McGee v. Donahoe

Filing 171

ORDER that 129 Defendant's Motion for Reconsideration is DENIED. Signed by Judge Richard F. Boulware, II on 10/31/17. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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LOLA MCGEE,

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Plaintiff,

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Case No. 2:13-cv-01426-RFB-VCF

v.

ORDER
Defendant’s Motion for Reconsideration
(ECF No. 129)

PATRICK R. DONAHOE, et al.

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Defendants.

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I.

This order addresses Defendant’s Motion for Reconsideration of Magistrate Judge

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INTRODUCTION

Ferenbach’s order regarding deposition fees (ECF No. 129).
For the reasons stated below, the Motion for Reconsideration is DENIED.

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II.

BACKGROUND

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On September 11, 2015, the Court ordered limited discovery on the issue of equitable

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tolling. (ECF No. 57). As part of this limited discovery Defendant noticed the deposition of Dr.

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Jenkins, one of Plaintiff’s former treating physicians. On March 4, 2016, Magistrate Judge

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Ferenbach held a hearing and allowed the deposition to go forward as noticed, over McGee’s

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objection. (ECF No. 89). Dr. Jenkins cost $1,000 an hour to depose. Based on the cost, Defendant

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intended to limit their questioning to one hour. On March 8, 2016, McGee sought discovery

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sanctions based on Defendant’s refusal to allow her questioning of Dr. Jenkins unless she paid for

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the time. (ECF No. 90). On March 30, 2016, Defendant’s deposition of Dr. Jenkins took place,

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while Plaintiff’s motion for sanctions was pending, lasting one hour. Plaintiff was unable to ask

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any questions of Dr. Jenkins.

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On May 20, 2016, Magistrate Judge Ferenbach held a hearing regarding various motions,

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including Plaintiff’s motion for sanctions. (ECF No. 111). On May 20, 2016, Magistrate Judge

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Ferenbach issued a minute order stating “IT IS ORDERED that the Defendant will subpoena Dr.

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Jenkins for a deposition no later than 07/08/2016. Defendant will pay $500.00 for thirty (30)

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minutes of testimony wherein the Plaintiff will have twenty (20) minutes of questioning, and

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Defendant will be allowed ten (10) minutes of follow-up.” (ECF No. 111). However, Magistrate

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Judge Ferenbach’s written order stated that Plaintiff could not ask Dr. Jenkins questions at his

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deposition unless she compensated him. (ECF No. 113).

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On June 2, 2016, the Defendant filed a motion for clarification of Magistrate Judge

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Ferenbach’s orders. (ECF No. 115). On June 24, 2016, Magistrate Judge Ferenbach, at the hearing

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regarding Defendant’s motion for clarification, ordered that Defendant reconvene the deposition

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and allow Plaintiff twenty minutes of questioning. Defendant was ordered to incur the expenses of

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setting up this reconvened deposition. (ECF Nos. 120, 126). On July 8, 2016, Defendant objected

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to Magistrate Judge Ferenbach’s order and moved this Court to reconsider. (ECF No. 129).

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III.

LEGAL STANDARD

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Magistrate judges have the authority to resolve pretrial matters subject to district court

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review under a “clearly erroneous or contrary to law” standard. 28 U.S.C. § 636(b)(1)(A). “A

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finding is clearly erroneous if it is (1) illogical, (2) implausible, or (3) without support in inferences

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that may be drawn from the facts in the record.” Ibrahim v. U.S. Department of Department of

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Homeland Security, 835 F.3d 1048, 1058 (9th Cir. 2016) (internal quotation marks and citation

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omitted). Under the contrary to law standard “[t]he reviewing court may not simply substitute its

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judgment for that of the deciding court.” Grimes v. City and County of San Francisco, 951 F.2d

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236, 241 (9th Cir. 1991). Rather, the district court “must ascertain whether the order was contrary

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to law.” Riviera v. NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir. 2004).

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IV.

DISCUSSION
Under the contrary to law standard, this Court may not substitute its own judgment in

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reviewing Magistrate Judge Ferenbach’s orders requiring Defendant to pay the costs of a

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reconvened deposition with Dr. Jenkins. In its objection to Magistrate Judge Ferenbach’s orders,

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Defendant argues that sovereign immunity precludes any costs from being shifted to it, there was

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no waiver of sovereign immunity, and the Federal Rules of Civil Procedure do not permit this cost

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shifting. Plaintiff argues that she was entitled to cross-examination of the deponent under FRCP

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30.

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The Ninth Circuit has held that sovereign immunity does not exempt the United States

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from complying with the Federal Rules of Civil Procedure and that “when the United States comes

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into court as a party in a civil suit, it is subject to the Federal Rules of Civil Procedure as any other

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litigant.” Mattingly v. U.S., 939 F.2d 816, 818 (9th Cir. 1991). FRCP 26(b)(4)(E)(i) provides that

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“[u]nless manifest injustice would result, the court must require that the party seeking discovery .

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. . pay the expert a reasonable fee for time spent in responding to discovery[.]” Also, FRCP Rule

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30(c)(1) requires that “[t]he examination and cross-examination of a deponent proceed as they

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would at trial under the Federal Rules of Evidence[.]” Furthermore, district courts have “wide

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discretion in controlling discovery.” Blackburn v. U.S., 100 F.3d 1426, 1436 (9th Cir. 1996)

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(citation omitted); see also Tabron v. Grace, 6 F.3d 147, 159 (3d Cir. 1993) (finding that a district

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court’s “inherent equitable powers” in supervising discovery allowed it to require that an opposing

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party pay for copies of deposition transcripts for an indigent litigant as a condition precedent for

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that party conducting a deposition).

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The Court does not find that Magistrate Judge Ferenbach’s orders were contrary to law,

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and sees no reason to disturb the orders. First, the Court does not find that requiring Defendant to

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bear the reconvened deposition costs was fee-shifting as Defendant characterizes it. Instead, this

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was a cost that Defendant itself created, and should have initially incurred, by seeking the

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deposition of Dr. Jenkins. Additionally, the Court finds that sovereign immunity does not preclude

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Magistrate Judge Ferenbach’s orders to reconvene the deposition and require Defendant to bear

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the costs. Under Mattingly, sovereign immunity does not exempt the United States from adhering

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to the Federal Rules of Civil Procedure, and Magistrate Judge Ferenbach noted the Rules as support

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when he ordered Defendant to bear the cost of the reconvened deposition. Because Defendant was

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the party “seeking discovery” of Dr. Jenkins, FRCP 26(b)(4)(E) supports Magistrate Judge

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Ferenbach’s finding that Defendant should be the party who incurs the cost of deposing Dr.

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Jenkins. Moreover, FRCP 30(c)(1) requires the cross-examination of a deponent as would take

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place at trial. This is exactly what Plaintiff sought to do, and what Magistrate Judge Ferenbach

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found was required in stating “it’s only fair that Ms. McGee have an opportunity to question [Dr.

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Jenkins].” See ECF No. 126 at p. 8.

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Furthermore, Magistrate Judge Ferenbach appropriately made an equitable determination

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under the court’s authority to supervise discovery in requiring that Defendant bear the reconvened

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deposition costs. Magistrate Judge Ferenbach noted potential due process implications if Plaintiff

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were denied the opportunity to question Dr. Jenkins, based on this Court ordering limited discovery

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on the issue of equitable tolling. See id. at p. 7–8. To this point, Magistrate Judge Ferenbach stated

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that Plaintiff should have the opportunity to question Dr. Jenkins to ensure that there was a fair

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hearing on the equitable tolling issue, and to protect Plaintiff’s basic due process rights. See id. at

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p. 5. This is especially so given that Dr. Jenkins would not be testifying when the issue of equitable

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tolling was going to be before this Court, see id., and given that Plaintiff in this case is proceeding

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in forma pauperis, and could not afford the costs. Thus, under the Federal Rules of Civil Procedure

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and the court’s wide discretion to supervise discovery, Magistrate Judge Ferenbach properly found

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that Defendant should bear the costs for Dr. Jenkins’ reconvened deposition.

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Accordingly, the Court finds that Magistrate Judge Ferenbach’s orders (ECF Nos. 113,

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120) were not clearly erroneous or contrary to law. Therefore, the Court will not set aside the

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deposition order nor the order that Defendant be reimbursed.

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V.

CONCLUSION

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Accordingly, Defendant’s Motion for Reconsideration (ECF No. 129) is DENIED.

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DATED this 31st day of October, 2017.

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__________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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