Walker et al v. North Las Vegas Police Department et al

Filing 156

ORDER that 141 Motion for Sanctions is hereby GRANTED as to the parties' agreement to conduct a second 30(b)(6) deposition, DENIED in all other respects. The Court ORDERS the parties to schedule and hold a half-day 30(b)(6) deposition no later than November 3, 2017. Signed by Magistrate Judge Nancy J. Koppe on 10/5/17. (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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THOMAS WALKER, et al.,

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Plaintiff(s),
vs.

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CITY OF NORTH LAS VEGAS, et al.,
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Defendant(s).
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Case No. 2:14-cv-01475-JAD-NJK
ORDER
(Docket No. 141)

Pending before the Court is Plaintiffs’ motion for sanctions pursuant to Fed. R. Civ. P. 37(d).

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Docket No. 141. Defendants filed a response in opposition. Docket No. 144. Plaintiffs filed a

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reply. Docket No. 147.

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I. STANDARDS

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A. Fed. R. Civ. P. 30(b)(6) Depositions

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Fed. R. Civ. P. 30(b)(6) provides for the deposition of a public or private corporation. It

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requires a written notice that states “with reasonable particularity the matters for examination.” Fed

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R. Civ. P. 30(b)(1). Upon such notice, the served party is required to designate a witness and

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“prepare [him or her] to fully and unevasively answer questions about the designated subject

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matter.” Great Am. Ins. Co. of N.Y. v. Vegas Const. Co., 251 F.R.D. 534, 539 (D. Nev. 2008). As

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part of that requirement, the served party “must prepare [the] deponent[] by having [him or her]

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review prior fact witness deposition testimony as well as documents and deposition exhibits.” Id. at

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539.

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B. Fed. R. Civ. P. 37(b) and Fed. R. Civ. P. 37(d) Sanctions

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Fed. R. Civ. P. 37(b)(2) provides for sanctions if a party’s designated witness for a Fed. R.

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Civ. P. 30(b)(6) deposition fails to obey an order, such as failing to appear at a noticed deposition.

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While the 30(b)(6) witness may be physically present, it is well established that producing a 30(b)(6)

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witness who is not adequately prepared is “tantamount to a nonappearance.” Id. at 543; see also U.S.

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Bank, NA v. Recovery Servs. Nw., Inc., 2017 U.S. Dist. LEXIS 23900, *15 (D. Nev. Feb. 17, 2017).

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The Court may issue any of the sanctions provided by Fed. R. Civ. P. 37(b)(2)(A)(I)-(vi), as well as

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reasonable expenses caused by the failure to appear. Fed. R. Civ. P. 37(b)(2)(c).

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Fed. R. Civ. P. 37(d)(3) provides for sanctions instead of or in addition to the sanctions

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provided by Fed. R. Civ. P. 37(b) if a 30(b)(6) witness fails to attend the deposition. It provides

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essentially the same sanctions that are provided by Fed. R. Civ. P. 37(b)(2)(c), mainly, reasonable

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expenses caused by the failure to appear. The Court has “great latitude” in fashioning sanctions

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pursuant to Fed. R. Civ. P. 37. See Lew v. Kona Hosp., 754 F.2d 1420, 1425 (9th Cir. 1985).

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II. ANALYSIS

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A. Plaintiffs’ Request for Deposition Topics and Defendants’ Untimely Objection

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Topics 10, 11, and 12 of the deposition notice served on Defendant City of North Las Vegas

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requested the 30(b)(6) witness to be prepared to testify on the number and facts and circumstances of

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search warrant services where varying levels of force were used on dogs present during the execution

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of a search warrant. Docket No. 141-1 at 3. Plaintiffs submit Defendants’ objection to the scope of

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the deposition topics during the deposition was untimely. Docket No. 141 at 5. In response,

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Defendants submit they do not object to the scope of these deposition topics. Docket No. 144-2 at 1;

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see also Docket No. 144 at 5. Defendants further submit that Officer Garcia “reviewed over a

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hundred search warrant plans from 2010 to 2015... [h]e reviewed prior deposition testimony

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regarding the noticed topics.” Docket No. 144 at 2. Defendants contend that “there is no physical

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way to determine every search warrant service at which a dog may have been present because

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whether a dog is present at a search warrant service is not inherently tracked in any report.” Docket

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No. 144-2 at 2.
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The Court finds that Officer Garcia was prepared, and answered the questions as best he

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could with the information available. Defendants did not claim, and do not claim, that topics 10, 11,

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and 12 are overbroad. Therefore, Defendants have made no objection to these topics, timely or

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otherwise.

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B. Plaintiffs’ Failure to Allow for Review

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Defendants submit Plaintiffs’ counsel should have permitted the 30(b)(6) witness to review

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the police report introduced by Plaintiffs’ counsel at the deposition and return to the deposition.

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Docket No. 144 at 3. In reply, Plaintiffs submit that Defendants’ offer for the witness to “interpret”

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the police report was insufficient because “interpreting” a police report during a deposition for the

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first time would not yield the facts and circumstances Plaintiffs sought. Docket Nos. 144 at 6, 147 at

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5. Plaintiffs also submit that Defendants were aware of Plaintiffs’ counsel’s busy schedule as well as

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the approaching cut-off date for discovery and, therefore, an additional, last-minute deposition or

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extension of time was not possible. Docket No. 147 at 5-6.

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“Rule 30(b)(6) is not designed to be a memory contest,” especially if the witness is requested

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to prepare to testify as to hundreds of specific occurrences at which he or she may not have been

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present. Elan Microelectronics Corp. v. Pixcir Microelectronics Co. Ltd., 2013 U.S. Dist. LEXIS

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114164, at *14-15 (D. Nev. Aug. 7, 2013) (quoting Bank of New York v. Meridien BIAO Bank

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Tanzania Ltd., 171 F.R.D. 135, 150 (S.D.N.Y. 1994). See generally West v. Jewelry Innovations,

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Inc., 2008 U.S. Dist. LEXIS 119138 (N.D. Cal. Feb. 25, 2008) (quoting U.S. ex rel Fago v. M&T

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Mortgage Corp., 235 F.R.D. 11, 25 (D. D.C. March 31, 2006) (“Although Rule 30(b)(6) requires a

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designated witness to thoroughly educate him or herself on the noticed topic, there must be a limit to

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the specificity of the information the deponent can reasonably be expected to provide”). See also

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Docket No. 144-1 at 11. Subsequent to reviewing hundreds of reports and related documents prior

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to a deposition, review of particular documents at a deposition to refresh the witness’ memory as to a

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specific occurrence may be necessary. See BNSF Ry. Co. v. San Joaquin Valley R.R. Co., 2009 U.S.

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Dist. LEXIS 111569, at * 11-12 (E.D. Cal. Nov. 17, 2009) (interpreting Fed. R. Evid. 612(a)(2) to

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permit the witness’ memory to be refreshed during a deposition); see also Rambus Inc. v. Samsung

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Elecs. Co., 2008 U.S. Dist. LEXIS 54196, at *14 (N.D. Cal. July 16, 2008) (requiring for purposes
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of fairness and conducting a meaningful deposition that the attorney conducting the deposition be

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able to “refresh witnesses’ memories with contemporaneous documents”); accord Laxalt v.

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McClatchy, 116 F.R.D. 438, 454 (D. Nev. 1987) (interpreting Fed. R. Evid. 612(a)(2) to permit the

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witness’ memory to be refreshed during a deposition).

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The Court is aware of the time it would require to review a large volume of police reports

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during a deposition. See Mir v. Kirchmeyer, 2016 U.S. Dist. LEXIS 83279, at *8 (D. Nev. June 27,

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2016) (recognizing that although additional time is needed to review documents during a deposition

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to refresh a witness’ memory, the attorney conducting the deposition could have provided the

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witness an opportunity to review available documents and “could have sought leave for additional

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time to complete the deposition if it had become necessary”).
Therefore, the Court finds Plaintiffs’ counsel should have permitted the witness to review the

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police report about which he was being questioned, in the spirit of cooperation and for purposes of

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forming the record pertaining to that police report. Fed. R. Civ. P. 1 (requiring the cooperation of

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parties by securing “the just, speedy, and inexpensive determination of every action and

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proceeding”).

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C. Sanctions

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Plaintiffs request the Court to impose various Fed. R. Civ. P. 37 sanctions on Defendants:

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reasonable expenses and monetary sanctions, including attorneys’ fees, caused by Defendants’

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failure to prepare Officer Garcia and prohibiting Defendants “from opposing Plaintiffs’ Fourth

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Amendment and Monell claims, or from introducing information or testimony related to Topics 10,

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11, and 12 in evidence.” Docket No. 141 at 11. In response, Defendants submit that not only was

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Officer Garcia prepared to testify at the deposition, but that Plaintiffs’ refusal to continue the

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deposition after Officer Garcia reviewed the police report bars Plaintiffs from seeking sanctions.

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Docket No. 144 at 8. In reply, Plaintiffs submit the multiple opportunities Defendants had to object

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to the scope of the deposition topics. Docket No. 147 at 7.

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Plaintiffs also request time to conduct a second 30(b)(6) deposition on topics 10, 11, and 12.

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Docket No. 141 at 11. In response, Defendants submit that they have offered to “make Officer

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Garcia available again” for questions. Docket No. 144-2 at 3. Therefore, as the Court has found that
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the witness was prepared, the Court finds that sanctions are not appropriate. Instead, the Court finds

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that the parties have agreed to a second 30(b)(6) deposition.

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III. CONCLUSION

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The Court is not in favor of issuing any sanctions, monetary or otherwise. For these reasons,

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Plaintiffs’ motion for sanctions is hereby GRANTED as to the parties’ agreement to conduct a

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second 30(b)(6) deposition, DENIED in all other respects. Docket No. 141. The Court ORDERS

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the parties to schedule and hold a half-day 30(b)(6) deposition no later than November 3, 2017. To

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ensure the deposition is productive, Plaintiffs shall provide Defendants with a list of reports and

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documents for review prior to the deposition. The deposition shall be limited to questions that were

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not answered during Officer Garcia’s deposition on May 25, 2017; mainly, the facts and

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circumstances surrounding the search warrants discussed in topics 10, 11, and 12 from the third

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amended deposition notice. Docket No. 141-2 at 3.

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IT IS SO ORDERED.

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DATED: October 5, 2017

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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