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Nevis v. Rideout Memorial Hospital

United States District Court, E.D. California

October 30, 2019

JOSEPH DANIEL NEVIS, Plaintiff,
v.
RIDEOUT MEMORIAL HOSPITAL, et al, Defendants.

          ORDER

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         This matter is before the court on plaintiff's motion to compel discovery from defendants Amtrak and Union Pacific (ECF No. 48). This discovery motion was referred to the undersigned pursuant to E.D. Cal. R. 302(c)(1). The parties appeared through counsel at a hearing on October 30, 2019 at 10:00 a.m. For the reasons stated below, the court grants plaintiff's motion in part and denies it in part.

         II. Relevant Background

         Plaintiff alleges that in April 2016, he checked himself into a rehabilitation center called “Buddy's House.” ECF No. 1 at 2. On December 23, 2016, plaintiff at some point consumed alcohol, but knows nothing else of what happened that day. Id. In the early hours of December 24, plaintiff was found by local law enforcement in the street, and believing plaintiff to be “too drunk for jail, ” the officers drove him to Rideout Memorial Hospital around 1:26 a.m. Id. After being seen by an emergency room physician, plaintiff was discharged at 1:56 a.m. Id. After being released, plaintiff walked down a pedestrian path and tripped over mainline railroad tracks, ending up on his back on the side of the tracks. Id. at 3. At approximately 2:30 a.m., a passenger train approached and struck the plaintiff, amputating his left leg above the knee and his right leg below the knee. Id. Plaintiff filed suit on November 1, 2017. ECF No. 1. The discovery deadline in this matter is currently set for November 4, 2019. ECF No. 31.

         III. Motion

         Plaintiff asks the court to compel the following: (1) dates for the stipulated depositions of Mark Norris and Shawn Paul; (2) to expand the number of depositions beyond 10; (3) to compel documents related to the recent depositions of two engineers, Edson and Haskin; (4) all accident reports related to engineers Edson and Haskin; and (5) further responses and production of documents with respect to Plaintiffs Requests for Production Set Two, Nos. 6, 9, 18, 21, 29, 36, 41, and 64.

         IV. Analysis/Summary of the Evidence

         A. Legal Standard

         “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense....Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). Fed.R.Civ.P. 26(b)(1). Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. Fed.R.Evid. 401. Relevancy to the subject matter of the litigation “has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Relevance, however, does not establish discoverability; in 2015, a proportionality requirement was added to Rule 26. Under the amended Rule 26, relevance alone will not justify discovery; discovery must also be proportional to the needs of the case. A party seeking to compel discovery has the initial burden to establish that its request is proper under Rule 26(b)(1). If the request is proper, the party resisting discovery has the burden of showing why discovery was denied; they must clarify and support their objections. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir.1975). General or boilerplate objections, without explanation, are not prohibited but are insufficient as a sole basis for an objection or privilege claim. Burlington Northern & Santa Fe Ry. v. United States Dist. Court, 408 F.3d 1142, 1149 (9th Cir.2005).

         B. Depositions of Mark Norris and Shawn Paul Will Not be Compelled

         The depositions of Mark Norris and Shawn Paul will not be compelled because the depositions were not properly noticed prior to the filing of the motion to compel, and the close of discovery approaches too closely for proper notice to take place. As to Mark Norris, the court previously cautioned plaintiff at a discovery conference that it would not compel the witness to travel from his home in Oregon to be deposed in Sacramento. ECF No. 43. Defendants state that only on October 15, 2019, after filing this motion, did plaintiff agree for the first time to take the deposition in Oregon. ECF No. 58 at 18. Defendants offered to produce Mr. Norris in Oregon on November 1, 2019, but plaintiff's counsel inexplicably still failed to issue a timely notice, and the deposition was taken off calendar. Without a formal notice there is nothing for this court to compel; it is too late for the deposition to be noticed at this juncture.

         As to the deposition of Sean Paul, defendants dispute the truth of plaintiff's representation that they stipulated to the deposition. ECF No. 58 at 18. Indeed, defendants state that plaintiff never provided a deposition notice for Mr. Paul. Id. Because the deposition was never noticed and there is no longer time to effect notice, it will not be compelled.

         The motion is denied as to the Norris and Paul depositions, but without prejudice to renewal if and only if the litigation schedule is extended by the district judge and the depositions are properly noticed.

         C. The Deposition Limit Will Not be Expanded

         The court will not expand the deposition limit beyond 10 because plaintiff has not met his burden of demonstrating the need for additional, non-duplicative depositions. Federal Rule of Civil Procedure 30 presumptively limits a party to ten depositions; a party may only exceed this number with leave of court or by stipulation of the parties. Fed.R.Civ.P. 30(a)(2)(A)(i). The presumptive limit is intended to “promote cost-effective discovery and promote the federal rules' policy of minimizing ‘unreasonably cumulative or duplicative' discovery.” Thykkuttathil v. Keese, 294 F.R.D. 597, 599 (W.D. Wash. 2013) (quoting Fed.R.Civ.P. 26(b)(2)(C); Fed.R.Civ.P. 30 Advisory Committee's Note (1993)). “A party seeking to exceed the presumptive limit bears the burden of making a ‘particularized showing' of the need for additional depositions.” Thykkuttathil, 294 F.R.D. at 600; Kaseberg v. Conaco, LLC, No. 15-cv-01637-JLS-DHB, 2016 WL 8729927, at *3 (S.D. Cal. Aug. 19, 2016); see also Nat. Res. Def. Council, Inc. v. Winter, No. CV 057513-FMC-FMOx, 2008 WL 11338647, at *2 (C.D. Cal. July 11, 2008); but see Pitkin v. Corizon Health, Inc., No. 3:16-CV-02235-AA, 2018 WL 1336047, at *2 (D. Or. Mar. 13, 2018) (“the Federal Rules of Civil Procedure do not require a moving party to make a particularized showing of necessity when seeking leave to take additional depositions.”). In making an evaluation, courts will consider “whether (1) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome or less expensive; (2) the party seeking discovery has ample opportunity to obtain the information sought; or (3) 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 party's resources, and the importance of the proposed discovery in resolving the issues.” Andamiro U.S.A. v. Konami Amusement of Am., Inc., No. CV00-8561, 2001 WL 535667, at *2 (C.D. Cal. Apr. 26, 2001).

         Here, plaintiff's requested additional depositions are duplicative and unnecessary. Plaintiff seeks to depose multiple first responders who were at the scene of the accident. ECF No. 58 at 5 (listing officers “all involved in the investigation of the injury.”). Defendants argue that the Marysville Police Department issued a comprehensive report, with photographs, that contains all the relevant information that can be gleaned through a deposition, and that the more convenient, less burdensome and less expensive means of discovering the information sought through the officers and paramedics is to rely upon their official reports. Id. The court agrees that there is no need to exceed the deposition limit where the official report is available and plaintiff has not identified anything in the contents of that report requiring further exploration by deposition.

         Plaintiff also wishes to depose Joy Edson, wife of engineer Edson, about her husband's sleep, eating and drinking patterns relevant to Amtrak's fatigue management and hours of service program in the days and hours leading up to the accident. ECF No. 58 at 5. This too appears redundant. Plaintiff already deposed Chris Edson, the best source of this information. Id. at 19. There is no reason here to allow plaintiff to exceed the deposition limit, and the motion is denied on this point.

         D. Documents Related to Edson and Haskin Depositions Will Not be Compelled

         Plaintiff seeks (in addition to a duplicative request to supplement RFP responses addressed below) documents discussed in the depositions of engineers Edson and Haskins. ECF No. 48 at 5-6. There is no indication that plaintiff made a formal discovery request for these documents prior to seeking to compel their production. Id. at 6. Because there has been no formal request, Amtrak and Union Pacific have not been provided the opportunity to object and preserve the record on these matters. Without formal requests before the court, the issue is not ripe for adjudication. Rule 37 permits a motion to compel documents only if a party fails to produce documents that were requested through a recognized discovery request, in this ...


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