HINTERBERGER et al v. CITY OF INDIANAPOLIS et al

Filing 93

ORDER granting Plaintiffs' 89 Motion for Leave and Motion to Compel; denying Walton's 92 Motion to Quash. See Order. Copy to Michael J. Donahoe via US Mail. Signed by Magistrate Judge Mark J. Dinsmore on 8/3/2017. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
LEIF HINTERBERGER,
49-50 LLC,
CARREAU DESIGN CORPORATION,
49TH STREET SHOPS LLC,
UPTOWN RETAIL LLC,
UPTOWN BUSINESS CENTER LLC,

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Plaintiffs,
vs.
CITY OF INDIANAPOLIS,
CHARLES CAGANN,
MANSUR REAL ESTATE SERVICES,
Defendants.

No. 1:16-cv-01341-SEB-MJD

ENTRY ON PENDING MOTIONS
Pending before the Court are two motions concerning the scheduled deposition of
Nonparty Reginald T. Walton, an individual incarcerated at Federal Correctional Institution
Terre Haute. On July 21, 2017, Plaintiffs filed Plaintiffs’ Motion for Leave and to Compel the
Deposition of Reggie Walton (“Motion for Leave”). [Dkt. 89.] On August 2, 2017, Mr. Walton,
by counsel Assistant Federal Defender Michael J. Donahoe, filed a Verified Motion to Quash
Deposition Notice (“Motion to Quash”). [Dkt. 92.] For the following reasons, the Court
GRANTS Plaintiffs’ Motion for Leave [Dkt. 89] and DENIES Mr. Walton’s Motion to Quash
[Dkt. 92].
Plaintiffs’ Motion for Leave explains that Mr. Walton played a critical role in the facts
underlying their claims, thus making his deposition proper under the Federal Rules of Civil
Procedure. Mr. Walton explains in his Motion to Quash that he intends to exercise his rights
under the Fifth Amendment in response to any questions he is asked if ordered to sit for his
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deposition. Mr. Walton argues that the deposition would be “an exercise in futility,” and that the
Court should quash the deposition to “save the inconvenience and expense.” [Dkt. 92 at 1-2.]
Defendant City of Indianapolis, the only active Defendant at this time [see Dkt. 78 (notice of
bankruptcy reopening by Defendant Cagann); Dkt. 46 (Clerk’s Entry of Default against
Defendant Mansur Real Estate)], confirmed at the status conference held August 1, 2017, that it
takes no position on the pending motions and does not intend to respond thereto.
Federal Rule of Civil Procedure 30(a)(2)(B) require a party to obtain leave of court to
depose an incarcerated person. The court “must grant leave” to the extent the request for the
deposition comports with the limits on discovery set out in Rule 26(b). Fed. R. Civ. P. 30(a)(2).
Thus, unless the deposition request is irrelevant, disproportionate to the needs of the case, or
otherwise inappropriate, the party is entitled to take the requested deposition. See, e.g., id. 26(b)(c)(1).
These principles are not altered by Mr. Walton’s status as an incarcerated individual.
Any individual may invoke their Fifth Amendment privilege against self-incrimination during a
deposition. Pillsbury Co. v. Conboy, 459 U.S. 248 (1983). In a criminal proceeding, the Fifth
Amendment precludes a factfinder from drawing a negative inference from assertion of the
privilege. Griffin v. California, 380 U.S. 609 (1965). In a civil proceeding, by contrast, “the
Fifth Amendment does not forbid adverse inferences against parties to civil actions when they
refuse to testify . . . .” Baxter v. Palmigiano, 425 U.S. 308, 318 (1976). Likewise, “an adverse
inference may be drawn against a witness who pleads the Fifth Amendment even if that witness
is not a party.” Daniels v. Pipefitters’ Ass’n Local Union No. 597, 983 F.3d 800, 802 (7th Cir.
1993). Whether evidence of a witness’s refusal to testify at a deposition may be presented to the
jury is a matter left to the sound discretion of the trial judge, see, e.g., id.; Fed. R. Evid. 403;

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Harris v. City of Chicago, 266 F.3d 750 (7th Cir. 2001), but deponents are frequently made to sit
for depositions at which they decline to answer questions based upon their Fifth Amendment
privilege, cf., e.g., Harris, 266 F.3d 750; Kontos v. Kontos, 968 F. Supp. 400, 406 (S.D. Ind.
1997); In re Tableware Antitrust Litig., No. C-94-3514 VRW, 2007 WL 781960, at *4-5 (N.D.
Cal. Mar. 13, 2007).
It follows from the foregoing that Mr. Walton must sit for his August 14, 2017,
deposition. As Rule 30(a)(2) provides, the Court “must” grant leave for Plaintiffs to depose an
incarcerated person as long as the deposition falls within the scope of discovery, which
Plaintiffs’ request plainly does. And, given the fact that a witness’s invocation of their Fifth
Amendment rights during a deposition may be admissible at trial, Mr. Walton’s concern of
burden without benefit is, at best, speculative and, at worst, misplaced—especially since the
brunt of the burden of taking Mr. Walton’s deposition falls upon the parties, none of which
oppose Plaintiffs’ Motion for Leave.
Therefore, the Court GRANTS Plaintiffs’ Motion for Leave [Dkt 89] and DENIES Mr.
Walton’s Motion to Quash [Dkt. 92]. The Court ORDERS Mr. Walton to appear for his
scheduled deposition on August 14, 2017. This Order carries with it the force of law, and the
failure to appear for the deposition as ordered “may be treated as contempt of court,” with any
imposed monetary sanctions charged to the deponent’s inmate trust account. Fed. R. Civ. P.
37(b)(1). However, nothing herein impacts or limits Mr. Walton’s right to invoke his Fifth
Amendment privilege during his deposition. Mr. Walton likewise may have his counsel present
to defend his deposition.
SO ORDERED.
Dated: 3 AUG 2017

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Distribution:
Service will be made electronically
on all ECF-registered counsel of record via
email generated by the court’s ECF system.

And via U.S. Mail to:
Michael J. Donahoe
Indiana Federal Community Defenders, Inc.
111 Monument Circle, Ste. 3200
Indianapolis, IN 46204

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