Spies et al v. El Dorado County et al

Filing 131

ORDER signed by Magistrate Judge Gregory G. Hollows on 7/24/2018 DENYING 111 Motion to Amend the Complaint. (Washington, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LAWRENCE SPIES, SR., et al.,

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Plaintiffs,

No. 2:16-cv-02232-WBS-GGH
ORDER

v.
EL DORADO COUNTY, et al.,
Defendants.

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Plaintiff’s Motion to Amend the Pretrial Scheduling Order to permit a 30(b)(6) deposition

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to be taken of defendant Marshall Medical Center was heard on the court’s regular law and

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motion calendar. Plaintiff was represented by attorney Stewart Katz and responding defendant

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was represented by attorneys Kat Todd and Chad Cochet.

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Plaintiff sought to depose the Medical Center (again) regarding the handling of decedent

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Lawrence Spies, Sr.’s pre-incarceration medical examination, and sought documents said to be

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relevant to that examination including any guidelines available at the Medical Center for use by a

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physician examining a potential incarceree such as Mr. Spies. The joint statement of the parties

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outlining the issues and letters exchanged by the parties relevant to the dispute regarding that

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requested examination indicated that the Medical Center had been previously deposed pursuant to

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Federal Rule of Civil Procedure 30(b)(6). Second depositions of the same deponent are generally
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precluded by the Federal Rules. Fed. R. Civ. P. 30(b)(2)(A)(ii).

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Specifically, at issue was a form allowing an examining physician to utilize to document a

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conclusion about a patient’s fitness for incarceration with a short box for comments, if any. See

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ECF No. 111.2. Plaintiff previously took the deposition of hospital personnel who testified that

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the hospital does not possess such forms. Plaintiff has demonstrated that with respect to a

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previous incarceration of Mr. Spies, the form in question was utilized by an examining physician

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at Marshall Medical Center, although it is not clear whether the form was extant in the hospital, or

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whether it was brought to an examination by law enforcement personnel. Plaintiff believes,

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therefore, that the hospital personnel “lied” about use of the form. Plaintiff at first argued that the

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materiality of a new, “corporate” deposition would be simply its use for impeachment purposes.

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Later, plaintiff argued that the existence of the form might give rise to discovery of hospital

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“policies” governing use of the form, and hopefully (from plaintiff’s viewpoint) give rise to

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conduct inconsistent with the policies. However, there is no evidence that any such policies exist;

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plaintiff merely speculates that such might be in existence.

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Plaintiff first argued that the second Rule 30(b)(6) was permitted because defendant had

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stipulated to the second deposition. Fed. R. Civ. P. 30(a)(1). However, plaintiff’s reference to a

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communication between counsel, ECF No. 111.3, tentatively discussing scheduling a [second]

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Rule 30(b)(6) deposition, is too tentative and ambiguous to constitute a stipulation. While the

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undersigned does not believe that a formal “it is so ordered” stipulation is necessary in order for

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the stipulation provision of Rule 30 (a)(1) to be effective, something more than initial discussions

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regarding the possible scheduling of a deposition are necessary before a “stipulation” comes into

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effect.

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Next, the parties dispute whether an entity is a “person” in determining whether the

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prohibition against second depositions comes into effect. Plaintiff asserts that the Rule 30 (a)’s

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use of “person” and not entity, negates the need for court approval for a second deposition of a

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corporate entity. Although Rule 30(a)(1) uses the term “person” in setting forth the general rule

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of allowing depositions without leave of court, the exceptions to the general rule -- here the

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prohibition against taking a second (or third, or fourth) deposition of the same deponent without
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leave of court -- Rule 30(a)(2)(A)(ii) uses the term “deponent” and not “person.” Plaintiff’s

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grammatical argument loses much of its force when actually reviewing the varying words used.

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Nor would much of the remainder of Rule 30 make sense if only natural persons were being

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referenced. For example, Rule 30(b)(1) requires a formal “notice” if a party desires to depose a

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“person.” Plaintiff would have one believe that no notice is therefore required for a corporate

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deponent because they are not “persons.” Further, Rule 30(a) allows noticing a deposition of a

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“person” without leave of court subject to exceptions set forth in subsection (2). If plaintiff’s

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interpretation were correct, all organization entity depositions could never proceed except with

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leave of court because, as the argument goes, entities are not “persons.” Clearly, however,

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corporate or entity depositions can be noticed without leave of court subject to the same

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exceptions applicable to “persons.” The undersigned finds the cases cited by defendant, In re

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Sulfuric Acid Antitrust Litigation, 2005 WL 1994105 at *3 (N.D. Ill. 2005) and State Farm Mut.

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Auto. Ins. Co. v. New Horizon, Inc., 254 F.R.D. 227, 235 (E.D. Pa. 2008), to be more persuasive

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than plaintiff’s cited contrary cases.1

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The court sought to determine the materiality of the information to be developed at the

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deposition if permission were given to proceed with it, but plaintiff’s counsel was unable to

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articulate any basis beyond a potential to develop impeachment evidence, or a desire to obtain

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policies, if they exist at all, regarding use of the form. These representations were insufficiently

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convincing to the court insofar as they appeared to be based on a slim hope rather than a realistic

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possibility much less a likelihood. If the form at issue required more than a mere conclusion, i.e.,

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it was some sort of checklist of attributes useful to determine the fitness for and the propriety of

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incarcerating a person, there might have been good reason to require this second deposition.

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However, the form, much like a general discharge form, only asked for the physician’s ultimate

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fitness conclusion with a small box for optional comments. The speculative, doubtful possibility

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that substantive policies exist about use of a conclusionary form (one which appears to be law

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The issue here is different from whether plaintiff could notice a Rule 30(b)(6) deposition on
several issues, even if more than one person would be designated to testify. The noticed
deposition here would be a second corporate deposition after the first deposition, on whatever
issues, had been terminated.
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enforcement generated) does not weigh in favor of scheduling a second deposition. Ultimately,

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plaintiff was left to argue for a deposition on the mere possibility that the previous corporate

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deponent may have been incorrect about the hospital’s possession of the form—quintessential

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impeachment on a collateral matter.

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In light of the foregoing IT IS HEREBY ORDERED that:

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Plaintiff’s Motion to Amend the Scheduling Order and to Compel further

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discovery responses in the form of document production and testimony pursuant to Federal Rule

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30(b)(6) is DENIED.

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Dated: July 24, 2018

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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