Funk v. Town of Paradise et al

Filing 41

ORDER signed by Judge Morrison C. England, Jr on 6/28/2011 ORDERING that Defendants' 37 Request for Reconsideration is DENIED. (Duong, D)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

HAROLD ANTHONY FUNK,

12

Plaintiff,

13
14

No. 2:09-cv-01000-MCE-EFB (TEMP)

v.

MEMORANDUM AND ORDER

TOWN OF PARADISE, et al.,

15

Defendants.

16

----oo0oo----

17
18

Plaintiff Harold A. Funk (“Plaintiff”) seeks monetary

19

damages against the Town of Paradise, Police Chief Gerald

20

Carrigan, and Officers Robert Pickering and Timothy Cooper

21

(collectively “Defendants”) arising out of Plaintiff’s excessive

22

force claims against the officers.

23

Defendants’ Request for Reconsideration of Magistrate Judge’s

24

Ruling as to various portions of the parties’ cross-motions to

25

compel (“Request”) (ECF No. 37).

26

Defendants’ Request is DENIED.

27

///

28

///

Presently before the Court is

For the following reasons,

1

STANDARD

1
2
3

In reviewing a magistrate judge’s determination, the

4

assigned judge shall apply the “clearly erroneous or contrary to

5

law” standard of review set forth in Local Rule 72-303(f), as

6

specifically authorized by Federal Rule of Civil Procedure 72(a)1

7

and 28 U.S.C. § 636(b)(1)(A).

8

must accept the magistrate judge’s decision unless it has a

9

“definite and firm conviction that a mistake has been committed.”

Under this standard, the Court

10

Concrete Pipe & Products of Cal., Inc. v. Constr. Laborers

11

Pension Trust for So. Cal., 508 U.S. 602, 622 (1993).

12

Court believes the conclusions reached by the magistrate judge

13

were at least plausible, after considering the record in its

14

entirety, the Court will not reverse even if convinced that it

15

would have weighed the evidence differently.

16

Supply Inc. v. Universal Elec. Co., Inc., 104 F.3d 1137, 1141

17

(9th Cir. 1997).

18

///

19

///

20

///

21

///

22

///

23

///

24

///

25

///

26

///

If the

Phoenix Eng. &

27
1

28

All further references to “Rule” or “Rules” are to the Federal
Rules of Civil Procedure unless otherwise noted.
2

ANALYSIS

1
2
3
4

Defendants’ instant Request arises out of the magistrate
judge’s ruling on the parties’ cross-motions to compel.

5
A.

6

Plaintiffs’ Motion to Compel Further Depositions of
Officers Pickering and Cooper

7
8

On August 5 and 9, 2010, Defendants Pickering and Cooper

9

appeared at Plaintiff’s counsel’s office for their respective

10

depositions.

11

defense counsel instructed deponents not to answer, interrupted

12

questions and answers, interjected editorial comments, and

13

coached or suggested information to witnesses.

14

Cooper, 9:16-20, 12:6-17, 14:12-17, 35:2-16, 65:1-66:4, 66:19-

15

68:16 (ECF No. 33-1); Dep. of Pickering. 18:6-21:15, 27:7-23,

16

37:1-38:18, 53:3-15, 73:3-75:11, 77:17-80:10, and 82:2-25 (ECF

17

No. 33-1).

18

requesting, in pertinent part: 1) an order compelling the further

19

depositions of Defendants Pickering and Cooper; and 2) $4,500 as

20

reasonable costs and attorney fees incurred in connection with

21

the motion proceedings.

22

On numerous occasions during those depositions,

See e.g., Dep. of

Plaintiff consequently filed a motion to compel

After a hearing on the matter, the magistrate judge ordered

23

the officers to appear for second depositions, limited to two

24

hours each, with defense counsel paying the cost of the

25

additional court reporter appearances.

26

awarded Plaintiff $3,800 in reasonable expenses.

27

///

28

///
3

The magistrate judge also

1

Defendants seek reconsideration of the magistrate judge’s order

2

in its entirety and ask the Court, at the very least, to limit

3

the scope of the depositions.

4

Defendants’ primary argument is that, during the hearing on

5

Plaintiff’s motion, the magistrate judge misstated Rule 30(c)(2).

6

Even assuming, arguendo, that such a misstatement occurred,

7

however, Defendants have still failed to demonstrate sufficient

8

grounds to justify reconsideration here.

9

depositions make clear both that defense counsel’s instructions

The transcripts of the

10

not to answer were improper under Rule 30(c)(2) and that his

11

behavior throughout the depositions independently warranted an

12

order to conduct further proceedings.

13

First, Rule 30(c)(2) permits counsel to “instruct a deponent

14

not to answer only when necessary to preserve a privilege, to

15

enforce a limitation ordered by the court, or to present a motion

16

under Rule 30(d)(3).”

17

any time during a deposition, the deponent or a party may move to

18

terminate or limit it on the ground that it is being conducted in

19

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

20

or oppresses the deponent or party.”

21

their counsel’s invocation of Rule 30(d)(3) was proper because

22

both depositions were being conducted to harass deponents with

23

continuous “irrelevant” questions.

24

contend Plaintiff’s counsel’s “frequent or persistent inquiry

25

into matters outside the permissible scope of discovery” was

26

indicative of bad faith.

27

v. Pullman Inc., 74 F.R.D. 80, 84 (W.D. Okla. 1977)).

28

///

Rule 30(d)(3) in turn provides that “[a]t

According to Defendants,

Request, 7:6-9.

Defendants

Id., 7 n.6. (quoting W. R. Grace & Co.

4

1

Defendants’ argument is refuted by the record, however,

2

which demonstrates that counsel began instructing his clients not

3

to answer almost immediately during both depositions.

4

Cooper, 4:11-12; Dep. Of Pickering, 4:9-5:13.

5

quantity of allegedly irrelevant questions from Plaintiff’s

6

counsel had eventually amounted to harassment, it would not

7

excuse defense counsel’s conduct here.

8

authority thus provides no basis for relief.

9

Dep. of

Even if the

Defendants’ above

Defendants’ reliance on the magistrate judge’s ultimate

10

issuance of a protective order permitting redaction of certain

11

personal information (e.g., addresses, phone numbers, etc.) from

12

documents ordered produced is likewise not well-taken.

See Order

13

on Motions to Compel, 1:23-2:5 (ECF No. 36) (“Order”).

A ruling

14

that certain information is in fact irrelevant does not equate to

15

a finding that deposition questions pertaining to those matters

16

constituted harassment.

17

Finally, this Court agrees with the magistrate judge that

18

defense counsel’s behavior, as reflected in the deposition

19

transcripts, was “appalling.”

20

7:8-9 (ECF No. 38) (“Transcript”).

21

repeatedly interrupted the proceedings, interjected editorial

22

comments, and coached or suggested information to the witnesses.

23

Because defense counsel’s inappropriate conduct led to the

24

disruption of the depositions, it was entirely appropriate for

25

the magistrate judge to order the depositions reconvened at

26

Defendants’ expense.

27

///

28

///

See Transcript of Proceedings,

5

As stated above, counsel

1

Fed. R. Civ. Pro. 30(d)(2) (“The court may impose an appropriate

2

sanction--including the reasonable expenses and attorney’s fees

3

incurred by any party-–on a person who impedes, delays, or

4

frustrates the fair examination of the deponent”); see also

5

Jadwin v. Abraham, 2008 WL 4057921, *6-*7 (E.D. Cal. 2008).

6
7

Defendants’ Request for Reconsideration is consequently
DENIED.

8
B.

9
10

Defendants’ Motion to Compel Disclosure and Production
of Plaintiff’s Medical Records and Request for
Sanctions

11
12

Defendants’ motion to compel challenged Plaintiff’s

13

purported failure to produce documents subject to mandatory

14

disclosure under Rule 26(a)(1)(A)(iii) and requested pursuant to

15

Defendants’ Document Request No. 6, or to produce true and

16

accurate responses to at least one interrogatory, Defendants’

17

Interrogatory No. 2.

18

order compelling Plaintiff to prepare and serve Defendants with

19

complete Rule 26 disclosures, to respond to Interrogatory No. 2,

20

and to produce responsive documents.

21

sanctions.

Defendants sought, in pertinent part, an

Defendants also sought

22

The magistrate judge rejected Defendants’ request for

23

sanctions and ordered Plaintiff to provide: 1) an interrogatory

24

response identifying all health care providers who have provided

25

relevant treatment since November 17, 2002; and 2) a verification

26

that all documents in Plaintiff’s possession pertaining to the

27

calculation of damages have been produced.

28

///
6

1

The magistrate judge advised Defendants that it was their

2

responsibility to pursue any further documents at their own

3

expense.

4

judge’s decision challenging Plaintiff’s supplemental response to

5

Interrogatory No. 2 and challenging the decision itself to the

6

extent Plaintiff is only required to produce documents in his

7

possession, rather than all medical records in the possession of

8

his physicians.

9

Defendants now seek reconsideration of the magistrate

Defendants’ first argument is not properly before this Court

10

because the propriety of Plaintiff’s latest interrogatory

11

response has not yet been presented to the magistrate judge.

12

Accordingly, this Court declines to entertain that argument in

13

the first instance here.

14

Defendants’ second argument regarding production of

15

Plaintiff’s medical records also fails.

16

argument to this Court is that Rule 26(a)(1)(A)(iii) requires

17

Plaintiff to produce all documents “bearing on the nature and

18

extent of injuries suffered.”

19

however, quote the excerpt from Rule 26 out of context.

20

entirety of Rule 26(a)(1)(A)(iii) states as follows:

21
22
23
24
25

Defendants’ only

Request, 1:3-6.

Defendants,
The

[A] party must, without awaiting a discovery request,
provide to the other parties...a computation of each
category of damages claimed by the disclosing party-who must also make available for inspection and copying
as under Rule 34 the documents or other evidentiary
material, unless privileged or protected from
disclosure, on which each computation is based,
including materials bearing on the nature and extent of
injuries suffered.

26

Read in its entirety, it is clear that Plaintiff’s obligation

27

under Rule 26(a)(1)(A)(iii) is to produce documents Plaintiff

28

relied upon in calculating its damages sought.
7

1

See, e.g., Fed. R. Civ. Pro. 26 advisory committee’ note (2000)

2

(“The scope of the disclosure obligation is narrowed to cover

3

only information that the disclosing party may use to support its

4

position.”).2

5

Plaintiff’s counsel stated on the record at the hearing

6

before the magistrate judge that no Rule 26(a)(1)(A)(iii)

7

documents have been withheld.3

8

was also ordered to provide Defendants with a verification that

9

he has produced all such documents in his possession.

Transcript, 24:10-16.

Plaintiff

See id.,

10

(“I’m going to require that you do a verification that all

11

responsive documents have been produced and that you’ve done a

12

reasonable search and no such documents have been found.”);

13

Order, 2:15-3:2.

14

Plaintiff relied on or intends to rely on any documents not in

15

his possession to calculate damages; Defendants simply argue

16

Plaintiff has not produced all medical records relevant to his

17

injury.

18

however.

19

///

20

///

21

///

Defendants do not make any argument here that

That is not what Rule 26(a)(1)(A)(iii) requires,

22
23
24
25
26
27
28

2

While the text of Rule 26(a)(1)(A)(iii) did not itself change
with the 2000 amendments, this Court will construe the existing
language in the context of the Rule as a whole and read this
subsection to require production only of those records relied
upon by Plaintiff.
3

According to Plaintiff’s Counsel, the only documents withheld
from production that are responsive to the calculation of damages
are statements provided to Plaintiff’s counsel from Plaintiff and
his wife. The withholding of these statements is not at issue.
(Tr. 34-35, ECF No. 38).
8

1

Accordingly, in light of both Defendants’ failure to point this

2

Court to any persuasive authority to the contrary4 and

3

Plaintiff’s willingness to verify all documents relied upon by

4

Plaintiff in his calculation of damages have been produced, the

5

Court finds no clear error in the magistrate judge’s decision.5

6

Accordingly, reconsideration is not warranted.

7

Finally, Defendants request $7,840 in sanctions, but point

8

this Court to no authority justifying reconsideration of the

9

magistrate judge’s decision not to award sanctions nor justifying

10

sanctions in light of this Court’s above disposition of

11

Defendants’ current Request.

12

///

13

///

14

///

15

///

Sanctions are denied.

16
17
18
19
20

4

Defendants only authority, Kifle v. Parks & History Ass’n.,
1998 WL 1109117 (D.D.C.), is distinguishable on its facts
because, in that case, the defendants’ discovery challenges were
much broader than those at issue here and because the plaintiff
in that case produced no documents pursuant to Rule 26 or in
response to the defendants’ requests.
5

21
22
23
24
25
26
27
28

The magistrate judge advised Plaintiff he would have to “live
with the consequences” of his verification. Transcript, 24:2425. To the extent Defendants nonetheless believe Plaintiff has
failed to produce documents on which he has relied or eventually
intends to rely in calculating damages, the Rules themselves
provide appropriate sanctions to combat such conduct. See, e.g.,
Fed. R. Civ. Pro. 37(c) (“If a party fails to provide information
or identify a witness as required by Rule 26(a) or (e), the party
is not allowed to use that information or witness to supply
evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless. In addition
to or instead of this sanction, the court, on motion and after
giving an opportunity to be heard: (A) may order payment of the
reasonable expenses, including attorney’s fees, caused by the
failure; (B) may inform the jury of the party’s failure; and (C)
may impose other appropriate sanctions...”).
9

CONCLUSION

1
2
3
4
5
6

For the reasons just stated, Defendants’ Request for
Reconsideration (ECF No. 37) is DENIED.
IT IS SO ORDERED.
Dated: June 28, 2011

7
8
9

_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10