Anderson v. Furst et al

Filing 105

OPINION AND ORDER Denying Plaintiff's 85 Motion for Protective Order; denying 87 Motion to Compel; denying 88 Motion to Compel; granting in part and denying in part Defendants' 91 Motion to Compel--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JERRY ANDERSON,
Case No. 2:17-12676
District Judge Victoria A. Roberts
Magistrate Judge Anthony P. Patti

Plaintiff
v.
COLTER FURST,
MICHAEL THOMAS, and
NATHAN ELLIS

Defendants.
___________________________________/

OPINION AND ORDER (1) DENYING PLAINTIFF’S MOTION FOR
PROTECTIVE ORDER (DE 85), (2) DENYING PLAINTIFF’S MOTIONS
TO COMPEL (DEs 87, 88), AND (3) GRANTING IN PART AND DENYING
IN PART DEFENDANTS’ MOTION FOR SANCTIONS AND TO COMPEL
DEPOSITION (DE 91)
I.

Introduction
Plaintiff, a state prisoner who is proceeding in forma pauperis, brings this

prisoner civil rights lawsuit against three defendants, Colter Furst, Michael
Thomas and Nathan Ellis, all Michigan State Police Troopers, alleging they
violated his rights under the Fourth Amendment by using excessive force during
his arrest on September 4, 2015. (DE 1.) He seeks injunctive and declaratory
relief, in addition to compensatory and punitive damages. (Id.)

1

Plaintiff brings a motion for protective order regarding his deposition (DE
85) and two motions to compel discovery pursuant to Fed. R. Civ. P. 37(a) (DEs 87
and 88.) Defendants filed a motion for sanctions and to compel deposition
testimony. (DE 91.) For the reasons that follow, Plaintiff’s motions (DEs 85, 87,
88) are DENIED and Defendants’ motion (DE 91) is GRANTED IN PART AND
DENIED IN PART.
II.

Instant Motions
A.

Plaintiff’s Motions

On January 29, 2019, Plaintiff filed the following three motions:
1.

Motion for protective order (DE 85)

First, Plaintiff filed a motion for protective order seeking protection from
certain questions at his deposition scheduled for January 25, 2019. (DE 85.)
Specifically, he seeks protection “from being asked questions that would give the
defendants answers to the interrogatories that have been served” and “from
disclosing mental impressions, trial preparation materials and the reasons that he
requested” certain discovery. (Id. at 1.) Plaintiff also objects that the deposition
notice, served on January 16, 2019 for a January 25th deposition, did not provide a
reasonable amount of time to prepare for his deposition. (Id. at 2.)
2.

Motion to compel responses to fourth requests for
production of documents (DE 87)

2

Second, Plaintiff filed a motion to compel discovery, seeking to compel
Defendants’ responses to his fourth request for production of documents, served on
November 28, 2018, which seeks seven categories of documents. (DE 87.)
Plaintiff contends that all of the documents sought are relevant and “directly
related to the Troopers, their rules of conduct that they are expected to follow, their
history within the department and their discipline.” (Id. at 1.) Plaintiff complains
that Defendants have not responded to these discovery requests. (Id. at 2.)
3.

Motion to compel interrogatories, sets 4, 5, 6 (DE 88)

Finally, Plaintiff filed a second motion to compel, seeking to compel
Defendants’ responses to his three sets of interrogatories served on each of the
Defendants individually. (DE 88.) Plaintiff served the interrogatories on
Defendants on November 28, 2019, but Defendants have not responded. (Id.)
4.

Defendants’ single response to Plaintiff’s three motions
(DE 92)

On February 11, 2019, Defendants filed one response to Plaintiff’s three
motions. (DE 92.) Defendants argue that Plaintiff’s motion for protective order
should be denied because “at least the first part of [his] deposition has been taken”
and Defendants only asked factual questions regarding the day of Plaintiff’s arrest
and Plaintiff’s alleged injuries, and did not request legal conclusions. (Id. at 2.)
Defendants also contend that the deposition notice was timely and no surprise was
involved. (Id.)
3

As for Plaintiff’s two motions to compel (DEs 87, 88), Defendants state that
the discovery cutoff in this case was December 17, 2018, and thus Plaintiff’s
discovery requests, served on November 28, 2018, were untimely as the responses
would have been due after the discovery cutoff. (Id. at 2-4.)
5.

Plaintiff’s reply (DE 93)

Plaintiff filed a reply brief on February 22, 2019. (DE 93.) Plaintiff first
objects to Defendants filing one response to multiple motions. (Id. at 1.) With
respect to his motion for protective order (DE 85), Plaintiff argues that his January
25, 2019 deposition transcript may not be used at a hearing or trial pursuant to Fed.
R. Civ. P. 32(a)(5)(A) because he received less than eleven-days’ notice of the
deposition and the instant motion for protective order was pending at the time of
his deposition. (Id. at 1-2.) He also argues, with respect to his two motions to
compel (DEs 87, 88), that his discovery requests were timely because they were
served before the discovery cutoff date. (Id. at 3-5.)
B.

Defendants’ Motion
1.

Defendants’ motion for sanctions and to compel deposition
testimony (DE 91)

On February 5, 2019, Defendants filed a motion to compel Plaintiff to
answer questions at his deposition about the day of the incident giving rise to this
lawsuit, and for monetary sanctions in the form of costs required to have the court
reporter appear again for “the third attempted time for his deposition.” (DE 91 at
4

2.) Defendants argue that Plaintiff’s deposition was taken on January 25, 2019, but
that he refused to answer any questions that he deemed “irrelevant,” including
questions regarding the moments leading up to the police chase on the date of his
arrest. (Id. at 4.) Defendants contend these topics are clearly relevant to his
excessive force claim, and that “Plaintiff does not have the right to do a trial by
ambush when it comes to these topics.” (Id. at 5-6.)
2.

Plaintiff’s response (DE 94)

Plaintiff filed a response on February 22, 2019, arguing first that
Defendants’ motion was improperly filed after the January 31, 2019 deadline to
file discovery-related motions. (DE 94 at 1.) Plaintiff also argues that the
deposition was not reasonably noticed, and that Defendants failed to attach a copy
of the deposition notice to their motion or attach a “full verbatim copy of the
questions and answers that are the subject of this motion.” (Id. at 1-2 (emphasis in
original).)
III.

Analysis
A.

Legal Standard

The Court has broad discretion to determine the scope of discovery. Bush v.
Dictaphone Corp., 161 F.3d 363, 367 (6th Cir. 1998). The scope of discovery,
which permits a party to obtain “any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the case, considering the
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importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit,” is always subject
to being “limited by court order[,]” and thus, within the sound discretion of the
court. Fed. R. Civ. P. 26(b)(1). Further, discovery is more liberal than even the
trial setting, as Rule 26(b) allows information that “need not be admissible in
evidence” to be discoverable. Id. However, the court must also balance the “right
to discovery with the need to prevent ‘fishing expeditions.’” Conti v. Am. Axle &
Mfg., Inc., 326 F. App’x 900, 907 (6th Cir. 2009) (quoting Bush, 161 F.3d at 367).
Rule 37(a) allows a party to move for an order compelling “an answer, designation,
production, or inspection” if the opposing party has failed to provide a discovery
response. Fed. R. Civ. P. 37(a)(3).
Federal Rule of Civil Procedure 26(c) provides that for good cause shown, a
court may issue an order “to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1).
This Rule confers broad discretion on the trial court to decide when a protective
order is appropriate and what degree of protection is required. Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 36 (1984). The Court may specify the terms of
production, limit disclosure, require that documents be filed under seal, or take any
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other action that effectuates the purposes of Rule 26(c). The party seeking
protection bears the burden of demonstrating that there is good cause for restricting
the disclosure of the information at issue. Fed. R. Civ. P. 26(c). For good cause to
exist, the party seeking to limit the disclosure of discovery materials must show
that specific prejudice or harm will result if no protective order is granted, and the
moving party cannot rely on mere conclusory statements. Nix v. Sword, 11 F.
App’x 498, 500 (6th Cir. 2001).
B.

Plaintiff’s Motion for Protective Order (DE 85) is DENIED

On January 14, 2019, the Court entered an Order granting in part
Defendants’ motions to take Plaintiff’s deposition (DEs 79, 82) and ordered that:
Defendants may take Plaintiff’s deposition on or before FEBRUARY
4, 2019. Defendants shall be permitted to take the deposition of
Plaintiff for all purposes allowed by the Federal Rules of Civil
Procedure, and the deposition may occur in person, by telephone, or via
video teleconference, at Defendants’ option and consistent with the
requirements and needs of Plaintiff’s place of incarceration.
(DE 83 at 3 (emphasis in original).)1 Consistent with that Order, Defendants
noticed Plaintiff’s deposition for January 25, 2019. Plaintiff appeared that day and
Defendants represent that “at least the first part of the deposition” was taken. (DE
92 at 2.)

1

Defendants initially noticed Plaintiff’s deposition for January 3, 2019, but on that
date Plaintiff refused to answer any questions because it was past the December
17, 2018 discovery deadline and the Court had not ruled on Defendants’ thenpending motion for extension. (DE 82.)
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Plaintiff’s motion for protective order (with a signature date of January 24,
2019 (one day before his deposition), but with a filing date of January 29, 2019
(five days after his deposition)), requests protection: (1) “from being asked
questions that would give the defendants answers to the interrogatories that have
been served” and (2) “from disclosing mental impressions, trial preparation
materials, and the reasons that he requested the items listed in his multiple motions
to compel discovery.” (DE 85 at 1.) Plaintiff also objects that the deposition
notice was not served sufficiently in advance of the deposition. (Id. at 2.)
Plaintiff’s motion is DENIED. The Court previously ordered that
Defendants were permitted to take the deposition “for all purposes allowed by the
Federal Rules of Civil Procedure,” and, as discussed more fully below, pursuant to
those rules, the party conducting the examination may inquire into “any
nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). Plaintiff does
not more specifically explain the substance of the questions that “would give the
defendants answers to the interrogatories that have been served,” but to the extent
those questions address the facts of this case and Plaintiff’s claim, including but
not limited to the events leading to Plaintiff’s arrest, they are relevant and
discoverable. Furthermore, discovery by interrogatory and discovery by deposition
are not mutually exclusive tools. In deposition, defendants are free to explore
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topics previously addressed in interrogatories and to follow up on or impeach with
interrogatory answers previously given.
Second, Rule 26(b)(3) already provides protection for “documents and
tangible things that are prepared in anticipation of litigation or for trial” and
protects against disclosure “of the mental impressions, conclusions, opinions, or
legal theories of a party’s attorney or other representative concerning the
litigation.” Fed. R. Civ. P. 26(b)(3)(A), (B). Plaintiff, as a pro se litigant, has a
right to assert work product protection over such material. See Dessault Systemes,
Sa v. Childress, No. 09-10534, 2013 WL 12181774, at *1 (E.D. Mich. Nov. 22,
2013) (acknowledging that defendant, a pro se litigant, has the right to assert work
product protection). Accordingly, as Plaintiff already has this protection, there is
no need for a protective order governing this issue; nor does the Court provide
prospective rulings on anticipated objections, as the signature date on the motion
(one day before the scheduled deposition) would suggest.
Finally, Rule 30(b) requires that the party seeking a deposition give
“reasonable written notice” of the deposition, but does not require a specific
number of days of notice. See Fed. R. Civ. P. 30(b)(1). Rather, the reasonableness
of notice depends on the particular facts and circumstances of each case. See Hart
v. United States, 772 F.2d 285, 286 (6th Cir. 1985); Burket v. Hyman Lippitt, P.C.,
No. 05-72110, 2008 WL 718180, at *2 (E.D. Mich. Mar. 14, 2008). Plaintiff’s
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complaint that nine-days’ notice of the January 25, 2019 deposition is not
“reasonable” is not well taken in light of the facts and circumstances of this case,
which include that: Plaintiff is incarcerated and unlikely to have other, more
pressing concerns that day; the issues in this matter are not complicated; the
Defendants noticed and attempted to take his deposition on January 3, 2019; and,
the Court’s January 14, 2019 Order required that the deposition occur on or before
February 4, 2019. See Smith v. Stephens, No. 2:10-CV-13763, 2012 WL 899347,
at *3 (E.D. Mich. Mar. 16, 2012) (four days was “reasonable written notice” where
Plaintiff was a prisoner and examination topics were not complicated). Plaintiff
cannot justifiably claim surprise or undue burden.2 Therefore, Plaintiff’s motion
for protective order (DE 85) is DENIED.
C.

Plaintiff’s Motions to Compel (DEs 87, 88) Are DENIED as
Untimely

2

Plaintiff argues, for the first time in his reply brief, that Defendants should be
precluded from using his deposition testimony at a hearing or trial, pursuant to Fed.
R. Civ. P. 32(a)(5)(A), which addresses “depositions taken on short notice.” (DE
93 at 1-2.) However, apart from being premature, this issue is not properly before
this Court, as the Sixth Circuit repeatedly has recognized that arguments raised for
the first time in a party’s reply brief are waived. See United States v. LopezMedina, 461 F.3d 724, 743 (6th Cir. 2006) (citing McPherson v. Kelsey, 125 F.3d
989, 995-96 (6th Cir. 1997) (deeming arguments that are not raised in the
appellant’s main brief, or raised merely in perfunctory manner, as waived);
Lexicon, Inc. v. Safeco Ins. Co. of America, Inc., 436 F.3d 662, 676 (6th Cir. 2006)
(a district court properly declines to consider an issue raised for the first time in a
reply brief).
10

Plaintiff’s other two January 29, 2019 motions seek to compel responses to
discovery requests (requests for production and interrogatories) served on
Defendants on November 28, 2019. (DEs 87, 88.) Defendants contend that the
discovery requests at issue were untimely because Defendants’ responses would
have been due after the discovery cutoff date, so no responses were required. (DE
92 at 2-4.)
The Court’s initial scheduling order provided a discovery cutoff date of
November 1, 2018, expressly stating that discovery must be “completed” by that
date and explaining that “the discovery completion date requires that discovery
requests be made sufficiently in advance to permit timely response within the
discovery period.” (DE 39 at 2 (emphases added).) The discovery deadline was
subsequently extended to December 17, 2018, with the Court again expressly
stating that discovery must be “completed” by that date. (DE 63 at 2.) That order
also stated that “[t]here will be no further extensions of the discovery deadline.”
(Id. (emphasis in original).)3

3

The Court subsequently entered an order permitting Defendants to take Plaintiff’s
deposition and directing the USMS to serve four subpoenas for Plaintiff after the
December 17, 2018 discovery cutoff, but expressly stated that “the December 17,
2018 discovery cutoff is otherwise not extended for any other purpose.” (DE 83
(emphasis in original).) The Court found good cause to extend the time to take
Plaintiff’s deposition, after the discovery period, because Defendants explained
that Plaintiff’s deposition had been noticed during the discovery period, but that
“due to other commitments both professionally and personally,” it had to be
rescheduled to January 3, 2019. Plaintiff appeared that day but refused to answer
11

The Federal Rules of Civil Procedure provide that parties have thirty days in
which to respond to interrogatories and requests for production. Fed. R. Civ. P.
33(b)(2), 34(b)(2). Accordingly, Defendants’ responses to the discovery requests
at issue in Plaintiff’s motions to compel (DEs 87, 88), served on November 28,
2018, would not have been due until December 28, 2018, eleven days after the
December 17, 2018 discovery deadline. The Court’s scheduling order, issued on
May 29, 2018, expressly required that that “discovery requests be made
sufficiently in advance to permit timely response within the discovery period” (DE
39 at 2), and the requirement that “discovery must be served upon a party so that
the receiving party has enough time to respond, as provided for in the Federal
rules” is well settled. See Drahuse v. Federal Home Loan Mortg. Corp., No. 10CV-14117, 2011 WL 4088170, at *1-2 (E.D. Mich. Sept. 14, 2011) (collecting
cases and holding that because the discovery due date was past the scheduling
order’s “[c]losing date” for discovery, the discovery requests were untimely); see
also Ginett v. Federal Express Corp., No. 97-5481, 1998 WL 777998, at *4 (6th
Cir. Oct. 21, 1998) (holding that the magistrate judge who refused to compel
responses because responses were not due until after the discovery deadline

questions because discovery closed. And, the Court found good cause to direct the
USMS to serve four subpoenas for Plaintiff, after the discovery period, because
Plaintiff stated that he requested the subpoenas at issue in November and
December 2018, but did not receive them until “on or about 12-26-18.” (Id.)
12

“properly applied the law”); Appalachian Reg’l Healthcare, Inc. v. U.S. Nursing
Corp., No. 7:14-cv-00122-KKC-EBA, 2017 WL 9690401, at *4-5 (E.D. Ky. Sept.
1, 2017) (“Under Rules 33(b)(3) and 34(b) ‘a party must serve his discovery
request at least thirty days before the court-ordered discovery deadline to be timely
and to necessitate a response.’”) (collecting cases).
Accordingly, because Plaintiff did not serve the discovery requests at issue
in his January 29, 2019 motions to compel (DEs 87, 88) at least thirty (30) days
before the December 17, 2018 discovery deadline, the discovery requests were
untimely and Defendants were not required to respond or produce the requested
documents. Plaintiff’s asserted (and incorrect) “understanding” that he was only
required to serve his discovery by the discovery cutoff date is unavailing because
the fact that Plaintiff is proceeding without an attorney does not exempt him from
following court rules and deadlines. A pro se litigant, whether a plaintiff or
defendant, is required to follow the law—not to mention the clear language in this
case’s scheduling order—and assumes the risks and hazards that accompany selfrepresentation. Graham–Humphreys v. Memphis Brooks Museum of Art, Inc., 209
F.2d 552, 561 (6th Cir. 2000); Mooney v. Cleveland Clinic Foundation, 184 F.R.D.
588, 590 (N.D. Ohio 1999) (“Pro se litigants are required to follow the rules of
civil procedure and easily-understood Court deadlines.”).
Plaintiff’s motions to compel (DEs 87, 88) are therefore DENIED.
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D.

Defendant’s Motion for Sanctions and to Compel Deposition
Testimony (DE 91) is Granted in Part and Denied in Part

Defendants deposed Plaintiff on January 25, 2019, but contend that Plaintiff
refused to answer many of the questions asked regarding the events preceding his
arrest on September 4, 2015, and instead objected on the basis of relevance. (DE
91, 91-2.) Defendants assert that because Plaintiff alleges that Defendants used
improper excessive force to execute Plaintiff’s arrest, Plaintiff’s state of mind
during the arrest, and the events preceding the arrest are relevant to Plaintiff’s
claim and are thus discoverable. (DE 91 at 4-6.) Plaintiff responds that
Defendants’ motion is untimely because it was filed after the “motions related to
discovery” cutoff date of January 31, 2019. (DE 94 at 1.) Plaintiff further
contends that Defendants did not provide reasonable notice of the deposition and
that they failed to attach a copy of the notice for taking of deposition as required by
E.D. Mich. LR 37.2. (Id. at 1-2.)
I will first address the timeliness of Defendants’ motion. It is true that the
instant motion was filed five calendar days after the January 31, 2019 deadline for
filing discovery motions. However, given that the Court extended discovery for
the limited purpose of the taking of Plaintiff’s deposition on or before February 4,
2019, that Plaintiff refused to answer many of Defendants’ questions during the
January 25, 2019 deposition, and that the instant motion was filed just over one
week after Plaintiff’s deposition, the timing of the motion is reasonable. While
14

Defendants theoretically could have filed a motion in the days immediately
following Plaintiff’s deposition, it was not unreasonable that they presumptively
waited to file the motion until they received a copy of the deposition transcript.
As for Plaintiff’s second argument that Defendants did not provide sufficient
notice for the deposition, as explained above, Rule 30(b)(1) only requires
“reasonable written notice,” and the Court found that Defendants met that
requirement. And Plaintiff’s argument that Defendants failed to comply with
Local Rule 37.2 is also without merit, as Defendants attached at least a portion of
Plaintiff’s deposition transcript containing the testimony at issue in this motion. In
this instance, it was not the notice of the deposition that was required under Local
Rule 37.2, but rather, the testimony that was at issue; and this was attached to the
extent necessary for the Court to appreciate the problem. See E.D. Mich. LR 37.2
(“Any discovery motion filed pursuant to Fed. R. Civ. P. 26 through 37, shall
include, in the motion itself or in an attached memorandum, a verbatim recitation
of each interrogatory, request, answer, response, and objection which is the subject
of the motion or a copy of the actual discovery document which is the subject of
the motion.”).
Plaintiff did not address Defendants’ argument that he improperly refused to
answer questions at his deposition, which is the crux of this particular motion.
Federal Rule of Civil Procedure 30 governs depositions by oral examination. In a
15

deposition taken pursuant to Rule 30, the party conducting the examination may
inquire into any nonprivileged topic, where there is any possibility that the
information sought may be relevant to the claim or defense of any party. Fed. R.
Civ. P. 26(b)(1). Rule 30 permits a deponent to object during a deposition, but
then he must nevertheless answer the question posed and “the testimony is taken
subject to any objection.” Fed. R. Civ. P. 30(c)(2). Rule 30 provides only three
grounds whereby a person may refuse to answer at a deposition: (1) “to preserve
privilege,” (2) “to enforce a limitation ordered by the court,” or (3) “to present a
motion under Rule 30(d)(3).” Fed. R. Civ. P. 30(c)(2). This rule applies equally to
pro se litigants. Goode v. Mercy Mem. Hosp., No. 11-10037, 2014 WL 7369926,
at *3 (E.D. Mich. Dec. 29, 2014). However, it is well settled that “[l]ack of
relevance is not a valid objection under [the federal rules] and, as a result, is not an
appropriate reason to withhold answers to a question posed during a deposition.”
Id. (quoting Ferrell v. Sparkman, No. 4:06-cv-7, 2007 WL 172516, at *2 (E.D.
Tenn. Jan. 18, 2007)). Furthermore, Rule 26(b)(1) makes clear that, “[i]nformation
within the scope of discovery need not be admissible in evidence to be
discoverable.” Fed. R. Civ. P. 26(b)(1). So Plaintiff’s opportunity to object to the
admission of evidence at trial is preserved by his objection, even if he still must
answer the question in his deposition. Accordingly, while Plaintiff is entitled to
state on the record during his deposition his objection as to the lack of relevance, if
16

he chooses, he must then respond to the questions posed. There is simply no basis
in the Federal Rules of Civil Procedure for Plaintiff to decline to answer questions
related to a topic he subjectively deems irrelevant.
As it turns out, Plaintiff refused to answer relevant questions about the
events in question in this case. His complete failure or refusal to answer relevant
questions was impermissible, and not allowed under any grounds laid out in Fed.
R. Civ. P. 30(c)(2), there being no showing that the deposition was being
“conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or
oppresses the deponent or party[,]” and the Court finding no such ill motive or
inappropriate manner here. As such, Defendants are entitled to take further
deposition testimony from Plaintiff pursuant to Fed. R. Civ. P. 37(a)(B)(i).
Defendants may notice another deposition for Plaintiff, to occur on or before June
17, 2019.
Plaintiff shall attend the continuation of his deposition, and shall provide
truthful and complete answers to all questions asked unless the refusal to answer is
permissible upon the very limited grounds discussed elsewhere in this opinion, and
each ground upon which he relies is stated on the record, concisely and in a
nonargumentative manner. The questions Plaintiff must answer include, but are
not limited to, those he failed to answer at the initial session of his deposition on

17

January 25, 2019, questions regarding his claims in this lawsuit, and questions
seeking similar information.
However, Defendants’ request for sanctions is denied. While Plaintiff may
have improperly refused to answer questions he contends were not “relevant,” he
had filed a motion for protective order, which was at least signed before the
January 25, 2019 deposition, and he was entitled to a ruling on that motion.
Accordingly, no monetary sanctions will be awarded. However, Plaintiff is
cautioned that even though he is proceeding pro se, he must still conduct himself
with civility in this Court, and any failure to attend the subsequently-noticed
deposition or to participate in that deposition and answer questions as provided in
this Order will subject him to the imposition of sanctions, which may include
dismissing all of his claims with prejudice.
Accordingly, Defendants’ motion for sanctions and to compel deposition
testimony (DE 91) is GRANTED IN PART and DENIED IN PART.
IV.

Conclusion and Order
Accordingly, for the reasons set forth above, Plaintiff’s motion for protective

order (DE 85) and his motions to compel (DEs 87, 88) are DENIED, and
Defendants’ motion for sanctions and to compel deposition testimony is
GRANTED IN PART and DENIED IN PART. Defendants may notice another
deposition for Plaintiff, to occur on or before June 17, 2019. As before,
18

Defendants shall be permitted to take Plaintiff’s deposition for all purposes
allowed by the Federal Rules of Civil Procedure, and the deposition may occur in
person, by telephone, or via video teleconference, at Defendants’ option and
consistent with the requirements and needs of Plaintiff’s place of incarceration.
The attention of the parties is drawn to Fed. R. Civ. P. 72(a), which provides
a period of fourteen (14) days from the date of receipt of a copy of this Order
within which to file objections for consideration by the district judge under 28
U.S.C. § 636(b)(1).
IT IS SO ORDERED.

Dated: May 29, 2019

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on May 29, 2019, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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