Storz Management Company et al v. Carey et al

Filing 125

ORDER signed by Magistrate Judge Deborah Barnes on 2/14/2020 GRANTING defendants' 116 Motion to Compel. Plaintiffs shall produce James Pierini for a continued deposition within 28 of the date of this order. (York, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STORZ MANAGEMENT COMPANY, a
California Corporation, and STORZ
REALTY, INC.,
Plaintiffs,

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No. 2:18-cv-0068 TLN DB

ORDER

v.
ANDREW CAREY, an individual, and
MARK WEINER, an individual,

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Defendants.

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This action came before the undersigned on February 14, 2020, for hearing of defendants’

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motion to compel. (ECF No. 116.) Attorney James Kachmar appeared on behalf of the

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defendants. No appearance was made on behalf of the plaintiffs.

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According to the parties’ joint statement, at the December 18, 2018 deposition of

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plaintiffs’ PMK James Pierini, plaintiffs’ attorney instructed Pierini not to answer several

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questions based on the objection that the question called for a legal conclusion. (ECF No. 122 at

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6-7.) “[A]ny time that a lawyer instructs a deponent not to answer a question except as

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authorized by Rules 30(d)(1) or 30(d)(3) the instruction is presumptively improper.” Boyd v.

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University of Maryland Medical System, 173 F.R.D. 143, 147 (D. Md. 1997). “Under the plain

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language of Fed. R. Civ. P. 30(d)(1), counsel may instruct a deponent not to answer only when
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necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to

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suspend a deposition in order to present a motion under Fed. R. Civ. P. 30(d)(3).” Resolution

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Trust Corp. v. Dabney, 73 F.3d 262, 266 (10th Cir. 1995); see also Redwood v. Dobson, 476 F.3d

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462, 468 (7th Cir. 2007) (“A person may instruct a deponent not to answer only when necessary

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to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under

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Rule 30(d)(4).”); Ralston Purina Co. v. McFarland, 550 F.2d 967, 973-74 (4th Cir. 1977) (“If

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plaintiff’s counsel had any objection to the questions, under Rule 30(c) he should have placed it

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on the record and the evidence would have been taken subject to such objection. If counsel felt

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that the discovery procedures were being conducted in bad faith or abused in any manner, the

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appropriate action was to present the matter to the court by motion under Rule 30(d).”).

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In this regard, “[t]he remedy for oppressive, annoying and improper deposition

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questioning is not simply to instruct a witness not to answer. Rather, it requires suspending the

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deposition and filing a motion under Rule 30(d)(3). Simply put, there are very few circumstances

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in which an instruction not to answer a deposition question is appropriate.” Brincko v. Rio

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Properties, Inc., 278 F.R.D. 576, 581 (D. Nev. 2011). Here, plaintiffs do not argue that they

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instructed the witness not to answer to preserve a privilege, enforce a limitation directed by the

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court, or to present a motion to the court.

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Accordingly, upon consideration of the arguments on file, those made at the hearing,

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plaintiffs’ counsel’s failure to appear, and for the reasons set forth above and on the record at the

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February 14, 2020 hearing, IT IS HEREBY ORDERED that:

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1. Defendants’ December 31, 2019 motion to compel (ECF No. 116) is granted; and

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2. Plaintiffs shall produce James Pierini for a continued deposition within twenty-eight

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days of the date of this order.

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Dated: February 14, 2020

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DLB:6
DB\orders\orders.civil\storz0068.oah.021420

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