Berndt et al v. California Department of Corrections et al

Filing 588

ORDER GRANTING MOTION TO RESUME DEPOSITION AND GRANTING IN PARTY AND DENYING IN PART MOTION FOR SANCTIONS re 585 Letter, filed by Sophia Curry. Signed by Judge Joseph C. Spero on 10/7/13. (klhS, COURT STAFF) (Filed on 10/7/2013)

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARTHA BERNDT, et al., Case No. 03-cv-03174-PJH (JCS) Plaintiffs, 8 v. 9 10 United States District Court Northern District of California 11 12 CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Defendants. ORDER GRANTING MOTION TO RESUME DEPOSITION AND GRANTING IN PART AND DENYING IN PART MOTION FOR SANCTIONS Re: Dkt. No. 585 The parties filed a joint letter dated October 4, 2013 in which Plaintiffs seek an order 13 compelling the resumption of the deposition of witness John Zuber (“Zuber”) and sanctions, and 14 Defendants seek termination of the same deposition and sanctions (the “Motion”). 15 In summary, Plaintiffs questioned Zuber about events surrounding the injury sustained by 16 one of the plaintiffs at the hands of an inmate. Zuber was questioned about those events, including 17 conversations among staff about the injuries to plaintiff and other aspects of the incident. Dkt 585- 18 2 at 7-10. Although Zuber had seen the injuries to the plaintiff in question as he passed her just 19 after the incident, he could not recall what was specifically said at the discussion right after the 20 incident. Id. at 14 (“I don’t recall what was said”). In an effort to refresh the witnesses’ 21 recollection, counsel for Plaintiffs asked many questions about the discussions, and then showed 22 Zuber photographs of the injuries involved. Counsel for Defendants then objected, and indicated 23 24 25 26 27 28 that he would seek a protective order for harassment. Plaintiffs’ counsel agreed that the parties should seek court intervention, but Defense counsel declined to try to get the court on the phone over a lunch break. After a short break, Defense counsel terminated the deposition to seek a protective order from the Court pursuant to Rule 30(d)(3). Termination of the deposition is not justified. The questions by Plaintiffs’ counsel, while upsetting, were relevant to the claims in this case. Plaintiffs’ counsel was not harassing the 1 witness. Moreover, the deposition was far from complete when the deposition was terminated: it 2 had lasted only from approximately 10:30 a.m. to 1 p.m. Finally, there was a less costly step that 3 could have been taken by defense counsel: get the court on the phone. The Court makes an effort 4 to make itself available. If that effort had been unsuccessful, then, in a proper case, a suspension 5 of the deposition and a motion to terminate could be pursued. However, even though Plaintiffs’ 6 counsel indicated that she would call the court over the lunch hour, Defense counsel returned from 7 the lunch break and indicated that he was terminating the deposition. In any event, there are no 8 grounds to terminate the deposition. Id. at 14. The Motion to terminate the deposition is DENIED. 9 Rule 37(a)(5) applies to this matter and provides that where a motion to compel discovery 10 is granted, the court must require the opposing side to pay the reasonable expenses of making the United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 motion, including attorney’s fees, unless the non-disclosure was substantially justified or other circumstances make an award unjust. Here, Defendants must pay the costs and fees incurred in filing the joint letter. Plaintiffs have moved to compel the resumption of Zuber’s deposition, and the Court GRANTS that motion. The parties shall meet and confer and agree upon a date in the month of October for the completion of that deposition. Defendants were not substantially justified in opposing resumption of the deposition, or in seeking to terminate the deposition. Accordingly, Defendants are ORDERED to pay (1) the reasonable attorney’s fees of Plaintiffs’ counsel in connection with the Motion, which the Court determines are $1000.00; and (2) the cost of the court reporter from the first day of the deposition, which is $494.50. These amounts shall be paid to Plaintiffs’ counsel 20 within seven (7) days. 21 The Court also ORDERS that the resumed deposition of Zuber shall take place in Oakland 22 23 24 25 26 27 at Plaintiffs’ counsel’s office. This will avoid the need for Plaintiffs’ counsel to incur duplicative travel expenses that might have otherwise have been caused by the termination of the deposition. Accordingly, the Court declines to order payment of the travel costs of Plaintiffs’ counsel, which would have had to be incurred even if the deposition had continued on the original date. The Court also declines to order payment of attorney’s fees and court reporter costs of the second day of deposition -- since presumably one court reporter fee would have been incurred even if the 28 2 1 termination of the deposition had never occurred, and this order requires reimbursement of the 2 first day’s court reporter expense. Similarly, Plaintiffs’ counsel would still have had to ask 3 question had the deposition continued on the first day -- incurring attorney’s fees. Those 4 questions may now be asked at the second day. 5 6 7 8 9 IT IS SO ORDERED. Dated: October 7, 2013 ____________________________ JOSEPH C. SPERO United States Magistrate Judge 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?