R.D.G. et al v. City of Bakersfield et al

Filing 46

ORDER AFTER SECOND INFORMAL TELEPHONIC CONFERENCE re 44 , signed by Magistrate Judge Jennifer L. Thurston on 4/17/2015. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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R.D.G., et al.,

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Plaintiff,
v.
CITY OF BAKERSFIELD, et al.,
Defendants.

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Case No.: 1:13-cv-02057 JLT
ORDER AFTER SECOND INFORMAL
TELEPHONIC CONFERENCE
(Doc. 44)

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At the request of counsel, on April 17, 2015, the Court held an informal telephonic conference

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related to issues Plaintiff has raised related to the conduct of the depositions of Defendant Woessner

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and the Fed. R. Civ. P. 30(b)(6) deponent, Sherman.

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At the conference, counsel noted that many times in the Woessner deposition, defense counsel

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instructed the witness not to answer questions despite that the instruction was not made to preserve a

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privilege or to allow time to seek a protective order. The Court agreed that such an instruction is

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appropriate only under those circumstances set forth by Fed. R. Civ. P. 30(c)(2) [“A person may

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instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation

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ordered by the court, or to present a motion under Rule 30(d)(3).”]. However, the Court reminded

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counsel that when confronted with whether a deposition should be reopened, the Court may limit the

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discovery sought by balancing factors such as the costs involved, whether the information could be

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obtained more efficiently from a different source and the importance of the discovery, among other
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factors. Fed. R. Civ. P. 26(b)(2)(C). The Court directed the conversation toward these factors.

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As to the deposition of Woessner, at the conference it was clear that answers had been given to

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several questions Plaintiffs contended had not been given. For example, Woessner testified he had no

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information whether decedent’s gun was jammed. Likewise, Plaintiff’s counsel stated that Woessner

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testified that when he reached the breezeway while chasing the decedent, he saw the decedent had

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continued running and did not stop there. Thus, Plaintiff’s counsel conceded that the information as to

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whether the decedent ambuhsed Woessner, was addressed at the deposition.

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At the deposition, Woessner did not provide responses to hypothetical questions posed by
Plaintiffs’ counsel related to whether, if the circumstances were different—such as the officer being

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aware the decedent was not going to ambush him and the officer being aware the decedent was

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carrying an inoperable—he would have taken different actions. At the conference, Plaintiffs’ counsel

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argued that the answers to these questions would test the officer’s credibility as well as his training and

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experience and could impact the opinions of their expert; the Court disagrees—at least based upon the

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showing currently made. Indeed, Plaintiffs’ counsel could not point to how the responses to the posed

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hypotheticals would be admissible at trial. For example, counsel made no showing that the responses

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did not call for speculation or did not constitute an expert opinion.

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Though Plaintiffs’ counsel decided that they did not wish to discuss the other areas of their

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concern as to the Woessner deposition (specifically questions related to whether an AR-15 “has the

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ability to go through walls,” and the honesty of the officer when he did respond to the question by

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stating, “I’m not sure. I don’t know anything about plaster or anything, I’m sorry I don’t know”), the

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parties discussed whether Sherman was an appropriate deponent under Fed. R. Civ. P. 30(b)(6).

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Plaintiffs’ chief concern was that Sherman lacked personal knowledge of much of the information

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about which he testified.

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The Court reminded counsel that under this Rule 30(b)(6), the key issue is whether the person

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produced by the entity has the authority to bind it in the litigation. The entity’s designee need not have

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personal knowledge or have been witness to the events addressed at the deposition. United States v.

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Taylor, 166 F.R.D. 356, 361 aff’d 166 F.R.D. 367 (M.D.N.C. 1996); Great Am. Ins. Co. of New York

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v. Vegas Const. Co., Inc., 251 F.R.D. 534, 539 (D.Nev. 2008). Rather the deponent must be sufficiently
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prepared about information known by the entity or reasonably available to it, so he can address the

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topics raised at the deposition on behalf of the entity. Id. However, resolution of this issue was not

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achieved.

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Thus, after discussing the issues at the conference, the Court ORDERS:

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1.

Plaintiffs are authorized to file a motion to compel the further deposition of Woessner. If

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they choose to file such a motion, in addition to addressing the specific deposition questions at issue,

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they must address the factors set forth in Fed. R. Civ. P. 26(b)(2(C) such to justify reopening the

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deposition. Likewise, they are directed to discuss the timeliness of the motion in light of the fact that

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the deposition occurred in January 2015. The motion SHALL comply with Local Rule 251(c);
2.

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Plaintiffs are authorized to file a motion to compel the further deposition of the entity.

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However, if they choose to file such a motion, in addition to addressing the specific deposition

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questions at issue, they must address the factors why they believe the deponent previously produced

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was inadequate under applicable federal authority. The motion SHALL comply with Local Rule

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251(c);

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3.

As to either motion, Plaintiffs are limited to the issues actually raised in meet and confer

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efforts with opposing counsel and actually discussed at the informal conference.

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No modifications of the case schedule are authorized hereby.

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IT IS SO ORDERED.
Dated:

April 17, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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