Morrow et al v. City of San Diego, et al

Filing 140

ORDER granting in part and denying in part 136 Motion to Compel Depositions of Plaintiffs, for Costs of Motion, and Request for Protective Order Barring Depositions. Court grants defendant's request for compelling plaintiffs to appear for dep ositions. Plaintiffs' request for a protective order precluding their depositions is denied. Plaintiffs shall make themselves available for their depositions within 30 days of the date this Order is filed. Defendant's request for monetary sanctions is denied as this time. Signed by Magistrate Judge Karen S. Crawford on 3/24/2017. (jah)

1
2

3
4

5

6
7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11
12

FLOYD L. MORROW and MARLENE
MORROW,

13
14
15
16
17
18

Plaintiffs,
v.
CITY OF SAN DIEGO, et al.,
Defendants.

Case No.: 1 lcv1497-BAS(KSC)
ORDER GRANTING DEFENDANT'S
REQUEST FOR AN ORDER
COMPELLING PLAINTIFFS TO
APPEAR FOR DEPOSITIONS;
ORDER DENYING PLAINTIFFS'
REQUEST FOR A PROTECTIVE
ORDER PRECLUDING
DEFENDANT FROM TAKING
THEIR DEPOSITIONS

19

20

[Doc. No. 136.]

21
22

Before the Court is a Joint Motion filed by the parties requesting that the Court

23

resolve a discovery dispute as to whether plaintiffs should be required to appear for

24

depositions noticed by defendant. [Doc. No. 136, at p. I.] Defendant wants to take

25

plaintiffs' depositions to question them about the facts supporting their one remaining

26

claim alleging violations of their constitutional rights to equal protection. Plaintiffs

27

argue that the Court should issue a protective order preventing defendant from taking

28

their depositions, arguing that defendant has already completed enough discovery. [Doc.
1 lcv1497-BAS(KSC)

1

No. 136, at p. l .] For the reasons outlined below, the Court finds that defendant's

2

request for an order compelling plaintiffs to appear for their depositions must be

3

GRANTED and plaintiffs' request for a protective order precluding their depositions

4

must be DENIED.

5
6

Background
After a lengthy procedural history that is set forth in the parties' Joint Motion, the

7

only remaining claim is the second cause of action in the Fourth Amended Complaint.

8

The second cause of action is filed pursuant to Section 1983 and alleges violations of

9

plaintiffs' constitutional rights to equal protection. [Doc. No. 132, at p. 3; Doc. No. 136,

10

atp. 2, 8-9; Doc. No. 47, at pp. 27-30.] Essentially, the second cause of action alleges

11

that defendant's code enforcement practices unconstitutionally targeted and cited

12

plaintiffs for having a manufactured home on their property. [Doc. No. 136, at p. 4.]

13

Discussion

14

Federal Rule of Civil Procedure 26 provides as follows: "Parties may obtain

15

discovery regarding any nonprivileged matter that is relevant to any party's claim or

16

defense and proportional to the needs of the case, considering the importance of the

17

issues at stake in the action, the amount in controversy, the parties' relative access to

18

relevant information, the parties' resources, the importance of the discovery in resolving

19

the issues, and whether the burden or expense of the proposed discovery outweighs its

20

likely benefit. Information within this scope of discovery need not be admissible in

21

evidence to be discoverable." Fed.R.Civ.P. 26(b)(l). "On motion or on its own, the

22

court must limit the frequency or extent of discovery otherwise allowed by these rules or

23

by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or

24

duplicative, or can be obtained from some other source that is more convenient, less

25

burdensome, or less expensive; (ii) the party seeking discovery has had ample

26

opportunity to obtain the information by discovery in the action; or (iii) the proposed

27

discovery is outside the scope permitted by Rule 26(b)(l)." Fed.R.Civ.P. 26(b)(2)(C).

28
2
l lcvl497-BAS(KSC)

1

Under Federal Rule of Civil Procedure 30(a)(l), "[a] party may, by oral questions,

2

depose any person, including a party, without leave of court ...." Fed.R.Civ.P.

3

30(a)(l) (emphasis added). Defendant has represented that it wants to depose plaintiffs

4

regarding the facts supporting their allegations in the remaining second cause of action

5

claiming a violation of their constitutional rights to equal protection. [Doc. No. 136, at

6

p. 4-5.] Defendant served plaintiffs with deposition notices, but they objected, declined

7

to appear, and indicated they intended to request a protective order. [Doc. No. 136, at

8

p. 3.]

9

Plaintiffs argue that a protective order precluding their depositions is necessary to

10

protect their rights to privacy, because defendant has already violated their privacy, as

11

alleged in the Fourth Amended Complaint, so depositions would only be a further

12

intrusion by the government. [Doc. No. 136, at p. 7.] Plaintiffs also claim it would be

13

disproportional to the needs of the case if they are required to appear for their

14

depositions. Specifically, they claim they have already "been subjected to more than

15

three hundred (300) written discovery requests," so "[i]t is difficult if not impossible to

16

imagine what else [defendant] could possibly need from [plaintiffs] that it does not

17

already have access to." [Doc. No. 136, at p. 7.]
As set forth above, defendant is entitled under Federal Rules of Civil Procedure

18

19

26(b )( 1) and 3 0( a)( 1) to take plaintiffs' depositions to question them about the facts

20

supporting their remaining cause of action alleging violations of their constitutional right

21

to equal protection. Having to sit for depositions in a case they filed is not overly

22

burdensome or a violation of their privacy. Although plaintiffs allege that defendant has

23

already pursued enough written discovery to prepare a defense, there is nothing to

24

indicate defendant has previously taken plaintiffs' depositions. Therefore, the Court

25

finds that defendant is entitled to an order compelling plaintiffs to appear for their

26

depositions.

27

III

28

III
3

I lcvl497-BAS(KSC)

Conclusion

1

2

Based on the foregoing, IT IS HEREBY ORDERED that defendant's request for

3

an order compelling plaintiffs to appear for their depositions is GRANTED. Plaintiffs'

4

request for a protective order precluding their depositions is DENIED. Plaintiffs shall

5

make themselves available for their depositions within 30 days of the date this Order is

6

filed. Plaintiffs counsel shall meet and confer with defense counsel to reach mutually

7

convenient dates for plaintiffs' depositions. Defendant's request for monetary sanctions

8

is DENIED at this time.

9

Plaintiffs are forewarned that sanctions may be imposed against them under

10

Federal Rule of Civil Procedure 37 ifthey fail to comply with this Order to appear {or

11

their depositions. Sanctions under Rule 37 may include the dismissal of this action.

12
13

IT IS SO ORDERED.
Dated: March

21'._, 2017

14
15

United States Magistrate Judge

16
17
18
19

20
21
22
23

24
25
26
27
28
4

l lcv1497-BAS(KSC)