opposing counsel is
to enter an objection. The witness may then answer the
question. If the answer is offered at trial, opposing counsel
may then renew the objection and obtain a ruling from the
court. If deposing counsel persists in irrelevant or
repetitious questioning after objection, opposing counsel may
seek a protective order or sanctions from the court. However,
counsel does not have the right to decide the issue
unilaterally by instructing the witness not to answer.
Id. (footnote omitted); see Pilates, Inc. v.
Georgetown Bodyworks Deep Muscle Massage Centers, Inc.,
201 F.R.D. 261, 261 n.1 (D.D.C. 2000) (ordering the deponent
to be redeposed after counsel improperly instructed the
witness not to answer several questions).
asserts there were three instances during the depositions of
Michael Hunt and Janalie Henriques where defense counsel
improperly instructed his clients not to answer questions.
(Mot. Compel Attach. #1 Mem. P. & A. 7-14, ECF No. 56.)
The Court addresses these instances separately.
Questions to Defendant Hunt concerning California Code of
Civil Procedure section 395(b)
first complains about the following exchanges during
Hunt, if you would go to the second page of Exhibit 4
[Request for Entry of Default and Clerk's Judgment].
Under Paragraph 5 there are three subparagraphs, A, B, and C.
On this one, C, you can check a box on whether or not an
obligation is “for goods, services, loans, or
extensions of credit subject to Code of Civil Procedure
395(b).” Does Hunt & Henriques undertake an inquiry
before filing a request for default to make sure that the
obligation at issue is subject to Code of Civil Procedure
NARITA: Well, object to the form. He didn't sign this. He
didn't prepare it.
question is more generally. When Hunt & Henriques files
requests for default, do they perform an inquiry prior to
checking that box?
MR. NARITA: Don't answer that.
MR. ROONEY: You're going to instruct him not to answer
MR. NARITA: Yes.
MR. ROONEY: Okay. We'll be speaking to Judge Brooks
MR. NARITA: That's fine. It's not likely to lead to
the discovery of admissible evidence in this case.
MR. ROONEY: I'm sure you know --
MR. NARITA: It's being asked solely for the purposes of
harassment or annoyance.
MR. ROONEY: I am sure -- (a) I dispute that; (b) I'm sure
you know relevance is no basis to refuse to answer. And a
MR. NARITA: So go ahead.
BY MR. ROONEY:
Q Mr. Hunt, are you going to answer that question?
BY MR. ROONEY:
Hunt, just to clarify, are you refusing to testify regarding
Page 2, Subsection 5, Subparagraph c of this form, Hunt &
Henriques's procedures regarding that box?
MR. NARITA: You haven't asked him a question. Don't
answer that. Do you have a question? There's no question
MR. ROONEY: That is a question.
you refusing to testify regarding this issue, Hunt &
Henriques's policies and procedures regarding that box?
Hunt & Henriques determines whether or not an account is
subject to Code of Civil Procedure, Section 395(b)?
MR. NARITA: We're not going to have him --
MR. ROONEY: I'm not asking you.
MR. NARITA: The answer is, yes, he's not going to testify
MR. ROONEY: He can answer that.
BY MR. ROONEY:
Q Are you going to testify to that?
Does Hunt & Henriques provide any training to its
attorneys on how to ascertain whether a debt is subject to
Code of Civil Procedure 395(b)?
MR. MOHANDESI: Vague as to time.
MR. ROONEY: Now.
MR. NARITA: Don't answer that. Has nothing to do with
THE WITNESS: I'm not going to answer it.
Q You're not going to answer it. Okay.
(Id. Attach. #3 Ex. C, at 12-14, 21.)
indicates that after these exchanges and subsequent
objections, counsel for Hunt “attempted to instruct
Plaintiff's counsel to only ask questions regarding acts
that took place prior to the filing of the state court
complaints at issue.” (Id. Attach. #1 Mem. P.
& A. 9.) Nguyen asserts that Hunt, an experienced
attorney, refused to testify on this topic. (Id.)
Contending that questions regarding compliance with section
395(b) are relevant, Plaintiff states, “As Defendants
routinely file Requests for Default in California, Defendants
routinely state under penalty of perjury that the debts they
file suit to collect are subject to California Code of Civil
Procedure §395(b).” (Id. at 19.)
“This means that Defendants routinely tells [sic] the
California Court system that they have made an inquiry into
whether or not the debt at issue was incurred for
‘personal, family or household use' and have
sufficient information to make a conclusion in that
regard.” (Id.) Nguyen asserts that in their
operative answers, Defendants denied that they could tell
whether Plaintiff's debt was incurred for household,
family, or personal purposes, “despite the fact that
Defendants filed two Requests for Default in the state court
actions at issue, claiming the opposite.”
(Id.) Nguyen explains that one of the elements of
his FDCPA claim is that the underlying debt arose from a
personal, family, or household purpose, which is similar to
the language in section 395(b). (Id.) He argues that
this makes questions regarding compliance with this section
Mr. Narita drafted answers in this action denying that
Defendants were capable of ascertaining whether the debts at
issue were incurred for a “personal, family or
household purpose.” Plaintiff is entitled in inquire as
to how, precisely, Defendants made the opposite claim, under
penalty of perjury, to the state court. It is clear why Mr.
Narita wants to limit Plaintiff's inquiry into this area:
it is not because the claim is relevant, but precisely
because this inquiry is not only relevant to Plaintiff's
claim, but exposes the lies in Defendants' answers.
(Id. at 19-20.)
respond that “Evidence Regarding The Policies And
Procedures Used By The Hunt & Henriques Law Firm When
Filing Requests For Entry Of Default Has No Bearing On The
Claims Asserted By Nguyen And Questioning On The Topic May Be
Designed To Invade The Attorney Client Privilege Or To Obtain
Work Product[.]” (Opp'n 6, ECF No. 57.) Defendant
Hunt did not sign the requests for default against Plaintiff,
(id. (citation omitted)), and he asserts that
Nguyen's arguments regarding relevance lack merit,
(id.). The Defendant maintains that only Plaintiff
would know whether the debt was incurred for a personal,
family, or household purpose. (Id.) He then makes
six arguments why further deposition testimony on this topic
should not be ordered. (Id. at 6-9.)
Hunt first contends that because the alleged violations of
the FDCPA occurred when the state lawsuits against Nguyen
were filed, information regarding how the law firm of Hunt
& Henriques subsequently prepared and filed requests for
default in those lawsuits is not relevant. (Id. at
6-7.) Second, the Defendant argues that because Nguyen has
not asserted claims against Hunt and Henriques's law
firm, he is not entitled to ask questions regarding the
policies and procedures of the firm. (Id. at 7.)
“As such, Nguyen's line of questioning directed at
Mr. Hunt regarding the Hunt & Henriques law firm's
policies and procedures was intended to harass, annoy, burden
and inconvenience Mr. Hunt.” (Id.) Third, Hunt
states that if Plaintiff is trying to prove that the