Whiting et al v. Hogan et al

Filing 110

ORDER - IT IS HEREBY ORDERED that Defendants' Motion for Sanctions for Failure to Confer in Good Faith (Doc. 105 ) is granted, as follows: 1. Plaintiffs' counsel is ordered to pay Defendants' reasonable attorneys' fees incurred in attending the teleconference with the Court on November 29, 2012 and responding to Plaintiffs' discovery motion (Doc. 99 ) pursuant to Local Rule 7.2(j) and upon Defendants' application in compliance with Local Rule 54.2. IT IS FURTHE R ORDERED, that Plaintiffs' Motion to Re-Open Defendant Dana A. Hogans deposition (Doc. 99 ) is granted.... IT IS FURTHER ORDERED, that Plaintiffs' Motion for Sanctions for Defendant Hogan's Discovery Abuses (Doc. 99 ) is denied. IT IS FURTHER ORDERED, that Plaintiffs' Motion to Compel Rule 30(b)(6) Depositions of Defendants Mayflower and Clark (Doc. 99) is granted.... IT IS FURTHER ORDERED, that the deadline for completing Hogan's second deposition, the Rule 30(b)(6) depositions, and related filings shall be extended to May 13, 2013. (See document for full details). Signed by Judge G Murray Snow on 3/14/13. (LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Larry Whiting, Leroy Whiting and Lorenzo Garcia, No. 12-CV-08039-PHX-GMS ORDER 10 Plaintiff, 11 v. 12 Dana A. Hogan; Clark Moving and Storage, Inc., and Mayflower Transit, LLC, 13 14 Defendants. 15 16 Pending before the Court are Plaintiffs’ Motion to Re-Open the Deposition of 17 Defendant Dana A. Hogan, Motion for Sanctions for Defendant Hogan’s Discovery 18 Abuses, Motion to Compel Rule 30(b)(6) Depositions of Defendants Mayflower and 19 Clark (Doc. 99), and Defendants’ Motion for Sanctions for Failure to Confer in Good 20 Faith (Doc. 105). The Court grants Plaintiffs’ Motions to Re-Open and Compel 21 Depositions and denies Plaintiffs’ Motion for Sanctions. The Court further grants 22 Defendants’ Motion for Sanctions. 23 BACKGROUND 24 In April 2012, the Court issued a Joint Case Management Order for this matter 25 setting the deadline for the completion of fact discovery as January 11, 2013. (Doc. 59 26 ¶ 4.) Plaintiffs noticed the deposition of Defendant Dana Hogan in August 2012 and the 27 parties agreed to conduct the deposition on October 19, 2012 in Dallas, Texas because of 28 Hogan’s trucking schedule. (Doc. 99-2, Ex. 2.) The deposition commenced as planned. 1 After a few hours into testimony, Defendants’ counsel, Felice Guerrieri, informed 2 Plaintiffs’ counsel, George Bleus, that he would need to leave at 5 p.m. to travel back to 3 the East coast but offered to continue the deposition at a later date if necessary. (Doc. 4 105-2, Ex. 13 at 82.) As the deposition proceeded, Guerrieri objected to Bleus’ lines of 5 inquiry, arguing on the record that they were repetitive, abusive and wasteful. Bleus 6 argued that his lines of inquiry were relevant and subsequently contacted the Court to 7 clarify the permissibility of his questioning. The Court found that the line of questioning 8 that the Plaintiff insisted on pursuing relating to who drafted Defendants’ discovery 9 responses was meritless and/or protected by the attorney-client privilege and work- 10 product immunity. Defendants suspended Hogan’s deposition at 5 p.m. and opposed a 11 continuance but did not move for a protective order. (Doc. 99-2, Exs. 6, 6-c.) 12 Over the next several weeks, the parties exchanged correspondence asserting 13 several areas of disagreement regarding discovery including re-opening Hogan’s 14 deposition, noticing Fed. R. Civ. P. 30(b)(6) depositions of Defendants Mayflower and 15 Clark, taking three depositions of current and former Mayflower employees who were 16 not listed as witnesses nor designated as 30(b)(6) deponents, various document 17 production issues, and the necessity of extending the fact discovery deadline. 18 November 13, 2012, while the parties had not yet personally conferred, Bleus informed 19 Guerrieri that he had contacted the Court to set up a teleconference in order to resolve the 20 disputes. (Doc. 105-1, Ex. 6.) The Court held a teleconference on November 29, 2012 21 and ordered the parties to provide supplemental briefing regarding the discovery disputes. 22 (Doc. 95.) DISCUSSION 23 24 On I. LEGAL STANDARD 25 A district court enjoys broad discretion in controlling discovery. Harper v. Betor, 26 95 F.3d 1157 (9th Cir. 1996) (internal citation omitted). The scope of discovery is 27 governed by Rule 26, which allows “discovery regarding any nonprivileged matter that is 28 relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). Relevance is construed -2- 1 broadly to encompass any matter that bears on, or that reasonably could lead to other 2 matter that bears on, any issue that is or may be in the case. See id.; Oppenheimer Fund, 3 Inc. v. Sanders, 437 U.S. 340, 351 (1978) (internal citation omitted). Further, “[f]or good 4 cause, the court may order discovery of any matter relevant to the subject matter involved 5 in the action.” Fed. R. Civ. P. 26(b)(1). District courts also have broad discretion in 6 determining relevance for discovery purposes. Hallet v. Morgan, 296 F.3d 732, 751 (9th 7 Cir. 2002). Even relevant discovery may be limited, however, if: 8 (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. 9 10 11 12 13 14 Fed. R. Civ. P. 26(b)(2)(C). 15 If a requested disclosure is not made, the requesting party may move for an order 16 compelling such disclosure, and such a motion must include a certification that the 17 movant has made good faith efforts to obtain the requested disclosure or discovery 18 without court action. Fed. R. Civ. P. 37(a)(1). The party who resists discovery has the 19 burden to show that discovery should not be allowed, and has the burden of clarifying, 20 explaining, and supporting objections. Cable & Computer Tech., Inc. v. Lockheed 21 Saunders, Inc., 175 F.R.D. 646, 650 (C.D. Cal. 1997). 22 II. GOOD FAITH CONFERENCE 23 Defendants contend that Plaintiffs’ omnibus discovery motion should be denied 24 because they have not made a good faith effort to confer in order to resolve this discovery 25 dispute as required by Local Rule 7.2(j). The Rule states that “[a]ny discovery motion 26 brought before the Court without personal consultation with the other party and a sincere 27 effort to resolve the matter, may result in sanctions” and requires the moving party to 28 attach a certification that such an effort was made. Under Fed. R. Civ. P. 37, there is a -3- 1 similarly binding obligation on the parties to confer in good faith which contemplates 2 “honesty in one’s purpose to meaningfully discuss the discovery dispute, freedom from 3 intention to defraud or abuse the discovery process, and faithfulness to one’s obligation to 4 secure information without court action.” Shuffle Master, Inc. v. Progressive Games, Inc., 5 170 F.R.D. 166, 171 (D. Nev. 1996). ‘“Good faith’ is tested by the court according to the 6 nature of the dispute, the reasonableness of the positions held by the respective parties, 7 and the means by which both sides conferred.” Id. “[T]he parties must present to each 8 other the merits of their respective positions with the same candor, specificity, and 9 support during informal negotiations as during the briefing of discovery motions.” 10 Nevada Power Co. v. Monsanto Co., 151 F.R.D. 118, 120 (D. Nev. 1993). 11 Defendants contend that Plaintiffs’ counsel did not make a sincere effort to resolve 12 their discovery dispute before procuring the Court’s intervention. Plaintiffs do not attach 13 a separate certification to their discovery motion, as required by Local Rule 7.2(j), but 14 state that “[a]s the parties have attempted to confer in good faith with regard this matter, 15 it became reasonably apparent that this matter would necessitate Court intervention.” 16 (Doc. 99 at 6.) Plaintiffs assert that following the suspension of Defendant Hogan’s 17 deposition on October 19, 2012, they requested further dates for a re-opening of the same 18 but they were met with continued opposition. (Id.) However, the record reveals that 19 Plaintiffs were obstinate in their discovery demands and sparing in genuine efforts to 20 confer. After Hogan’s deposition, the parties had several e-mail exchanges in which 21 Guerrieri made offers to confer telephonically. (Doc. 105-1, Exs. 3 (10/29/12), 4 22 (10/29/12), 5 (11/2/12), 7 (11/9/12), 8 (11/9/12), 9 (11/13/12), 11 (11/15/12).) Bleus did 23 not schedule a call during one of the multiple time slots that Guerrieri provided nor did he 24 offer another convenient time. Instead, he made a few unannounced (and unsuccessful) 25 phone calls to Guerrieri, one of which was at a time when he was informed Guerrieri 26 would be out of the office. (Id., Exs. 4, 8, 11.) Thus Bleus failed to genuinely pursue 27 “personal consultation” with Guerrieri to resolve the dispute. 28 In the e-mail exchanges with Guerrieri, Bleus staked out firm positions as to four -4- 1 areas of disagreement providing justification or legal bases for those positions. First, 2 although Guerrieri opposed re-opening Hogan’s deposition, he offered to discuss the 3 topics that remained to be covered. (Id., Ex. 3.) Bleus refused to discuss the necessity of 4 re-opening and instead stated “[p]lease advise wether [sic] you will produce Defendant 5 Hogan or if [I] will have to seek Court intervention.” (Doc. 99-2, Ex. 7-a.) Bleus also 6 demanded that the second deposition take place in New Mexico rather than consider any 7 other location because “the Defendant’s [sic] in this matter have ample resources in order 8 to accomplish any task or deadline, whether it be taking or attending depositions.” (Doc. 9 105-1, Ex. 10.) Second, on November 1, 2012, Plaintiffs had requested 30(b)(6) 10 depositions of Defendants Mayflower and Clark listing broad categories such as 11 “company policy and procedure(s)”, “driver training”, and “company hiring practices.” 12 (Doc. 99-7, Ex. 51.) On November 9, 2012, Guerrieri requested Bleus to clarify those 13 categories to decide who should testify as a party representative. (Id., Ex. 52.) Instead of 14 discussing the categories, Blues responded: “I have utilized the very same 15 correspondence . . . in every single case involving a requested deposition for a 30(b)(6) 16 company deponent. It has passed muster every time.” (Doc. 105-1, Ex. 10.) Third, 17 Guerrieri asked Bleus to explain why four Mayflower employees’ depositions, which 18 were not designated as Rule 30(b)(6) deponents, were discoverable in order to provide a 19 stipulation to the same. (Id., Ex. 5.) Bleus replied that the reason should be “crystal clear 20 and does not need to be further articulated” besides his assertion that they “are essential 21 to proving Plaintiff’s [sic] claim against the two Defendant companys [sic].” (Id., Ex. 10.) 22 Fourth, Bleus refused to discuss Guerrieri’s offer to extend the discovery deadline of 23 January 11, 2013 in light of the several additional depositions that Bleus wanted to 24 conduct in the remaining two holiday months. (Id.) 25 It is evident from these exchanges that Plaintiffs did not present to Defendants the 26 merits of their positions with nearly the same candor and specificity they provide in their 27 discovery motion to the Court. See Nevada Power, 151 F.R.D. at 120. Bleus did not make 28 an effort to personally consult with Guerrieri although he had many opportunities to do -5- 1 so, and did not seem open to a mutually agreeable resolution to the issues. In fact, while 2 Guerrieri’s offer to personally consult on these matters was pending, Bleus unilaterally 3 contacted the Court on November 9, 2012 to request a telephonic conference and seek the 4 Court’s intervention to resolve the dispute. (Doc. 105-1, Ex. 6.) Bleus concluded that 5 “[w]hile [I] have numerous and detailed emails from you regarding every issue to be 6 addressed, as far as [I] am concerned, we have conferred in good faith – as your positions 7 are detailed and crystal clear.” (Id.) Plaintiffs were mistaken that simply staking out their 8 positions through email exchanges constitutes a sincere effort to meet and confer. 9 Further, the Court cautioned in its Case Management Order that the parties “shall not 10 contact the Court concerning a discovery dispute or motion for sanctions without first 11 seeking to resolve the matter” pursuant to Local Rule 7.2(j). (Doc. 59 ¶ 6(b).) Indeed, 12 Guerrieri immediately warned Bleus that by contacting the Court for a telephonic 13 conference, he was in violation of the Order because the parties had not had a personal 14 consultation. Guerrieri once again offered to confer telephonically during multiple time 15 slots. (Doc. 105-1, Exs. 7, 8.) Instead of scheduling a time to confer with Guerrieri, 16 Bleus once again contacted the Court on November 13, 2012 to confirm a specific time 17 for the teleconference. (Id., Ex. 9.) 18 District courts retain broad discretion to control their dockets and in the exercise 19 of that power they may impose sanctions. Adams v. Cal. Dept. of Health Servs., 487 F.3d 20 684, 688 (9th Cir. 2007) (citing Thompson v. Hous. Auth. of City of Los Angeles, 782 21 F.2d 829, 831 (9th Cir. 1986) (per curiam)). Further, “a court certainly may assess 22 sanctions against counsel who willfully abuse judicial processes.” Fink v. Gomez, 239 23 F.3d 989, 992 (9th Cir. 2001) (internal citations, quotations, and alterations omitted). 24 Before awarding sanctions under its inherent powers, however, the court must make an 25 explicit finding that counsel’s conduct constituted or was tantamount to bad faith. Primus 26 Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 648 (9th Cir. 1997) (internal citations 27 omitted). Plaintiffs’ counsel failed to confer in good faith with Defense counsel and his 28 obstinate approach constituted bad faith under the circumstances. Accordingly, Plaintiff’s -6- 1 counsel will be required to personally pay Defendants’ reasonable attorneys’ fees 2 incurred in attending the teleconference with the Court and responding to Plaintiffs’ 3 omnibus discovery motion, pursuant to Local Rule 7.2(j). Plaintiff’s counsel is further 4 prohibited from billing his client for the above amount or from, in any way, deducting it 5 from any amount he may recover on behalf of his client. Plaintiffs’ counsel is further 6 ordered to provide a copy of this order to his clients and fully explain it to them. The 7 Court will, however, rule on the merits of Plaintiffs’ motion in order to resolve the 8 pending discovery disputes. 9 III. RE-OPENING DEFENDANT HOGAN’S DEPOSITION 10 Plaintiffs argue that because Guerrieri terminated Defendant Hogan’s deposition 11 before the presumptive durational limit of seven hours, Plaintiffs should be allowed to re- 12 open the deposition to complete their questioning. See Fed. R. Civ. P. 30(d)(1) (“Unless 13 otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours.”); 14 (Doc. 59 ¶ 3.) “The court must allow additional time consistent with Rule 26(b)(2) if 15 needed to fairly examine the deponent or if the deponent, another person, or any other 16 circumstance impedes or delays the examination.” Fed. R. Civ. P. 30(d)(1). After 17 beginning Hogan’s deposition around 10 a.m. on October 19, 2012 in Dallas, Texas, 18 Guerrieri ended the deposition at 5 p.m., citing that he had to catch an early flight home. 19 At the time Guerrieri terminated the deposition, the court reporter noted that four hours 20 and forty two minutes (4:42) had been used on the record, which is two hours and 21 eighteen minutes (2:18) less than the presumptive limit of seven hours. (Doc. 105-2, Ex. 22 13 at 294.) 23 Plaintiffs contend that they noticed Hogan’s deposition on September 26, 2012, 24 giving Defendants three weeks to schedule their travel plans to accommodate a full day 25 of testimony. (Doc. 99-2, Ex. 2.) Instead, Guerrieri scheduled an evening flight for which 26 he had to leave at 5 p.m. before completing the deposition. Plaintiffs note that it was only 27 after a few hours of testimony that counsel first indicated he had to leave early to catch 28 his flight while offering to continue the deposition at a later date, if necessary. (Doc. 105-7- 1 2, Ex. 13 at 82.) At 4:52 p.m., Guerrieri stated that he “really need[ed] to go” and he 2 would oppose any continuation of the deposition because it was conducted in a redundant 3 and harassing manner. (Doc. 99-2, Exs. 6, 6-c.) Plaintiffs contend that at no time did 4 Guerrieri attempt to change his flight plans when it became apparent that Hogan’s 5 deposition would require more time. 6 Nevertheless, Plaintiffs were informed two months prior to the deposition that an 7 early start would be preferred as Guerrieri and Hogan planned to fly back to the East 8 coast in the early evening. Guerrieri mentioned to Bleus that it is “probably better for a 9 morn [sic] start so we don’t run into Friday evening and can all get out of town timely.” 10 (Doc. 99-3, Ex. 1-g.) Further, both Hogan and Guerrieri arrived in Dallas the previous 11 night and were available to start the deposition at an earlier time rather than the later start 12 time of 10 a.m. (Doc. 105 at 5.) Therefore, Defendants assert it was Plaintiffs’ deliberate 13 scheduling of a late morning start error that led to the curtailment of the deposition. 14 Although Defendants informed Plaintiffs of their scheduling preferences, there was no 15 firm end time decided upon by the parties. 16 Plaintiffs maintain that Guerrieri did not suspend Hogan’s deposition in order to 17 assert attorney-client privilege or to move for a protective order from the Court. Under 18 Fed. R. Civ. P. 30(c)(2), a party may suspend a deposition only when necessary: (1) to 19 preserve a privilege; (2) to enforce a limitation ordered by the court; or (3) to present a 20 motion under Rule 30(d)(3) to terminate or limit the deposition. The only grounds to 21 move to terminate or limit a deposition is if “it is being conducted in a manner evidencing 22 bad faith, or to embarrass, annoy, or oppress the deponent.” Fed. R. Civ. P. 30(d)(3); 23 Biovail Labs., Inc. v. Anchen Pharm., Inc., 233 F.R.D. 648 (C.D. Cal. 2006) (internal 24 citation omitted). It is not the embarrassment or annoyance caused by unfavorable 25 answers that is the controlling criterion under 30(d)(3), but “the manner in which the 26 interrogation is conducted that is the basis for refusing to proceed, followed by the 27 required motion to seek relief.” In re Stratosphere Corp. Sec. Litig., 182 F.R.D. 614, 619 28 (D. Nev. 1998). The motion may be filed in the court where the action is pending or the -8- 1 deposition is being taken and if the party so demands, the deposition must be suspended 2 for the time necessary to obtain an order. Fed. R. Civ. P. 30(d)(3)(A). The court may then 3 order that the deposition be terminated or limit its scope and manner. Id. 30(d)(3)(B). If 4 terminated, the deposition may be resumed only by order of the court where the action is 5 pending. Id. “[If] such a judicial determination is not sought, this Court will presume that 6 there were not sufficient grounds for the objection and instruction not to answer, or the 7 termination of the deposition, and that the action was undertaken merely to obstruct the 8 discovery process.” In re Stratosphere Corp. Sec. Litig., 182 F.R.D. at 618-19. 9 Defendants argue that they terminated the deposition because Bleus “abused and 10 harassed Hogan for nearly 5 hours” and they did not want that conduct to proceed for 11 another two hours. (Doc. 105 at 7.) However, Guerrieri did not move for a protective 12 order pursuant to Rule 30(d)(3) before terminating the deposition. “This tactic 13 contravenes the requirement that an application to terminate must be made to the court.” 14 Biovail Labs., 233 F.R.D. at 653 (internal citations and quotations omitted); see also In re 15 Omeprazole Patent Litig., 227 F.R.D. 227, 230 (S.D.N.Y. 2005) (“It is not the 16 prerogative of counsel, but of the court, to rule on objections . . . [I]f [counsel] believed 17 that the examination was being conducted in bad faith . . . or that the deponents were 18 being needlessly annoyed, embarrassed, or oppressed, he should have halted the 19 examination and applied immediately to the ex parte judge for a ruling on the questions, 20 or for a protective order, pursuant to Rule 30(d).”); Smith v. Logansport Cmty. Sch. 21 Corp., 139 F.R.D. 637, 643 (N.D. Ind. 1991). 22 Nevertheless, Defendants argue that because Plaintiffs conducted the deposition in 23 bad faith, they should not be allowed to re-open Hogan’s deposition. (Doc. 105 at 5.) 24 Bleus asked several questions on allegedly irrelevant matters regarding Hogan’s medical 25 history including: (1) a knee injury that occurred more than thirty years prior to the 26 accident (Doc. 105-2, Ex. 13 at 20-24); (2) a worker’s compensation claim that Hogan 27 filed three years prior to the accident (id. at 17-19); and (3) prescription eyeglasses that 28 did not require restrictions on his driving license (id. at 44-46). When Guerrieri objected -9- 1 as to relevance, Bleus replied that the purpose of the inquiry was to learn about Hogan’s 2 physical condition and capacity on the date of the accident. (Id. at 18-19.) Even assuming 3 that such inquiry treaded into non-discoverable subject matter, “the mere fact that more 4 than one, or even that a series of irrelevant questions is asked does not, by itself, 5 constitute the annoyance or oppression contemplated by (30)(d)(3).” In re Stratosphere 6 Corp. Sec. Litig., 182 F.R.D. at 619. When Guerrieri found such questioning to be 7 objectionable, the proper procedure would have been to allow the examination to 8 proceed, with the testimony being taken subject to the objections. See Fed. R. Civ. P. 9 30(c). 10 Defendants further assert that Hogan’s deposition was conducted in a wasteful 11 manner. Bleus had Hogan read lengthy discovery responses and other documents into the 12 record even though the exhibits had been marked and enlarged for display. (Doc. 105-2, 13 Ex. 13 at 62-73.) Further, Bleus “put on quite the show” by directing the videographer to 14 focus on certain displays and the deponent at various moments for dramatic effect. (Doc. 15 105 at 6.) Such tactics are not productive. 16 Besides irrelevant inquiries and counter-productive tactics, Defendants contend 17 that Bleus repeatedly asked Hogan the same questions after he had answered them in a 18 complete manner. Repetitive questioning can evince bad faith or a motive to harass the 19 deponent if it is excessive. See Mezu v. Morgan State Univ., 269 F.R.D. 565, 584 (D. 20 Md. 2010) (“[I]f the deponent answers a question completely, counsel should not 21 repeatedly ask the same or substantially identical question.”) (internal citation and 22 quotation omitted); Smith, 139 F.R.D. at 646 (noting that “it would not be appropriate for 23 counsel examining a deponent to repeatedly and deliberately duplicate questions. . . . 24 Such a practice, . . . could support a motion to terminate a deposition under Rule 30(d), if 25 employed to such an extent that bad faith or a motive to harass the deponent could 26 properly be inferred.”). There were many redundant exchanges in Hogan’s deposition. To 27 establish that Hogan did not formally compose his discovery responses, Bleus repeatedly 28 asked Hogan whether he knew the meaning of the words “subsequently” and “verbatim” - 10 - 1 even though Hogan answered each time that he did not. (Doc. 105-2, Ex. 13 at 74-84.) 2 Hogan eventually asked Bleus “[c]an you please let me know what it means?” (Id. at 96.) 3 Bleus inquired multiple times where Hogan was living at the time of the accident (id. at 4 38) and whether he believed he was a safe and careful driver (id. at 39-40, 42, 245-46). In 5 another exchange, Bleus repeatedly asked Hogan when he had first seen Plaintiffs’ 6 vehicle on the date of the accident after he had answered “when it was in the medium 7 [sic].” (Id. at 87-93.) At various times, Bleus inquired about the same traffic citations in 8 Hogan’s driving history to authenticate them and ask if his employers had taken action 9 against him for those citations. This led Guerrieri to object that Bleus’s questioning was 10 “on the verge of badgering,” they had covered the same ground “over and over again,” 11 and it was unnecessary to authenticate the same traffic citations “nine times in a row.” 12 (Id. at 245-46.) There was no need for Bleus to ask the same questions after Hogan had 13 fully answered them on the record even if Bleus was testing Hogan’s “knowledge, 14 recollection and veracity.” See Smith, 139 F.R.D. at 646. Nor was there a need to 15 repeatedly authenticate the same documents. Taken as a whole, these repetitive lines of 16 inquiry were indeed wasteful and an annoyance. They further demonstrate an intent to 17 harass. 18 Defendants assert that Bleus routinely asked attorney-client privileged questions 19 during the deposition. The first instance is when Bleus inquired whether Hogan spoke 20 with Guerrieri during a break about his deposition testimony. (Doc. 105-2 at 43-44.) 21 Bleus did not inquire into the substance of that conversation. (Id.) Therefore, his question 22 did not implicate the attorney-client privilege. The second instance is when Bleus 23 questioned Hogan about who helped prepare his discovery responses at which point 24 Guerrieri objected, stating that “[w]e’re getting really dangerously close to attorney/client 25 privilege here. I’m going to instruct him not to answer in a minute.” (Id. at 79-80.) Bleus 26 again inquired as to who placed certain words in Hogan’s responses, eliciting another 27 objection. (Id. at 80-81.) At that point, Bleus called the Court to clarify what he could 28 properly ask from Hogan. (Id. at 80-82.) Upon return, he stated that the Court permitted - 11 - 1 him to ask about the substance of Hogan’s discovery responses but not their formal 2 preparation. (Id. at 84.) Bleus followed the proper procedure and did not retread the same 3 ground during the remainder of the deposition. Thus, after receiving direction from the 4 Court, Bleus’s questioning did not repeatedly implicate the attorney-client privilege or 5 work product immunity in a manner amounting to bad faith. 6 Defendants contend that Hogan and Guerrieri were subject to additional harassing 7 and abusive conduct during the deposition. Bleus spent significant time questioning 8 Hogan about who had helped Hogan prepare his discovery responses. He asked Hogan 9 whether he knew the definitions of words used in the responses and if he normally refers 10 to himself in the third person as he did in his responses. (Id. at 73-84.) Guerrieri objected 11 to the nature of Bleus’s questioning as argumentative. (Id. at 76.) In response, Bleus 12 threatened that any person who assisted Hogan in preparing his discovery responses, 13 including Guerrieri, would be made to testify about that preparation. (Id.) Such threats are 14 not only counterproductive but “unprofessional and discourteous.” See Freeman v. 15 Schointuck, 192 F.R.D. 187, 189 (D. Md. 2000). However, inquiry into the substance of 16 discovery responses is not barred during a deposition. See Smith, 139 F.R.D. at 646 17 (noting that an oral deposition “is not merely a device to uncover and develop 18 information. It also provides a legitimate and efficient means of testing a witness’ 19 knowledge, recollection and veracity.”). Defendants have established that Bleus was 20 unprofessional and discourteous. 21 When challenged by Guerrieri to justify another line of inquiry, Bleus further 22 questioned Hogan’s veracity stating “[w]ell, thus far we have, in my opinion, found that 23 your client has misrepresented certain facts” and “I have further proof that perhaps your 24 client has been less than truthful about these disclosures.” (Doc. 105-2, Ex. 13 at 163, 25 165.) Although the ensuing exchange was especially testy, Bleus’s statements in response 26 to Guerrieri’s challenge do not evince harassing conduct. See Brincko v. Rio Properties, 27 Inc., 278 F.R.D. 576, 584 (D. Nev. 2011) (noting that there are many occasions in which 28 deposing counsel may ask a question or make a statement that a deponent or counsel - 12 - 1 consider improper, “but will be unable to show [that it] is [made] in bad faith, or to 2 annoy, embarrass or harass the witness.”). Nonetheless, Bleus’s overall conduct during 3 Hogan’s deposition was frequently counterproductive and wasteful. See Freeman, 192 4 F.R.D. at 189 (“No one expects the deposition of a key witness in a hotly contested case 5 to be a non-stop exchange of pleasantries. However, it must not be allowed to become an 6 excuse for counsel to engage in acts of rhetorical road rage against a deponent and 7 opposing counsel.”); Mezu, 269 F.R.D. at 584. It was also discourteous and 8 unprofessional. 9 Plaintiffs argue that because Guerrieri unilaterally suspended Hogan’s deposition 10 without claiming attorney-client privilege or moving for a protective order, Bleus was 11 unable to inquire about several relevant topics in preparation for trial. Plaintiffs want to 12 re-open Hogan’s deposition to further impeach Hogan, question Hogan about his 13 employment materials, training materials, and materials dealing with Defendants 14 Mayflower and Clark as they relate to Hogan as well as about other materials relating 15 directly to the accident with Plaintiffs. (Doc. 99 at 5.) 16 With some important restrictions, the Court will allow Plaintiffs to continue 17 Hogan’s deposition for two hours and eighteen minutes (2:18) pursuant to the 18 presumptive limit under Rule 30(d)(1) and the Court’s Case Management Order (Doc. 59 19 at 3). Although that limit is a presumptive and not mandatory one, Plaintiffs have 20 described remaining areas of inquiry that are relevant to this personal injury accident 21 case. It is within the scope of discovery to question Hogan regarding his training, 22 relationship with the corporate Defendants, and accident-related documents. Further, 23 knowledge and veracity of the deponent are always at issue during witness testimony. See 24 Smith, 139 F.R.D. at 646. 25 Plaintiffs seek to continue Hogan’s deposition in Albuquerque, New Mexico. The 26 Court “has wide discretion to establish the time and place of depositions.” Hyde & Drath 27 v. Baker, 24 F.3d 1162, 1166 (9th Cir. 1994). Hogan routinely trucks in Canada and 28 resides in Florida. He would spend significant time and expense to travel to New Mexico - 13 - 1 for a second deposition of a little over two hours. The previous deposition took place in 2 Dallas, Texas because it was amenable to Hogan’s trucking schedule. The parties will 3 agree to a mutually convenient location for the second deposition. In the alternative, they 4 may jointly stipulate to take the deposition telephonically or by other remote means. Fed. 5 R. Civ. P. 30(b)(4). Further, the actions of both parties have led to this second deposition. 6 Although the Court deems Bleus the less responsible of the two, because he conducted 7 the deposition in a wasteful unprofessional and discourteous manner, Guerrieri 8 unilaterally suspended the deposition without offering to continue it at a later date or 9 moving for a protective order. Accordingly, Defendants’ travel expenses and attorneys’ 10 fees related to Hogan’s second deposition will be shared equally by the parties’ attorneys. 11 See Interlego A.G. v. Leslie-Henry Co., 32 F.R.D. 9, 11 (M.D. Pa. 1963) (“The allowance 12 of travel expenses and counsel fees incident to depositions is also in the court’s 13 discretion.”); Quantachrome Corp. v. Micromeritics Instrument Corp., 189 F.R.D. 697, 14 701 (S.D. Fla. 1999) (holding that because a party caused the need for further 15 depositions, that party should bear the costs of retaking the depositions); In re China 16 Merchants Steam Nav. Co., 259 F. Supp. 75, 78 (S.D.N.Y. 1966). By this the Court 17 means that, if the deposition is reconvened or if such travel is necessary, Guerrieri and 18 Bleus personally will pay in equal proportion the reasonable amount of travel, lodging, 19 local transportation and meals incurred by Hogan in the reconvened deposition. If Hogan 20 needs such money advanced a reasonable amount shall be advanced in equal proportion 21 by both Guerrieri and Bleus personally. Further, Guerrieri, and/or his partners and 22 associates will keep track of the time and reasonable charges they incur in preparing 23 Hogan for and representing him at this second deposition. The Court will determine what 24 portion of that time, if any, is reasonable, and divide it in half. Guerrieri will be unable to 25 bill his client for his half of what the Court determines to be his reasonable charges. 26 Bleus will personally pay his half of those charges to Defendants. Both counsel are 27 prohibited from billing their respective clients for the above amount that they are liable to 28 pay, or from, in any way, deducting it from any amount they may recover on behalf of - 14 - 1 their clients. Both counsel are further ordered to provide a copy of this order to their 2 clients and fully explain it to them. 3 IV. SANCTIONS FOR DEFENDANT HOGAN’S DISCOVERY ABUSES 4 Plaintiffs move for sanctions for alleged discovery abuses during Hogan’s 5 deposition. They argue that Hogan provided false testimony and evasive answers which 6 is sufficient evidence of bad faith to warrant the imposition of sanctions. A party’s failure 7 to cooperate in discovery or to make disclosures may merit sanctions. See Fed. R. Civ. P. 8 37. Further, “an evasive or incomplete disclosure, answer, or response must be treated as 9 a failure to disclose, answer, or respond.” Id. 37(a)(4). If a deponent fails to disclose 10 information, the Court may order payment of the reasonable expenses, including 11 attorney’s fees, caused by the failure; inform the jury of the party’s failure; and may 12 impose other appropriate sanctions. Id. 37(c)(1). The Court may also “impose an 13 appropriate sanction—including the reasonable expenses and attorney’s fees incurred by 14 any party—on a person who impedes, delays, or frustrates the fair examination of the 15 deponent,” and this sanction may be imposed on a deponent or attorney. Id. 30(d)(2). The 16 Court further has the inherent power to assess sanctions where a party has “acted in bad 17 faith, vexatiously, wantonly, or for oppressive reasons.” Chambers v. NASCO, Inc., 501 18 U.S. 32, 45-46 (1991). 19 The record does not reveal that Hogan’s answers were evasive or dishonest, or 20 made in bad faith. Plaintiffs point to mistaken answers or omissions that at most exhibit a 21 lacking memory. Hogan did not remember every address at which he resided, either 22 temporarily or long-term, and when asked by Bleus Hogan mentioned only those that he 23 could recall. (Doc. 99-5, Exs. 23-26.) When Bleus confronted Hogan with other 24 residential addresses, he readily admitted to having lived there. As a professional truck 25 driver, it is expected that Hogan may not recall every traffic infraction for which he was 26 cited more than ten years prior to the subject accident. (Doc. 99-6, Exs. 39-45.) 27 Regarding the subject accident that occurred nearly two years prior to the deposition, 28 Hogan mistook which of the three cars he was apparently hauling that day that he was - 15 - 1 driving. (Id., Ex. 34.) He could not recall the specific language used in the citation for his 2 involvement in the accident, although he had reviewed the accident report before the 3 deposition. (Id., Exs. 35-38.) Hogan’s lack of remembrance and omissions seem to be 4 inadvertent and do not demonstrate that he was less than forthcoming in his deposition. 5 Additional testimony provided by Hogan may have contradicted other sources but 6 that is not surprising. Hogan testified he never saw Plaintiffs’ vehicle at any time prior to 7 the rollover of that vehicle in the highway median. (Doc. 99-5, Exs. 15-18.) That 8 testimony is consistent with his interview on the date of the accident as documented in 9 the accident report (Doc. 99-4, Ex. 9) and his answer to interrogatories (id., Ex. 13 at 3). 10 However, it is contrary to the investigating officer’s testimony that Hogan told him he 11 had observed the vehicle next to him during a lane change maneuver. (Doc. 100, Ex. 1 at 12 82-83.) It is unremarkable that the officer’s recollection of Hogan’s statements and 13 Hogan’s own recollection of the accident differ. Plaintiffs also contend that Hogan lied 14 about using a Plaintiff’s mobile phone to call 911 at the scene of the accident (Doc. 99-5, 15 Exs. 12, 19, 20) and about the fact that he voluntarily quit from a former trucking 16 position, when he was in fact terminated (Doc. 99-5, Ex. 31; Doc. 99-6, Ex. 32). If Hogan 17 did provide false answers under oath, that may, of course, be used to be impeach his 18 testimony at trial and may support a finding against Defendants on the issues to which the 19 false answers were relevant. However, Hogan’s conduct at the deposition does not merit 20 sanctions. 21 V. 22 RULE 30(B)(6) DEPOSITIONS OF DEFENDANTS MAYFLOWER AND CLARK 23 Plaintiffs move to compel Defendants Mayflower and Clark to designate corporate 24 representatives for Rule 30(b)(6) depositions. A party may notice a corporation’s 25 deposition without specifically naming the individual to be deposed and instead setting 26 forth “with reasonable particularity” the matters on which the examination is requested, 27 so the corporation can designate one or more individuals to testify. Fed. R. Civ. P. 28 30(b)(6). “[T]he effectiveness of the Rule bears heavily upon the parties’ reciprocal - 16 - 1 obligations.” Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 638 (D. Minn. 2000). 2 The party requesting the deposition must “reasonably particularize the subjects of the 3 intended inquiry so as to facilitate the responding party’s selection of the most suitable 4 deponent.” Id.; see also Dwelly v. Yamaha Motor Corp., 214 F.R.D. 537, 540 (D. Minn. 5 2003) (“[T]he Rule only operates effectively when the requesting party specifically 6 designates the topics for deposition, and when the producing party produces such number 7 of persons as will satisfy the request.”) (internal quotations and citations omitted). After 8 receiving the notice, the responding party “must make a conscientious good-faith 9 endeavor to designate the persons having knowledge of the matters sought by [the 10 requesting party] and to prepare those persons in order that they can answer fully, 11 completely, unevasively, . . . as to the relevant subject matters.” Prokosch, 193 F.R.D. at 12 638 (quotations and citations omitted). The deponent’s testimony binds the corporation 13 and may be used at trial by an adverse party for any purpose. Sanders v. Circle K Corp., 14 137 F.R.D. 292, 294 (D. Ariz. 1991). 15 Defendants argue that it is simply too late to notice these depositions. They 16 contend that Plaintiffs waited more than eight months before requesting them on 17 November 1, 2012, two months before the discovery deadline, even though Plaintiffs’ 18 claims against the corporate Defendants have not changed. Plaintiffs assert that they first 19 requested the 30(b)(6) depositions on June 14, 2012. Plaintiffs’ counsel, Josh Eden, had 20 stated in an e-mail exchange with Guerrieri that if Defendants were not prepared to 21 stipulate as to Hogan being in the course and scope of his employment at the time of the 22 accident, “let this message serve as our formal request for Rule 30(b)(6) deponent 23 designation and request.” (Doc. 99-7, Ex. 49.) This e-mail did not constitute a formal 24 request for Rule 30(b)(6) depositions as it did not set forth “with reasonable particularity” 25 the matters on which the examination was requested. It simply put Defendants on notice 26 that a request may be forthcoming. Plaintiffs submitted a formal request to Defendants on 27 November 1, 2012 listing categories that would be covered in the 30(b)(6) depositions. 28 (Doc. 99-7, Ex. 51.) This request was tardy because it would require multiple depositions - 17 - 1 to be taken during the holiday months before the fact discovery deadline of January 11, 2 2013. However, as the depositions could lead to relevant discovery and a brief extension 3 of the deadline would suffice, the Court will consider the merits of Plaintiffs’ request. 4 5 6 Plaintiffs’ formal request states that specific topics to be covered in the 30(b)(6) depositions of Defendants Mayflower and Clark “will include but will not be limited to”: 11 (1) company policy and procedure(s); (2) company hiring practices including employee background check and interview process; (3) driver training, (4) driver infraction reporting; (5) company employee retention process; (6) employer handbooks; (7) employment manuals; (8) employee training; (9) employment termination policy; (10) employee specific employment file (re: Dana Hogan); (11) any file materials related to Dana Hogan, and (12) any and all topics and matters not listed but directly related to the above. 12 (Id.) At the outset, Defendants contend that certain categories are either overbroad or 13 require limitation. “[T]he requesting party must take care to designate, with painstaking 14 specificity, the particular subject areas that are intended to be questioned, and that are 15 relevant to the issues in dispute.” Prokosch, 193 F.R.D. at 638. 7 8 9 10 16 Some of the requested categories cover a large amount of information that may be 17 irrelevant to Plaintiffs’ claims. The categories “company policies and procedures,” 18 “company employee retention process,” “employer handbooks”, “employment manuals” 19 are overbroad as they are not limited to areas relevant to this personal injury matter. 20 Although the categories of “employee specific employment file” and “any file materials” 21 are limited to Defendant Dana Hogan, there may be numerous records contained therein. 22 The inquiry into Hogan’s employment file should be further limited to the relevant topics 23 in this case. The burden is on Plaintiffs, as the party requesting the deposition, to satisfy 24 the “reasonable particularity” standard of Rule 30(b)(6). Without further clarification, 25 Defendants cannot reasonably designate and prepare a corporate representative to testify 26 on their behalf regarding these broad lines of inquiry. See Innomed Labs, LLC v. Alza 27 Corp., 211 F.R.D. 237, 240 (S.D.N.Y. 2002). Sufficient discovery based on numerous 28 interrogatories and requests for production has been produced to allow Plaintiffs to - 18 - 1 narrow the focus of these categories. The Court will require Plaintiffs to file an amended 2 Rule 30(b)(6) notice that reasonably limits these lines of inquiry. Further, Plaintiffs’ 3 notice includes language that the topics “will include but not be limited to” the categories 4 listed in the notice and that “any and all topics and matters not listed but directly related 5 to the above” would be inquired into during the depositions. This language is overbroad 6 and defeats the purpose of having categories at all. See id.; Tri-State Hosp. Supply Corp. 7 v. United States, 226 F.R.D. 118, 125 (D.D.C. 2005); Reed v. Bennett, 193 F.R.D. 689, 8 692 (D. Kan. 2000). It will be stricken from the amended notice. 9 Further, the categories of “company hiring practices including employee 10 background check and interview process”, “driver training”, “company employee 11 retention practices”, and “employment termination policy” should be inquired into only 12 as they apply to independent drivers and not as they apply to other employees. The Court 13 agrees this is a reasonable limitation. Defendants also request Plaintiffs to clarify the 14 category of “driver infraction reporting” as to whether it is the reporting of Mayflower 15 and Clark, or of the drivers, the Motor Vehicle Division, third party background check 16 companies, or another party into which Plaintiffs would inquire. Plaintiffs will clarify that 17 category in their amended notice along with the other revisions hereby ordered. 18 If Plaintiffs ask questions outside the scope of the matters described in their notice, 19 “the general deposition rules govern, so that relevant questions may be asked and no 20 special protection is conferred on a deponent by virtue of the fact that the deposition was 21 noticed under 30(b)(6).” Detoy v. City and Cnty. of San Francisco, 196 F.R.D. 362, 367 22 (N.D. Cal. 2000). If the corporate representative “does not know the answer to questions 23 outside the scope of the matters described in the notice, then that is the examining party’s 24 problem.” King v. Pratt & Whitney, a Div. of United Technologies Corp., 161 F.R.D. 25 475, 476 (S.D. Fla. 1995) aff’d sub nom. King v. Pratt & Whitney, 213 F.3d 646 (11th 26 Cir. 2000). Defendants’ counsel “may note on the record that answers to questions 27 beyond the scope of the Rule 30(b)(6) designation are not intended as the answers of the 28 designating party and do not bind the designating party.” Detoy, 196 F.R.D. at 367. - 19 - 1 However, Defendants are advised that Rule 30(b)(6) implicitly requires persons to review 2 all matters known or reasonably available to the corporation in preparation for the 3 deposition. Bd. of Trustees of Leland Stanford Junior Univ. v. Tyco Int’l Ltd., 253 F.R.D. 4 524, 525-26 (C.D. Cal. 2008) (internal citations and quotations omitted); see also 5 Calzaturficio S.C.A.R.P.A. v. Fabiano Shoe Co., Inc., 201 F.R.D. 33, 36 (D. Mass. 2001). 6 Defendants request that each deposition be limited to four hours, as can be 7 scheduled. In light of Plaintiff’s demonstrated tendency to needlessly extend depositions 8 by irrelevant, and harassing questions, and in light of his overly broad 30(b)(6) 9 designations, the request is granted. Plaintiffs will have more than adequate time to take 10 such depositions if they appropriately limit the designations, and if they are efficient in 11 their questioning. 12 Defendants further request that the depositions be conducted telephonically or by 13 video conference. Fed. R. Civ. P. 30(b)(4) provides, in relevant part, that “[t]he parties 14 may stipulate—or the court may on motion order—that a deposition be taken by 15 telephone or other remote means.” There is no information presented by Defendants by 16 which the Court may meaningfully assess whether such means are feasible, practical, or 17 fair. Accordingly, the Court declines to order that the depositions be taken telephonically 18 absent a stipulation to the same by both parties. Plaintiffs have not chosen a place at 19 which to depose Defendants Mayflower and Clark. Although there is a general 20 presumption that the deposition of a corporate party should be taken at its place of 21 business, that presumption is not conclusive. See Cadent Ltd. v. 3M Unitek Corp., 232 22 F.R.D. 625, 628 (C.D. Cal. 2005). The Court also considers the convenience of the 23 parties, relative hardships and the economy obtained in attending a particular location. 24 See id. at 628-29. Plaintiffs do not argue there is any particular hardship in traveling to 25 take these depositions and have previously offered to do so. (Doc. 105-1, Ex. 10.) Thus, 26 the 30(b)(6) depositions shall be taken at the places of business of Defendants Mayflower 27 and Clark in Missouri and New York, respectively, on convenient dates to be determined 28 by the parties. - 20 - 1 2 3 IT IS HEREBY ORDERED that Defendants’ Motion for Sanctions for Failure to Confer in Good Faith (Doc. 105) is granted, as follows: 1. Plaintiffs’ counsel is ordered to pay Defendants’ reasonable attorneys’ fees 4 incurred in attending the teleconference with the Court on November 29, 2012 and 5 responding to Plaintiffs’ discovery motion (Doc. 99) pursuant to Local Rule 7.2(j) and 6 upon Defendants’ application in compliance with Local Rule 54.2. 7 8 9 IT IS FURTHER ORDERED, that Plaintiffs’ Motion to Re-Open Defendant Dana A. Hogan’s deposition (Doc. 99) is granted, as follows: 1. Plaintiffs will continue Hogan’s deposition for no longer than two hours 10 and eighteen minutes (2:18) pursuant to Fed. R. Civ. P 30(d)(1). Areas of inquiry will be 11 restricted to (1) Hogan’s employment and training materials, (2) materials dealing with 12 Defendants Mayflower and Clark as they relate to Hogan, and (3) other materials relating 13 directly to the accident with Plaintiffs. 14 2. If Plaintiffs exceed these areas of inquiry, engage in wasteful or redundant 15 questioning, or persist in inquiring about matter which implicates attorney-client 16 privilege, Defendants may suspend the deposition to move for a protective order pursuant 17 to Fed. R. Civ. P 30(d)(3). If the motion is granted, the deposition will be terminated and 18 Plaintiffs will be subject to sanctions pursuant to Fed. R. Civ. P. 30(d)(2). 19 3. The parties shall agree upon a mutually convenient location and date for the 20 deposition. In the alternative, they may jointly stipulate to take the deposition 21 telephonically or by other remote means, pursuant to Fed. R. Civ. P. 30(b)(4). 22 4. Defendants’ travel expenses, reasonable preparation costs, and attorneys’ 23 fees related to Hogan’s second deposition will be shared equally by the parties’ counsel. 24 Upon conclusion of the deposition, Defendants shall apply for such fees and costs in 25 compliance with Local Rule 54.2. 26 27 28 IT IS FURTHER ORDERED, that Plaintiffs’ Motion for Sanctions for Defendant Hogan’s Discovery Abuses (Doc. 99) is denied. IT IS FURTHER ORDERED, that Plaintiffs’ Motion to Compel Rule 30(b)(6) - 21 - 1 2 Depositions of Defendants Mayflower and Clark (Doc. 99) is granted, as follows: 1. Plaintiffs shall, no later than seven days from entry of this order, file an 3 amended notice for Rule 30(b)(6) depositions of Defendants Mayflower and Clark 4 limiting and clarifying the topics of inquiry as described in this Order. 5 2. The depositions of Defendants Mayflower and Clark will be taken at their 6 places of business in Missouri and New York, respectively. In the alternative, the parties 7 may jointly stipulate to take the deposition telephonically or by other remote means, 8 pursuant to Fed. R. Civ. P. 30(b)(4). The parties shall agree upon mutually convenient 9 dates for the depositions. Each deposition shall be limited to one day of four hours 10 pursuant to Fed. R. Civ. P. 30(d)(1) and subject to a protective order and termination if 11 wasteful, abusive, or harassing conduct occurs. 12 IT IS FURTHER ORDERED, that the deadline for completing Hogan’s second 13 deposition, the Rule 30(b)(6) depositions, and related filings shall be extended to May 14 13, 2013. 15 Dated this 14th day of March, 2013. 16 17 18 19 20 21 22 23 24 25 26 27 28 - 22 -

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