Dennis Rutherford v. Palo Verde Health Care District et al

Filing 311

MINUTES (IN CHAMBERS): ORDER by Magistrate Judge Sheri Pym: granting in part 277 Motion to Compel Defendants Burton and Sartin to Appear for Deposition in Excess of Seven Hours as set forth above (SEE ORDER) and as follows: The deposition of defendant Samuel Burton shall be reconvened for an additional two hours of testimony; and The deposition of defendant Trina Sartin shall be reconvened for an additional four hours of testimony. SEE ORDER FOR DETAILS. (vp)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

Case No.

ED CV13-1247-JAK (SPx)

Title

Dennis Rutherford, et al. v. PaloVerde Health Care District, et al.,

Present: The Honorable

November 14, 2014

SHERI PYM, United States Magistrate Judge

Kimberly I. Carter

None

Deputy Clerk

Court Reporter / Recorder

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

None

None

Proceedings:

(In Chambers) Order Granting in Part Motion to Compel Defendants
Burton and Sartin to Appear for Deposition in Excess of Seven Hours
[277]

On October 13, 2014, plaintiffs filed a motion to compel defendants Samuel
Burton and Trina Sartin to appear for depositions in excess of seven hours (docket no.
277). At this point plaintiffs have deposed each of these defendants for seven hours or a
bit more, and seek five more hours of deposition time with each. Defendants oppose the
motion, contending plaintiffs have had sufficient time with each defendant.
The parties have fully briefed the motion to compel, including submitting a Joint
Stipulation (“JS”), supporting declarations and exhibits, and supplemental papers. The
court has considered the papers submitted by the parties, and finds that a hearing on the
motion is not necessary. The court previously took the hearing off calendar.
For the reasons that follow, the court grants in part plaintiffs’ motion to compel.
BACKGROUND
Plaintiffs Peter Klune, Dennis Rutherford, and Tara Barth are former executive
employees of defendant Palo Verde Health Care District (“PVHD”). PVHD operates
Palo Verde Hospital in Blythe, California. Plaintiffs filed lawsuits (which are now
consolidated) in July 2013 alleging they were wrongfully terminated in January and
February 2013 in response to their work in exposing or pursuing prosecution of an illegal
kickback scheme at the hospital. Plaintiffs’ claims include claims under the federal False
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

Case No.

ED CV13-1247-JAK (SPx)

November 14, 2014

Title

Dennis Rutherford, et al. v. PaloVerde Health Care District, et al.,

Claims Act, for breach of their employment contracts, and for retaliatory termination and
retaliation.
Defendants Samuel Burton and Trina Sartin are members of the PVHD Board of
Directors. Defendant Burton has served on the Board since December 2010, and
defendant Sartin has served on the Board since December 2012. Defendant Sartin is also
a co-owner of Desert Air Ambulance, the use of which by Palo Verde Hospital is one of
the underlying issues in this case.
Plaintiffs deposed defendant Burton for something over seven hours on September
18, 2014. Plaintiffs deposed defendant Sartin for some seven hours on October 14,
2014. At the conclusion of both depositions, plaintiffs’ counsel indicated he had
additional questions to ask, and defendants’ counsel opposed any further time for these
depositions.
DISCUSSION
“Unless otherwise stipulated or ordered by the court, a deposition is limited to 1
day of 7 hours.” Fed. R. Civ. P. 30(d)(1). The parties have not stipulated to exceed this
limit; instead, plaintiffs seek an order of this court to exceed that limit. “The court must
allow additional time consistent with Rule 26(b)(2) if needed to fairly examine the
deponent or if the deponent, another person, or any other circumstance impedes or delays
the examination.” Id.
As a preliminary matter, the court notes that defendants object to allowing
plaintiffs additional time to depose them because defendants have asserted a qualified
immunity defense. See JS at 24-25. The cases defendants cite generally state that the
court has the option to stay discovery until the qualified immunity defense is resolved.
But that has not happened here. Given that discovery has proceeded, there is no logical
reason to limit a particular party’s deposition time simply because that party has asserted
a qualified immunity defense, and the authority defendants cite does not suggest
otherwise.
Plaintiffs seek what amounts to a full twelve hours each to depose defendants
Burton and Sartin, noting that, in a January 22, 2014 order on a motion opposed by
plaintiffs, the court granted defendants that much time to depose each of the plaintiffs.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

Case No.

ED CV13-1247-JAK (SPx)

November 14, 2014

Title

Dennis Rutherford, et al. v. PaloVerde Health Care District, et al.,

The court notes that it also granted defendants an addition 90 minutes to depose plaintiff
Klune to again ask him questions he had previously refused to answer. That defendants
were given additional time to depose plaintiffs is certainly a relevant consideration, but it
is not determinative of whether plaintiffs need additional time to fairly depose these
defendants.
In deciding this issue, the court first considers the nature of this case, including the
allegations in the Third Amended Complaint, the complexity of the claims and issues,
and the thousands of pages of documents produced. These considerations suggest that,
for significant parties or substantial witnesses in this case, additional deposition time
may be appropriate.
At the same time, the court considers that, as defendants point out, they are in a
different situation than plaintiffs. In particular, plaintiffs were executives at PVHD with
extensive knowledge about the workings of PVHD and the investigation of wrongdoing
they claim led to their terminations. As Board members, defendants Burton and Sartin
would not have the same knowledge. But they are not so ignorant of relevant matters as
defendants contend. Although defendant Burton is and was only a Board member, he
served on the Board for a full two years leading up to plaintiffs’ terminations. And
although defendant Sartin was only a Board member for a couple months leading up to
the terminations, this was a critical period. More importantly, as an owner of Desert Air
Ambulance that is at the heart of plaintiffs’ allegations of wrongdoing, defendant
Sartin’s relevant knowledge goes far beyond her role as a PVHD Board member.
Defendants Burton and Sartin also contend that since they are named in only one
claim in the operative complaint, their relevant testimony is necessarily limited. This
does not follow. It is their roles on the PVHD Board and defendant Sartin’s additional
role as a Desert Air Ambulance co-owner that determines the number of matters on
which they may have relevant testimony to give.
The court also considers the topics not yet covered in the depositions. Plaintiffs
maintain they need more time with defendant Burton to ask him about PVHD Board
meeting minutes not covered in the first day of deposition, and about documents related
to plaintiffs’ job performances and PVHD’s financial condition. It is less clear what
topics plaintiffs still seek to cover with defendant Sartin, likely because her deposition
had not yet commenced when this motion was filed. Nonetheless, from the conclusion of
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

Case No.

ED CV13-1247-JAK (SPx)

November 14, 2014

Title

Dennis Rutherford, et al. v. PaloVerde Health Care District, et al.,

her first day of deposition and plaintiffs’ counsel’s supplemental declaration, it appears
that plaintiffs seek to ask her additional questions regarding board meetings and other
matters partially covered.
Finally, the court considers the parties’ use of time at the depositions to date. Both
sides accuse each other of wasting time, and the court agrees with both sides in part. For
example, from the court’s partial review of defendant Burton’s deposition, it appears that
defense counsel made numerous speaking objections that obstructed the examination and
verged on coaching the witness, and also gave some questionable instructions not to
answer. At the same time, plaintiffs’ counsel did not appear to focus as quickly as he
might have on the more important questions in this case. Defendants argue that
plaintiffs’ counsel wasted time at defendant Sartin’s deposition asking questions about
Dr. Sahlolbei’s pending criminal matter, given that the court previously struck
allegations regarding the criminal case pending against Dr. Sahlolbei, finding that case
does not bear on the claims in this case. See docket no. 180 at 23. But although that
criminal case has been excluded, that does not mean that inquiries concerning the
underlying misconduct alleged are not reasonably calculated to lead to the discovery of
admissible evidence.
Considering all of these factors, the court concludes that more time is warranted to
depose defendants, but not as much time as plaintiffs seek. In particular, the court finds
that plaintiffs will have sufficient time to fairly depose defendants if they are granted an
additional two hours to depose defendant Burton and an additional four hours to depose
defendant Sartin.
Plaintiffs request sanctions. Rule 37(a)(5) provides that the prevailing party on a
discovery motion is entitled to an award of its reasonable expenses incurred in bringing
or opposing the motion, including attorney’s fees, except no payment should be ordered
if: (1) the motion was filed before the moving party made a good faith effort to resolve
the dispute; (2) the losing party’s position was substantially justified; or (3) other
circumstances make award of expenses unjust. Fed. R. Civ. P. 37(a)(5). Plaintiffs are
the prevailing party here; however, defendants’ position was substantially justified as
reflected by the fact that the court has not granted plaintiffs all of the additional
deposition time they seek. Although this is another matter that the parties should have
been able to resolve without significant hardship to either side, sanctions are not
warranted here.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

Case No.

ED CV13-1247-JAK (SPx)

November 14, 2014

Title

Dennis Rutherford, et al. v. PaloVerde Health Care District, et al.,

CONCLUSION
Based on the foregoing, IT IS THEREFORE ORDERED that Plaintiffs’ Motion to
Compel Defendants Samuel Burton and Trina Sartin to Appear for Depositions in Excess
of Seven Hours (docket no. 277) is GRANTED IN PART as set forth above and as
follows:
1.
The deposition of defendant Samuel Burton shall be reconvened for an
additional two hours of testimony; and
2.
The deposition of defendant Trina Sartin shall be reconvened for an
additional four hours of testimony.

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