White v. Godinez et al

Filing 134

ORDER GRANTING IN PART and DENYING IN PART 128 Motion. The Motion is only GRANTED IN PART as to the voiding of Plaintiffs August 26, 2016 deposition. The October 24, 2016 Order (Doc. 127 ) is VACATED IN PART only to the limited extent that Plai ntiffs Objection (Doc. 124 ) was construed as a motion to reconsider. Finally, this Court specifically finds that Plaintiff was wholly unjustified in failing to cooperate and answer questions at his October 28, 2016 deposition. Signed by Magistrate Judge Donald G. Wilkerson on 4/17/17. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
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VANCE WHITE,
Plaintiff,
v.
MARC HODGE, et al.,
Defendants.

Case No. 3:13-cv-1212-NJR-DGW

ORDER
WILKERSON, Magistrate Judge:
On October 24, 2016, this Court found that while there were irregularities in the noticing of
Plaintiff’s previous deposition, Defendants sufficiently complied with Federal Rule of Civil
Procedure 30(b) for a deposition to occur on October 28, 2016 (Doc. 127). Plaintiff was directed
to cooperate in the deposition and warned that the failure to participate and cooperate may result in
sanctions. Plaintiff failed to cooperate and participate in the deposition and opted instead to file a
motion that is wholly unrelated to the October 28, 2016 deposition and that provides wholly
insufficient grounds and justification for Plaintiff’s failure to comply with the Federal Rules of
Civil Procedure and the Order of this Court.
On November 17, 2016, Plaintiff filed a motion pursuant to Federal Rules of Civil
Procedure 30(d)(3) and 37(a)(1) on 6 grounds: 1) that the deposition taken on August 26, 2016
(pursuant to an insufficient notice) be deemed “invalid”; 2) that Defendants’ August 26, 2016
Motion to Compel (Doc. 121) should not have been granted; 3) that Plaintiff will be prejudiced by
an extension of the discovery deadline (the deadline was extended to November 4, 2016); 4) that
Defendants deceived the Court; 5) that Plaintiff was prevented from filing a Rule 30(d)(3) motion
as to the August 26, 2016 deposition; and, 6) that Plaintiff’s objection (Doc. 124) should have been

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construed as an appeal to the District Judge (Doc. 128). In an affidavit attached to the Motion,
Plaintiff further states that the undersigned is biased against him and that Defendants have been
granted an unfair advantage in this litigation.

A few days later, on November 29, 2016,

Defendants filed a motion for sanctions based on Plaintiff’s failure to answer questions at the
October 28, 2017 deposition (Doc. 129). Only Plaintiff’s motion is currently before the Court.
The Motion is GRANTED IN PART only with respect to the striking of his August 28, 2016
deposition, and DENIED IN PART in all other respects.
Federal Rule of Civil Procedure 30 permits a party to take the deposition of any person,
including a party; and, this Court’s Scheduling Order permitted the deposition of Plaintiff who is
incarcerated (Doc. 50). One of the requirements of taking a deposition is the notice requirement:
a party must provide “reasonable written” notice to all parties in a litigation. FED.R.CIV.P.
30(b)(1).

Neither the Federal Rules nor any Local Rules describe what would constitute

reasonable notice. See e.g. Odongo v. City of Indianapolis, 2015 WL 1188769 (S.D. Ind. 2015)
(noting that the Local Rules for the District Court for the Southern District of Indiana require 14
days advanced written notice). However, the reasonableness of notice is based on the individual
circumstances of each case. See Nieman v. Grange Mut. Ins. Co., 2012 WL 5471949, *2 (C.D.
Ill. 2012). Without reasonable notice, a deposition cannot be used at trial. See Howard v. Everex
Systems, Inc., 228 F.3d 1057, 1067 (9th Cir. 2000). Plaintiff’s August 26, 2016 was not taken
with reasonable notice. Therefore, Plaintiff’s request to hold invalid or void his August 26, 2016
deposition is GRANTED and the parties are instructed that they may not use that deposition for
any purpose in this matter.
The remainder of Plaintiff’s arguments, including the argument addressed above, would
not warrant the suspension of his October 28, 2016 deposition pursuant to Rule 30(d). Rule

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30(d)(3)(A) provides:
At any time during a deposition, the deponent or a party may move to terminate or
limit it on the ground that it is being conducted in bad faith or in a manner that
unreasonably annoys, embarrasses, or oppresses the deponent or party. The
motion may be filed in the court where the action is pending or the deposition is
being taken. If the objecting deponent or party so demands, the deposition must be
suspended for the time necessary to obtain an order.
From the transcript of the October 28th deposition, there is no indication that it was being
conducted in bad faith or in a manner that would annoy, embarrass or oppress Plaintiff. Rather,
Plaintiff merely believed that because the previous deposition was conducted without appropriate
notice he was justified in refusing to answer questions. This belief is baffling in light of this
Court’s previous Order directed him to sit for and answer questions at the October 28 deposition,
of which he was aware. As such, Plaintiff was not justified in suspending his October 28th
deposition and has wasted both Defendants’ and the Court’s resources in failing to cooperate in
discovery.
As to Plaintiff’s particular arguments, he next states that the motion to compel should not
have been granted. Defendants’ motion to compel was not granted; in fact, it was denied in part
as to the request that Plaintiff be barred from testifying at trial and that Plaintiff be compelled to sit
for a deposition. Instead, Defendants, having informed the Court that they had re-noticed
Plaintiff’s deposition, were only granted additional time to take the newly noticed-up deposition.
In any event, prior misconduct of a party, if that is how Defendants’ actions can be characterized,
does not give Plaintiff license to disobey an Order of this Court or act in a manner inconsistent with
the Federal Rules.
Plaintiff’s third argument is that he was prejudiced by the extension of the discovery
deadline. Plaintiff offers no reason why he was prejudiced by the extension given to Defendants
to conduct his deposition.

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Plaintiff’s fourth and fifth arguments merely rehash matters that have already been
resolved and need no further comment.
Plaintiff’s final argument is that his “objection” filed on September 29, 2016 should have
been construed as an appeal to the District Judge pursuant to Federal Rule of Civil Procedure
72(a).

The Court reiterates that regardless of the merits of this argument, it would not support

Plaintiff’s Rule 30(b) request for relief from the October 28th deposition.
Rule 72(a) provides that a party “may serve and file objections to the order within 14 days
after being served with a copy.” In this matter, this Court’s Order was entered on September 9,
2016 (Doc. 122) but was not sent to Plaintiff until September 13, 2016. As such, his “objection”
filed on September 20, 2016 was filed within 14 days (when 3 days are added for mailing).
However, at no point in the objection did Plaintiff invoke Rule 72 nor did he indicate that he was
appealing this Court’s ruling to the District Court. In any event, because the District Court (and
this Court) may review this Court’s Orders sua sponte, any technical misstep in Plaintiff’s motion
should not prevent review at the District Court’s discretion. Consideration of the objection, then,
is left to the sound discretion of the District Court (Doc. 124). This Court’s October 24, 2016
Order is VACATED IN PART only insofar as the Court construed the “objection” as a motion to
reconsider. In all other respects, the Order remains as written.

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CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Terminate Defendant’s Deposition is
DENIED IN PART (Doc. 128). The Motion is only GRANTED IN PART as to the voiding
of Plaintiff’s August 26, 2016 deposition.

The October 24, 2016 Order (Doc. 127) is

VACATED IN PART only to the limited extent that Plaintiff’s “Objection” (Doc. 124) was
construed as a motion to reconsider. Finally, this Court specifically finds that Plaintiff was
wholly unjustified in failing to cooperate and answer questions at his October 28, 2016 deposition.
DATED: April 17, 2017

DONALD G. WILKERSON
United States Magistrate Judge

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