Manago v. Davey et al

Filing 85

ORDER Granting 75 Motion for Protective Order; ORDER Granting 76 Motion to Modify Scheduling Order; ORDER Extending Deadlines for all Parties signed by Magistrate Judge Gary S. Austin on 05/19/2017. (Flores, E)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
12

Plaintiff,

13
14

1:16-cv-00399-LJO-GSA-PC

STEWART MANAGO,

ORDER GRANTING MOTION FOR
PROTECTIVE ORDER
(ECF No. 75.)

vs.
D. DAVEY, et al.,

15

ORDER GRANTING MOTION TO
MODIFY SCHEDULING ORDER
(ECF No. 76.)

Defendants.

16

ORDER EXTENDING DEADLINES FOR
ALL PARTIES

17

New Discovery Deadline:

18

July 7, 2017

New Dispositive Motions Deadline: Sept. 8, 2017

19
20
21
22

I.

BACKGROUND

23

Stewart Manago (“Plaintiff”) is a former state prisoner proceeding pro se and in forma

24

pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the

25

Complaint commencing this action on March 24, 2016. (ECF No. 1.) This case now proceeds

26

with the First Amended Complaint filed on April 18, 2016, against defendants J. Acevedo, D.

27

Davey, A. Maxfield, E. Razo, M.V. Sexton, A. Valdez, and J. Vanderpoel (collectively,

28

“Defendants”), on Plaintiff’s First Amendment retaliation claims. (ECF No. 13.)
1

1

On February 17, 2017, Defendants filed a motion for a protective order and a motion to

2

modify the court’s Discovery and Scheduling Order. (ECF No. 75, 76.) Plaintiff has not

3

opposed the motions.

4

II.

MOTION FOR PROTECTIVE ORDER – RULE 26(c)

5

A.

6

Pursuant to Federal Rule of Civil Procedure 26(c), “[t]he court may, for good cause,

7

issue an order to protect a party or person from annoyance, embarrassment, oppression, or

8

undue burden or expense.” A court has “broad discretion . . . to decide when a protective order

9

is appropriate and what degree of protection is required.” Phillips v. Gen. Motors Corp., 307

10

F.3d 1206, 1211 (9th Cir. 2002) (citation omitted). The party seeking the protective order bears

11

the burden of demonstrating “specific prejudice or harm will result if no protective order is

12

granted.” Id. at 1210–11. “Broad allegations of harm, unsubstantiated by specific examples of

13

articulated reasoning, do not satisfy the Rule 26(c) test.” Rivera v. NIBCO, Inc., 384 F.3d 822,

14

827 (9th Cir. 2004) (quoting Phillips, 307 F.3d at 1211–12). To meet the “good cause”

15

requirement, the moving party must show that specific prejudice or harm will result in the

16

absence of a protective order. See Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122,

17

1130 (9th Cir. 2003.) “If a court finds particularized harm will result from disclosure of

18

information to the public, then it balances the public and private interests to decide whether a

19

protective order is necessary.” Phillips, 307 F.3d at 1211.

Legal Standards

20

“Unless the court orders otherwise, testimony [in a deposition] may be recorded by

21

audio, audiovisual, or stenographic means [and t]he noticing party bears the recording costs.”

22

Fed. R. Civ. P. 30(b)(3)(A). “[P]arties [are] authorized to record deposition testimony by

23

nonstenographic means without first having to obtain permission of the court or agreement

24

from other counsel.” Advisory Committee’s Note on 1993 amendment to Rule 30(b). The

25

party who notices the deposition must state in the notice the method for recording the

26

testimony. Fed. R. Civ. P. 30. With prior notice to the deponent and other parties, any party

27

may designate another method for recording the testimony in addition to that specified in the

28

original notice. Fed. R. Civ. P. 30.
2

1

An independent operator for the recording of a deposition is not required. The court in

2

Rice’s Toyota World, Inc. discussed the use of an independent operator for recording of

3

depositions:

4
5
6
7
8
9
10

[T]he courts in Lucas v. Curran, 62 F.R.D. 336, 338 (E.D. Pa. 1974) and
Marlboro Products Corp. v. North Am. Philips Corp., 55 F.R.D. 487 (S.D.N.Y.
1972), both dispensed with an independent operator even though there was not a
backup stenographic deposition . . . In Marlboro, the court specifically
permitted plaintiff’s counsel to run the recording device and have counsel’s
secretary type the transcript. It held that neither Rule 28(a), Fed. R. Civ. P.,
which requires depositions to be taken before one authorized to administer oaths
and take testimony, or Rule 28(c), which forbids depositions to be taken by
counsel of the party, require an independent person to run the recording device.
It found the independent person was not a technological necessity and the
supposed neutrality of the operator would be a mere illusion in the actual
circumstances of an audio deposition.

11

Rice’s Toyota World, Inc. v. Southeast Toyota Distributors, Inc., 114 F.R.D. 647, 651
(M.D.N.C. 1987).

12

“As a general rule, the public is permitted ‘access to litigation documents and

13

information produced during discovery.’” In re Roman Catholic Archbishop of Portland in

14

Oregon, 661 F.3d 417, 424 (9th Cir. 2011) (quoting Phillips, 307 F.3d at 1210) (citing San Jose

15

Mercury News, Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1103 (9th Cir. 1999) (“It is well-

16

established that the fruits of pretrial discovery are, in the absence of a court order to the

17

contrary, presumptively public.”)).

18

depositions to protect parties from the potential for embarrassment, but not where there is a

19

significant and legitimate public interest in the content of those depositions. Condit v. Dunne,

20

225 F.R.D. 113, 118–20 (S.D.N.Y. 2004) (releasing video depositions where the case was one

21

of “public concern” because it involved a “then-sitting United States Congressman in the

22

discharge of his duties,” and where court found that “any tainting of the jury pool can be

23

remedied through voir dire”), Felling v. Knight, 211 F.R.D. 552, 554–55 (S.D. Ind. 2003)

24

(initially sealing video depositions of non-parties in lawsuit involving battery allegations

25

against Bobby Knight, the well-known Indiana college basketball coach, to protect those non-

26

parties from potential embarrassment, and then releasing the video depositions after the case

27

settled, both on the grounds that the potential for embarrassment had decreased following

28

settlement of the case, and on the grounds that any remaining potential for embarrassment was

Courts have sometimes restricted access to video

3

1

“outweighed by the public's right to know,” since “[s]eemingly few topics in the state of

2

Indiana have generated more attention or public debate in recent times than the events

3

surrounding Knight's termination”), and Flaherty v. Seroussi, 209 F.R.D. 295, 300 (N.D.N.Y.

4

2001) (releasing video depositions of mayor and other public officials where the underlying

5

litigation alleged improper official action, since the public interest outweighed any interest in

6

preventing “modest embarrassment” to the mayor).
Defendants’ Motion

7

B.

8

Defendants move the court for a protective order requiring Plaintiff to employ the use of

9

an independent certified videographer or, in the alternative, prevent the filming of defense

10

counsel, Annakarina De La Torre-Fennell, and preclude improper use of the video recording of

11

Plaintiff’s deposition.

12

Defendants assert that Plaintiff has annoyed and harassed defense counsel by repeatedly

13

commenting about the impropriety of defense counsel’s representation, repeatedly made

14

statements about a federal investigation, and requested to videotape his own deposition for the

15

purpose of turning it over to the FBI. Defendants assert that on January 31, 2017, Plaintiff

16

contacted them to inform them of his intention to either video or audio record Plaintiff’s own

17

deposition. Defendants object to Plaintiff recording the deposition himself because he is likely

18

to use the recording for improper purposes.

19

Plaintiff has stated his intent to use the video recording for submission to the FBI for his

20

investigation into the purported misconduct of the CDCR. (Declaration of A. De La Torre-

21

Fennell, ECF No. 75-1 ¶15.) However, Defendants find it unclear why a transcript of the

22

deposition is not sufficient for these purposes. Plaintiff has stated that he intends to purchase a

23

copy of the transcript from the stenographer who will be present at the deposition.

24

Defendants state that it is also unclear what purpose Plaintiff could have for any

25

recording of or image of defense counsel in support of his own case. Defendants argue that the

26

only reason to use a video recording of his deposition at trial would be to embarrass and harass

27

defense counsel. Plaintiff has repeatedly singled out defense counsel for harassment during this

28

case. Defendants assert that Plaintiff has repeatedly commented about the impropriety of
4

1

defense counsel’s representation in this case and referred to defense counsel as a criminal and

2

guilty of committing perjury and other illegal acts.

3

identified defense counsel within various motions and alleged defense counsel has made

4

violations of discovery rules, acted in bad faith in seeking extensions of time, withheld

5

evidence, and attempted to “cover up for” law enforcement staff who are involved in a

6

purported criminal conspiracy within CDCR and “manipulating the justice system.” (Id. ¶3.)

7

Notably, Plaintiff has specifically stated, “Deputy Attorney General (DAG) De La Torre-

8

Fennell is making a serious mistake by attempting to manipulate the record.” (Id. at ¶10.)

9

Plaintiff has informed counsel that “other state and federal offices do not agree with [her]

10

handling of this case,” indicating defense counsel’s conduct is being reviewed or somehow

11

evaluated in some investigation that has nothing to do with her position or performance as a

12

Deputy Attorney General. (Id. ¶4.) Additionally, defense counsel believes Plaintiff was

13

recording a phone call between herself and Plaintiff on November 16, 2016, without her

14

permission.

15

Attorney General to remove itself from this case, but has provided no authority for such relief.

16

(Id.)

For example, Plaintiff specifically

(Id.) Defense counsel asserts that Plaintiff also requested the Office of the

17

Defendants seek a court order requiring Plaintiff to employ the use of an independent

18

certified videographer or, in the alternative, an order preventing the filming of defense counsel

19

and precluding improper use of the video recording. Should the court permit Plaintiff to film

20

the deposition, Defendants further request that Plaintiff be advised that such filming or audio

21

recording not disrupt the deposition in any manner.

22

D.

23

The court finds that Defendants have met their burden to show that a protective order is

24

warranted in this case. Defendants have given specific examples of Plaintiff’s annoyance and

25

harassment of defense counsel and of Defendants’ safety and security concerns. Defendants

26

have shown good cause for the court to issue a protective order in this case. Accordingly,

27

Defendants’ motion for a protective order shall be granted.

28

///

Discussion

5

1

The parties are advised that pursuant to Fed. R. Civ. P. 30, “[a]t any time during a

2

deposition the deponent or a party may move to terminate or limit it on the ground that it is

3

being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or

4

oppresses the deponent or party.” Fed. R. Civ. P. 30(d)(3)(A). A deposition cannot be

5

recorded in such a way that the appearance and demeanor of the deponent or attorneys are

6

distorted. Fed. R. Civ. P. 30(b)(5)(B). On motion, the court may order the deposition be

7

terminated or its scope limited consistent with Rule 26(c). Fed. R. Civ. P. 30(d)(3)(B). A

8

terminated deposition may only be resumed by court order. Id. Sanctions, including costs and

9

attorney’s fees, may be awarded for conduct that the court finds “impedes, delays, or frustrates

10

the fair examination of the deponent.”

Fed. R. Civ. P. 30(d)(2).

11

depositions to be resumed or taken again and that the cost be borne by the party whose

12

counsel’s conduct necessitated retaking the deposition. See e.g. Obrien v. Amtrak, 163 F.R.D.

13

232, 236 (E.D. Pa.1995); see Fed. R. Civ. P. 30(d)(3)(C) (“Rule 37(a)(5) applies to the award

14

of expenses.”).

The court may order

15

Plaintiff shall not be required to hire an independent videographer for the deposition.

16

Under Rule 30(b)(3), Plaintiff is permitted to designate another method for recording the

17

testimony in addition to Defendants’ stenographer. Barring improper conduct, Plaintiff shall be

18

allowed to use his own camera to videotape his own deposition. The court’s Protective Order

19

shall require Plaintiff to strictly adhere to the court’s guidelines, Federal Rules of Civil

20

Procedure, and Local Rules, to assure the accuracy and integrity of the deposition record.

21

Plaintiff must refrain from disruption, delay, or other bad faith conduct during the proceedings,

22

including the harassment or embarrassment of defense counsel. He shall not take video nor still

23

photos of Defense Counsel. Plaintiff is further instructed that he may not use the video

24

recording of the deposition for any improper purpose. Plaintiff is forewarned that the court has

25

discretion to impose sanctions, including dismissal of his case, for improper behavior.

26

///

27

///

28

///
6

1

III.

MOTION TO MODIFY SCHEDULING ORDER

2

A.

3

Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P.

4

16(b), and good cause requires a showing of due diligence. Johnson v. Mammoth Recreations,

5

Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the

6

modification of a scheduling order must generally show that even with the exercise of due

7

diligence, the party cannot meet the requirement of the order. Id. The Court may also consider

8

the prejudice to the party opposing the modification. Id. If the party seeking to amend the

9

scheduling order fails to show due diligence the inquiry should end and the Court should not

10

grant the motion to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087

11

(9th Cir. 2002).

Legal Standard

Defendants’ Motion

12

B.

13

Defendants request a forty-five-day extension of the discovery cut-off and motion to

14

compel deadlines for Defendants, and a forty-five-day extension of the dispositive motion

15

deadline from the date the Court rules on their motion for a protective order regarding

16

Plaintiff’s deposition.

17

Defendants attest that Plaintiff’s stated intention to videotape himself during the

18

deposition scheduled for February 27, 2017, has raised concerns, and Defendants require an

19

extension of the discovery deadline to permit the taking of Plaintiff’s deposition after the court

20

has ruled on their motion for a protective order. Defendants argue that an extension of time

21

will not delay the prosecution of this action nor prejudice Plaintiff, but will facilitate efficient

22

resolution of this case by allowing the deposition to proceed with Defendants’ concerns

23

addressed, after which time a motion for summary judgment could dispose of all or part of the

24

case.

25

C.

26

On August 9, 2016, the court issued a Discovery and Scheduling Order, which opened

27

the discovery phase of this action and established deadlines for the parties, including a

28

discovery deadline of January 6, 2017, and a dispositive motions filing deadline of March 7,

Discussion

7

1

2017. (ECF No. 45.) On December 9, 2016, on Defendants’ motion, the court extended the

2

discovery deadline to March 7, 2017, and the dispositive motions filing deadline to May 6,

3

2017, for all parties to this action. (ECF No. 70.)

4

The court finds that Defendants have shown that even with the exercise of due

5

diligence, they cannot meet the deadlines established in the court’s Discovery and Scheduling

6

Order. Therefore, the court finds good cause to extend the outstanding deadlines for all parties

7

to this action. Plaintiff has not opposed Defendants’ motion to modify the scheduling order.
This order also resolves Defendants’ motion for a protective order filed on February 17,

8
9

2017. Therefore, the new deadlines for all parties to this action shall be as follows:

10

The deadline to complete discovery, including the filing of motions to compel, shall be

11

extended to July 7, 2017. The deadline for filing dispositive motions shall be extended to

12

September 8, 2017.

13

IV.

14

CONCLUSION AND ORDER
Based on the foregoing, IT IS HEREBY ORDERED that:

15

1.

16

Defendants’ motion for a protective order, filed on February 17, 2017, is
GRANTED;

17

2.

18

Defendants’ motion to modify the court’s Discovery and Scheduling Order, filed
on February 17, 2017, is GRANTED;

19

3.

20

The deadline for completion of discovery, including the filing of motions to
compel, is EXTENDED to July 7, 2017, for all parties to this action;

21

4.

22

The deadline for filing dispositive motions is EXTENDED to September 8,
2017, for all parties to this action;

23

5.

24

All other provisions of the Discovery and Scheduling Order issued on August 9,
2016, remain the same; and

25

6.

26

///

27

///

28

The court’s Protective Order follows herein.

///
8

PROTECTIVE ORDER

1
2

This Protective Order establishes the terms and conditions under which Plaintiff,

3

Stewart Manago, may use his own video camera to record his own deposition in this case,

4

Manago v. Davey, et al.; 1:16-cv-00399-LJO-GSA-PC.

5

(1)

Plaintiff may bring only one video camera to the deposition;

6

(2)

Plaintiff may bring one person with him to the deposition, to operate the video

7
8

camera. Plaintiff may not operate the camera himself;
(3)

9

The recording shall run continuously throughout the deposition from beginning
to end but may be suspended during breaks, etc., upon stipulation of Plaintiff

10

and all counsel present;

11

(4)

Plaintiff’s video camera must be fixed solely on the witness;

12

(5)

Plaintiff may not film Defense Counsel, Annakarina De La Torre-Fennell,

13
14

without her explicit written permission;
(6)

15

There shall be no unusual lighting in the deposition room solely for the video
camera;

16

(7)

During the deposition proceedings the camera shall not be moved;

17

(8)

Plaintiff or his assistant may not use any other recording instrument, including a

18
19

phone, in addition to the one video camera allowed;
(9)

20
21

Plaintiff shall bear the cost of the videotaping which shall not be taxable as costs
of the action;

(10)

The deposition shall be concurrently recorded by a stenographer qualified

22

pursuant to the Federal Rules of Civil Procedure. The stenographic transcript

23

shall be the official record of the deposition and certification of this shall follow

24

the procedures set forth in Rule 30 of the Federal Rules of Civil Procedure. The

25

use of the video recording record at trial is left entirely to the discretion of the

26

trial judge;

27
28

(11)

Plaintiff shall use only one video camera to produce one original video
recording, which shall be maintained by Plaintiff. Any party is entitled to a
9

1

reproduction of the original recording upon request. If the recording is made on

2

videotape, the party requesting the copy must make payment of the blank

3

videotape price.

4

videotape tape no later than two weeks after the request and payment are made.

5

No payment is required for a copy of an electronic recording;

6

(12)

7
8

(13)

Plaintiff must refrain from disruption, delay, or any other bad faith conduct
during the proceedings, including the harassment or embarrassment of Defense

10

Counsel or any other person attending the deposition;
(14)

12
13

Plaintiff is required to record the deposition accurately and in a trustworthy
manner in order to truly take and record the evidence presented;

9

11

Plaintiff shall provide copies of the original recording or

Plaintiff is precluded from using the video recording of the deposition for any
improper purpose;

(15)

Plaintiff is required to strictly adhere to the court’s guidelines in this Protective

14

Order, the Federal Rules of Civil Procedure, and this court’s Local Rules, to

15

assure the accuracy and integrity of the deposition record; and

16

(16)

17

Plaintiff’s failure to comply with this Protective Order may result in the
imposition of sanctions, including dismissal of this case.

18
19
20
21

IT IS SO ORDERED.
Dated:

May 19, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

22
23
24
25
26
27
28
10