Coleman v. Hutchins et al
Filing
40
OPINION AND ORDER denying 32 defendants' motion to take a second deposition of Derrell Underwood. Signed by Judge J. Leon Holmes on 11/15/2018. (kdr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
VANESSA COLE, as Personal Representative
of the Estate of Roy Lee Richards, Jr., Deceased
v.
PLAINTIFF
NO. 4:17CV00553 JLH
DENNIS HUTCHINS, Individually;
KENTON BUCKNER, Individually and Officially;
and CITY OF LITTLE ROCK
DEFENDANTS
OPINION AND ORDER
The defendants move to take a second deposition of Derrell Underwood, Richards’s uncle
who was at the scene just before Richards was killed. On July 23, 2018, the plaintiff’s lawyer
emailed the four defense lawyers a notice to depose various witnesses, including Underwood, on
September 24th. It is undisputed that Alexander Betton, one of the defendants’ lawyers, received
the email that day. He did not, however, see it in his inbox until much later. On September 6th, the
plaintiff’s lawyer and Betton corresponded regarding depositions of other individuals noticed in the
July 23rd email. Documents #38-5 and #38-6. On the morning of September 24th, the plaintiff’s
lawyer again emailed defense counsel about Underwood’s deposition scheduled for that afternoon.
Document #32-3. Betton says this is the first he knew about the deposition. He attended it, and
although he admits that at that time he “had the opportunity to question Mr. Underwood,” he “chose
to reserve questioning” him until a later date. Document #32 at 3. The plaintiff’s lawyer deposed
Underwood, and Betton participated by objecting to some of his questions. The defendants now
move to take a second deposition of Underwood. The motion is denied.
“A party must obtain leave of court” to depose a person that “has already been deposed in
the case.” Fed. R. Civ. P. 30(a)(2). The Court “must grant leave to the extent consistent with
Rule 26(b)(1) and (2).” Id. In relevant part, Rule 26(b)(2) requires a court to “limit the frequency
or extent of discovery,” if the court determines that
(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; [or]
(ii) the party seeking discovery has had ample opportunity to obtain the information
by discovery in the action[.]
Fed. R. Civ. P. 26(b)(2)(C). The Court has broad discretion to restrict and control excessive
discovery under Rule 26. See Fed. R. Civ. P. 26, 2015 Amendment to the Advisory Committee
Notes; see also Pavlik v. Cargill, Inc., 9 F.3d 710, 714 (8th Cir. 1993) (“The trial court has broad
discretion to decide discovery motions.”); Escamilla v. SMS Holdings Corp., 2011 WL 5025254,
at *6 (D. Minn Oct. 21, 2011) (“The availability of a second deposition is left to the discretion of
the trial court.” (citation omitted)).
Here, four defense lawyers received notices of the deposition–two months before, two weeks
before, and the morning of the deposition. Betton has offered no good reason for why he overlooked
the upcoming deposition despite ample notice. Moreover, he had the opportunity to depose
Underwood–he attended the deposition but refused to ask questions in spite of the plaintiff’s
lawyer’s urging him to do so. He has offered no good reason as to why he did not ask question
Underwood at the deposition when all parties were already present. See Bell v. Fowler, 99 F.3d 262,
271 (8th Cir. 1996) (finding no abuse of discretion in the court’s refusal to allow additional
depositions, and observing that the party offered no good reason why they were necessary). The
defense has failed to show good cause for a second deposition of Underwood. See Fed. R. Civ. P.
26(b)(2)(C)(ii). The motion is therefore DENIED. Document #32.
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IT IS SO ORDERED this 15th day of November, 2018.
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE
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