Kinkeade v. Beard et al

Filing 72

ORDER signed by District Judge Troy L. Nunley on 6/29/2017 OVERRULING 66 Objections to 65 Order. (Michel, G.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CARLOS KINKEADE, Plaintiff, 12 13 14 No. 2:15-cv-01375-TLN-CDK v. ORDER JEFFERY BEARD, et al., Defendants. 15 16 17 This matter is before the Court pursuant to Plaintiff Carlos Kinkeade’s (“Plaintiff”) 18 “Objection to Order by Magistrate Judge.” (ECF No. 66.) Defendant A. Oddie has filed a 19 response. (ECF No. 67.) The Court has carefully considered the arguments raised by the parties. 20 For the reasons set forth below, Plaintiff’s objections are OVERRULLED. 21 I. INTRODUCTION 22 This is a prisoner civil rights action. Plaintiff is represented by counsel. The matter 23 before the Court arises in connection with the not-yet-taken deposition of Defendant Oddie. (See 24 ECF No. 66 at 1.) In particular, Plaintiff’s counsel wishes to operate the video camera used to 25 videotape this deposition rather than hiring a videographer. (ECF No. 66 at 1.) The notice for 26 that deposition indicated “[t]he testimony will recorded [sic] stenographically and by audio and/or 27 video for use at trial.” (ECF No. 66-1 at 5.) On June 6, 2017, Magistrate Judge Delaney 28 conducted a telephone conference with Plaintiff’s counsel and Defendant’s counsel “in order to 1 1 resolve a discovery dispute concerning plaintiff’s counsel’s use of a video camera during 2 defendant’s deposition.” (ECF No. 65 at 1.) After the conclusion of this teleconference, 3 Magistrate Judge Delaney denied “plaintiff’s counsel’s request to use a personal video camera 4 during the defendant’s deposition pursuant to Fed. R. Civ. P. 30(b)(3).” (ECF No. 65 at 2.) 5 Plaintiff filed his objections pursuant to Fed. R. Civ. P. 72(a). (ECF No. 66 at 3.) 6 II. STANDARD OF REVIEW 7 A party may object to a non-dispositive pretrial order of a magistrate judge within 8 fourteen days after service of the order. See Fed. R. Civ. P. 72(a). The magistrate judge’s order 9 will be upheld unless it is “clearly erroneous or contrary to law.” Id.; 28 U.S.C. § 636(b)(1)(A). 10 The objecting party has the burden of showing that the magistrate judge’s ruling is clearly 11 erroneous or contrary to law. In re eBay Seller Antitrust Litig., No. C 07-1882 JF (RS), 2009 WL 12 3613511, at *1 (N.D. Cal. Oct. 28, 2009); Winz-Byone v. Metro. Life Ins. Co., No. EDCV 07-238- 13 VAP (OPx), 2007 WL 4276751, at *1 (C.D. Cal. Nov. 16, 2007). 14 “The ‘clearly erroneous’ standard applies to factual findings and discretionary decisions 15 made in connection with non-dispositive pretrial discovery matters.” F.D.I.C. v. Fid. & Deposit 16 Co. of Maryland, 196 F.R.D. 375, 378 (S.D. Cal. 2000). “Under the ‘clearly erroneous’ standard, 17 ‘the district court can overturn the magistrate judge’s ruling only if the district court is left with 18 the definite and firm conviction that a mistake has been made.’” Id. (quoting Computer 19 Economics, Inc. v. Gartner Group, Inc., 50 F. Supp. 2d 980, 983 (S.D. Cal. 1999). 20 “The magistrate’s legal conclusions are reviewed de novo to determine whether they are 21 contrary to law.” E.E.O.C. v. Peters’ Bakery, 301 F.R.D. 482, 484 (N.D. Cal. 2014). “An order 22 is ‘contrary to law’ when it fails to apply or misapplies relevant statutes, case law, or rules of 23 procedure.” Calderon v. Experian Info. Sols., Inc., 290 F.R.D. 508, 511 (D. Idaho 2013). 24 However, “a magistrate judge’s decision is contrary to law only where it runs counter to 25 controlling authority.” Pall Corp. v. Entegris, Inc., 655 F. Supp. 2d 169, 172 (E.D.N.Y. 2008). 26 Consequently, “a magistrate judge’s order simply cannot be contrary to law when the law itself is 27 unsettled.” Id. 28 /// 2 1 III. ANALYSIS 2 Plaintiff has not met his burden of showing that the magistrate judge’s ruling is clearly 3 erroneous or contrary to law. Magistrate Judge Delaney’s order indicates that she precluded 4 Plaintiff’s counsel from being the camera operator after considering the following two concerns: 5 (i) the admissibility of the videotape at trial; and (ii) the “potential cost savings cited by plaintiff’s 6 counsel.” (ECF No. 65 at 1.) 7 Plaintiff contends that “[t]he trend in jurisprudence under the Federal Rules of Civil 8 Procedure is to permit experimentation with videotaped depositions allowing counsel to operate 9 the camera.” (ECF No. 66 at 6 (emphasis added).) Even if such a trend exists, it does not compel 10 such a result here. None of the cases Plaintiff cites stand for that proposition. Moreover, even if 11 they had, none of them are binding on this Court. Consequently, failure to follow them would 12 not render Magistrate Judge Delaney’s ruling contrary to law. Pall Corp., 655 F. Supp. 2d at 172. 13 After having reviewed Plaintiff’s submissions and the authorities cited in them, the Court finds 14 Plaintiff has not demonstrated that Magistrate Judge Delaney’s ultimate conclusion, the analysis 15 underlying it, or the consideration of these two factors was clearly erroneous or contrary to law. 16 One other point warrants brief mention. Plaintiff raises the specter of “procedural 17 irregularities in the conduct of the telephone conference” without coherently explaining why this 18 entitles him to relief under Rule 72(a). (ECF No. 66 at 7–8.) Plaintiff fails to show Magistrate 19 Judge Delaney did anything improper in hearing Defendant’s objection or ruling on it. Moreover, 20 Plaintiff has not demonstrated that any of these “irregularities” rendered her ruling clearly 21 erroneous or contrary law. Thus, Plaintiff has not carried his burden under Rule 72(a). 22 IV. 23 For the reasons set forth above, Plaintiff’s objection is OVERRULED. 24 IT IS SO ORDERED. 25 CONCLUSION Dated: June 29, 2017 26 Troy L. Nunley United States District Judge 27 28 3

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