Lainez v. Salinas City et al

Filing 51

Order on 36 Discovery Dispute Joint Report 1 by Magistrate Judge Howard R. Lloyd. (hrllc1S, COURT STAFF) (Filed on 4/29/2016)

E-Filed 4/29/16

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALBERTO LAINEZ, et al.,
Plaintiffs,

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United States District Court
Northern District of California

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Case No. 14-cv-04311-EJD (HRL)
ORDER ON DISCOVERY DISPUTE
JOINT REPORT 1

v.

Re: Dkt. No. 36

CITY OF SALINAS, et al.,
Defendants.

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Plaintiffs Alberto Lainez and Lidia Guardado Mejia (“Plaintiffs”) claim in this wrongful-

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death case that members of the Salinas Police Department unlawfully shot and killed their son.

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Defendants Kelly McMillin, Derek Gibson, George Lauricella, and the City of Salinas

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(“Defendants”) answer that any force the police used was “reasonable and necessary under the

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circumstances[.]” Dkt. No. 8 at 10.

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The parties dispute whether Plaintiffs should be deposed in the Northern District of

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California. Plaintiffs assert they cannot legally attend depositions in the United States because

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they lack, and cannot feasibly obtain, temporary visas that would authorize them to travel.

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Defendants respond: (1) it is presumptively proper to require a plaintiff to appear for a deposition

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in the district where the plaintiff filed suit; (2) remote depositions would be ineffective and would

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allow opposing counsel to coach Plaintiffs; (3) traveling to El Salvador for face-to-face

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depositions would be too dangerous for Defendants’ counsel; and (4) Plaintiffs could strengthen

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future visa applications with the aid of the court.

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The parties were unable to resolve their dispute; they therefore sought judicial intervention
by filing Discovery Dispute Joint Report 1. Dkt. No. 36.
Discussion
Plaintiffs ask the court to order that their “[d]epositions be taken via videoconference . . .

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and that this video testimony can be used at trial.” Dkt. No. 36 at 6. Defendants ask this court to

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instead “test[]” a “process” which might result in the issuance of visas: (1) the court would order

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that Plaintiffs’ case shall be dismissed if they receive visas and then fail to return to El Salvador in

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accord with the terms of those visas; (2) Plaintiffs would then apply for visas with the court’s

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order proffered to support their applications; and (3) Plaintiffs’ counsel would also post a

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monetary bond that would be forfeit if Plaintiffs failed to comply with the terms of the visas. Dkt.

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No. 36 at 8-9.
The parties agree it is presumptively proper to require a plaintiff to attend a noticed

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deposition in the forum where he has filed suit. See 8A Fed. Prac. & Proc. Civ. § 2112 (3d ed.).

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Defendants argue that Plaintiffs have not justified a departure from this presumption because mere

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United States District Court
Northern District of California

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“inconvenience or expense” is not a “legitimate” justification. Dkt. No. 36 at 7 (quoting United

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States v. Rock Springs Vista Dev., 185 F.R.D. 603, 604 (D. Nev. 1999)). Plaintiffs respond that

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the “impossibility” of obtaining visas provides a legitimate justification that goes beyond mere

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inconvenience or expense—Plaintiffs’ counsel asserts that visa applicants must show they can

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afford the costs of their intended journeys, but that her clients are too impoverished to prove they

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could afford to travel to and from depositions in the United States. Dkt. No. 36 at 3-5.

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The undersigned is not convinced that it would be impossible for Plaintiffs to obtain visas

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for the purpose of participating in this case.

Defendants raise a fair point: if future visa

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applications would probably be denied due to Plaintiffs’ inability to afford the costs of travel, and

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given that Plaintiffs’ counsel have previously expressed a willingness to pay “the cost of all

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counsel traveling to El Salvador” for the depositions, then why have Plaintiffs’ counsel not

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attempted to support new visa applications with, for instance, a declaration that states they would

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pay the travel costs of their clients? Dkt. No. 36 at 9.

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The information before the court nevertheless persuades the undersigned that Plaintiffs

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currently lack visas and that one of Plaintiffs applied fairly recently for a visa, but the application

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was denied.

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justification, beyond mere inconvenience or expense, for the court to excuse Plaintiffs from

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attending depositions in this district—Plaintiffs could not legally attend any such depositions at

The undersigned is therefore satisfied that Plaintiffs have shown a legitimate

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this time and it is plausible, if not certain, that future visa applications would be rejected.

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Defendants also argue Plaintiffs have “the burden of showing that foreign law prohibits

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their compliance with the Federal Rules[.]” Dkt. No. 36 at 8 (citing St. Jude Medical S.C., Inc. v.

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Janssen-Counotte, 104 F. Supp. 3d 1150, 1151 (D. Or. 2015)). Defendants misread the opinion

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they rely upon for this proposition. That opinion ruled that foreign law may sometimes justify

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failure to comply with a discovery order if the person who failed to comply with the order shows

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that a foreign law “prohibits” the ordered “disclosure[.]” Janssen-Counotte, 104 F. Supp. 3d at

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1154.

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Defendants’ citation is not pertinent here.

The question before this court is not whether to enforce a violated discovery order;

The undersigned is also not persuaded by either the argument that remote depositions

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United States District Court
Northern District of California

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would be ineffective or the argument that remote depositions might lead to gamesmanship. Dkt.

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No. 36 at 8-9.

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depositions—a better opportunity to evaluate non-verbal reactions, for example—but this court

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has repeatedly recognized that videoconference depositions nevertheless “tend to be effective and

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efficient[.]” E.g., Lopez v. CIT Bank, N.A., 15-cv-00759-BLF-HRL, 2015 WL 10374104, at *2

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(N.D. Cal. Dec. 18, 2015) (collecting cases). This court therefore has a policy of “liberally”

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granting leave to hold remote depositions. Id. Plaintiffs presently lack necessary visas and one of

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them had a visa application denied relatively recently. Dkt. No. 36 at 2-3. Plaintiffs also assert

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their lawyer would be “in frame” during any videoconference depositions so that Defendants’

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lawyer can verify no “coaching” occurs. Dkt. No. 36 at 6. The undersigned therefore rejects

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Defendants’ concerns about coaching as speculative and finds good cause to permit the remote

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depositions of Plaintiffs.

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ineffectiveness of remote depositions and the possibility of gamesmanship, then they retain both

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the option of sending a lawyer into El Salvador and the option of hiring local counsel.

The undersigned appreciates the comparative advantages of face-to-face

If Defendants remain deeply concerned about the possible

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It would be procedurally improper, however, for the undersigned to rule in the context of a

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discovery dispute on whether evidence may be used at trial. The undersigned therefore rejects

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Plaintiffs’ request for a ruling on whether Plaintiffs’ deposition testimony would be usable at trial

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in lieu of live testimony.
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Conclusion

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Plaintiffs have shown good cause to justify the taking of Plaintiffs’ depositions by

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videoconference. Defendants may elect instead to take in-person depositions within El Salvador,

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but the court will not require Plaintiffs to attend noticed depositions in this district.

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undersigned encourages the parties to stipulate promptly to the issuance of proposed letters

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rogatory under Federal Rule of Civil Procedure 28(b) if any such letters will be necessary. It

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would be procedurally improper for the court to rule at this time on whether Plaintiffs’ deposition

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testimony would be usable at trial in lieu of live testimony.

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IT IS SO ORDERED.
Dated: 4/29/16

United States District Court
Northern District of California

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HOWARD R. LLOYD
United States Magistrate Judge

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The