MCCUE v. CITY OF BANGOR MAINE et al

Filing 74

ORDER denying 67 Amended Motion for Sanctions; granting 70 Motion to Reopen Depositions ; denying 70 Motion for Sanctions. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

MICHAEL McCUE, Individually
and as Personal Representative
of the Estate of Phillip McCue,

Plaintiff
v.
CITY OF BANGOR MAINE, et al.,
Defendants

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1:14-cv-00098-GZS

ORDER ON PLAINTIFF’S AMENDED MOTION
FOR SANCTIONS (ECF NO. 67) AND
PLAINTIFF’S MOTION TO REOPEN DEPOSITIONS (ECF NO. 70)
This matter is before the Court on Plaintiff’s Amended Motion for Sanctions (ECF No. 67),
and Plaintiff’s Motion to Reopen Depositions/Motion for Sanctions (ECF No. 70). Through his
motions, Plaintiff seeks relief related to the depositions of Defendant City of Bangor and three
officers of the Bangor Police Department.
As explained below, after consideration of the parties’ arguments, the Court denies
Plaintiff’s Amended Motion for Sanctions (ECF No. 67), but permits Plaintiff to serve upon
Defendant City of Bangor additional, limited, interrogatories. The Court also grants in part and
denies in part Plaintiff’s Motion to Reopen Depositions/Motion for Sanctions (ECF No. 70) with
specific conditions.
Plaintiff’s Amended Motion for Sanctions
Plaintiff maintains that in response to a notice of corporate deposition pursuant to Fed. R.
Civ. P. 30(b)(6), Defendant City of Bangor produced a witness (corporate counsel, Norman
Heitmann) who had little or no knowledge about the designated areas of inquiry. Defendants

contend that particularly given Defendants’ objections to the notice of deposition, which objections
Defendants properly served upon Plaintiff, Mr. Heitmann was an appropriate designee. Plaintiff
did not challenge the objections prior to the deposition.
While Mr. Heitmann plainly could not testify as to many of the designated areas of inquiry,
Mr. Heitmann arguably was capable of testifying regarding the topics as redefined by Defendants’
objections. Because Plaintiff did not challenge Defendants’ objections before the deposition,
therefore, sanctions are not appropriate.
The broad nature of some of the designated areas of inquiry justified at least some of
Defendants’ objections.

Nevertheless, Plaintiff identified an area of inquiry on which Mr.

Heitmann could not testify, and for which Defendant City of Bangor should have produced a
competent witness, i.e., the training that Defendant City of Bangor, through its emergency services
departments, provided to those individuals involved in the incidents about which Plaintiff
complains.

Defendants’ contention that its objection was appropriate because Plaintiff has

received training information from other sources is unpersuasive. The fact that Plaintiff might
have obtained from other sources evidence of the training that the individuals received does not
obviate the need for Defendant City of Bangor, a party to this action, to describe the training that
it provided. The Court, therefore, will permit Plaintiff to inquire, by interrogatory as described
further below, of Defendant City of Bangor regarding the training.
Plaintiff’s Motion to Reopen Depositions/Motion for Sanctions
In December 2014, Plaintiff deposed three officers (Joshua Kuhn, David Farrar, and Wade
Betters) of the Bangor Police Department. Following the depositions, through their respective
errata sheets, the officers made changes to their deposition testimony. While Defendants contend
that the corrections were “consistent with, and clarified, what they had previously testified to

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during their depositions …”, the changes can be fairly characterized as substantive changes. (Defs.’
Opposition at 2.)
Fed. R. Civ. P. 30(e)(1)(B) specifically authorizes a deponent to make “changes in form or
substance.” Although a witness can make substantive changes, as a general rule, the inquiring
party should not have to wait until trial to explore the reasons for the changes. A party should
have the opportunity to explore the reasons for the changes in order to have sufficient time to
investigate the veracity of the explanation before trial. As the First Circuit recognized, “[w]hen
witnesses make substantive changes to their deposition testimony, the district court certainly has
the discretion to order the depositions reopened so that the revised answers may be followed up on
and the reasons for the explanations explored.” Pina v. The Children’s Place, 740 F.3d 785, 792
(1st Cir. 2014).
Here, because the substantive changes could be of some significance in the case, Plaintiff
should be permitted to explore the reasons for the changes. The changes, however, are limited in
number and in scope. The depositions will be similarly limited.
Finally, because the witnesses are permitted by law to make substantive changes to their
deposition testimony, an award of sanctions is not warranted.
Conclusion
Based on the foregoing analysis, the Court denies Plaintiff’s Amended Motion for
Sanctions (ECF No. 67), but authorizes Plaintiff to serve upon Defendant City of Bangor
interrogatories, not to exceed five (5) in number including subparts, regarding the training that
Defendant City of Bangor provided to the individuals involved in the incident about which Plaintiff
complains. The Court also grants in part and denies in part Plaintiff’s Motion to Reopen
Depositions/Plaintiff’s Motion for Sanctions (ECF No. 70).

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Plaintiff may reconvene the

depositions of Officers Kuhn, Farrar, and Betters for the limited purpose of exploring the reasons
for the witnesses’ changes to their deposition testimony, which changes are reflected on their
respective errata sheets. Each deposition shall not exceed one-half hour. The Court denies
Plaintiff’s Motion for Sanctions.
CERTIFICATE
This report fairly reflects the actions taken at the hearing and shall be filed forthwith. Any
objections to this report shall be filed in accordance with Fed. R. Civ. P. 72.
So Ordered.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 11th day of February, 2015.

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