Carbajal v. Warner et al

Filing 489

ORDER granting 451 Motion for Protective Order. The Notices [#451-2] issued by Plaintiff on 1/31/2013 are invalidated. The discovery deadline is extended to 7/31/2013. The dispositive motions deadline is extended to 8/30/2013. By Magistrate Judge Kristen L. Mix on 5/14/2013. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02862-REB-KLM
DEAN CARBAJAL,
Plaintiff,
v.
CAROL WARNER, in her individual capacity,
DAVID ROMERO, in his individual capacity,
JOE QUINTANA, in his individual capacity,
BILL RAILEY, in his individual capacity,
CHRIS WELDON, in his individual capacity,
BENJAMIN SCHROEDER, in his individual capacity,
GILBERTO LUCIO, in his individual capacity,
JAMES DIXON, in his individual capacity,
ADAM BARRETT, in his individual capacity,
JOEL SMITH, in his individual capacity,
JESSE REMBERT, in his individual capacity,
JAY LOPEZ, in his individual capacity,
MICHAEL O’NEILL, in his individual capacity,
CITY AND COUNTY OF DENVER, a political subdivision of the State of Colorado,
DARIN DESEL, Police Officer for the Denver Police Department, in his individual
capacity,
FRED MCKEE, Sheriff for the Delta Sheriff’s Department, in his individual capacity,
PERRY SPEELMAN, Police Officer for the Denver Police Department, in his individual
capacity,
JEFFREY WATTS, Investigator for the Second Judicial District, in his individual
capacity, and
ED GRUNINGER, Investigator for the Second Judicial District and Police Officer for the
Denver Police Department, in his individual capacity,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants’ Joint Motion for a Protective Order
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[Docket No. 451; Filed March 8, 2013] (the “Motion”). On April 2, 2013, Plaintiff filed a
Response [#470]. On April 16, 2013, Defendants filed a Reply [#477]. The Court has
reviewed the pleadings and is fully advised in the premises.
Defendants seek a protective order from Plaintiff’s various Notices of Depositions
(the “Notices”). See Motion [#451]; Ex. B to Motion [#451-2]. They argue that the Notices
exceed the number of depositions permitted by the Scheduling Order [#413]; that the
Notices place undue burden on Defendants; that Plaintiff falsely represented that he
conferred with counsel regarding the Notices; that Plaintiff impermissibly seeks to depose
non-parties to the litigation via the Notices; that the Notices identify improper recordation
methods that invite subsequent motions to quash; and that the Notices improperly seek the
depositions of high-ranking government officials. Motion [#451] at 2-13.
There are four Notices of Deposition at issue in the Motion. See Ex. B to Motion
[#451-2]. All are signed by Plaintiff and dated January 31, 2013. Id. at 3, 5, 7, 9. The first
Notice seeks the depositions of Defendants Jeffrey Watts (“Watts”) and Edward Gruninger
(“Gruninger”). Id. at 2-3. Plaintiff provides a choice of five days, between March 15-22,
2013, while seeking one full day with Defendant Watts and one full day with Defendant
Gruninger. Id. at 2. Plaintiff also provides a choice of three locations: at the office of Hall
& Evans (the law firm representing Defendants Watts and Gruninger), if and only if by video
phone; at Sterling Correctional Facility (where Plaintiff is presently incarcerated); or at the
United States District Courthouse, if permitted by the Court. Id. Plaintiff further states:
Depositions will be recorded by digital camcorder and digital recorders and
the oath will be administered by opposing counsel or by a prison employee
who is also a notary public, and opposing counsel and/or representative of
Mr. Carbajal’s will operate the equipment to ensure proper recording.
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Failure to respond to this notice will result in scheduling of depositions for
March 18-19, 2013 to begin at 9:00 a.m. at the Sterling Correctional Facility
. . . . Both Jeffrey Watts and Eddie Gruninger will be deposed starting with
Eddie Gruninger on the 18th, and Jeffrey Watts on the 19th. Opposing
counsel are to make prior arrangements with the legal department and
Sterling Correctional Facility to ensure that they, as well as their clients, are
permitted to enter the DOC Facility for the scheduled depositions with their
equipment and documents.
Id. at 3. Although differing on the precise details, the other three Notices are substantially
similar to the one sent to Defendants Watts and Gruninger. See id. at 4-9. The second
Notice seeks to set depositions for Defendants Carol Warner, Joe Quintana, and David
Romero, as well as for non-defendants Mandy Allen, Susan Paloni, Judge Jeff Herron, and
Judge Charles Greenacre.

Id. at 4.

The third Notice seeks to set depositions for

Defendants Gilberto Lucio, James Dixon, Adam Barrett, Darin Desel, Perry Speelman, Joel
Smith, Jesse Rembert, Jay Lopez, and Michael O’Neill, as well as for non-defendants Chief
of Police Robert White and former Chief of Police Gerald Whitman. Id. at 6. The fourth
Notice seeks to set depositions for Defendants Fred McKee, Bill Railey, and Benjamin
Schroeder, as well as for non-defendants Myrl Serra, Dan Hotsenpiller, Wyatt Angelo, and
Sherri Price. Id. at 8.
The Notices for these twenty-seven persons requested deposition dates ranging
from March 4, 2013, through April 26, 2013. Id. at 2-9. Pursuant to D.C.COLO.LCivR
30.2A., Defendants’ Motion seeking a protective order “stayed the discovery to which the
motion is directed until further order of the court.” Thus, “no party, attorney, or witness is
required to appear at the deposition to which the motion is directed until the motion has
been resolved.” D.C.COLO.LCivR 30.2A. Accordingly, Plaintiff has not deposed any of the
twenty-seven individuals from whom the Notices sought depositions.
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Defendants argue in part that the Notices should be quashed because Plaintiff is
attempting to take the deposition of twenty-seven persons, seventeen more than permitted
by the Court in the Scheduling Order [#413]. At the Scheduling Conference on November
5, 2012, the Court divided Defendants into four “Discovery Groups,” counting Plaintiff as
a fifth Discovery Group. [#413]. After discussion with the parties, the Court limited each
Discovery Group to ten depositions. Id.
On November 20, 2013, Plaintiff filed a Motion to Compel a Schedule Conference,
Reset Timeline, Compel Disclosures, and Set Trial [sic] [#415]. In that motion, Plaintiff
sought a new scheduling conference in which all of the deadlines and limitations imposed
on the case in the original Scheduling Conference could be extended and expanded.
[#415]. The Court denied Plaintiff’s request to reset the case management deadlines at a
new scheduling conference, although it noted that Plaintiff could seek an extension of each
deadline as it approached, provided he demonstrated good cause and diligence in
attempting to meet the deadlines as presently set. Minute Order [#424] at 2. On January
29, 2013, Plaintiff filed an Objection [#431] to the Court’s Minute Order. In his Response
[#470] to the present Motion [#451], Plaintiff argues that his Objection is still pending, that
it “specifically contests the denial of a request for a deposition of each defendant plus 25
depositions per group,” and that “[t]his delay in ruling has further unnecessarily impeded
discovery and oppressed Mr. Carbajal’s ability to redress grievance . . . and has ultimately
resulted in this unresolved issue of what the discovery limitations and deadlines are.”
[#470] at 1.
The Court rejects Plaintiff’s arguments for several reasons. First, despite Plaintiff’s
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assertion to the contrary, careful review of Plaintiff’s Objection [#431] to the Court’s Minute
Order [#451] does not reveal any instance where Plaintiff specifically argued the merits of
the vast number of depositions he seeks. Second, pursuant to D.C.COLO.LCivR 30.2B.,
“The filing of an objection . . . to an order by a magistrate judge concerning a discovery
issue does not stay the discovery to which the order is directed.” Thus, the Court’s current
case management plan is not an “unresolved issue” that impedes the present progress of
discovery in this case. Third, the Court notes that Plaintiff has not yet availed himself of the
ten depositions he has already been permitted. The Court will not increase the number of
depositions that Plaintiff may take absent a showing of good cause and a showing that he
has used the number of depositions already allowed.
Regardless, on consideration of the Motion and review of the Notices, the Court
finds that all of the depositions noticed by Plaintiff prior to the date of the Motion are
improper and shall be corrected as follows. Accordingly,
IT IS HEREBY ORDERED that the Motion [#451] is GRANTED.
IT IS FURTHER ORDERED that the Notices [#451-2] issued by Plaintiff on January
31, 2013 are invalidated.
IT IS FURTHER ORDERED that Plaintiff may not depose Chief of Police Robert
White, former Chief of Police Gerald Whitman, or District Attorney for the Seventh Judicial
District Dan Hotsenpiller until Plaintiff proceeds with other depositions and available means
of discovery and demonstrates that the depositions of these high-level government officials
are needed. See Howards v. Reichle, No. 06-cv-01964-WYD-CBS, 2008 WL 1775269, at
*8 (D. Colo. Apr. 15, 2008).
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IT IS FURTHER ORDERED that Plaintiff may not notice any depositions until: (1)
he confers in writing with defense counsel about the date, time, and location of the
deposition; (2) he provides defense counsel with the name of the officer before whom the
deposition will be recorded at the time the deposition is noticed and confirms in writing that
he has made arrangements to pay that officer; (3) he requests issuance of subpoenas for
non-party witnesses and agrees to pay the applicable witness fees; and, (4) in the case of
non-party witnesses, he explains why the deponent has discoverable information. Ajaj v.
Fed. Bureau of Prisons, No. 08-cv-02006-RBJ-MJW, 2011 WL 6152857, at *3 (D. Colo.
Dec. 9, 2011) (affirming the magistrate judge’s order regarding the pro se incarcerated
plaintiff’s deposition notices).
IT IS FURTHER ORDERED that, pursuant to Rule 30(b), Plaintiff may appear at a
deposition by telephone or video conference, provided that Plaintiff provides an officer as
defined under Rule 28(a)(1)(A)(B) and (2) at his own expense at the location of the witness
who is being deposed and arranges for recording at that location at his own expense
consistent with Fed. R. Civ. P. 28, 30, and 32.1 See Ajaj v. Fed. Bureau of Prisons, No. 08cv-02006-MSK-MJW, 2011 WL 2791275, at *2 (D. Colo. July 15, 2011) (ordering the same
with respect to a pro se incarcerated plaintiff).
IT IS FURTHER ORDERED that the discovery deadline is extended to July 31,
2013.
IT IS FURTHER ORDERED that Plaintiff must comply with the notice and timing

1

The Court notes that it has already discussed this requirement, in part, in an Order [#459]
issued after the present Motion was filed.

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requirements of D.C.COLO.LCivR 30.1A.
IT IS FURTHER ORDERED that Plaintiff must notice any depositions such that the
depositions will be concluded by the discovery deadline of July 31, 2013.
IT IS FURTHER ORDERED that the dispositive motions deadline is extended to
August 30, 2013.
IT IS FURTHER ORDERED that Plaintiff shall comply with all Federal Rules of Civil
Procedure, the Local Rules of Practice for the United States District Court for the District
of Colorado, and the Rules and Regulations of the Colorado Department of Corrections in
noticing, setting, and taking any deposition. See Nielson v. Price, 17 F.3d 1276, 1277 (10th
Cir. 1994) (stating that pro se litigants must follow the same procedural rules that govern
other litigants).

Dated: May 14, 2013

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