Dixon v. Ford Motor Company et al

Filing 75

OPINION AND ORDER DENYING Plaintitff's #70 Motion to Suppress Deposition testimony--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EUNIECE LaSHAWN DIXON,
Plaintiff,
v.

Case No. 2:16-cv-14124
District Judge Judith E. Levy
Magistrate Judge Anthony P. Patti

FORD MOTOR COMPANY,
Defendant.
___________________________________/
OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO
SUPPRESS DEPOSITION TESTIMONY (DE 70)
This matter comes before the Court on Plaintiff’s motion to suppress
deposition testimony pursuant to Fed. R. Civ. P. 32(a)(5)(B) and 32(d)(4), and
Ford’s response in opposition. (DEs 70, 74.) Plaintiff’s motion is denied for the
reasons set forth below.
A. Background
Plaintiff, Euniece LaShawn Dixon, who is proceeding without the assistance
of counsel, filed her “Complaint for Employment Discrimination” on November
21, 2016 against her former employer, Ford Motor Company (“Ford”), and a
number of other defendants, alleging claims for a sexually hostile work
environment and retaliation under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., as well as possible constitutional claims under the First,

Fourth, Fourteenth, and Fifteenth Amendments, and criminal law claims. Judge
Levy referred this case to me for all pretrial matters on March 7, 2017. (DE 24.)
All defendants, except Ford, previously have been dismissed, either by Court
Order or stipulation.
Plaintiff’s deposition in this case was conducted on May 2, 2018. On July 9,
2018, Ford filed its motion for summary judgment. (DE 63.) Plaintiff responded to
Ford’s motion for summary judgment (DEs 71, 72), and Ford filed a reply brief in
support of its motion. (DE 73.) On the same day as she filed her response to
Ford’s motion for summary judgment, Plaintiff also filed the instant motion to
suppress her deposition testimony. (DE 70.) Ford filed a response in opposition to
Plaintiff’s motion on August 27, 2018. (DE 74.)
B. Discussion
Plaintiff advances two arguments in her motion as to why her deposition
testimony should be suppressed. First, she contends that she was an “unavailable
deponent” unable to obtain an attorney pursuant to Federal Rules of Civil
Procedure 30(a)(2)(A)(iii) and 32(a)(5)(B) because she “was not accompanied by
an attorney during her deposition despite years of trying to obtain legal counsel.”
Second, Plaintiff objects, pursuant to Rule 32(d)(4), to how her deposition
testimony was transcribed or “prepared, signed, certified, sealed, sent, or otherwise

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dealt with” by Ford. (DE 70.) Ford responds that Plaintiff’s motion is “without
merit.” (DE 74.)
1. Plaintiff was not an “unavailable” deponent pursuant to Rule
32(a)(5)(B)
Federal Rule of Civil Procedure 32(a)(5)(B) provides:
A deposition taken without leave of court under the unavailability
provision of Rule 30(a)(2)(A)(iii) must not be used against a party
who shows that, when served with the notice, it could not, despite
diligent efforts, obtain an attorney to represent it at the deposition.
(emphasis added). Rule 30(a)(2)(A)(iii) provides that “[a] party must obtain leave
of court” to take a deposition if “the parties have not stipulated to the deposition
and … the party seeks to take the deposition before the time specified in Rule
26(d)….” (emphasis added). Rule 26(d) provides that a “party may not seek
discovery from any source before the parties conferred as required by Rule 26(f)”
unless the Federal Rules or Court Order authorize otherwise.
As Ford correctly explains in its response, any limitation available to an
“unavailable” party-deponent unable to obtain an attorney under Rule 32(a)(5)(B)
applies only when the noticing party “seeks to take the deposition before the time
specified in Rule 26(d)[,]” Fed. R. Civ. P. 30(a)(2)(iii), and that did not happen in
this case. The parties here conferred as required under Rule 26(f) on September
20, 2017 (DE 42), and Ford did not serve Plaintiff with a notice of deposition until
November 22, 2017, noticing Plaintiff’s deposition for January 18, 2018. (DE 743

2.) Therefore, Ford did not seek to take Plaintiff’s deposition “before the time
specified in Rule 26(d),” and the limitation on which Plaintiff relies does not apply
here.
2. Plaintiff has failed to identify any error in transcription of her
deposition pursuant to Rule 32(d)(4)
Plaintiff also moves to suppress her deposition transcript pursuant to Fed. R.
Civ. P. 32(d)(4) because she contends that her deposition transcript “was changed,
deleted, and is inaccurate.” Specifically, Plaintiff asserts that she was informed on
May 22, 2018 that the transcript was 291 pages, and that when she later purchased
the transcript, she received an invoice for 291 pages of transcription and 202 pages
of exhibits, but that she received only 250 pages of transcription along with 202
pages of exhibits. She was subsequently told that the missing 41 pages were the
word index, which she received the next day. (DE 70.)
Rule 32(d)(4) provides:
An objection to how the officer transcribed the testimony—or
prepared, signed, certified, sealed, endorsed, sent, or otherwise dealt
with the deposition—is waived unless a motion to suppress is made
promptly after the error or irregularity becomes known or, with
reasonable diligence, could have been known.
Fed. R. Civ. P. 32(d)(4). Ford states that it filed and served on Plaintiff a copy of
the entire deposition transcript (without the word index) as an exhibit to its motion
for summary judgment. (DEs 62-2, 62-3.) That transcript is 250 pages long. (Id.)
Plaintiff admits that she received from the court reporting service 250 pages of
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transcription along with 202 pages of exhibits, and that the court reporting service
explained that the missing additional 41 pages represented the word index, which
she received the next day. (DE 70 at 2.) The testimony transcript and the
accompanying word index in fact add up to 291 pages, just as Plaintiff anticipated
and paid for. Accordingly, Plaintiff has received the entire deposition transcript,
has failed to identify an error in her deposition transcript under Rule 32(d)(4), and
her motion to suppress is without merit.1
C. Conclusion
Accordingly, Plaintiff’s motion to suppress deposition testimony is
DENIED for the reasons set forth above. 
IT IS SO ORDERED.
Dated: October 23, 2018

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

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Plaintiff also states, without any further elaboration, that she “believes the 8/1/15
recording with labor relations was transcribed improperly.” (DE 70 at 2.)
However, Rule 32(d)(4) applies only to deposition transcripts, not transcripts of
other recordings. In any event, this argument is undeveloped and deemed waived.
See Kennedy v. Comm'r of Soc. Sec., 87 F. App’x 464, 466 (6th Cir. 2003)
(“[I]ssues which are ‘adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived.’ ”) (quoting United States
v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996)).

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Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on October 23, 2018, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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