Botell v. USA

Filing 86

MEMORANDUM and ORDER signed by Judge Garland E. Burrell, Jr. on 1/28/2013. Plaintiffs' #73 Amended Motion to Compel Deposition and Further Testimony is GRANTED in part and DENIED in part. Pursuant to District Judge Burrells #84 Order extending Discovery for sole purpose of taking Sean Eagan's deposition, plaintiffs shall take Eagan deposition in accordance with terms outlined herein, prior to extended Discovery cutoff of 3/15/2013. As previously ordered, Depositions of Koontz and Roth were to be taken prior to scheduled Discovery cutoff on issue of shredding documents only. Further Deposition of Pettegrew was DENIED in it entirety. (Marciel, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

THOMAS BOTELL, et al.,

11
12
13
14

Plaintiffs,
vs.
UNITED STATES OF AMERICA,
Defendant.

15
16

No. 2:-11-cv-1545 GEB GGH

ORDER and MEMORANDUM
/

Previously pending on this court’s law and motion calendar for January 17, 2013,

17

was Plaintiffs’ motion to compel depositions of four witnesses: Sean Eagan, Lassen former

18

Volcanic National Park (“LAVO”) environmental protection specialist, and further depositions

19

of: Darlene Koontz, LAVO Superintendent, John Roth, LAVO Chief Ranger and Collateral Duty

20

Safety Officer, and Joseph Pettegrew, former LAVO Trail Crew Leader. Steven Campora

21

appeared for plaintiffs. J. Earlene Gordon represented defendant. After reviewing the joint

22

statement filed January 10, 2013, and having heard oral argument, the court now issues the

23

following order.

24

INTRODUCTION AND BACKGROUND

25
26

There is no need to detail the background of the case in detail, as these facts are
well known to all concerned. Suffice it to say that the case involves in the main the alleged
1

1

wrongful death of a child occasioned by the collapse of a retaining wall on a trail in the Lassen

2

National Park. The factual issues surround the maintenance of the trail, or lack of it, and whether

3

defendant’s personnel should have foreseen the collapse of the wall and taken measures to not let

4

it happen. The usual underlying issue of who knew what, when, is very much an issue in this

5

case.

6

Plaintiffs contend that defendant has refused to produce Mr. Eagan for deposition

7

without any justification. Since he resides in American Samoa, plaintiffs had offered to fly there

8

to depose him or split the costs to fly Mr. Eagan here, but defendant refused. Plaintiffs contend

9

that Eagan is a key witness who was intimately involved in matters pertaining to this case.

10

Plaintiffs also seek further depositions of witnesses Koontz, Roth and Pettegrew

11

based on subsequent production of relevant documents and allegations of misconduct and

12

spoliation of evidence made known to plaintiffs after their initial depositions took place.

13

Defendant contends that plaintiffs have exceeded the number of depositions

14

permitted under the Federal Rules, and they could have deposed Mr. Eagan earlier this year when

15

he was in the continental United States but failed to do so. Defendant disputes that he is a key

16

witness or is intimately familiar with matters in this case. In regard to the three other witnesses

17

already deposed, defendant contends that plaintiffs chose the order of their discovery and now

18

seek to recover from a poor strategic decision they made.

19

By order of January 18, 2013, based on letters submitted after hearing by both

20

parties concerning Sean Eagan’s deposition, the undersigned reiterated that no formal order had

21

been issued regarding this deposition, but the court had made only a tentative ruling at hearing

22

that the parties should prepare the logistics for this deposition. In regard to the request for further

23

depositions of Ms. Koontz and Mr. Roth, the undersigned ordered that they were to be taken by

24

the current discovery cutoff of February 1, 2013, but that their testimony would be limited to the

25

issue of shredding of documents only. The court directed that the further deposition of Joseph

26

Pettegrew would not be permitted.
2

1
2

DISCUSSION
A. Sean Eagan’s Deposition

3

Compelling, or not, the Eagan deposition involves three somewhat overlapping

4

issues: its importance in overriding the agreement of counsel as to the number of depositions,

5

who was “at fault” for not having the Eagan deposition taken long before he left the country, and

6

the logistical difficulties involved in deposing a person residing far away from the forum, in this

7

case American Samoa.

8

As to the first issue, the parties originally had an agreement to permit plaintiffs

9

thirteen depositions, including that of Mr. Eagan, although defendant disputes that Eagan was on

10

the original list. His deposition was originally noticed on February 10, 2012, but it was taken off

11

at defense counsel’s request. After some back and forth, Ms. Gordon informed Mr. Campora on

12

May 14, 2012 that Mr. Eagan was going to be in the country in the first two weeks of June.

13

Aside from the vagueness regarding the exact dates and location, this proposal was unacceptable

14

to plaintiffs because they had learned of emails from Mr. Eagan and others which had not been

15

produced as a result of their discovery requests. Mr. Eagan was also not on plaintiffs’ list

16

presented in July, 2012. In July, Ms. Gordon informed Mr. Campora of a number of Eagan

17

emails which defendant had discovered on the computer he left in Utah, and it was not until

18

September 4, 2012 that defendant produced the 830 emails. At this time plaintiffs became more

19

aware of the significance of this witness.1 The parties continued negotiation for Mr. Eagan’s

20

deposition, but defendant would not agree to pay for transportation to bring Eagan to the United

21

States, and offered instead a deposition by phone. Plaintiffs formally noticed Eagan’s deposition

22

for a second time on November 14, 2012. Ms. Gordon never formally objected to the notice, but

23

indicated she was checking on it, and then finally on November 30, 2012, instructed Mr.

24

Campora to file a motion on the issue.

25
1

26

Defendant also had not produced the 3.5 hours of video of the trail at issue at the time
they first offered Mr. Eagan for deposition.
3

1

This history requires that plaintiffs be excused from the agreed-upon thirteen

2

deposition limit. Mr. Eagan’s true significance to the case did not become apparent until much

3

later in the litigation, after his emails were discovered and produced. The Comptons coming

4

forward regarding shredding of documents, and adding two depositions to plaintiffs’ list, could

5

not have been anticipated by plaintiffs. Mr. Eagan’s involvement with the trail, video of the trail,

6

communication to Dolan to take strong language out of the draft report pursuant to Koontz’s

7

request, retention of numerous emails on his computer in Utah, as well as other activities, all

8

indicate a seemingly pervasive knowledge on the part of this deponent. The court finds this

9

deposition to be sufficiently important to override the thirteen deposition limit.

10

Secondly, the court finds that no party is blameworthy for not taking the Eagan

11

deposition while he was in the country last June. Defendant’s document production, whether

12

intentionally or unintentionally delayed, is either not plaintiffs’ fault, or could not have been

13

predicted. If Mr. Eagan resided in the contiguous United States, the timing of his deposition

14

would not have created the conflict that it has. All of these mostly unforeseen circumstances do

15

not place the fault at either party’s doorstep. The United States did offer Eagan for deposition,

16

albeit at inopportune times.

17
18
19
20
21
22
23
24
25
26

The logistical difficulties in deposing Mr. Eagan, who resides in American
Samoa, far from this forum, require further analysis.
Only a party to litigation may be compelled to give testimony
pursuant to a notice of deposition. If the party is a corporation, it
may be noticed pursuant to Rule 30(b)(6) of the Federal Rules of
Civil Procedure, in which case it must designate an officer,
director, or managing agent to testify on its behalf. Alternatively,
the party seeking the deposition may identify a specific officer,
director, or managing agent to be deposed and notice that person
under Rule 30(b)(1). The testimony of such a person will be
binding on the party. However, a corporate employee or agent who
does not qualify as an officer, director, or managing agent is not
subject to deposition by notice. See GTE Products Corp. v. Gee,
115 F.R.D. 67, 68–69 (D.Mass.1987); Sugarhill Records Ltd. v.
Motown Record Corp., 105 F.R.D. 166, 169 (S.D.N.Y.1985). Such
a witness must be subpoenaed pursuant to Rule 45 of the Federal
Rules of Civil Procedure, . . .
4

1

U.S. v. Afram Lines (USA), Ltd., 159 F.R.D. 408, 413 (S.D.N.Y. 1994). “Under Rule 30(b)(1),

2

any person can be deposed, including ‘any person associated with [a] corporation and acquainted

3

with the facts.’” Calixto v. Watson Bowman Acme Corp., 2008 WL 4487679, *2 (S.D. Fla. Sept.

4

29, 2008), quoting 8A Wright, Miller & Marcus, Federal Practice and Procedure, § 2103 (1994 &

5

West Supp. 2008).

6

The significance of the determination that a deponent is an officer, director, or

7

managing agent of a corporation or other organization that is a party to the suit is that Rule

8

37(d)(1) permits dismissal of the action, or entry of a default judgment, if such a deponent fails to

9

appear for deposition after being served with a proper notice. 8A Wright et al, Federal Practice

10

and Procedure § 2103 (2012) (emphasis added). It is also significant in determining the location

11

of the proposed deposition.

12

Here, although the government may be analogized to a corporation, it is somewhat

13

different from a corporation in that, although its principal place of business might be

14

Washington, D.C., it operates everywhere in the United States. The finding that the government

15

is an “other organization” is especially significant here, where the logistics of this deposition,

16

including the location, and which party must pay the expense of transportation, is an issue.

17

Pursuant to Fed. R. Civ. P. 32(a)(3), an adverse party may introduce into evidence

18

against the corporate party for any purpose the deposition of “anyone who at the time of taking

19

the deposition was an officer, director, or managing agent of a public or private corporation,

20

partnership, or association.” Id. The determination of whether a deponent is an officer, director,

21

or managing agent is determined at the time of the deposition and not before, as referenced in

22

Rule 32(a)(3) and inferred from Rule 37(d). “The purpose is to protect the party from the

23

admissions of disgruntled former officers or agents.” The party seeking to compel the deposition

24

has the burden to show that the witness is a managing agent. Id. Nevertheless, the burden is a

25

modest one, with doubts to be resolved in favor of the party moving to compel the deposition.

26

Calderon v. Experian Information Solutions, Inc., ___ F.R.D. ___, 2012 WL 5377799, *2 (D.
5

1

Idaho Oct. 31, 2012). See also In re Honda American Motor Co., Inc. Dealership Relations Litn.,

2

168 F.R.D. 535, 540 (D. Md. 1996) (at pretrial discovery stage, doubts regarding deponent’s

3

status as managing agent are resolved in favor of the examining party).

4

The weight of authority is contrary to the government’s position that a subpoena is

5

required and that plaintiffs must travel to the location of the deponent and pay associated costs

6

because Mr. Eagan is not merely a percipient witness. The deposition of a specific officer or

7

managing agent may be noticed pursuant to Fed. R. Civ. P. 30(b)(1). 1ST Technology, LLC v.

8

Rational Enterprises LTDA, 2007 WL 5596705, *2 (D. Nev. Nov. 28, 2007); Playboy

9

Enterprises Intern., Inc. v. Smartitan (Singapore) Pte. Ltd., 2011 WL 5529928, *1 (N.D. Ill. Nov.

10

14, 2011). See Fed. R. Civ. P. 37(d)(1)(A)(i). Depositions of officers, directors and managing

11

agents, whether taken under subdivision (b)(6) or (b)(1) or Rule 30, are viewed the same way and

12

both may be used against the corporate party at trial. Cadent Ltd. v. 3M Unitek Corp., 232

13

F.R.D. 625, 628 (C.D. Cal. 2005). Specifically, if a deposition of an officer or managing agent is

14

noticed under Rule 30(b)(1), the corporation is compelled to produce the named managing agent,

15

and a subpoena is not necessary. Id. at 627 n. 1. See also Felman Production, Inc. v. Industrial

16

Risk Insurers, 2010 WL 5110076 (S.D. W. Va. Dec. 9, 2010) (finding that some potential

17

30(b)(1) deponents who were associates of the corporate plaintiff were managing agents);

18

Calixto, 2008 WL 4487679 at *2-3 (utilizing similar analysis even though deposition was noticed

19

under Rule 30(b(1)); Vision Center Northwest Inc. v. Vision Value LLC, 2008 WL 4276240

20

(N.D. Ind. Sept. 15, 2008) (same); Schindler Elevator Corp. v. Otis Elevator Co., 2007 WL

21

1771509, *2 (S.D.N.Y. Jun. 18, 2007) (same); Libbey Glass, Inc. v. Oneida, Ltd., 197 F.R.D.

22

342, 350-51 (N.D. Ohio 1999) (analyzing managing agent issue where notice of deposition

23

brought under Rule 30(b)(1), and affirming in general that deponent not required to have formal

24

association with corporation or even be associated with corporation at the time of his deposition

25

to be a managing agent).

26

\\\\\
6

1
2

The analysis of whether Mr. Eagan is a managing agent of the United States
requires analysis of several factors:

3

“(1)whether the individual is invested with general powers
allowing him to exercise judgment and discretion in corporate
matters; (2) whether the individual can be relied upon to give
testimony, at his employer's request, in response to the demand of
the examining party; (3) whether any person or persons are
employed by the corporate employer in positions of higher
authority than the individual designated in the area regarding which
information is sought by the examination; (4) the general
responsibilities of the individual respecting the matters involved in
the litigation.”

4
5
6
7
8
9

Calderon, 2012 WL 5377799 at *2 (citing cases).2 Factors considered by other courts include:

10

“whether the corporation has invested the person with discretion to exercise his judgment; (2)

11

whether the employee can be depended upon to carry out the employer's directions, and (3)

12

whether the individual can be expected to identify him or herself with the interests of the

13

corporation as opposed to the interests of the opposing party.” Id. (citations omitted.)

14

Of most importance to this analysis is that it be undertaken on an ad hoc basis,

15

considering the facts of the particular case, and that the paramount test is whether the employee

16

deponent identifies with the interests of the employer. Id. at *3. The Calderon court noted that it

17

is not a requirement that an employee be titled a “manager” in order to qualify as a managing

18

agent, but the inquiry is rather whether “their duties and activities are closely linked with the

19

events giving rise to the lawsuit.” Id. “[T]he term[ ] Managing Agent ... should not be given too

20

literal an interpretation, and ... applications thereunder should be treated and determined on an ad

21

hoc basis, dependent largely on the functions, responsibilities and authority of the individual

22

involved respecting the subject matter of the litigation.” Kolb v. A.H. Bull Steamship Co., 31

23

F.R.D. 252, 254 (E.D.N.Y.1962) (emphasis in original).

24

\\\\\

25
26

2

The Calderon court noted that the Ninth Circuit had not yet addressed the issue. Id.
7

1

In the instant case, Mr. Eagan was the LAVO Environmental Protection Specialist

2

and was therefore involved in ensuring the park complied with federal law in certain respects,

3

and engaged in fundraising to repair the trail during the time of the incident. He participated in

4

videotaping the trail in June, 2009, thirty days before the accident, for the purpose of

5

demonstrating the poor condition of the trail; however, Ms. Ramsey actually filmed the video and

6

plaintiffs have not sought her deposition. Mr. Eagan was further engaged in bringing Susan

7

Dolan, the NPS Historical Landscape Architect, to LAVO to inspect the trail after the accident to

8

conduct a NHPA Section 110 assessment of the trail. It is true that Mr. Eagan is not alleged to

9

have personal knowledge regarding the accident, and did not hike the trail with Susan Dolan.

10

Plaintiffs have already deposed Ms. Dolan and David Harry, who did hike the trail with her. Ms.

11

Dolan’s assessment was completed within weeks after the accident. Her assessment included

12

strong statements which Ms. Koontz ordered removed from the draft report. It is true, as

13

defendant asserts, that Ms. Dolan and Ms. Koontz were already deposed regarding the draft

14

report; however, the draft report was not produced in this case and has been destroyed.

15

Therefore, Mr. Eagan’s deposition may provide other insight into the draft since he was the one

16

who requested that Ms. Dolan remove the strong language from the report. Also pertinent for

17

deposition is Mr. Eagan’s statement to Ron Martin, LAVO Supervisory Park Ranger, stating that

18

“no one ever thought it would be possible to get the superintendent [Koontz] to close the trail, so

19

no one ever brought it up.” (Campora Dec., Ex. R at 3.) Mr. Eagan related his knowledge of the

20

dangerous condition of the trail before the incident and wrote numerous emails concerning the

21

trail and video of the trail after the incident.

22

Mr. Eagan is currently working for defendant under the Department of the Interior

23

as the Resources Management Lead for the National Park of American Samoa. Both Mr.

24

Eagan’s former job and his present position provided him with the discretion to exercise his

25

judgment, in support of the first factor. This knowledge and his activities also reflect his

26

responsibilities concerning the matters raised in this litigation, which is relevant to the fourth
8

1

factor. Despite Mr. Eagan’s comments and actions addressing the poor condition of the trail, he

2

was promoted to another position with the Forest Service at Bryce Canyon National Park, and

3

then moved up to a position with the National Park of American Samoa, all of which reflect the

4

level of reliance placed upon him by his employer, and the expectation that he identify himself

5

with the government. These facts indicate that Mr. Eagan can be relied on to give testimony at

6

defendant’s request, in regard to the second factor. There are no facts indicating that this

7

deponent would be unwilling to provide testimony. In regard to the third factor, it is true that

8

there are other individuals in higher positions of authority than Mr. Eagan concerning the subject

9

matter for which testimony is sought; however, Mr. Eagan would provide a point of view

10

different than the higher level employees, as recounted in his statement to Ronald Martin,

11

Supervisory Park Ranger. (Campora Dec., Ex. R.) In any event, it is not required that all factors

12

work in favor of finding the proposed deponent to be a managing agent.

13

In Tomingas v. Douglas Aircraft Co., 45 F.R.D. 94, 96-97 (S.D.N.Y. 1968), two

14

engineers were found to be managing agents because although they might not be “‘managing

15

agents’ in the course of their everyday duties for the defendant corporation, they [were]

16

‘managing agents’ for the purpose of giving testimony regarding the accident investigation, a

17

most relevant aspect of this litigation.” As in Tomingas, although Mr. Eagan may not be a

18

higher-up managing agent in the course of his everyday duties for defendant, he is a managing

19

agent for the purpose of providing testimony regarding the LAVO trail condition in and around

20

the time of the accident, which is extremely relevant to this litigation. See also Kolb, 31 F.R.D.

21

at 254 (employee found to be managing agent because even though he was under a higher

22

authority, he had authority concerning the subject matter of the litigation); Sugarhill Records,

23

105 F.R.D. at 171 (finding employee managing agent because she was only employee with

24

knowledge of events precipitating lawsuit); Alcan Int’l Ltd. v. S.A. Day Mfg. Co., Inc., 176

25

F.R.D. 75, 79 (W.D.N.Y. 1996) (compelling deposition of retired officer who had unique

26

knowledge of matters involved in litigation); Calgene, Inc. v. Enzo Biochem, 1993 WL 645999,
9

1

at *8 (E.D. Cal. Aug. 23, 1993) (undersigned found that inventor of patent who was also a

2

consultant and advisory board member was managing agent because he had “power regarding the

3

subject matter of the litigation”).

4

Finally, it is not lost on the undersigned that the deposition may well be a very

5

necessary trial deposition as plaintiffs have no way of compelling Eagan’s appearance at trial.

6

Therefore, Sean Eagan’s deposition will be permitted despite the prior agreement for 13

7

depositions.

8

The aforementioned authority regarding managing agents applies equally to

9

deponents who reside overseas. Calderon, 2012 WL 5377799 at *2. Courts have wide latitude

10

over the location of depositions. Id. at *7. The location of the deposition lies within the court’s

11

discretion. Sugarhill Records, 105 F.R.D. at 171. Each motion should be considered on its own

12

facts and equities. Tomingas, 45 F.R.D. at 97. Depositions under Rule 30(b)(1) generally are

13

taken at the corporation’s principal place of business unless unusual circumstances exist. Recaro

14

North America, Inc. v. Holmbers Childsafety Co. Ltd., 2011 WL 5864727, *1 (E.D. Mich. Nov.

15

22, 2011). Nevertheless, “[c]orporate defendants are frequently deposed in places other than the

16

location of the principal place of business, especially in the forum, for the convenience of all

17

parties and in the general interests of judicial economy.” Sugarhill Records, 105 F.R.D. at 171.

18

In fact, managing agents who are foreign nationals may be compelled to travel to the United

19

States to attend their depositions. Honda American, 168 F.R.D. at 541. For purposes of

20

convenience, a deposition may also be taken at the deponent’s residence or place of business.

21

Stone v. Morton Intern., Inc., 170 F.R.D. 498, 504 (D. Utah 1997).3 In Stone, the deponent

22
23
24
25
26

3

A deposition may be taken in a foreign country under the following terms:
(1) In General. A deposition may be taken in a foreign country:
(A) under an applicable treaty or convention;
(B) under a letter of request, whether or not captioned a “letter
rogatory”;
(C) on notice, before a person authorized to administer oaths either
10

1

resided in a Germany, but since he traveled to Chicago “more frequently” than elsewhere in the

2

United States, the court considered requiring his deposition there, upon a proper showing. Id.

3

In Malletier v. Dooney & Bourke, Inc., 2006 WL 3476735, *16 (S.D.N.Y. Nov.

4

30, 2006), the deponent resided and worked in Italy. Although he traveled to the United States

5

once or twice a year, it was unlikely he would be back in the states before the discovery deadline.

6

The court noted that general rule that depositions should be conducted where the employee

7

works, and concluded that there was no reason to deviate from that presumption. Therefore, the

8

deposition was ordered to take place in Italy.

9

An important consideration in taking a corporate deposition is expense. Cadent,

10

232 F.R.D. at 628, citing Fed. R. Civ. P. 26(c). Based on that consideration, the court can

11

deviate from the principal place of business and order a deposition to be taken in the forum or

12

elsewhere. Id. at 628-29. Factors to consider in making this determination include the “location

13

of counsel for the parties in the forum district, the number of corporate representatives a party is

14

seeking to depose, the likelihood of significant discovery disputes arising which would

15

necessitate-resolution by the forum court; whether the persons sought to be deposed often engage

16

in travel for business purposes; and the equities with regard to the nature of the claim and the

17

parties’ relationship.” Id. at 629.

18

Here, the government has indicated that Sean Eagan is not planning a visit to the

19

continental United States anytime soon. Although the court may consider the financial position

20

of the deponent and the corporate party in determinating a location for deposition; see Cadent,

21

232 F.R.D. at 629; defendant has not submitted a declaration attesting to expense or undue

22

burden, only that the government would not agree to contribute to the cost. (Gordon Dec., ¶ 9,

23
24
25
26

by federal law or by the law in the place of examination; or
(D) before a person commissioned by the court to administer any
necessary oath and take testimony.
Fed. R. Civ. P. 28(b).
11

1

Ex. 1-F.) Plaintiffs, in a letter submitted to the court on January 18, 2013 but not filed, attached

2

emails indicating their offer to share in the cost of bringing Mr. Eagan to Hawaii, and in

3

particular to pay for his airfare to Hawaii.4 Nevertheless, because Mr. Eagan is a managing

4

agent, defendant is responsible for producing him for deposition at defendant’s expense. The

5

court is mindful that travel from Pago Pago to the United States is extremely costly. Therefore,

6

defendant is given the option to produce Mr. Eagan either in Honolulu or Sacramento for his

7

deposition. Defendant is responsible for his travel expenses.5 Plaintiff’s counsel must pay for

8

his own expenses.

9

The district court has consented to extending the discovery cutoff of February 1,

10

2012 to March 15, 2013 for the sole purpose of taking the Sean Eagan deposition. That order

11

was filed on January 24, 2013 (docket # 84).

12

B. Further Depositions of Koontz, Roth and Pettegrew

13

Plaintiffs formally noticed further depositions of these witnesses on October 19,

14

2012, for November 13-14, 2012. Defendant refused to produce them, relying on Fed. R. Civ. P.

15

30(a)(2)(A)(ii), which requires leave of court if a party seeks to depose someone who has already

16

been deposed in the case.

17

The court’s January 18, 2013 order permitted further depositions of John Roth and

18

Darlene Koontz, on the topic of shredding documents only, to be completed prior to the February

19

1, 2013 discovery cutoff. The order noted that further deposition of Joseph Pettegew would not

20

be ordered. This order explains the reasoning behind that ruling.

21
22

Plaintiffs cite to Kress v. Price Waterhouse Coopers, in support of their request
for further depositions.

23
4

24
25
26

Mr. Campora’s January 18, 2013 email to Ms. Gordon proposed paying for Eagan’s
plane ticket to Hawaii if the government would pay for his hotel accommodations. The
estimated cost for a round trip plane ticket from Pago Pago to Honolulu was about $1,100 to
$1,300.
5

Plaintiffs may offer to pay any portion of these expenses.
12

1
2
3
4
5
6
7
8
9

In order to take a deposition of a deponent who has already been
deposed, leave of court is required, and “the court must grant leave
to the extent consistent with Rule 26(b)(2).” Fed.R.Civ.P.
30(a)(2)(A)(ii). Repeat depositions are not favored, except in
certain circumstances, some of which include a long passage of
time with new evidence, or where an amended complaint has
added new theories. Graebner v. James River Corporation, 130
F.R.D. 440, 441 (N.D.Cal.1990). “Good cause” for an order exists
where new claims or defenses have been added, Collins v. Int'l
Dairy Queen, 189 F.R.D. 496, 498 (M.D.Ga.1999); new parties
have been added, Christy v. Pennsylvania Turnpike Comm'n, 160
F.R.D. 51, 52–53 (E.D.Pa.1995); and new documents have been
produced, Miller v. Federal Express Corp., 186 F.R.D. 376, 389
(W.D. TN 1999), Harris v. New Jersey, 259 F.R.D. 89, 94–95
(D.N.J.2007). W.W. Schwarzer, A.W. Tashima & J. Wagstaffe,
Federal Civil Procedure Before Trial § 11:1374. “Courts may limit
the scope of the second deposition to matters not covered in the
first deposition .” Id.

10
11
12

Kress v. Price Waterhouse Coopers, 2011 WL 5241852, *1 (E.D. Cal. Nov. 1, 2011).
Plaintiffs argue that since the original depositions of Koontz, Roth and Pettegrew,

13

defendant has produced more than 7,000 pages of documents and numerous videos. Of those,

14

3,000 pages were produced only after plaintiff’s motion to compel. Plaintiffs cite to Miller v.

15

Federal Express, 186 F.R.D. 376, 389 (W.D. Tenn. 1999), wherein the court held that production

16

of an additional 500 pages of documents constituted grounds for an additional deposition.

17

Plaintiffs also urge further depositions based on two instances of shredding of documents, by

18

LAVO Chief of Maintenance Daniel Jones, and by Ranger Roth, after these depositions were

19

taken, and the events surrounding that shredding, which also apparently involved Roth’s meeting

20

with Koontz prior to his shredding.

21

Plaintiffs assert that according to the Fed. R. Civ. P. 26(b)(2)(C), leave for second

22

depositions must be granted in this case because the deposition questioning will be based on

23

evidence that had not been produced at the time of the first depositions, based on defendant’s

24

conduct in this litigation, including delay in production and alleged destruction of evidence.

25

Defendant cites Bookhamer v. Sunbeam Products, Inc., 2012 WL 5188302, *3

26

(N.D. Cal. Oct. 19, 2012), for the proposition that where a party makes a tactical decision that
13

1

results in a disadvantage, it does not warrant reopening a deposition. Here, defendant argues that

2

plaintiffs decided to take these depositions early in the litigation, before they requested

3

documents they now wish to examine the deponents about, and this strategy does not constitute

4

good cause. Other than allegations relating to the spoliation motion, which are unfounded

5

according to defendant, plaintiffs can point to no specific document produced after the

6

depositions that makes their testimony indispensable. Defendant further contends that Jessica

7

Compton’s deposition does not support plaintiffs’ request because she admitted that she does not

8

know which documents Roth shredded.

9

Further depositions of Ms. Koontz and Mr. Roth were ordered on the topic of

10

shredding documents only because plaintiffs did not provide sufficient reason to permit

11

deposition on other topics. Defendant’s delay in production of documents and videos in general

12

does not justify further deposition of these deponents on any topic. Plaintiffs did choose to

13

conduct depositions early, as defendant argues, which was arguably a chosen strategy. Counsel

14

may well have chosen to take the early depositions before defenses had solidified, and prior to

15

the time the deponents had time to ponder the significance of past statements. Although

16

plaintiffs argue that defendant’s Rule 26 initial disclosures were “wholly inadequate,” plaintiffs

17

have provided no specific details on this point. Mr. Roth’s shredding of documents after his

18

deposition was taken, on the other hand, provides a specific reason for his further deposition, as

19

does his meeting with Ms. Koontz immediately prior to his shredding provide a specific

20

justification for her re-deposition.

21

The further deposition of Mr. Pettegrew was not ordered because plaintiffs did not

22

come forward with sufficient reason to re-depose him. Further testimony concerning the

23

Comptons’ report of the Roth shredding to this witness, who promised to call the U.S. Attorney,

24

but after doing so, received no response to his several messages, is not good cause for further

25

testimony of this witness.

26

\\\\\
14

1

CONCLUSION

2

For reasons stated at hearing, IT IS ORDERED that:

3

1. Plaintiffs’ amended motion to compel deposition and further testimony, filed

4

December 12, 2012, (dkt. no. 73), is granted in part and denied in part as set forth herein.

5

2. Pursuant to the district judge’s order extending discovery for the sole purpose

6

of taking Sean Eagan’s deposition, plaintiffs shall take the Eagan deposition in accordance with

7

the terms outlined herein, prior to the extended discovery cutoff of March 15, 2013.

8
9

3. As previously ordered, the depositions of Koontz and Roth were to be taken
prior to the scheduled discovery cutoff on the issue of shredding documents only; the further

10

deposition of Pettegrew was denied in it entirety.

11

DATED: January 28, 2013

12
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

13
14
15
16
GGH/076

17

Botell1545.dep.wpd

18
19
20
21
22
23
24
25
26
15