United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
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.
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.
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
Analysis/Summary of the Evidence
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).
Depositions of Mark Norris and Shawn Paul Will Not be
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.
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
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.
The Deposition Limit Will Not be Expanded
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).
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
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.
Documents Related to Edson and Haskin Depositions Will
Not be Compelled
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 ...