Santos v. Frederick County Board of Commissioners et al
MEMORANDUM AND ORDER granting 171 Motion for Leave to Take Depositions of Defendants Openshaw and Lynch; directing parties to confer about available dates for the depositions within 7 days. Signed by Judge William M Nickerson on 1/4/2017. (krs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ROXANA ORELLANA SANTOS
FREDERICK COUNTY BOARD OF
COMMISSIONERS et al.
Civil Action No. WMN-09-2978
MEMORANDUM AND ORDER
Before the Court is Plaintiff’s Motion for Leave to Take
Depositions of Defendants Openshaw and Lynch.
motion is fully briefed.
ECF No. 171.
Upon review of the parties’
submissions and the applicable case law, the Court determines
that no hearing is necessary, Local Rule 105.6, and that the
motion should be granted.
This action arises out of the seizure and arrest of
Plaintiff Roxana Orellana Santos on October 7, 2008, by two
Deputies in the Frederick County Sheriff Office, Defendants
Jeffrey Openshaw and Kevin Lynch.
On January 7, 2011, Plaintiff
took the depositions of Defendant Charles Jenkins, the Frederick
County Sheriff, and Defendant Openshaw.
Defendant Lynch on January 13, 2011.
At issue in the pending
motion is whether Plaintiff should be permitted to depose
Defendants Openshaw and Lynch a second time.
that the Fourth Circuit Court of Appeals has found that the
Deputies violated Plaintiff’s constitutional rights and has
remanded the case for consideration of Plaintiff’s municipal and
official-capacity claims, Plaintiff seeks to depose them on
issues related to municipal liability.1
Plaintiff also seeks to
depose the Deputies on issues related to new factual allegations
in the Third Amended Complaint, which was filed post-remand.
Under Rule 30(a)(2)(A)(ii) of the Federal Rules of Civil
Procedure, Plaintiff must obtain leave of court if the parties
have not stipulated to the deposition of a deponent who has
already been deposed in the case.
In ruling on such a request,
the court “must grant leave to the extent consistent with Rule
26(b)(1) and (2).”
Fed. R. Civ. P. 30(a)(2)(A)(ii).
argue that second depositions of Defendants Openshaw and Lynch
would be inconsistent with Rule 26(b)(2)(C)(ii), which provides
that “the court must limit the frequency or extent of discovery
otherwise allowed by these rules or by local rule if it
determines that . . . the party seeking discovery has had ample
opportunity to obtain the information by discovery in the
The Court concluded that, due to the procedural
posture of this action at the time those previous depositions
were taken, Plaintiff did not have that ample opportunity to
obtain the information from these deponents that she now seeks.
Plaintiff has already re-deposed Sheriff Jenkins on these
issues, without objection.
There is no dispute that the previous depositions were
taken during a period of “limited” discovery pursuant to a
ruling of Judge Benson Everett Legg in September of 2010.
in this litigation, the issue arose as to whether, when
arresting Plaintiff, the Deputies were acting under state or
In a conference call, memorialized by a subsequent
written order, Judge Legg ruled that this case would proceed
with a “preliminary period of limited discovery” to explore that
ECF No. 57.
During this period, Plaintiff would be
permitted to take the depositions of Sheriff Jenkins and the
Deputies and they, in turn, would be able to take the deposition
While Judge Legg prohibited the depositions
of the federal defendants during this period of limited
discovery, Defendants suggest that he imposed no restrictions on
the scope of the depositions of Sheriff Jenkins and the
Nevertheless, at the beginning of the deposition of Sheriff
Jenkins, counsel put the following agreement on the record:
MR. KARP [Defendants’ counsel]: Before we begin,
Counsel has kindly agreed to my request that I put
briefly on the record what I believe to be a
limitation on today's deposition. The Court has not
limited Plaintiffs in any way, at least expressly,
from inquiring of the Sheriff as to certain topics.
However, the state of discovery is such that it is my
view that until and unless it is determined that the
deputies on the scene violated the Plaintiff's
constitutional rights, issues concerning [topics
related to municipal liability] are irrelevant.
I have asked Counsel if he will forebear from at least
detailed questions on those topics until and unless
those matters are actually at issue in this case, and
while I will not and don't purport to represent what
Counsel, Plaintiff's Counsel's position is on this
topic, I will simply state that circumstances of the
event at issue and anything reasonably collateral
thereto. Thank you.
MR. HAYES [Plaintiff’s counsel]: And we did have a
discussion off the record on this topic, and, as Mr.
Karp said, when we finish with the Sheriff here today
we will suspend the deposition so that should we get
back to these topics, have an opportunity to get back
to the topics later on we'll do it then. And I think
that's what we discussed.
MR. KARP: That's agreed.
Jenkins Dep. at 7-8.
The Court notes that while no similar
agreement was put into the record during the depositions of the
Deputies, the deposition of Sheriff Jenkins was held on the same
day as that of Deputy Openshaw and a week before Deputy Lynch’s.
The Court also notes that, after the Fourth Circuit Court
of Appeals remanded this case to this Court for consideration of
Plaintiff’s municipal and official capacity claims, Judge
William Quarles rejected an argument similar to the argument
Defendants are making here when he granted, in part, Plaintiff’s
motion for leave to file her Third Amended Complaint.
Quarles characterized Judge Legg’s order for limited discovery
as withholding from Plaintiff the opportunity to engage in
discovery on the “broader issues about local policies and
practices relevant to Santos’s municipal liability claims.”
No. 148 at 14 n.22.
While Judge Legg’s discovery order may not have expressly
limited the scope of the Deputies’ depositions, the record
reveals that the parties reasonably understood, and the Court
recognized, that discovery on issues related to municipal
liability would be deferred until after a finding of individual
Furthermore, there can be no dispute that Plaintiff
was unable to explore issues related to the new factual
allegations added in the Third Amended Complaint concerning
events that occurred after those original depositions.
Plaintiff’s motion will be granted.
Accordingly, IT IS this 4th day of January, 2017, by the
United States District Court for the District of Maryland,
(1) That Plaintiff’s Motion for Leave to Take Depositions
of Defendants Openshaw and Lynch, ECF No. 171, is GRANTED;
(2) That within seven (7) days of the date of this Order,
the parties shall confer about available dates for the
depositions of Defendants Openshaw and Lynch; and
(3) That the Clerk of the Court shall transmit a copy of
this Memorandum and Order to all Counsel of Record.
William M. Nickerson
Senior United States District Judge
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