Padilla v. Beard et al

Filing 267

ORDER signed by District Judge Kimberly J. Mueller on 4/14/2017 GRANTING 104 Motion to file an Amicus Brief. The proposed amicus brief as ECF No. 104-1 is DEEMED FILED. Plaintiff's 103 Motion for Reconsideration is DENIED. (Donati, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JERMAINE PADILLA,

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No. 2:14-cv-1118 KJM CKD

Plaintiff,
v.

ORDER

JEFFREY BEARD, et al.,
Defendants.

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The court has not previously ruled on plaintiff’s motion for reconsideration of the

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magistrate judge’s January 14, 2016 discovery order denying plaintiff’s motion for sanctions, or

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the Prison Law Office’s motion to file an amicus brief in support of plaintiff’s motion for

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reconsideration. The court had submitted the matter, but then on January 27, 2017, at the Final

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Pretrial Conference, discussed certain aspects of the motion with plaintiff’s counsel Lori Rifkin

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and defense counsel Diana Esquivel. Following that conference the parties participated in a

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further settlement conference, at which the case did not settle. The court thus turns to resolving

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the pending motion for reconsideration now and, as explained below, the court GRANTS the

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Prison Law Office’s motion and DENIES plaintiff’s motion.

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I.

BACKGROUND
A.

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Litigation History
Plaintiff filed the motion for reconsideration and the underlying motion for

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sanctions in connection with certain interrogatory responses and amendments made on behalf of

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defendant Jeffrey Beard (“Beard” or “defendant”), Secretary of California Department of

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Corrections and Rehabilitation (CDCR). Before he became Secretary of CDCR on December 27,

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2012, Beard worked for CDCR as a consultant in the Mitchell1 class action challenging race-

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based prison lockdowns and in the Coleman2 class action challenging CDCR’s provision of

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mental health care. See Joint Letter at 1, Oct. 13, 2015, ECF No. 59; Interrog. Resp. at 2–3,

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Rifkin Decl. Ex. C, ECF Nos. 93-2 & 93-3.

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Beard served his responses to plaintiff’s first set of interrogatories on August 3,

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2015, after receiving multiple, lengthy extensions. See Interrog. Resp. at 10; see also ECF Nos.

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43, 48, 50. It is undisputed these responses were not verified, see Interrog. Resp. at 11

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(“VERIFICATION TO FOLLOW / SENT WITHOUT TO AVOID DELAY”), although Federal

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Rule of Civil Procedure 33(b) requires that interrogatories be answered “in writing under oath”

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and signed by the answering party, Fed. R. Civ. P. 33(b)(3), (5). At the final pretrial conference,

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plaintiff’s counsel indicated it was the parties’ practice to accept unverified discovery responses

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on the assumption the verification would be forthcoming. Defense counsel did not dispute this

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was the practice.

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On September 7, 2015, Beard moved for a protective order to bar plaintiff from
taking his deposition, stating, among other things, that

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Beard was not the Secretary for the California Department of
Corrections and Rehabilitation during the time relevant to this
lawsuit; he has no personal knowledge of the events leading up to
and following the July 24, 2012 incident at issue in this case; he has
no personal knowledge of policies and procedures at issue in this
matter; and any information he may provide at a deposition will

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Mitchell v. Cate, 08–01196 (E.D. Cal. filed May 30, 2008), and was closed in June 2016.

Coleman v. Brown, No. 90-00520 (E.D. Cal. filed April 23, 1990), and is currently
proceeding before the undersigned.
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necessarily be obtained from other individuals, who have personal,
relevant information and who are also Defendants in this case and
whose depositions are already scheduled to be taken.

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ECF No. 51. On October 12, 2015, the parties filed a Joint Letter regarding the motion. ECF

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No. 59. In the Joint Letter, Beard expressly incorporated his unverified interrogatory responses to

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support the argument that he had no personal knowledge of plaintiff’s July 2012 extraction,

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plaintiff’s mental health treatment at Corcoran, or recommendations for changes to CDCR’s use-

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of-force policies and procedures. Id. at 3–4. On October 19, the magistrate judge denied Beard’s

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motion for a protective order and ordered him to submit to deposition no later than October 20,

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2015, absent stipulation of the parties to a later date. ECF No. 61.

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On October 20, 2015, the parties filed a stipulation and proposed order to modify

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the court’s scheduling order to, among other things, extend the deadline to complete fact

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discovery from October 20 to December 4, to allow plaintiff to take Beard’s deposition after the

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discovery deadline. ECF No. 62. The parties dispute whether defendants previously agreed they

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would produce Beard for deposition after the October 20, 2015 fact discovery cut-off if the court

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denied the motion for a protective order. See ECF No. 69. On October 29, 2015, defense counsel

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indicated defendants would not produce Beard for deposition unless the court granted the parties’

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request to extend the discovery deadlines. Id. at 2. As a result, on November 3, plaintiff moved

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to compel Beard’s deposition on December 1, 2015. ECF No. 64. The parties filed another Joint

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Letter regarding plaintiff’s motion to compel. ECF No. 69. On November 10, the magistrate

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judge granted in part plaintiff’s motion and ordered Beard to submit to deposition no later than

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December 1, 2015. ECF No. 71. On November 19, this court granted the parties’ October 20

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stipulation to modify the scheduling order. ECF No. 72.

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On November 30, 2015, approximately four months after serving his first set of

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unverified responses, after the unsuccessful effort to obtain a protective order preventing his

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deposition, eleven days after the court’s granting of the parties’ stipulation modifying the

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scheduling order, and the day before his deposition, Beard’s counsel served his amended

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responses to Interrogatories 4, 9, 10, 11 and 18, as described below. Am. Interrog. Resp., Rifkin

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Decl. Ex. D, ECF No. 93-3. These amended responses included a personal verification by Beard.

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Id. at 11.

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B.

Amendments to Interrogatory Responses and Related Deposition Testimony
Plaintiff’s counsel asked Beard about the amendments to his interrogatory

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responses at his deposition on December 1. See, e.g., Beard Dep. 9–16.When asked if he was

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ever provided with copies of any of the discovery requests in the case, Beard said, “Yes. . . . It

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seems like some months ago I was provided with something and I made some comments on it and

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then I was re-provided with documents back about the time that I met with the attorneys a week

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or so ago.” Beard Dep. 9:4–10:5. When asked if he had requested that changes be made to the

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initial responses, he said, “I requested some changes to be made from the original version that I

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saw, yes.” Id. at 9:18–21. When asked whether, when he requested changes be made the week

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before his deposition, that was the first time he was requesting those changes, he responded, “No.

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I made the request for the changes, after I read them a month or so ago I made a request for the

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changes. And then I was provided a week or so ago with those changes.” Id. at 9:22–10:3.

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Plaintiff’s counsel then asked, “Prior to your review of those documents a month or so ago had

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you seen them before?” and he responded, “I don’t believe – I don’t believe so, no.” Id. at 10:4–

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6. Beard does not elsewhere in his deposition testimony reconcile the apparent discrepancy

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arising from his use of the phrase “some months ago” initially, and the different phrase “a month

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or so ago” thereafter. As noted above, defendant’s counsel had served Beard’s initial unverified

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responses on August 3, 2015, several months before his deposition.

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The amendments to Beard’s interrogatory responses, served the day before his

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deposition, are reviewed below, along with Beard’s deposition testimony related to the

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interrogatory responses.

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1.

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Interrogatory 4 asks Beard to “[i]dentify all inspections or site visits [he has] made

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to California State Prison-Corcoran, including dates, units visited, purpose, and senior staff and/or

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consultants present.” Interrog. Resp. at 3. Beard’s initial and amended responses each identify a

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tour with the Coleman Special Master on November 15 and 16, 2011 while Beard was a

Interrogatory 4

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consultant for CDCR, and several tours or visits after Beard became Secretary of CDCR.

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Interrog. Resp. at 3; Am. Interrog. Resp. at 3.

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During his deposition, Beard discussed an additional visit to Corcoran with

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CDCR’s retained Coleman experts in April 2012. Beard Dep. 12:16–21. Asked when he had

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recalled that visit, Beard responded “[a] month or so ago.” Id. at 14:16–24. When asked why it

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was not mentioned in his responses, Beard replied as if Interrogatory 4 had not called for the

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information, saying, “it may not be mentioned specifically. . . If somebody would have asked me,

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I would have said that I was there at Corcoran . . . as part of the special master tour and I was also

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there as part of the . . . the defendants’ experts.” Id. at 15:3–13. When asked, “Did anybody ask

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you that?”, Beard said “No.” Id. at 15:14–15. But the colloquy went no further, and did not

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probe Beard’s reading of the interrogatory’s language itself, which did pose the relevant question.

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2.

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Interrogatories 9 and 10 ask whether Beard contends the use of force against

Interrogatories 9 and 10

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Padilla was not excessive, and if so, what facts support his contention. Interrog. Resp. at 5–6.

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Beard’s initial unverified responses stated “[he] has no personal knowledge or information about

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Plaintiff’s July 24, 2012 extraction because he was appointed CDCR Secretary on December 27,

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2012[,] [but] based on information and belief, yes.” Id. Beard later amended and verified his

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responses to state, “after reviewing the video of Plaintiff’s July 24, 2012 extraction, yes,” because

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“the involved staff used reasonable and a [sic] minimal force to carry out a doctor’s order to

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extract Plaintiff from his cell so he could be involuntarily medicated given the status of his

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mental-health condition . . . .” Am. Interrog. Resp. at 5–6.

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When asked about the changes at his deposition, Beard testified he reviewed the

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video of plaintiff’s extraction “a week or so” before the deposition, in preparation. Beard Dep.

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7:10–8:24. After seeing the video, he remembered he had seen it before in 2013, when he was a

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consultant for CDCR. Beard Dep. 16:19–17:25. In 2013, a group of people reviewed videos of a

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number of extractions in preparation for a hearing in Coleman, and Mr. Padilla’s extraction was

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one of those videos. Beard Dep. 16:19–17:22. Accordingly, Beard asked that changes be made

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to reflect he had some personal knowledge of Padilla’s extraction in 2013. Beard Dep. 15:25–
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16:11, 29:19–30:23. While Beard uses the word “personal” to describe his knowledge, it is clear

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from the context of his explanation that the knowledge he considered himself to have was gained

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from viewing the video of plaintiff’s cell extraction the first time in 2013. As noted, the changes

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made and verified were provided to plaintiff the day before Beard’s deposition.

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3.

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Interrogatory 11 asks whether Beard contends the use of five-point restraints on

Interrogatory 11

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Padilla from July 24 to 26 was reasonable. Interrog. Resp. at 6. Beard initially responded “[he]

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has no personal knowledge or information about Plaintiff’s placement in a five-point restraint

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because he was appointed CDCR Secretary on December 27, 2012[,] [but] based on information

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and belief, yes.” Id. Beard amended his response, with verification, to state he “has no specific

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knowledge about Plaintiff’s placement in five-point restraints from July 24 to 26, 2012, and

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therefore, lacks the information necessary to reach such a conclusion.” Am. Interrog. Resp. at 6.

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When asked during his deposition why he directed this change, Beard responded,

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“Because I was aware that [Padilla] was removed from the cell and put into five-point restraints,

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but I was not aware and I still am not really aware of the specifics of the five-point restraints.”

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He explained, “I think the difference is, . . . in the one thing it’s saying that I had no . . . personal

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knowledge or information about him being placed in five-point restraint, and I obviously did, but

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I didn’t have a specific knowledge of the specifics of why was he maintained in it or anything

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else. That’s the difference.” Beard Dep. 34:20–35:25. Again, the context of Beard’s statements

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clarifies his knowledge is based on having viewed the video in 2013.

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4.

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Interrogatory 18 asks Beard to “[i]dentify any changes to CDCR policies and/or

Interrogatory 18

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procedures regarding use of force since July 24, 2012.” Interrog. Resp. at 9. Beard’s initial

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response stated, in pertinent part, “Defendant has not been personally involved in any

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recommendations for changes to CDCR’s use-of-force policies and procedures. However, based

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on information and belief, and as permitted by Federal Rule of Civil Procedure 33(d), Defendant

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refers Plaintiff to the declarations of Michael Stainer filed in Coleman v. Brown. . .” Id. Beard

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amended his initial response to omit the phrase, “Defendant has not been personally involved in
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any recommendations for changes to CDCR’s use-of-force policies and procedures.” Am.

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Interrog. Resp. at 9. This amendment had the effect of conveying a complete reversal in

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meaning.

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When asked during his deposition why he directed the change, Beard effectively

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confirmed that the first response was incorrect: “Because I was personally involved in some of

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the recommendations for changes to CDCR’s use of force policy.” Beard Dep. 36:7–23. He said,

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“when [he] was secretary and the issues were coming up in the Coleman case, [he] work[ed] with

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staff to make some changes in the use of force policy,” id. 36:24–37:2, and “they suggested some

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things, [he] suggested some things,” id. 38:2–11.

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C.

Motions for Sanctions and for Reconsideration
On January 6, 2016, plaintiff moved for the imposition of sanctions against

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defendant Beard and his counsel. Pl.’s Mot. Sanctions, ECF No. 93. Plaintiff argued sanctions

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were warranted because Beard’s amended interrogatory responses and his deposition testimony,

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considered along with a declaration Beard had provided in a proceeding in the Coleman litigation,

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demonstrated that his initial responses contained knowing or reckless misrepresentations, and

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Beard relied on the misinformation in the filings in seeking to bar plaintiff from taking Beard’s

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deposition. See id. at 5–6. According to plaintiff’s counsel, Beard’s motion for a protective order

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and related actions required her to expend substantial time and resources litigating the right to

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depose Beard, and Beard’s last-minute amendments of his interrogatory responses the day before

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his deposition required her to review the amended responses and conduct additional research

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given the apparent contradictions between the two sets of responses. Id. at 9–10; Rifkin Decl.

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¶¶ 7–9, Pl.’s Mot. Sanctions at 5. Plaintiff’s counsel argues Beard’s actions also required the

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court to invest time and resources reviewing and hearing the disputes regarding plaintiff’s right to

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depose Beard. Pl.’s Mot. Sanctions at 10.

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Beard opposes the motion, arguing he timely amended his responses, plaintiff’s

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counsel had the opportunity to question him at length about the changes at his deposition, and he

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“fully explained his reasons for amending his responses.” Opp’n Sanctions 1, ECF No. 99.

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On January 14, 2016, the magistrate judge, after submitting the motion without

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hearing, issued a summary order denying the motion without explanation or citation to authority.

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The order simply said the magistrate judge had reviewed the briefing, the litigation history of the

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case, defendant’s interrogatory responses and amendments, and the transcript of defendant’s

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deposition, and found “no basis for imposition of sanctions.” Order, Jan. 14, 2016, ECF No. 100

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(“Order Den. Sanctions”).

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On January 28, 2016, plaintiff filed the instant motion for reconsideration by this

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court of the magistrate judge’s January 14, 2016 ruling. Mot. Recons., ECF No. 103. On January

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28, 2016, the Prison Law Office filed a motion seeking to file an amicus brief in support of

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plaintiff’s motion, along with its proposed brief. Amicus Mot., ECF No. 104; Proposed Amicus

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Brief, ECF No. 104-1. On February 4, 2016, defendant filed an opposition to the motions.

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Opp’n, ECF No. 106.

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II.

MOTION TO FILE AMICUS BRIEF

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Federal district courts possess the inherent authority to accept amicus briefs. See,

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e.g., Jamul Action Comm. v. Stevens, No. 13–01920, 2014 WL 3853148, at *5 (E.D. Cal. Aug. 5,

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2014). “District courts frequently welcome amicus briefs from non-parties concerning legal

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issues that have potential ramifications beyond the parties directly involved or if the amicus has

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unique information or perspective that can help the court beyond the help that the lawyers for the

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parties are able to provide.” Sonoma Falls Developers, LLC v. Nev. Gold & Casinos, Inc., 272 F.

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Supp. 2d 919, 925 (N.D. Cal. 2003) (internal quotations omitted); see also Nat’l Petrochemical &

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Refiners Ass’n v. Godstene, No. 10–163, 2010 WL 2228471, at *1 (E.D. Cal. June 3, 2010)

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(same).

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Here, the Prison Law Office has shown it has over thirty years of experience

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representing prisoners in civil rights actions in California and elsewhere. See Amicus Mot. at 1–

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2. Because the case management and litigation of prisoner civil rights actions has potential

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ramifications beyond the parties directly involved, the court GRANTS the Prison Law Office’s

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motion and accepts its proposed amicus brief, ECF No. 104-1, deeming it filed.

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In the amicus brief, the Prison Law Office argues abusive discovery tactics “create

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substantial financial burden, delay, and other undue hardship in prisoner litigation,” and “ha[ve]

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the effect of reducing the already-narrow pool of attorneys willing and able to take on individual

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prisoner representation.” Id. at 2.

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III.

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MOTION FOR RECONSIDERATION
A.

Legal Standard Generally
Courts review motions to reconsider a magistrate judge’s nondispositive pretrial

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order under the “clearly erroneous or contrary to law” standard. Fed. R. Civ. P. 72(a); 28 U.S.C.

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§ 636(b)(1)(A); see also Local Rule 303(f). “A finding is clearly erroneous when although there

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is evidence to support it, the reviewing [body] on the entire evidence is left with the definite and

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firm conviction that a mistake has been committed.” Concrete Pipe & Prods. v. Constr. Laborers

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Pension Trust, 508 U.S. 602, 622 (1993) (internal quotation marks omitted) (quoting United

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States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). “[R]eview under the ‘clearly

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erroneous’ standard is significantly deferential . . . .” Id. at 623.

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“The contrary to law standard allows independent, plenary review of purely legal

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determinations by the magistrate judge.” Estate of Stephen E. Crawley v. Robinson, No. 13–

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02042, 2015 WL 3849107, at *2 (E.D. Cal. June 22, 2015) (internal quotations marks omitted).

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“An order is contrary to law when it fails to apply or misapplies relevant statutes, case law, or

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rules of procedure.” Id. (quoting Knutson v. Blue Cross & Blue Shield of Minn., 254 F.R.D. 553,

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556 (D. Minn. 2008)).

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In reviewing a motion for reconsideration, the district court “may not simply

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substitute its judgment for that of the deciding court.” Grimes v. City of S.F., 951 F.2d 236, 241

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(9th Cir. 1991) (internal quotations marks omitted). Here, where the deciding magistrate judge’s

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order is so dissatisfying in its absence of explanation, it is difficult to discern the substance if any

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of her judgment. Given the late date of this order, rather than return the matter to the magistrate

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judge for clarification, this court reviews her conclusion in light of the law and the factual and

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procedural record. In doing so, the court notes that “[t]o succeed [on a motion for

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reconsideration], a party must set forth facts or law of a strongly convincing nature to induce the
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court to reverse its prior decision.” Enriquez v. City of Fresno, No. 10–0581, 2011 WL 1087149,

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at *1 (E.D. Cal. Mar. 23, 2011).

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B.

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“Contrary to Law”
The primary sources of authority to impose sanctions as requested by plaintiff’s

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motion are Federal Rules of Civil Procedure 26 and 37, 28 U.S.C. § 1927, and the court’s

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inherent power. Rule 26(e)(1) requires a party to supplement or correct a response to an

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interrogatory “in a timely manner if the party learns that in some material respect the disclosure

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or response is incomplete or incorrect, and if the additional or corrective information has not

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otherwise been made known to the parties during the discovery process or in writing.” Fed. R.

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Civ. P. 26(e)(1)(A). If a party fails to comply with Rule 26(e), Rule 37 mandates that a court

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impose sanctions, “unless the failure was substantially justified or is harmless.” Fed. R. Civ. P.

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37(c)(1).

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Title 28 U.S.C. § 1927 provides: “Any attorney . . . who so multiplies the

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proceedings in any case unreasonably and vexatiously may be required by the court to satisfy

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personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such

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conduct.” “The imposition of sanctions under § 1927 requires a finding of bad faith.” Pac.

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Harbor Capital, Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112, 1118 (9th Cir. 2000) (citation

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omitted).

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The Ninth Circuit also has recognized a court’s inherent power to levy sanctions,

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including attorneys’ fees, for a broad range of willful improper conduct. See Fink v. Gomez, 239

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F.3d 989, 992 (9th Cir. 2001) (discussing Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980)

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and Chambers v. NASCO, Inc., 501 U.S. 32 (1991)). This includes when a party “has acted in

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bad faith, vexatiously, wantonly, or for oppressive reasons, delaying or disrupting litigation, or

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has taken actions in the litigation for an improper purpose.” Id. However, “[b]ecause of their

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very potency, inherent powers must be exercised with restraint and discretion.” Chambers, 501

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U.S. at 44.

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Here, plaintiff has not shown the magistrate judge’s conclusion is contrary to law.
Plaintiff has not demonstrated the magistrate judge failed to apply or misapplied the Federal
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Rules of Civil Procedure, because plaintiff has not established Beard failed to amend his

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responses in a timely manner under Rule 26(e). Although the amendments could have been more

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timely, and Beard’s deposition testimony is somewhat vague, it appears he made the amendments

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within a few weeks of Beard’s recognizing the need for amendment, shortly after the parties

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concluded litigation of defendants’ unsuccessful effort to protect Beard from being deposed.

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Plaintiff has not pointed to a pattern of other, unrelated lapses in compliance with discovery rules,

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which given Ninth Circuit authority could affect the court’s assessment. Cf. Adriana Int’l Corp.

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v. Thoeren, 913 F.2d 1406, 1411–14 (9th Cir. 1990); Wanderer v. Johnston, 910 F.2d 652, 653–

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56 (9th Cir. 1990). Because the magistrate judge’s conclusion was not contrary to the

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requirements of Rule 26(e), the question of whether Rule 37 (c) applies is moot.

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With respect to 28 U.S.C. § 1927, plaintiff has not shown the magistrate judge’s

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decision ran contrary to the provisions of that statute. Specifically plaintiff has not shown

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Beard’s counsel multiplied the proceedings “unreasonably and vexatiously” by meeting the high

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standard of bad faith. Rather, it appears in this hotly contested case that defendants would have

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sought to preclude Beard’s deposition in any event.

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Finally, the magistrate judge’s decision is not contrary to the cases cited by

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plaintiff regarding a court’s inherent power to levy sanctions, particularly given that the court’s

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power is discretionary. While as noted it is difficult to discern precisely how the magistrate judge

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exercised her discretion, there is nothing before the court to indicate she affirmatively abused her

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discretion as that term is used in this context.

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Even if the court were to reconsider the questions raised by plaintiff’s motion for
sanctions in the first instance, it cannot say it would reach a different result.
C.

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“Clearly Erroneous”
Having found the magistrate judge’s conclusions are not contrary to law, the court

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may only grant plaintiff’s motion if the magistrate judge’s decisions are clearly erroneous based

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on the record.

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Plaintiff argues the litigation history and Beard’s amendments to his interrogatory
responses establish that Beard’s initial responses contained knowing or reckless
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misrepresentations. See Pl.’s Mot. Sanctions. at 5. . Although the magistrate judge ruled for

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plaintiff and compelled Beard’s deposition, plaintiff’s counsel argues defendants’ handling of

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discovery matters required plaintiff to expend substantial time and resources litigating plaintiff’s

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right to depose Beard as a threshold matter, and then additional time preparing for deposition

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once she received the amended interrogatory responses. See Mot. Recons.at 4, 6.

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In response, Beard points to the declaration of his counsel, averring that she did

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not purposefully or recklessly misrepresent any information or present false information.

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Esquivel Decl. ¶ 2, ECF No. 99. Beard explained the reasons for the changes to his responses at

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his deposition, see ECF No. 106, and argues he timely amended his responses and plaintiff has

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not shown how he was harmed or prejudiced by the changes. ECF No. 99. Esquivel’s

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declaration explains that she determined the amendments were necessary while meeting with

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Beard to prepare for his deposition during the week of November 16, 2015. Esquivel Decl. ¶ 4..

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She represents that she immediately prepared the amended responses and submitted them for

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review through the multi-level CDCR review process. Id. She was out of the office during the

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week of November 23 and did not have access to her mail. Id. ¶ 5. When she returned on

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November 30, she found Beard’s verification of the amendments, dated November 24, and

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immediately served the amended responses on plaintiff by email that day, November 30. Id. ¶¶

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5–6. At Beard’s deposition on December 1, plaintiff questioned Beard at length about the

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amendments. ECF No. 99 at 2, 7.

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The court finds plaintiff has not submitted sufficient evidence to allow this court to

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conclude the magistrate judge’s conclusion was clearly erroneous, that in effect Beard’s or his

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counsel’s actions were not taken in bad faith or for an improper purpose.

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Beard’s explanation that he amended his responses to Interrogatories 9 and 10

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after reviewing the video of Padilla’s extraction shortly before his deposition is not unreasonable.

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Although his deposition testimony does not fully explain the reasoning behind the other

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amendments—especially the amendment to Interrogatory 18—the amendments do not on their

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face or as explained by Beard at deposition demonstrate the initial responses were knowingly

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false or misleading, as opposed to the result of an oversight, negligence, or a change in opinion.
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The absence of a timely verification of the first set of interrogatory responses by Beard himself is

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troubling, and in the absence of verification plaintiff’s counsel reasonably relied on the unverified

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responses given the parties’ practice and defendants’ own reliance on the unverified responses in

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litigating the motion for protection from deposition. See Jack v. Trans World Airlines, 854 F.

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Supp. 654, 660 (N.D. Cal. 1994) (receiving party reasonably relied on unverified responses given

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opposing party’s more clear representations than here). That said, based on the record before the

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court, Beard appears to have amended his responses in a timely enough manner, even if in the

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nick of time. Importantly plaintiff had the opportunity to question Beard about the changes

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during his deposition. Id. (“person offering the changed testimony . . . should explain why his or

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her testimony has changed”).

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Moreover, Beard’s deposition was completed more than eight months before the

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parties filed their summary briefing. In his briefing, while plaintiff could have raised questions

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about Beard’s credibility based on his changed discovery responses, plaintiff did not. In the

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summary judgment briefing, plaintiff relied in a number of respects on the deposition testimony

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Beard provided. See, e.g., generally, Decl. of Lori Rifkin in Supp. Pl.’s Mot. for Partial Summ.

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J., ECF No. 131; Pl.’s Am. Mem. In Supp. Summ. J. & Undisputed Facts, ECF Nos. 141, 141-1.

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Having reviewed the parties’ briefing, the Prison Law Office’s amicus brief, the

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litigation history of the case, Beard’s initial and amended verified responses to the interrogatories,

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the transcript of Beard’s deposition testimony, and the magistrate judge’s paltry order, the court

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finds the magistrate judge’s conclusion that sanctions are not warranted is not clearly erroneous.

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Even if reconsidering that order, this court would reach the same conclusion for the reasons set

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forth above.

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IV.

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CONCLUSION
The Prison Law Office’s motion to file an amicus brief is GRANTED and the

proposed amicus brief docketed as ECF No. 104-1 is deemed FILED.
Plaintiff’s motion for reconsideration of the magistrate judge’s January 14, 2016
discovery order is DENIED.
IT IS SO ORDERED.
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This order resolves ECF Nos. 103 and 104.
DATED: April 14, 2017.

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UNITED STATES DISTRICT JUDGE

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