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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CARLOS KINKEADE,
Plaintiff,

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No. 2:15-cv-01375-TLN-CDK

v.

ORDER

JEFFERY BEARD, et al.,
Defendants.

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This matter is before the Court pursuant to Plaintiff Carlos Kinkeade’s (“Plaintiff”)

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“Objection to Order by Magistrate Judge.” (ECF No. 66.) Defendant A. Oddie has filed a

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response. (ECF No. 67.) The Court has carefully considered the arguments raised by the parties.

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For the reasons set forth below, Plaintiff’s objections are OVERRULLED.

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I.

INTRODUCTION

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This is a prisoner civil rights action. Plaintiff is represented by counsel. The matter

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before the Court arises in connection with the not-yet-taken deposition of Defendant Oddie. (See

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ECF No. 66 at 1.) In particular, Plaintiff’s counsel wishes to operate the video camera used to

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videotape this deposition rather than hiring a videographer. (ECF No. 66 at 1.) The notice for

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that deposition indicated “[t]he testimony will recorded [sic] stenographically and by audio and/or

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video for use at trial.” (ECF No. 66-1 at 5.) On June 6, 2017, Magistrate Judge Delaney

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conducted a telephone conference with Plaintiff’s counsel and Defendant’s counsel “in order to
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resolve a discovery dispute concerning plaintiff’s counsel’s use of a video camera during

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defendant’s deposition.” (ECF No. 65 at 1.) After the conclusion of this teleconference,

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Magistrate Judge Delaney denied “plaintiff’s counsel’s request to use a personal video camera

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during the defendant’s deposition pursuant to Fed. R. Civ. P. 30(b)(3).” (ECF No. 65 at 2.)

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Plaintiff filed his objections pursuant to Fed. R. Civ. P. 72(a). (ECF No. 66 at 3.)

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II.

STANDARD OF REVIEW

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A party may object to a non-dispositive pretrial order of a magistrate judge within

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fourteen days after service of the order. See Fed. R. Civ. P. 72(a). The magistrate judge’s order

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will be upheld unless it is “clearly erroneous or contrary to law.” Id.; 28 U.S.C. § 636(b)(1)(A).

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The objecting party has the burden of showing that the magistrate judge’s ruling is clearly

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erroneous or contrary to law. In re eBay Seller Antitrust Litig., No. C 07-1882 JF (RS), 2009 WL

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3613511, at *1 (N.D. Cal. Oct. 28, 2009); Winz-Byone v. Metro. Life Ins. Co., No. EDCV 07-238-

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VAP (OPx), 2007 WL 4276751, at *1 (C.D. Cal. Nov. 16, 2007).

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“The ‘clearly erroneous’ standard applies to factual findings and discretionary decisions

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made in connection with non-dispositive pretrial discovery matters.” F.D.I.C. v. Fid. & Deposit

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Co. of Maryland, 196 F.R.D. 375, 378 (S.D. Cal. 2000). “Under the ‘clearly erroneous’ standard,

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‘the district court can overturn the magistrate judge’s ruling only if the district court is left with

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the definite and firm conviction that a mistake has been made.’” Id. (quoting Computer

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Economics, Inc. v. Gartner Group, Inc., 50 F. Supp. 2d 980, 983 (S.D. Cal. 1999).

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“The magistrate’s legal conclusions are reviewed de novo to determine whether they are

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contrary to law.” E.E.O.C. v. Peters’ Bakery, 301 F.R.D. 482, 484 (N.D. Cal. 2014). “An order

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is ‘contrary to law’ when it fails to apply or misapplies relevant statutes, case law, or rules of

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procedure.” Calderon v. Experian Info. Sols., Inc., 290 F.R.D. 508, 511 (D. Idaho 2013).

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However, “a magistrate judge’s decision is contrary to law only where it runs counter to

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controlling authority.” Pall Corp. v. Entegris, Inc., 655 F. Supp. 2d 169, 172 (E.D.N.Y. 2008).

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Consequently, “a magistrate judge’s order simply cannot be contrary to law when the law itself is

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unsettled.” Id.

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III.

ANALYSIS

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Plaintiff has not met his burden of showing that the magistrate judge’s ruling is clearly

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erroneous or contrary to law. Magistrate Judge Delaney’s order indicates that she precluded

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Plaintiff’s counsel from being the camera operator after considering the following two concerns:

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(i) the admissibility of the videotape at trial; and (ii) the “potential cost savings cited by plaintiff’s

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counsel.” (ECF No. 65 at 1.)

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Plaintiff contends that “[t]he trend in jurisprudence under the Federal Rules of Civil

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Procedure is to permit experimentation with videotaped depositions allowing counsel to operate

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the camera.” (ECF No. 66 at 6 (emphasis added).) Even if such a trend exists, it does not compel

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such a result here. None of the cases Plaintiff cites stand for that proposition. Moreover, even if

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they had, none of them are binding on this Court. Consequently, failure to follow them would

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not render Magistrate Judge Delaney’s ruling contrary to law. Pall Corp., 655 F. Supp. 2d at 172.

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After having reviewed Plaintiff’s submissions and the authorities cited in them, the Court finds

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Plaintiff has not demonstrated that Magistrate Judge Delaney’s ultimate conclusion, the analysis

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underlying it, or the consideration of these two factors was clearly erroneous or contrary to law.

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One other point warrants brief mention. Plaintiff raises the specter of “procedural

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irregularities in the conduct of the telephone conference” without coherently explaining why this

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entitles him to relief under Rule 72(a). (ECF No. 66 at 7–8.) Plaintiff fails to show Magistrate

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Judge Delaney did anything improper in hearing Defendant’s objection or ruling on it. Moreover,

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Plaintiff has not demonstrated that any of these “irregularities” rendered her ruling clearly

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erroneous or contrary law. Thus, Plaintiff has not carried his burden under Rule 72(a).

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IV.

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For the reasons set forth above, Plaintiff’s objection is OVERRULED.

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IT IS SO ORDERED.

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CONCLUSION

Dated: June 29, 2017

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Troy L. Nunley
United States District Judge

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