Diaz v. C. S. & W. Contractors, Inc.

Filing 34

ORDER denying 31 Defendant's Motion to Reopen Discovery. Signed by Judge James A Teilborg on 7/21/2011.(TLB)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Tina Diaz,

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Plaintiff,

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vs.

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C. S. & W. Contractors, Inc.,

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No. CV 10-1591-PHX-JAT

Defendant.

ORDER

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Pending before the Court is Defendant’s motion to reopen discovery to take the

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deposition of Fernando Flores. In this case, Plaintiff is suing for sexual harassment.

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Many of Plaintiff’s claims arise from actions allegedly taken by Flores. The parties did

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not take Mr. Flores’ deposition within the original discovery deadline because they were

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unable to locate him. Defendant seeks to take Mr. Flores’ video-taped deposition in

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Mexico.

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Plaintiff objects to taking of Mr. Flores deposition of several grounds: 1) this Court

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has no jurisdiction in Mexico; 2) Plaintiff’s counsel does not have a passport that would

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allow him to travel to Mexico; 3) Chihuahua, Mexico is too dangerous for the Court to

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order the parties to travel there; 4) Mr. Flores appeared at Plaintiff’s house after she quit

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working for Defendant and she had to obtain an Order of Protection against him, so she

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does not want to travel to Mexico where Mr. Flores might again harass her; and 5)

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because deposing Mr. Flores would cause Plaintiff to need to do some additional

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discovery of her own, the Court should not permit the deposition because it would delay
the resolution of this case.

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Without considering Plaintiff’s objections numbered 2, 3, and 4, which raise

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legitimate concerns, the Court will deny the motion based on objections 1 and 5. First,

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Plaintiff is correct that this Court has no jurisdiction in Mexico. Further, the appropriate

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procedure for this Court to seek testimony from a witness outside this Court’s

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jurisdiction is a letter rogatory. 23 Am. Jur. 2d Depositions and Discovery § 17; see

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also In re Premises Located at 840 140th Ave. NE, Bellevue, Washington, 634 F.3d 557

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(9th Cir. 2011). Defendant has not sought a letter rogatory and the Court has no reason

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to believe this procedure could be accomplished within the current trial schedule. Thus,

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because this Court does not have jurisdiction to hold a person to their oath in Mexico,

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and because there is not adequate time for either Plaintiff or Defendant to complete

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additional discovery in Mexico within the current trial schedule,

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IT IS ORDERED that Defendant’s motion to reopen discovery (Doc. 31) is
denied.
DATED this 21st day of July, 2011.

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