Boerste v. Ellis, LLC et al

Filing 81

MEMORANDUM OPINION AND ORDER Signed by Magistrate Judge Colin H. Lindsay on 7/17/2019. For the reasons set forth, Plaintiff's Motion for Leave to Continue the Depositions of Cotton and Bewley (DN 61 ) is GRANTED IN PART and DENIED IN PART. Plaintiff is granted leave to continue the depositions of Cotton and Bewley to those topics on which they originally asserted their Fifth Amendment privilege and any new events that have unfolded since their initial August 4, 2016, depositions. Plaintiff's request for sanctions is denied. The Parties shall complete the depositions of Cotton and Bewley within the fact discovery deadline set by this Court's February 6, 2019 Order (DN 67 ). cc: Counsel (CDF)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:17-CV-298-GNS-CHL

BRYAN TYLER BOERSTE,

Plaintiff,

v.
ELLIS, LLC, et al.,

Defendants.
MEMORANDUM OPINION AND ORDER

Before the Court is the Motion for Leave to Continue the Depositions of Defendants
Michael Cotton and Kevin Bewley filed by Plaintiff, Bryan Tyler Boerste (“Plaintiff”). (DN 61.)
Defendants Michael Cotton (“Cotton”) and Kevin Bewley (“Bewley”) both filed Responses to the
Motion (DNs 63, 64), and Plaintiff filed a Reply (DN 65). Therefore, this matter is ripe for review.
For the reasons set forth below, Plaintiff’s Motion (DN 61) is GRANTED IN PART and
DENIED IN PART.
I.

BACKGROUND
A.

Factual and Procedural Background

On August 4, 2016, prior to the date this action was removed to this Court and only a few
months after the April 16, 2016, incident (the “Incident”) that is the subject of this action, Plaintiff
took the depositions of Defendants Cotton and Bewley. (DN 61, at PageID # 1023-24; DN 61-1;
DN 61-2.) At the time those depositions were noticed, Plaintiff did not know that Cotton and
Bewley were under criminal investigation for their roles in the Incident. (Id. at 1024.) However,
at the outset of Bewley’s deposition, his counsel stated that recent correspondence from the City
of Springfield indicated that there was an ongoing criminal investigation into the Incident. (DN
61-1, at PageID # 1043.) As a result of that investigation, Bewley’s counsel proposed that

Bewley’s deposition be postponed by agreement until after the investigations were completed and
closed. (Id.) Counsel indicated that should the deposition proceed, Bewley would invoke his Fifth
Amendment privilege against self-incrimination as to a number of topics and would only answer
questions regarding his personal identifying information and general biographical information.
(Id.) Because Bewley’s counsel was not willing to provide a specific date as to when Bewley
would testify without invoking his Fifth Amendment privilege, Plaintiff’s counsel refused to
postpone the deposition. (Id. at 1043-44.) Bewley testified pursuant to the limitations his counsel
had outlined and invoked his Fifth Amendment privilege as to multiple questions posed to him.
(Id. at 1045-63.) During his deposition, Cotton likewise refused to answer multiple questions on
the basis of his Fifth Amendment privilege. (DN 61-2.) Both Bewley and Cotton were formally
charged related to their actions during the Incident a few weeks after their depositions. (Id.)
Because of the pending criminal charges, this Court stayed discovery as to Bewley and
Cotton. (DNs 13, 29.) This stay was not dissolved until September 28, 2018. (DN 56.) Plaintiff
then noticed the “continuation” of Bewley’s deposition for October 29, 2018, and Cotton’s
deposition for October 30, 2018. (DN 61, at PageID # 1026.) Counsel for Bewley and Cotton
informed Plaintiff’s counsel that the rescheduled depositions would be limited to those questions
previously objected to based upon each defendant’s Fifth Amendment privilege. (DNs 63-2, 633, 64-1, 64-2.) Plaintiff’s counsel responded to confirm the location of Cotton’s deposition and to
confirm that October 30, 2018, would work for remaining counsel. (DNs 64-3, 64-4.) He did not
address the limitations described by counsel for Cotton and Bewley. (Id.)
At the October 29, 2018, deposition, Bewley’s counsel instructed Bewley only to answer
those questions that were asked during the previous August 4, 2016, deposition but were not
answered then on the basis of privilege. (DN 61-3, at PageID # 1126-27.) His counsel stated on

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the record that Plaintiff’s counsel had been previously informed of this limitation but chose not to
address the same prior to the deposition. (Id. at 1127.) While Bewley did answer some questions
within the scope identified by his counsel, he refused to answer others. (Id. at 1133.) Plaintiff’s
counsel suspended the deposition because of Bewley’s refusals to answer. (Id. at 1133-34.)
Plaintiff’s counsel then cancelled Cotton’s deposition, set for the next day, because of concern the
same issue would arise. (DN 58; DN 61-3, at PageID # 1134.) The Court held a telephonic status
conference with the Parties regarding the dispute on November 6, 2018, but the Parties were unable
to come to an informal resolution of the same. (Id.) The Court then granted Plaintiff leave to file
the instant Motion. (Id.)
B.

The Instant Motions

In his Motion to Continue the Depositions, Plaintiff argued that he did not need to request
leave of Court to continue Cotton and Bewley’s depositions on October 29-30, 2018, because their
depositions were not completed. (DN 61, at PageID # 1030.) He further argued that even if he
should have requested leave originally, the circumstances now justify the Court granting him leave
to reconvene the depositions without any limitations on the topics to be discussed and the questions
to be answered. (Id. at 1031-33.) Plaintiff also requested the costs associated with scheduling and
attending Bewley’s October 29, 2018, deposition given counsel’s instructions to Bewley not to
answer certain questions. (Id. at 1033-36.)
Bewley argued in response that the burden was on Plaintiff to seek leave to continue his
deposition prior to its initiation. (DN 63.) He stated that because Plaintiff’s counsel did not object
to the limitation on Bewley’s testimony proposed by his counsel prior to the deposition, he “led
all parties to believe the stipulation as stated was agreed to in full.” (Id. at PageID # 1149.) Bewley

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argued that the circumstances neither justify requiring him to sit for a third deposition nor any
award of sanctions. (Id. at 1152-53.)
Cotton argued that absent his stipulation, Plaintiff was required to seek leave of Court prior
to taking his deposition a second time. (DN 64.) Cotton then stated that the Court should deny
Plaintiff’s motion for leave given any difficulty or delay here was “solely the product of Plaintiff’s
actions.” (Id. at PageID # 1311.) Further, Cotton proposed that even if the Court granted Plaintiff
leave to continue Cotton’s deposition, Plaintiff should be limited to questions to which Cotton had
previously invoked his Fifth Amendment privilege. (Id. at 1311-14.)
In his Reply, Plaintiff noted that Cotton and Bewley’s attorneys did not object during the
August 4, 2016, depositions when Plaintiff indicated he reserved the right to recall them at a later
date. (DN 65, at PageID # 1324.) He argued that “new information and documents have been
obtained since August 4, 2016 warranting additional testimony pertaining to topics previously
discussed.”

(Id. at 1325.)

However, Plaintiff did not specifically identify any such new

information or documents.
II.

DISCUSSION
A.

Legal Standard

If a deponent “has already been deposed in [a] case,” then “[a] party must obtain leave of
court” in order to reopen the deposition. Fed. R. Civ. P. 30(a)(2)(A)(ii). “[T]he court must grant
leave to [reopen the deposition] to the extent consistent with Rule 26(b)(1) and (2).” Id. at (a)(2).
Rule 26(b)(1) is the touchtone for the scope of civil discovery. Rule 26(b)(1) provides, in relevant
part, as follows regarding the scope of discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the

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importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1). Rule 26(b)(2) addresses limitations on the frequency and extent of
discovery. Subpart (b)(2)(A) gives the court discretion to alter limits on written discovery and the
number and length of depositions under Rule 30. Id. at (b)(2)(A). Subpart (b)(2)(B) addresses
limitations on discovery of electronically stored information, which is not triggered on these facts.
Id. at (b)(2)(B). Finally, Subpart (b)(2)(C) provides that
the court must limit the frequency or extent of discovery otherwise allowed by these
rules . . . if it determines that:
(i)
the discovery sought is unreasonably cumulative or duplicative, or
can be obtained from some other source that is more convenient, less
burdensome, or less expensive;
(ii)
the party seeking discovery has had ample opportunity to obtain the
information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule
26(b)(1).
Id. at (b)(2)(C).
B.

Analysis

Plaintiff’s Motion and the Responses of Defendants Bewley and Cotton raised three issues
for the Court’s consideration: (1) whether Plaintiff should have requested leave to reopen the
depositions of Bewley and Cotton prior to the October 29-30, 2018, depositions; (2) whether
Plaintiff is entitled to an award of sanctions as a result of the Bewley’s counsel limiting the scope
of Bewley’s October 29, 2018, deposition testimony; and (3) whether—and if so, to what extent—
the Court will now grant Plaintiff leave to reopen the depositions of Bewley and Cotton. The
Court will address each issue below.
1.

October 29-30, 2018, Depositions

Though Plaintiff argued he did not need to seek leave to reopen the depositions of Bewley
and Cotton prior to the October 29-30, 2018, depositions, a plain reading of Rule 30 contradicts

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this assertion. Rule 30(b)(2)(A)(ii) requires a party to seek leave of court to depose a deponent
who has already been deposed in the case absent a stipulation to the deposition by the parties. Fed.
R. Civ. P. 30(b)(2)(A)(ii). At the time the October 29-30, 2018, depositions were noticed,
Defendants Bewley and Cotton had already each given a deposition on August 4, 2016. (DNs 611, 61-2.) Therefore, Plaintiff should have sought leave of Court prior to noticing their second
depositions unless the Parties stipulated to the same. Here, Bewley and Cotton plainly indicated
in their e-mails from their respective counsel regarding scheduling their second depositions that
they would only agree to testify as to those questions on which they had previously invoked their
Fifth Amendment privilege. (DNs 63-2, 63-3.) It is evident from the questions that Plaintiff’s
counsel asked of Bewley during his October 30, 2018, deposition that he wished to take an
unlimited second deposition of Bewley and Cotton, which is not what was offered. Therefore,
Plaintiff should have sought leave of Court prior to the October 29-30, 2018, depositions.
Plaintiff argued that he did not need to seek leave because he did not complete the initial
depositions of Bewley and Cotton and instead “continued” them until a later date. (DN 61, at
PageID # 1030.) His counsel stated the same on the record at the end of each deposition, and he
emphasized that Defendants’ counsel offered no contemporaneous objection to the reservations.
See DN 61-1, at PageID # 1062-63 (“I reserve the right to call you for continuation of this
deposition.”); DN 61-2, at PageID # 1091 (“I expect that we will call you back for continuation of
this deposition in the future.”) However, Plaintiff cited no case law to support his assertion that
he had the ability to unilaterally suspend a deposition and continue it again at a later date.
Plaintiff’s citation to the Advisory Committee notes to Rule 30 is unavailing. Though the
Advisory Committee Notes to the 1993 Amendments to Rule 30 do state that the requirement to
seek leave of court “does not apply when a deposition is temporarily recessed for the convenience

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of counsel or the deponent or to enable additional materials to be gathered before resuming the
deposition,” the note does not differentiate between temporary recesses of more than a day and
those that last less than a day. Fed. R. Civ. P. 30(a) advisory committee’s note to 1993 amendment.
Fed. R. Civ. P. 30(d) explicitly limits a deposition to “one day of 7 hours.” Fed. R. Civ. P. 30(d)(1)
(emphasis added). As Plaintiff’s continuation of Bewley and Cotton’s depositions on October 2930, 2018, violated Rule 30(d)(1)’s limitation of a deposition to one day, the Court is not persuaded
of the Advisory Committee Note’s application.
For all these reasons, the Court concludes that Plaintiff should have sought leave of Court
to take the October 29-30, 2018, depositions of Bewley and Cotton.
2.

Plaintiff’s Request for Sanctions

Plaintiff requested costs associated with scheduling and attending Bewley’s October 29,
2018, deposition pursuant to Rule 37(d)(3). (DN 61, at PageID # 1033-36.) Rule 37(d) provides
that the court may award sanctions where a party “fails, after being served with proper notice, to
appear for that person’s deposition.” Fed. R. Civ. P. 37(d)(1)(A)(i). Plaintiff argued that Bewley’s
conduct and his counsel’s instruction to him not to answer certain questions amount to “failure to
appear” for the deposition. (DN 61, at PageID # 1033-36.) However, as the Court concluded
above that Plaintiff should have requested leave of Court prior to the October 29, 2018, deposition
of Bewley, the Court likewise concludes that sanctions under Rule 37(d) are not appropriately
awarded here. Additionally, despite Bewley’s counsel’s instructions to him not to answer certain
questions—which was improper, as set forth more fully below—the Plaintiff was aware of the
issue regarding the testimony Bewley would agree to give prior to the deposition (DNs 63-2, 633, 64-1, 64-2) and chose not to address it in advance. Therefore, the Court will deny Plaintiff’s
request for sanctions.

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3.

Leave to Reopen Depositions

Finally, Plaintiff argued that regardless of whether he should have previously requested
leave, the Court should now grant him leave to continue the depositions of Bewley and Cotton
without any limitations as to the scope of the same. (DN 61, at PageID # 1031-32.) Pursuant to
Fed. R. Civ. P. 30, when faced with such a request, the court “must grant leave to [reopen the
deposition] to the extent consistent with Rule 26(b)(1) and (2).” Fed. R. Civ. P. 30(a)(2) (emphasis
added).
Plaintiff argued that given Bewley and Cotton’s pivotal roles in the Incident that is the
subject of this action, their testimony regarding what happened is relevant to Plaintiff’s claims.
(DN 61, at PageID # 1031.) Plaintiff stated, “While Plaintiff has obtained other eyewitness
accounts of events in question, Plaintiff must be given the opportunity to learn Bewley and
Cotton’s point of view and role in the events of April 26, 2016.” (Id. at 1032.) Defendants Bewley
and Cotton do not appear to dispute that their testimony regarding the Incident is relevant and
discoverable, nor do they appear to dispute that they have not previously given such testimony.
Given Bewley and Cotton’s respective roles in the Incident that is the subject of this action, the
Court agrees that their testimony regarding the Incident is relevant and otherwise discoverable
within the scope of Fed. R. Civ. P. 26(b)(1).1 Therefore, the Court is directed by Fed. R. Civ. P.
30(a)(2) to grant leave to reopen the depositions of Bewley and Cotton unless doing so would be
contrary to the limitations of Fed. R. Civ. P. 26(b)(2).
Under Rule 26(b)(2), the court must limit the frequency or extent of discovery if it finds
that “the party seeking discovery has had ample opportunity to obtain the information by discovery

Bewley was the tow truck driver who towed Plaintiff’s car and from whose truck Plaintiff fell and was injured.
Cotton was the police officer who responded to the scene and was present both before Plaintiff’s car was towed and
after Plaintiff was injured.
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in the action.”2 Fed. R. Civ. P. 26(b)(2)(C)(ii). Cotton and Bewley argued that a third deposition
of Bewley and a second deposition of Cotton are not warranted here because Plaintiff’s counsel
ignored Defendants’ counsels’ e-mails regarding the limitations to be placed on the October 2930, 2018, depositions and did not even attempt to resolve any objections thereto beforehand.
Specifically, Bewley argued that forcing him to sit for a third deposition would be “tantamount to
harassment” because it was Plaintiff who called off the second deposition without asking any
questions regarding the Incident, even though Bewley was prepared to answer them that day. (DN
63, at PageID # 1153.)
Even though the Court concluded above that Plaintiff should have asked for leave prior to
taking the October 29, 2018, deposition of Bewley, in reviewing the transcript from the same, the
Court notes that the dispute regarding which questions Bewley would answer affected the
proceeding nearly from the start of the deposition. Bewley was instructed by counsel not to answer
Plaintiff’s counsel’s sixth question of the deposition:
MR. HASKEN:

. . . [W]hat were the charges that were filed against you, the
criminal charges filed against you?

MR. NOBLE:

Objection. Again, we’re - we’re limited today to the
questions that were objected to in the prior deposition in
which he invoked his Fifth Amendment right. You can ask
those questions. You can’t ask any other questions. We
agreed to that. We notified you of that on September 7,
2018.

MR. HASKEN:

Counsel, we just got started. Are you instructing the witness
not to answer?

Cotton and Bewley did not specifically argue that the Court should deny Plaintiff’s Motion because of the limitations
set forth in Fed. R. Civ. P. 26(b)(2)(C)(i) and (iii), merely that the scope of any such depositions should be limited.
The Court has already ruled above that the testimony sought is relevant and within the scope of discovery. Therefore,
Rule 26(b)(2)(C)(iii) does not prohibit reopening the depositions. The Court further finds that reopening the
depositions would not be unreasonably cumulative or duplicative under Rule 26(b)(2)(C)(i) if properly limited in
scope as will be addressed more fully in the remainder of this opinion.
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MR. NOBLE:

Yeah, I mean we – we instructed you on September 7, 2018
that you’re allowed to ask the questions that we objected to
in which we invoked the Fifth Amendment right. I would
have hoped that you would have already gone through the
deposition, highlighted those questions, had a line of
questioning based on those questions. Have you not done
that?

MR. HASKEN:

Counsel, do you know the circumstances in which you’re
allowed to instruct a witness not to answer under the Federal
Civil Rules?

MR. NOBLE:

He's already given his deposition. We invoked the Fifth
Amendment right. We allowed you to take a separate depo second deposition. You have not objected to that. We
notified you of that. We could have had this conversation
nine weeks ago, if you would have brought it up. For some
reason, you chose not to.

MR. HASKEN:

If you instruct him not to answer the questions, I’m going to
suspend the deposition and seek relief from the Court.

MR. NOBLE:

That’s fine. He’s – he’s here to answer the questions that
were objected to in his prior deposition, as we stated on
September 7, 2018.

MR. HASKEN:

And the basis as to why he couldn’t answer those questions
were because of the criminal -- the pending criminal
investigation. So I mean, I am certainly just setting the
foundation as why to there was a delay from his first
deposition to why we’re doing it now. I want to know his
understanding as to what the criminal charges were. That’s
all it is, and then we will move on. That – it’s -- that is it. It
is what the criminal charges were, and what was the
disposition, how was those -- how were those charges
resolved, in his words, and then we can certainly move on.

MR. NOBLE:

He – he’s not going to answer those questions. Did you ask
him that question on -- in the prior deposition?

MR. HASKEN:

There were no criminal charges brought against him at that
time.

MR. NOBLE:

Well, then he’s not going to answer the question.

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(DN 61-3, at PageID # 1126-27.) After a brief recess, Plaintiff’s counsel decided to attempt to
continue Bewley’s deposition, going on to ask him a number of questions, including questions
about his employment background that Bewley had previously refused to answer. (Id. at 11271133.) However, when Bewley’s counsel instructed him not to answer a question regarding
Bewley’s departure from a previous job on grounds that Bewley had not previously invoked his
Fifth Amendment privilege as to that question, Plaintiff’s counsel ultimately did suspend the
deposition. (Id. at 1133.)
While the Court concluded above that Plaintiff should have asked for leave to continue the
deposition given qualified stipulation offered by Defendants, the Court also notes that the
Defendants have presented no authority to support their ability to unilaterally restrict the scope of
a deposition and for counsel to instruct the deponent not to answer questions outside of that selfdelineated scope. Rule 30(c)(2) provides that “[a] person may instruct a deponent not to answer
only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to
present a motion under Rule 30(d)(3).” Fed. R. Civ. P. 30(c)(2) (emphasis added). Rule 30(d)(3)
allows a deponent to move to terminate or limit a deposition “because it is being conducted in bad
faith or in a manner that unreasonable annoys, embarrasses, or oppresses the deponent or party”
and provides that at the objecting deponent or party’s request, “the deposition must be suspended
for the time necessary to obtain an order.” Id. at (d)(3). Bewley’s counsel’s objections and
instructions to him not to answer were neither on that basis of privilege, nor to enforce any courtordered limitation, nor did counsel specifically reference Rule 30(d)(3) in his objections.
Therefore, it was improper for counsel to instruct Bewley not to answer questions.
Given this improper instruction and Bewley and Cotton’s previous assertions of their Fifth
Amendment privileges, the Court holds that Plaintiff has not yet had a full and fair opportunity to

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depose them regarding the Incident. Bewley and Cotton were key participants in and eyewitnesses
to the Incident giving rise to the present action. To prevent Plaintiff from obtaining their testimony
in discovery regarding the Incident would subject Plaintiff to unfair surprise at trial. The Court
recognizes that Plaintiff had an opportunity to resolve the present issue prior to taking the second
deposition of Bewley due to counsel’s e-mail regarding her view of the proper scope of the
deposition. But conversely, Bewley and Cotton could have refused to stipulate to a deposition
pursuant to Rule 30(a)(2)(a)(ii) absent Plaintiff’s agreement regarding scope. Bewley and Cotton
should not have assumed that silence meant agreement. Neither should Plaintiff have ignored the
issue regarding the scope of the deposition. However, given the importance of Bewley and
Cotton’s testimony, the Court finds that these facts are sufficient reason to deny Plaintiff’s request
for sanctions but not sufficient reason to prevent Plaintiff from obtaining the sought testimony.
Accordingly, the Court will grant Plaintiff leave to reopen the depositions of Bewley and Cotton
given the relevance of the testimony and Plaintiff’s lack of a previous or other opportunity to obtain
the same.
However, to prevent the reopened depositions from being unreasonably cumulative and
duplicative in violation of Fed. R. Civ. P. 26(b)(2)(C)(i), the Court will place limits on the scope
of the reopened deposition given that Plaintiff has already had an opportunity to ask some
questions of Cotton and Bewley in their initial depositions. In his Motion, Plaintiff stated that he
was previously presented from obtaining Cotton and Bewley’s testimony regarding “the events [of
April 16, 2016], what happened afterward, as well as (most) questions related to their employment
background.” (DN 61, at PageID # 1031.) Cotton argued that “the only new material or
information to be gleaned from the second deposition of Cotton was related to questions where
Cotton asserted his Fifth Amendment privilege against self-incriminations [sic].” (DN 64, at

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PageID # 1310.) Because nearly three years have passed since the initial depositions of Cotton
and Bewley, it is also possible that Plaintiff might need to seek testimony regarding matters he
could not have reasonably anticipated in August 2016, such as the developments in the criminal
prosecutions that occurred subsequent to the initial depositions.

Therefore, under the

circumstances, the reopened depositions of Cotton and Bewley shall be limited in scope to those
topics on which they originally asserted their Fifth Amendment privilege and any new events that
have unfolded since their initial August 4, 2016, depositions.
The Court recognizes that it has now placed a court-ordered limitation on Cotton and
Bewley’s testimony sufficient to trigger a proper instruction not to answer pursuant to Fed. R. Civ.
P. 30(c)(2). However, the Court directs the Parties to construe the Court’s limitation so as to avoid
disputes about the proper scope of the testimony to be taken. Where possible, the Parties should
err on the side of the testimony being within the scope of the Court’s limitation, even if an objection
to the same is noted for the record to be resolved later, if necessary.

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III.

ORDER
For the reasons set forth above, IT IS HEREBY ORDERED as follows:
(1)

Plaintiff’s Motion for Leave to Continue the Depositions of Cotton and Bewley

(DN 61) is GRANTED IN PART and DENIED IN PART. Plaintiff is granted leave to continue
the depositions of Cotton and Bewley to those topics on which they originally asserted their Fifth
Amendment privilege and any new events that have unfolded since their initial August 4, 2016,
depositions. Plaintiff’s request for sanctions is denied.
(2)

The Parties shall complete the depositions of Cotton and Bewley within the

fact discovery deadline set by this Court’s February 6, 2019 Order (DN 67).

cc: Counsel of record
July 17, 2019

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