Moore et al v. Garnand et al

Filing 506

ORDERED that the plaintiffs' 484 Motion, filed on May 14, 2024, for sanctions against the defendants' counsel is DENIED. Signed by Magistrate Judge Michael A Ambri on 7/8/2024. (ARC)

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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 10 11 12 13 Greg Moore; et al., Plaintiffs, vs. Sean Garnand; et al., Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 19-00290 TUC RM (MAA) ORDER 15 Pending before the court is the plaintiffs’ motion, filed on May 14, 2024, for sanctions 16 against the defendants’ counsel pursuant to Fed.R.Civ.P. 30(c)(2), 30(d)(3)(C) and 28 U.S.C. 17 § 1927. Doc. 484. The defendants filed a response on May 24, 2024. Doc. 495. The 18 plaintiffs did not file a reply. 19 The plaintiffs (“the Moores”) move that this court sanction the defendants’ counsel 20 for her conduct at the deposition of Detective Arnaud on May 8, 2024. Doc. 484. The 21 Moores argue that counsel improperly lodged too many “Rule 26(b)(1)” objections. 22 23 Discussion 24 Rule 30 discusses how depositions by oral examination should proceed. Fed.R.Civ.P. 25 “An objection at the time of the examination--whether to evidence, to a party’s conduct, to 26 the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of 27 the deposition--must be noted on the record, but the examination still proceeds; the testimony 28 1 is taken subject to any objection.” Fed.R.Civ.P. 30(c)(2). “An objection must be stated 2 concisely in a nonargumentative and nonsuggestive manner.” Id. 3 “The court may impose an appropriate sanction--including the reasonable expenses 4 and attorney’s fees incurred by any party--on a person who impedes, delays, or frustrates the 5 fair examination of the deponent.” Fed.R.Civ.P. 30(d)(2). If there is a motion to terminate 6 or limit a deposition, expenses may be awarded pursuant to Rule 37(a)(5). Fed.R.Civ.P. 7 30(d)(3)(C). 8 “Any attorney or other person admitted to conduct cases in any court of the United 9 States or any Territory thereof who so multiplies the proceedings in any case unreasonably 10 and vexatiously may be required by the court to satisfy personally the excess costs, expenses, 11 and attorneys’ fees reasonably incurred because of such conduct.” 28 U.S.C.A. § 1927. 12 In the pending motion, the Moores argue that sanctions should be imposed against 13 counsel for the defendants. Doc. 484. They assert that, during the second Arnaud 14 deposition, counsel “objected on ‘Rule 26(b)’ grounds thirty-seven (37) times in twenty-three 15 (23) pages of testimony.” Doc. 484, p. 4 (emphasis in original). The Moores explain that 16 “in most instances, when Ms. Pace injected her objection, Mr. Arnaud paused, sometimes 17 looking at Ms. Pace for direction.” Id. They maintain that, “[a]t times, Ms. Pace’s objection 18 was injected as Mr. Arnaud had begun to answer, breaking up the answer, and sometimes 19 requiring him to re-do an answer.” Id. 20 The Moores argue that “Ms. Pace’s outrageous conduct interfered with the ability of 21 Plaintiffs to secure the evidence sought, in all instances suggesting to the witness that he need 22 not answer or could limit his answer, and caused the deposition to go well beyond what was 23 necessary had the interference not been made.” Doc. 484, p. 4. They move that this court 24 sanction the defendants’ counsel $100.00 for each Rule 26(b)(1) objection made during the 25 deposition as well as reasonable costs and attorney fees. Doc. 484. 26 On May 24, 2024, the defendants filed a response opposing the motion. Doc. 495. 27 They explain that defense counsel interposed her Rule 26(b)(1) objections to assert on the 28 -2- 1 record that the plaintiffs’ counsel’s questions sought information beyond the proper scope 2 of discovery. Id. They maintain that the deposition transcript “reflects that every question 3 posed by attorney Moore to Mr. Arnaud was answered, and defense counsel neither directed 4 the witness not to answer, nor suggested to the witness that he need not answer a question.” 5 Doc. 495, p. 1. 6 The court finds that sanctions are not appropriate on this record. Though a “standing” 7 Rule 26(b) objection may have allowed the deposition to proceed more smoothly, it does not 8 appear that the objections offered by the defendants’ counsel were unreasonably disruptive. 9 The court notes that the deposition on this day, May 8, 2024, lasted only 27 minutes. Doc. 10 484-2, p. 3. It therefore appears that counsel’s objections caused minimal delay. The 11 Moores maintain that counsel’s objections might have caused the deponent to alter his 12 testimony, but they have not directed the court to any specific part of the transcript in support 13 of their assertion. 14 15 16 IT IS ORDERED that the plaintiffs’ motion, filed on May 14, 2024, for sanctions against the defendants’ counsel is DENIED. Doc. 484. 17 18 DATED this 8th day of July, 2024. 19 20 21 22 23 24 25 26 27 28 -3-

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