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Manago v. D. Davey

United States District Court, E.D. California

May 19, 2017

D. DAVEY, et al., Defendants.



         I. BACKGROUND

         Stewart Manago (“Plaintiff”) is a former state prisoner proceeding pro se and in forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on March 24, 2016. (ECF No. 1.) This case now proceeds with the First Amended Complaint filed on April 18, 2016, against defendants J. Acevedo, D. Davey, A. Maxfield, E. Razo, M.V. Sexton, A. Valdez, and J. Vanderpoel (collectively, “Defendants”), on Plaintiff's First Amendment retaliation claims. (ECF No. 13.)

         On February 17, 2017, Defendants filed a motion for a protective order and a motion to modify the court's Discovery and Scheduling Order. (ECF No. 75, 76.) Plaintiff has not opposed the motions.


         A. Legal Standards

         Pursuant to Federal Rule of Civil Procedure 26(c), “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” A court has “broad discretion . . . to decide when a protective order is appropriate and what degree of protection is required.” Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1211 (9th Cir. 2002) (citation omitted). The party seeking the protective order bears the burden of demonstrating “specific prejudice or harm will result if no protective order is granted.” Id. at 1210-11. “Broad allegations of harm, unsubstantiated by specific examples of articulated reasoning, do not satisfy the Rule 26(c) test.” Rivera v. NIBCO, Inc., 384 F.3d 822, 827 (9th Cir. 2004) (quoting Phillips, 307 F.3d at 1211-12). To meet the “good cause” requirement, the moving party must show that specific prejudice or harm will result in the absence of a protective order. See Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1130 (9th Cir. 2003.) “If a court finds particularized harm will result from disclosure of information to the public, then it balances the public and private interests to decide whether a protective order is necessary.” Phillips, 307 F.3d at 1211.

         “Unless the court orders otherwise, testimony [in a deposition] may be recorded by audio, audiovisual, or stenographic means [and t]he noticing party bears the recording costs.” Fed.R.Civ.P. 30(b)(3)(A). “[P]arties [are] authorized to record deposition testimony by nonstenographic means without first having to obtain permission of the court or agreement from other counsel.” Advisory Committee's Note on 1993 amendment to Rule 30(b). The party who notices the deposition must state in the notice the method for recording the testimony. Fed.R.Civ.P. 30. With prior notice to the deponent and other parties, any party may designate another method for recording the testimony in addition to that specified in the original notice. Fed.R.Civ.P. 30.

         An independent operator for the recording of a deposition is not required. The court in Rice's Toyota World, Inc. discussed the use of an independent operator for recording of depositions:

[T]he courts in Lucas v. Curran, 62 F.R.D. 336, 338 (E.D. Pa. 1974) and Marlboro Products Corp. v. North Am. Philips Corp., 55 F.R.D. 487 (S.D.N.Y. 1972), both dispensed with an independent operator even though there was not a backup stenographic deposition . . . In Marlboro, the court specifically permitted plaintiff's counsel to run the recording device and have counsel's secretary type the transcript. It held that neither Rule 28(a), Fed. R. Civ. P., which requires depositions to be taken before one authorized to administer oaths and take testimony, or Rule 28(c), which forbids depositions to be taken by counsel of the party, require an independent person to run the recording device. It found the independent person was not a technological necessity and the supposed neutrality of the operator would be a mere illusion in the actual circumstances of an audio deposition.

Rice's Toyota World, Inc. v. Southeast Toyota Distributors, Inc., 114 F.R.D. 647, 651 (M.D. N.C. 1987).

         “As a general rule, the public is permitted ‘access to litigation documents and information produced during discovery.'” In re Roman Catholic Archbishop of Portland in Oregon, 661 F.3d 417, 424 (9th Cir. 2011) (quoting Phillips, 307 F.3d at 1210) (citing San Jose Mercury News, Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1103 (9th Cir. 1999) (“It is well-established that the fruits of pretrial discovery are, in the absence of a court order to the contrary, presumptively public.”)). Courts have sometimes restricted access to video depositions to protect parties from the potential for embarrassment, but not where there is a significant and legitimate public interest in the content of those depositions. Condit v. Dunne, 225 F.R.D. 113, 118-20 (S.D.N.Y. 2004) (releasing video depositions where the case was one of “public concern” because it involved a “then-sitting United States Congressman in the discharge of his duties, ” and where court found that “any tainting of the jury pool can be remedied through voir dire”), Felling v. Knight, 211 F.R.D. 552, 554-55 (S.D. Ind. 2003) (initially sealing video depositions of non-parties in lawsuit involving battery allegations against Bobby Knight, the well-known Indiana college basketball coach, to protect those non-parties from potential embarrassment, and then releasing the video depositions after the case settled, both on the grounds that the potential for embarrassment had decreased following settlement of the case, and on the grounds that any remaining potential for embarrassment was “outweighed by the public's right to know, ” since “[s]eemingly few topics in the state of Indiana have generated more attention or public debate in recent times than the events surrounding Knight's termination”), and Flaherty v. Seroussi, 209 F.R.D. 295, 300 (N.D.N.Y. 2001) (releasing video depositions of mayor and other public officials where the underlying litigation alleged improper official action, since the public interest outweighed any interest in preventing “modest embarrassment” to the mayor).

         B. Defendants' Motion

         Defendants move the court for a protective order requiring Plaintiff to employ the use of an independent certified videographer or, in the alternative, prevent the filming of defense counsel, Annakarina De La Torre-Fennell, and preclude improper use of the video recording of Plaintiff's deposition.

         Defendants assert that Plaintiff has annoyed and harassed defense counsel by repeatedly commenting about the impropriety of defense counsel's representation, repeatedly made statements about a federal investigation, and requested to videotape his own deposition for the purpose of turning it over to the FBI. Defendants assert that on January 31, 2017, Plaintiff contacted them to inform them of his intention to either video or audio record Plaintiff's own deposition. Defendants object to Plaintiff recording the deposition himself because he is likely to use the recording for improper purposes.

         Plaintiff has stated his intent to use the video recording for submission to the FBI for his investigation into the purported misconduct of the CDCR. (Declaration of A. De La Torre-Fennell, ECF No. 75-1 ¶15.) However, Defendants find it unclear why a transcript of the deposition is not sufficient for these purposes. Plaintiff has stated that he intends to purchase a copy of the transcript from the stenographer who will be present at the deposition.

         Defendants state that it is also unclear what purpose Plaintiff could have for any recording of or image of defense counsel in support of his own case. Defendants argue that the only reason to use a video recording of his deposition at trial would be to embarrass and harass defense counsel. Plaintiff has repeatedly singled out defense counsel for harassment during this case. Defendants assert that Plaintiff has repeatedly commented about the impropriety of defense counsel's representation in this case and referred to defense counsel as a criminal and guilty of committing perjury and other illegal acts. For example, Plaintiff specifically identified defense counsel within various motions and alleged defense counsel has made violations of discovery rules, acted in bad faith in seeking extensions of time, withheld evidence, and attempted to “cover up for” law enforcement staff who are involved in a purported criminal conspiracy within CDCR and “manipulating the justice system.” (Id. ¶3.) Notably, Plaintiff has specifically stated, “Deputy Attorney General (DAG) De La Torre-Fennell is making a serious mistake by attempting to manipulate the record.” (Id. at ¶10.) Plaintiff has informed counsel that “other state and federal offices do not agree with [her] handling of this case, ” indicating defense counsel's conduct is being reviewed or somehow evaluated in some investigation that has nothing to do with her position or ...

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