Williams et al v. Camden Old Creek et al

Filing 51

ORDER Resolving Joint Motion for Determination of Discovery Dispute and Denying Plaintiff's Motion for Protective Order (ECF No. 47 ). Signed by Magistrate Judge Allison H. Goddard on 7/16/2021. (jrm)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SHALIECIA WILLIAMS, et al., Case No.: 3:19-cv-691-AJB-AHG Plaintiffs, 12 13 v. 14 ORDER RESOLVING JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE AND DENYING PLAINTIFF’S MOTION FOR PROTECTIVE ORDER CAMDEN USA INC., et al., 15 Defendants. 16 [ECF No. 47] 17 18 19 20 21 22 23 24 25 26 27 28 1 3:19-cv-691-AJB-AHG 1 Before the Court is Plaintiff Shaliecia Williams (“Plaintiff”) and Defendant Camden 2 USA Inc.’s (“Defendant”) Joint Motion for Determination of Discovery Dispute. ECF No. 3 47. Plaintiff seeks an order from the Court permitting Plaintiff’s deposition to proceed via 4 videoconference, to which Defendant objects. Id. For the reasons set forth below, 5 Plaintiff’s motion for protective order is DENIED. 6 I. 7 On March 1, 2021, Plaintiff filed the operative amended complaint in this matter, 8 alleging negligence and violations of the Fair Housing Act, California Fair Employment 9 and Housing Act, and California Civil Code § 1942.5(a). ECF No. 32. She seeks monetary, 10 declaratory, and injunctive relief against Defendant, the owner of an apartment complex, 11 for discriminating against Plaintiff and her minor daughter on the basis of race. Id. at ¶ 1. 12 Plaintiff recounts multiple incidents, alleging that Defendant treated her differently than 13 others, made discriminatory remarks to her, unjustly towed her vehicle, rummaged through 14 her apartment without consent, pressured her to move out, accused her of incidents that 15 never occurred, said derogatory things to repair workers about her, and terminated her lease 16 without cause. Id. at ¶¶ 13, 14, 16, 17, 19, 22, 26, 27, 30. Due to Defendant’s conduct, 17 Plaintiff alleges suffering “emotional distress and physical injury, humiliation and mental 18 anguish, physical distress, impairment of health, fear, stress, including bodily injury such 19 as stomach aches; knots in stomach; head aches; high blood pressure; shingles, sleep loss; 20 feelings of depression, discouragement, dry throat, rise in body temperature, anger, and 21 nervousness; trouble sleeping; and reliving the experience.” Id. at ¶ 43; see id. at ¶ 33. BACKGROUND 22 On June 15, 2021, pursuant to the Court’s Chambers Rules, the parties notified the 23 Court that they disagreed about whether Plaintiff must appear in person for her deposition. 24 Email to Chambers (June 15, 2021 at 11:40 a.m.); see Chmb.R. at 2. The Court held a 25 telephonic discovery conference on June 17, 2021. ECF No. 44. The Court found it 26 appropriate to issue a briefing schedule. ECF No. 45. The parties timely filed their Joint 27 Motion for Determination of Discovery Dispute on July 2, 2021. ECF No. 47. This order 28 follows. 2 3:19-cv-691-AJB-AHG 1 II. 2 The instant motion relates to Defendant’s noticed deposition of Plaintiff, scheduled 3 for June 28, 2021.1 Email to Chambers (June 15, 2021 at 11:40 a.m.). Defendant seeks to 4 conduct the deposition in person, while Plaintiff seeks to conduct the deposition via 5 videoconference. ECF No. 47. PARTIES’ POSITIONS 6 Plaintiff argues that she should not be required to attend an in-person deposition 7 because of her current psychological state. ECF No. 47 at 2. Plaintiff receives Eye 8 Movement Desensitization and Reprocessing for her Post Traumatic Stress Disorder 9 (“PTSD”), a treatment reserved for patients who suffer abnormal levels of fear and anxiety. 10 Id. 2 Plaintiff’s panic attacks cause her body to shut down, leaving her incapacitated for 11 several days, and have sent her to the hospital. Id.; ECF No. 47-1 at 2. Plaintiff is “deeply 12 afraid of having to give an in-person deposition” and “do[es] not have the mental or 13 emotional ability to sit for an in-person deposition, as the thought of such creates extremely 14 severe anxiety[.]” ECF No. 47-1 at 2. Dr. Greenfield contends that Plaintiff “would likely 15 pass out and/or have a panic attack under her current state if she were required to attend 16 her deposition in-person.” ECF No. 47 at 2. Thus, Plaintiff requests that she be permitted 17 to attend her deposition via videoconference. Id. at 3. 18 Defendant argues 3 that counsel “was unable to find a single instance wherein a Court 19 ordered a remote deposition based on the emotional stress a party opponent claims he or 20 21 22 23 24 25 26 27 28 Cognizant that the final Joint Motion for Determination of Discovery Dispute was due by July 2, 2021, and the deposition at issue was scheduled for June 28, 2020, the Court ordered that “the deposition[] shall be put on hold until the Court rules on the motion.” ECF No. 45 at 2. 1 Although Plaintiff cites to a declaration of Brandon Greenfield, M.D., no declaration was filed with the instant motion. However, the Court will incorporate by reference the arguments attributed to Dr. Greenfield, and the missing declaration does not negatively impact the Court’s analysis. 2 Although the undersigned expresses no opinion on the merits of whether Plaintiff is entitled to emotional distress damages, the Court briefly summarizes Defendant’s position 3 3 3:19-cv-691-AJB-AHG 1 she may encounter if required to appear for examination in person. Nor does Plaintiff 2 provide such legal authority in support of her current Motion.” ECF No. 47 at 5. Defendant 3 also questions “why a virtual cross-examination session would be any better than one 4 conducted in person[,]” since the deposition itself would be the likely stress-inducer, not 5 the location of the deposition. Id. Defendant represents that it has taken steps to alleviate 6 stressors that may trigger Plaintiff’s anxiety during the in-person deposition, such as 7 conducting the deposition in a quiet conference room; allowing as many breaks as Plaintiff 8 needs to feel comfortable, in a private conference room; and eliminating Defendant’s 9 representatives from the deposition by having only counsel and the court reporter attend. 10 Id. at 6. Defendant’s counsel represents that “she is not an ‘aggressive’ examiner by nature 11 and [] lack[s] intent to interact with [Plaintiff] in a hostile or otherwise accusatory way.” 12 Id. at 6.; see ECF No. 47-3 at 2 (“I’m friendly and polite and have no intent on being in 13 any way aggressive or hostile with [Plaintiff]. And, at 5’6”, I’m certainly not physically 14 intimidat[ing].”). Defendant’s counsel also reiterates her strong preference for taking party 15 opponents’ depositions in person. ECF No. 47-3 at 3. For example, on several occasions 16 over the last 15 months, she “discovered others in the deponent’s immediate presence 17 providing both verbal and non-verbal cues” and “learned the deponent had a second 18 computer screen wherein []she was reading other material during the examination.” Id. 19 20 21 22 23 24 25 26 27 28 in the instant motion for context. Defendant challenges the veracity of Plaintiff’s PTSD claims and the likelihood that she will suffer a panic attack if the deposition is held in person. See, e.g., ECF No. 47 at 4 (“The records do not reflect a single visit to the hospital associated with Defendant’s alleged conduct. ... And, while Plaintiff’s brief attributes a diagnosis of ‘severe PTSD’ to declarant Brandon Greenfield, M.D., notes from Plaintiff’s [] visit with Dr. Greenfield reflect a diagnosis of ‘Moderate’ anxiety and depression, not ‘severe PTSD.’”); id. at 5 (“Plaintiff’s Motion is supported by no persuasive or otherwise admissible evidence supporting a ‘likelihood’ Ms. Williams will either suffer a panic attack or pass out as a result of Plaintiff’s counsel’s in-person examination.”); ECF No. 47-7 (declaration of Ellen Stein, Ph.D.). However, the Court takes Plaintiff’s claims in the instant motion at face value and need not address challenges to their legitimacy in its good cause analysis. 4 3:19-cv-691-AJB-AHG 1 Additionally, Defendant argues that taking Plaintiff’s deposition via videoconference 2 significantly limits counsel’s ability to observe Plaintiff’s demeanor and credibility, 3 making settlement much less likely, since counsel cannot assess Plaintiff’s strength or 4 weakness as a trial witness. See id. at 4. 5 III. 6 Rule 30 of the Federal Rules of Civil Procedure sets forth the procedures for 7 depositions. As a general rule, the deposition of a party may be set wherever the deposing 8 party designates, subject to the power of the court to grant a protective order. Lord v. 9 Flanagan, No. 13cv26-BU-DLC-JCL, 2014 WL 51655, at *2 (D. Mont. Jan. 7, 2014); see 10 S.E.C. v. Banc de Binary, No. 13cv993-RCJ-VCF, 2014 WL 1030862, at *3 (D. Nev. Mar. 11 14, 2014) (noting that Rule 30(b)(1) requires “‘[a] party who wants to depose a person by 12 oral questions … must state the time and place of the deposition,’” and explaining that 13 “[g]enerally, this means that the examining party may unilaterally choose a deposition’s 14 location”) (ellipses in original). “[T]he court has a wide discretion in selecting the place of 15 examination.” Lord, 2014 WL 51655, at *2 (quoting 8A C. WRIGHT & A. MILLER, 16 FEDERAL PRACTICE AND PROCEDURE § 2112 (3d ed. 2010)); see also Hyde & Drath v. 17 Baker, 24 F.3d 1162, 1166 (9th Cir. 1994) (“A district court has wide discretion to establish 18 the time and place of depositions.”); cf. Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 19 2002) (explaining that district courts have broad discretion to manage discovery). Under 20 Rule 30, “[t]he parties may stipulate—or the court may on motion order—that a deposition 21 be taken by telephone or other remote means,” such as video conferencing. FED. R. CIV. P. 22 30(b)(4); see Banc de Binary, 2014 WL 1030862, at *10 (‘other remote means’ includes 23 videoconferencing). LEGAL STANDARD 24 Rule 26(c)(1), in turn, governs protective orders. A court may grant a protective 25 order “‘to regulate the terms, conditions, time or place of discovery.’” Cadent Ltd. v. 3M 26 Unitek Corp., 232 F.R.D. 625, 629 (C.D. Cal. 2005) (quoting Pro Billiards Tour Ass’n, 27 Inc. v R.J. Reynolds Tobacco Co., 187 F.R.D. 229, 230 (M.D.N.C. 1999)). “The court may, 28 for good cause, issue an order to protect a party or person from annoyance, embarrassment, 5 3:19-cv-691-AJB-AHG 1 oppression, or undue burden or expense[.]” FED. R. CIV. P. 26(c)(1). In order to make the 2 requisite showing of good cause, “the party seeking protection bears the burden of showing 3 specific prejudice or harm will result if no protective order is granted.” Phillips ex rel. 4 Estates of Byrd v. General Motors Corp., 307 F.3d 1206, 1210–11 (9th Cir. 2002); 5 WebSideStory, Inc. v. NetRatings, Inc., No. 06cv408-WQH-AJB, 2007 WL 1120567, at 6 *1–*2 (S.D. Cal. Mar. 22, 2007) (“To establish good cause, the moving party must make 7 a clear showing of a particular and specific need for the order.”). The court has broad 8 discretion in deciding “when a protective order is appropriate and what degree of protection 9 is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984); see Phillips, 307 F.3d 10 at 1211–12. 11 IV. 12 The Court does not find good cause to support conducting Plaintiff’s deposition via 13 videoconference. The Court does not question the veracity of Plaintiff’s claims of PTSD 14 and anxiety surrounding the in-person deposition, but finds that Plaintiff has not met her 15 burden to obtain protective order. DISCUSSION 16 For example, Plaintiff has not refuted Defendant’s concerns regarding disadvantages 17 of videoconference depositions of key witnesses, such as the possibility of someone off- 18 camera providing verbal and non-verbal cues to the deponent, the possibility of referring 19 to other materials during the deposition, and limitations on counsel’s ability to assess 20 demeanor and credibility. See ECF No. 47-3 at 3–4. The Court finds Defendant’s argument 21 persuasive, and other courts in this circuit have addressed similar issues and have likewise 22 denied requests for videoconference depositions of key witnesses. Gersh v. Anglin, No. 23 CV-17-50-M-DCL-JCL, 2019 U.S. Dist. LEXIS 162473, at *4–*5 (D. Mont. Apr. 5, 2019) 24 (denying request for defendant’s deposition to proceed by videoconference, because “[a]s 25 the named defendant, Anglin will also likely serve as a key witness and his credibility will 26 presumably be a central issue. Plaintiff cites several cases recognizing that a deposition by 27 remote means may be insufficient where, as here, the deponent is a key witness whose 28 testimony and credibility are central to the case. [] This Court agrees that [p]laintiff would 6 3:19-cv-691-AJB-AHG 1 be prejudiced if Anglin is not required to appear for an in-person deposition.”); Natural- 2 Immunogenics Corp. v. Newport Trial Grp., No. 15cv2034-JVS-JCGx, 2017 WL 3 10562990, at *6 (C.D. Cal. Aug. 14, 2017) (denying motion for protective order permitting 4 depositions to proceed by videoconference, in part because “the Quintos are key witnesses 5 in this case. They are [plaintiff]’s principals; they decided to bring this litigation, and they 6 have been actively involved in making litigation decisions, as their counsel have 7 represented. Thus, it is fair to say that their testimony will be controversial, and the tenor 8 of the interactions between the parties and counsel during the depositions may be tense. 9 Videoconference depositions are not suitable for such controversial situations,” since 10 counsel would be unable to ascertain if anyone is listening in or coaching the witness); see 11 cf. Egan v. Royal Kona Resort, No. 17-322-DKW-KJM, 2018 WL 1528779, at *2 (D. Haw. 12 Mar. 28, 2018) (“Although the Court will always encourage parties to consider remote 13 depositions—particularly if the depositions do not involve key witnesses—the Court 14 agrees with Royal Kona’s concerns about the practical limitations on such depositions. 15 Here, where the depositions concern the named Plaintiffs who will be key trial witnesses, 16 the Court agrees that forcing video or telephonic depositions would unfairly prejudice 17 Royal Kona’s case evaluation and preparation.”); United States v. Approximately $57,378 18 in U.S. Currency, No. C-08-5023-MMC-BZ, 2010 U.S. Dist. LEXIS 121022, at *3–*4 19 (N.D. Cal. Oct. 27, 2010) (denying request for defendant’s deposition to proceed by 20 videoconference, because “a deposition by telephone or video conference would be 21 prejudicial to the Government’s case. This is primarily because the Government will use 22 Sims’ deposition to examine her credibility. To do this, the Government needs an in-person 23 opportunity to observe Sims’ demeanor, ask follow-up questions, and confront Sims with 24 prior inconsistent statements she has made.”); Clinton v. Cal. Dep’t of Corr., No. CIV-S- 25 05-1600-LKK-CMK-P, 2008 WL 5068586, at *2 (E.D. Cal. Nov. 25, 2008) (declining to 26 order remote deposition of plaintiff because a remote deposition would “place [defendant] 27 at a disadvantage by not allowing defense counsel to adequately observe plaintiff’s 28 demeanor to prepare for trial”). 7 3:19-cv-691-AJB-AHG 1 Moreover, Plaintiff does not address why existing safeguards are insufficient. For 2 example, depositions are limited to one day of seven hours. FED. R. CIV. P. 30(d)(1). During 3 the deposition, examining counsel is expected to refrain from questioning that creates 4 “unreasonable annoyance, embarrassment or oppression.” FED. R. CIV. P. 30(d)(3)(A); see 5 also Scott-Iverson v. Indep. Health Ass’n, No. 13cv451-V-F, 2017 WL 35453, at *4 6 (W.D.N.Y. Jan. 4, 2017) (collecting cases regarding abusive conduct of examining 7 counsel). Further, this district’s Local Civil Rules establish a code of conduct, requiring 8 “lawyers to treat adverse witnesses [and] litigants … with courtesy, fairness, and respect.” 9 CivLR 2.1(a)(3)(b). Also, “lawyers [must] conduct themselves in the discovery process as 10 if a judicial officer were present.” CivLR 2.1(a)(3)(c). The undersigned’s Chambers Rules 11 also outline procedures to follow if a dispute arises during a deposition. Chmb.R. at 4. 12 Should Defendant’s counsel’s questioning become aggressive, the parties may call 13 Chambers at 619-557-6162. Id. The Court finds that adequate safeguards 4 exist, which 14 eliminate the need for a videoconference deposition. 15 The Court acknowledges Plaintiff’s fear and anxiety regarding her in-person 16 deposition. See ECF No. 47-1 at 2. However, the Court finds that Plaintiff did not 17 sufficiently allege a “particular and specific need” for a videoconference deposition, as 18 required to obtain a protective order—e.g., it is not clear why her fears only involve in- 19 person depositions and not videoconference depositions. See WebSideStory, 2007 WL 20 1120567, at *1–*2 (“To establish good cause, the moving party must make a clear showing 21 of a particular and specific need for the order.”). Additionally, since the Court finds 22 Defendant’s arguments regarding disadvantages of videoconference depositions of key 23 24 25 26 27 28 In addition, here, Plaintiff’s deposition will be conducted in a quiet conference room; only counsel and a court reporter will be in the room, i.e., Defendant’s representatives will not be present at the deposition; and Plaintiff will have as many breaks as she needs to feel comfortable, in a private conference room. ECF No. 47 at 6. Defendant’s counsel has represented to the Court that she “ha[s] no intent on being in any way aggressive or hostile with [Plaintiff].” ECF No. 47-3 at 2. 4 8 3:19-cv-691-AJB-AHG 1 witnesses persuasive, and because the Court finds there are sufficient safeguards in place 2 to mitigate Plaintiff’s concerns, the Court does not find good cause to order a 3 videoconference deposition. 4 V. 5 For the reasons set forth above, the Court DENIES Plaintiff’s motion for protective 6 7 8 CONCLUSION order (ECF No. 47) and ORDERS that Plaintiff’s deposition proceed in person. IT IS SO ORDERED. 9 10 Dated: July 16, 2021 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 3:19-cv-691-AJB-AHG

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