Heyward v. Hayward Police Department et al

Filing 75


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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 MARCO B. HEYWARD, 7 Case No. 15-cv-04802-JCS Plaintiff, 8 v. 9 HAYWARD POLICE DEPARTMENT, et al., 11 United States District Court Northern District of California 10 Defendants. Re: Dkt. Nos. 69, 72 12 13 ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PROTECTIVE ORDER, GRANTING IN PART MOTION TO EXTEND DISCOVERY DEADLINE, AND APPOINTING COUNSEL/GUARDIAN AD LITEM FOR DEPOSITION OF M.H. I. INTRODUCTION Defendants have twice noticed for deposition Plaintiff’s wife, Marina Gonzales, and his 14 15 minor son, M.H.1 Neither appeared at the depositions, and Plaintiff brings a motion seeking a 16 protective order prohibiting their depositions. See Dkt. No. 69 (“Protective Order Motion”). 17 Defendants oppose Plaintiff’s motion and seek an order compelling Ms. Gonzales and M.H. to 18 appear for deposition. They also ask the Court to extend the discovery cut-off to allow them to 19 depose these two witnesses. See Dkt. No. 72 (“Discovery Deadline Motion”). The parties have 20 consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c). 21 For the reasons stated below, the Protective Order Motion is GRANTED in part and DENIED in 22 part. The Discovery Deadline Motion is GRANTED in part. The Court finds that the motions are 23 suitable for determination without oral argument and therefore vacates the motion hearing set for 24 May 5, 2017.2 25 1 26 27 28 Pursuant to Rule 5.2(a) of the Federal Rules of Civil Procedure, references to an individual who is known to be a minor in an electronic or paper filing with the Court may not use the minor’s full name. Consistent with that rule, the Court uses the initials M.H. The parties did not adhere to Rule 5.2(a) in their motion papers. The Court cautions the parties that it is improper to refer to Plaintiff’s son in their pleadings by his full name. 2 The Court notes that although the face page of Defendants’ Discovery Deadline Motion purports 1 2 II. DISCUSSION Plaintiff contends the Court should not permit Defendants to depose his wife or minor son 3 because such depositions are not reasonably calculated to lead to discoverable information. 4 Plaintiff testified at his deposition, however, that he had discussed this case with his wife, and that 5 his son’s description of the underlying events (to which he was a witness) is “very crucial” to the 6 case. See Dkt. No. 71-1 (Heyward Depo.) at 64, 246. Accordingly, the Court rejects Plaintiff’s 7 request for a protective order. 8 9 Nonetheless, because Plaintiff’s son is a minor, it is the Court’s obligation under Rule 17 of the Federal Rules of Civil Procedure to protect his interests. See Fed.R.Civ.P. 17(c)(“ The court must appoint a guardian ad litem--or issue another appropriate order--to protect a minor or 11 United States District Court Northern District of California 10 incompetent person who is unrepresented in an action.”). The Court finds that the interests of 12 M.H. can be adequately protected by appointing counsel to prepare for and defend his deposition. 13 Because M.H. is in need of counsel to assist him in this matter and volunteer counsel is willing to 14 be appointed to undertake this representation at the request of the Federal Pro Bono Project, Ms. 15 Ana Gardea and Ms. Karen Silverman are hereby appointed as counsel for M.H. in this matter. 16 Appointed counsel will also serve as guardian ad litem for M.H. in connection with the deposition. 17 Ms. Gardea and Ms. Silverman are appointed for the limited purpose of preparing for deposition 18 and representing M.H. at the deposition. The deposition of M.H. shall not exceed two hours in 19 length and will be conducted outside of school hours if possible. Subject to these conditions, the 20 Court orders Marina Gonzales and M.H. to appear for depositions, to occur no later than May 12, 21 2017. Further, the Court GRANTS in part Defendants’ request that the discovery cut-off be 22 extended and therefore extends that deadline to May 12, 2017, solely for the purposes of 23 permitting Defendants to depose Ms. Gonzales and M.H.3 24 25 26 27 28 to notice that motion for hearing on May 5, 2017, the motion was filed improperly through the Court’s electronic filing system and therefore, no motion was placed on the Court’s calendar. Nonetheless, the Court formally vacates the May 5 hearing out of an abundance of caution in order to avoid any potential confusion on the part of the parties. 3 The Court notes that Defendants state in their Opposition to Plaintiff’s Protective Order Motion at page 3 that the deadline for filing dispositive motions is May 11, 2017. Defendants are incorrect. Pursuant to the Court’s scheduling order, all briefing on dispositive motions must be completed four weeks before the June 16, 2017 hearing date, that is, by May 19, 2017. See Dkt. 2 1 III. CONCLUSION For the reasons stated above, the Motion for Protective Order is DENIED except to the 2 3 extent that M.H. will be represented at his deposition by Court-appointed counsel, who will also 4 serve as guardian ad litem in connection with the deposition, and his deposition will be limited to 5 two (2) hours. The Discovery Deadline Motion is GRANTED in part to the extent that the Court 6 extends the discovery cut-off to May 12, 2017 with respect to the completion of the depositions of 7 M.H. and Marina Gonzales only. The Court appoints Ms. Ana Gardea and Ms. Karen Silverman 8 to serve as counsel and guardian ad litem to M.H. in connection with his deposition, as discussed 9 above. 10 IT IS SO ORDERED. United States District Court Northern District of California 11 12 Dated: April 27, 2017 13 14 15 ______________________________________ JOSEPH C. SPERO Chief Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 No. 29 at 2-3. The parties were instructed to meet and confer and submit a stipulation with briefing dates that would meet that deadline but have not done so. The Court will address any scheduling issues that may result from the delay in deposing M.H. and Ms. Gonzales in a separate order if the parties wish to seek relief from these deadlines through motion practice. 3

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