v. San Diego Unified Port District et al

Filing 60

ORDER granting 56 Plaintiff's Ex Parte MOTION to Bar Separate Videotaping of Deposing Attorney at Depositions Set for August 28-31, 2017. Signed by Magistrate Judge Mitchell D. Dembin on 8/25/17. (Dembin, Mitchell)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

8
9
10
11
12
13
14
15
16

SAN DIEGO UNIFIED PORT
DISTRICT,

Case No.: 15cv1401-BEN-MDD
ORDER GRANTING
PLAINTIFF’S EX PARTE
APPLICATION TO BAR
SEPARATE VIDEOTAPING OF
DEPOSING ATTORNEY AT
DEPOSITIONS SET FOR
AUGUST 28-31, 2017

Plaintiff,
v.
NATIONAL UNION FIRE
INSURANCE COMPANY OF
PITTSBURG, PA,
Defendant.

[ECF NO. 56]

17
18
19
20
21
22
23
24
25
26

Before this Court is Plaintiff’s Ex Parte Application to Bar Separate
Videotaping of Deposing Attorney filed on August 21, 2017. (ECF No. 56).
Considering that depositions pursuant to the challenged protocol are
scheduled to begin Monday, August 28, 2017, the Court finds it appropriate
that Plaintiff moved ex parte. Defendant was ordered to and did respond in
opposition on August 24, 2017. (ECF No. 59). As provided below, Plaintiff’s
Motion is GRANTED. Defendant is precluded from using a second camera to
videotape the deposing counsel.

27
1
15cv1401-BEN-MDD

DISCUSSION

1
2

Fed. R. Civ. P. 30 governs depositions by oral examination. Regarding

3

methods of recording a deposition, the Rule provides that the party who

4

notices the deposition must state “the method for recording the testimony.”

5

Rule 30(b)(3)(A)(emphasis added). The Rule also provides that with prior

6

notice to the deponent and other parties, “any party may designate another

7

method for recording the testimony in addition to that specified in the

8

original notice.” Rule 30(b)(3)(B)(emphasis added). The Rule addresses only

9

the recording of “testimony.” It does not address the recording of questioning

10

other than in the context of obtaining testimony. It says nothing at all

11

regarding separately focusing a camera to record the questioning attorney.

12

Case law, as the parties note, is sparse. Most of the case law

13

addressing a second camera focused on the deposing attorney arise in the

14

context of multi-district litigation and even in that context, “the use of

15

multiple cameras during depositions in an MDL case is therefore, at best,

16

disputed.” See In re Xarelto (Rivaroxaban) Prods. Liab. Litig., 2016 U.S. Dist.

17

LEXIS 8233 *7-8, MDL No. 2592 Section L (E.D. La. January 25,

18

2016)(collecting cases). The Xarelto Court allowed for the use of one

19

additional camera in the discovery phase of an MDL action:

20
21
22
23
24
25
26

because it is not the place of an MDL court to dictate the method or
propriety for the use of depositions at trial by the various state and
federal courts if and when the cases are returned by the transferee
court.
Id. at *8-9.
In the non-MDL context, the Court found a single case authorizing a
second camera trained on the deposing counsel; the use of the second camera
was imposed as a sanction for the attorney’s misconduct during an earlier

27
2
15cv1401-BEN-MDD

1

deposition. Zottola v. Anesthesia Consultants of Savannah, PC, 2012 WL

2

6824150 *7, No. CV 411-154 (S.D. Ga. June 7, 2012). Defendant cites to a

3

case in this Court, Insurance Co. of the State of Pennsylvania, et al., v. City of

4

San Diego, Case No. 02-cv-0693-BEN-CAB (S.D. Cal.). Defendant did not

5

supply a copy of the relevant order and did not cite to a particular docket

6

entry. That case has 530 docket entries and the Order relied upon by

7

Defendant is not obvious.

8
9

What is clear is that it is within the discretion of the Court to allow or
disallow the second camera in this case. The Court finds that the use of a

10

second camera focused upon the deposing attorney is not necessary or

11

appropriate in this case. The Court finds that it is more likely that the

12

second camera is intended to intimidate the deposing attorney rather than to

13

better preserve the deposition for ultimate use at trial. See In re Xarelto,

14

2016 U.S. Dist. LEXIS 8233 *7.

15
16

IT IS SO ORDERED.
Dated: August 25, 2017

17
18
19
20
21
22
23
24
25
26
27
3
15cv1401-BEN-MDD