Staley v. U.S. Bank National Association et al

Filing 86

AMENDED MEMORANDUM DECISION AND ORDER re: 85 Memorandum Decision Order granting 78 SEALED MOTION to Quash Subpoena of Chris Christensen. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ANGELA STALEY,

Case No. 1:10-cv-00591-BLW

Plaintiff,

AMENDED MEMORANDUM
DECISION AND ORDER

v.
U.S. BANK NATIONAL ASSOCIATION,
U.S. BANCORP,
Defendant.

INTRODUCTION
The Court has before it Defendant’s Motion to Quash Subpoena of Chris
Christensen. (Dkt. 78). The Court enters this Amended Order because it mistakenly
indicated that the Motion to Quash was DENIED instead of GRANTED. This Order is
identical to Dkt, 85 in its analysis, but states that the motion to quash is granted instead of
denied.
BACKGROUND
Lawrence Christensen was the corporate investigator for U.S. Bank (the “Bank”)
who investigated Staley’s alleged misuse of her corporate credit card. Staley’s counsel
deposed Christensen on April 17, 2012. At the outset of the deposition, the Bank
provided Staley’s counsel with approximately 150 pages of documents which were
purported to be Christensen’s investigative file of Staley. Casperson Aff., Dkt. 80-1. Most

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of the documents had never been previously produced, even though Staley had
specifically requested the documents in earlier discovery requests. Id.
Although Staley’s counsel attempted to review the documents as quickly as
possible upon receiving them at the deposition, and she tried to review at least some of
them with Christensen during the deposition, Christensen was apparently unable to
identify some of the documents and did not recognize the handwriting on other
documents. Id. Accordingly, Staley’s counsel was not able to conduct the deposition or
question Christensen about the documents as thoroughly as she could have had she been
provided the documents in a timely fashion. Id. However, Staley’s counsel asked for, and
the Bank’s counsel agreed, that she could hold open the deposition, at least as to
documents not addressed, so she could review the documents and follow up with
Christensen at a later date. Olsson Aff., Ex. A, Dkt. 82-2.
During the deposition, Staley’s counsel did illicit from Christensen his testimony
that he, like some of the other witnesses addressed in the earlier motions in limine, had
apparently misused his corporate credit card without being immediately terminated. Id.
Counsel notes that such testimony is indispensable to Staley’s case, and that Staley
believes that Christensen’s live testimony is critical to conveying this information
regarding the Bank’s treatment of similarly-situated individuals. Id.
In late December 2012, counsel for the Bank contacted Staley’s counsel and told
her that Christensen had been diagnosed with a serious illness, and that he may not be
able to testify at trial or be available for a trial deposition. Id. The Bank’s counsel

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requested that Staley’s counsel stipulate to Christensen’s unavailability at trial or a trial
deposition, and that his earlier deposition be used instead. Id. Staley’s counsel indicated
that she could not make that determination without hearing from Christensen’s physician.
Id.
On December 21, 2012, the Bank’s counsel filed its witness list and trial brief,
both of which asserted that Christensen was unavailable for trial, and that his deposition
would be used in lieu of live testimony. She also indicated that an affidavit or declaration
from Christensen’s physician would be forthcoming. Dkts. 43 and 44). The affidavit or
declaration was delayed because of difficulty getting it from the physician. Olsson Aff.,
Dkt. 82-1.
Therefore, Staley’s counsel issued a subpoena to Christensen on January 21, 2013.
Id. Two days later the Bank’s counsel provided Staley’s counsel with a declaration from
Christensen’s physician. Id. The declaration did not provide much detail – presumably it
was the same as, or similar to, the one filed with the Court in support of the motion to
quash. Dkt. 78-1. That declaration indicates that Christensen’s oncologist believes that
Christensen’s health condition would make it detrimental to his health to be subjected to
trial or a trial deposition. Dkt. 78-1. Based upon the vagueness of the declaration, Staley’s
counsel would not stipulate to Christensen’s unavailability for trial.
ANALYSIS
On timely motion, an issuing court must quash or modify a subpoena which
subjects a person to undue burden. Fed. R. Civ. P. 45(c)(3)(A)(iv). The grant or denial of

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a motion to quash a subpoena is a matter of the Court’s discretion, and is reviewed only
for an abuse of that discretion. Mueller v. Auker, 700 F.3d 1180, 1194 (9th Cir. 2012).
The burden of showing that a subpoena is unduly burdensome, unreasonable or
oppressive is upon the party to whom the subpoena is directed. Goodman v. United
States, 369 F.2d 166, 169 (9th Cir. 1966).
Here, although the physician’s declaration lacks detail, the physician states in no
uncertain terms that subjecting Christensen to testify at trial or a deposition at this point
would be detrimental to his health. Dr. Schultheiss Decl., Dkt. 78-1. Moreover, the Bank
later submitted a second declaration from the physician under seal. Dkt. 83. The Court
will not list the details of that declaration because it was filed under seal, but will simply
note that the physician again states that Christensen should not attend trial. Dkt. 83. The
Court will not second guess the physician’s medical opinion, and the Court will not
require Christensen to appear at trial or a trial deposition. To that extent, the Court finds
an undue burden, and the motion will be granted.
However, the Court agrees with Staley that Christensen is probably a critical
witness, and it would be better if Christensen could testify at trial, even if done via video
conference. Therefore, the Court will request that the Bank confer with Christensen – and
possibly his physician, to the extent allowed by Christensen – to determine if it is at all
possible for him to testify. Because the physician’s declarations are somewhat general,
the Court has no way of knowing whether there are any circumstances under which
Christensen could testify at trial. For example, Christensen might be able to testify from a

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remote location with carefully circumscribed time limits. The Court understands that the
Bank’s counsel has offered to allow the Court to review Christensen’s medical records in
camera, but the Court does not feel that is necessary. Instead, the Court will request that
the Bank make every effort to determine whether there is a circumstance which would
allow Christensen to testify at trial.
The Court also understands that the parties may have already been in contact with
the Court’s IT department to determine whether certain types of video conferencing, such
as skype, would work, but the Court would request that the parties consider other avenues
as well. For example, Christensen could possibly testify via video from a separate room
at the courthouse, from another courthouse, or from a commercial location such as a
Kinkos, etc. The Court does not know whether these alternatives alleviate Christensen’s
physician’s concerns, but the Court would like to know that before they are ruled out as
options.
Regardless of whether Christensen with be able to testify at trial, the Court is once
again concerned with the Bank’s late disclosure of documents in this case. The Bank’s
counsel indicates that she was unaware of the Christensen file containing the documents
until Christensen produced them at the deposition. Christensen apparently had recently
retired from the Bank. However, the investigator’s file on Staley seems to be the type of
information counsel should have been made aware of early in the case. It is difficult to
believe that the Bank’s investigator took work files related to the investigation of an

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employee with him when he retired instead of leaving them, or at least a copy of them,
with the Bank. It seems that someone should have produced them to counsel.
Thus, the Bank has once again failed in its discovery responses by not providing
Staley with Christensen’s investigative files until the day of Christensen’s deposition
even though they had been previously requested. Moreover, even if the documents had
not been specifically requested, they are the type of documents which should have been
disclosed pursuant to Rule 26(a)(1)(A)(ii).1 Because of that late disclosure, Staley’s
counsel was at a disadvantage when she deposed Christensen. Such harm might have
been minimized if Christensen were available to testify at trial, but that remains to be
seen.
Nevertheless, by allowing Staley’s counsel to hold open the deposition, the Bank’s
counsel effectively mitigated the damage caused by the late disclosure. Apparently,
Staley’s counsel did not take advantage of that opportunity. That is not to say that
Staley’s counsel did anything wrong. The Court recognizes that counsel assumed she
would have a chance to exam Christensen at trial, so her decision not to continue the
deposition makes sense. However, as was suggested in the Court’s earlier order on the
separate motions in limine, the Court likely would have required the Bank to pay for the
second deposition had counsel sought the Court’s intervention when the issue first
presented itself.

1

Notwithstanding both parties’ apparent oversight in providing initial disclosures to each other early in this case, the
Bank still had an obligation to provide clearly relevant documents to Staley under the discovery rules.

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As it is, we are left in an unfortunate position – particularly for Christensen – but
also for this case. Witnesses are sometimes unavailable because of illness, and it is
nobody’s fault. Although the Court is displeased with the Bank’s late disclosure, the
remedy is not to order Christensen to testify against his physician’s advice.
However, the Court feels it is important to let the Bank know that the Court is
becoming concerned about the pattern of discovery abuse Bank in this case. In fact, this
case is trending toward the type of case where a more drastic penalty is warranted. The
Ninth Circuit has indicated that harsh penalties, such as default judgment, are only used
in extreme circumstances. Hester v. Vision Airlines, Inc., 687 F.3d 1162, 1169 (9th Cir.
2012). “A court must consider the following five factors before striking a pleading or
declaring default: (1) the public’s interest in expeditious resolution of litigation; (2) the
court’s need to manage its docket; (3) the risk of prejudice to the other party; (4) the
public policy favoring the disposition of cases on their merits; and (5) the availability of
less drastic sanctions.” Id. (Internal citation and quotations omitted). This case is not at
that stage – yet. But the Court is very concerned that a consistent pattern has developed in
this case in which the Bank has repeatedly failed to provide a timely and complete
response to Staley’s discovery requests. The problem is serious enough to raise questions
as to whether the Bank’s tardy and incomplete responses are interfering with Staley’s
right to a fair trial. Accordingly, the Court again asks the parties, particularly the Bank, to
make sure they have tried everything possible to arrange for Christensen to testify at trial.

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ORDER
IT IS ORDERED THAT:
1. The Court has before it Defendant’s Motion to Quash Subpoena of Chris
Christensen. (Dkt. 78) is GRANTED, but with the Court’s requests mentioned
above.

DATED: January 31, 2013

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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