Steven Floyd Voss v. Isidaro Baca et al
Filing
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ORDERED that the Objections (## 86 , 104 , 108 ) are DENIED. Signed by Judge Robert C. Jones on 3/25/2015. (Copies have been distributed pursuant to the NEF - DRM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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______________________________________
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STEVEN FLOYD VOSS,
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Plaintiff,
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vs.
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ISIDRO BACA et al.,
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Defendants.
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3:14-cv-00066-RCJ-WGC
ORDER
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This is a prisoner civil rights action brought under 42 U.S.C. § 1983. Plaintiff has asked
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the Court to overrule three orders of the Magistrate Judge as clearly erroneous or contrary to law.
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See Fed. R. Civ. P. 72(a).
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First, on October 31, 2014, the Magistrate Judge denied Plaintiff’s motion for Defendants
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to provide him with a copy of a transcript of Plaintiff’s deposition as moot, because Defendants
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had already done so. The Magistrate Judge also denied the motion insofar as it sought to strike
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or exclude the deposition, finding that he had approved Plaintiff’s deposition, although he had
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not reviewed the audio recording of the August 28, 2014 hearing at which Defendants claimed
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the approval had been given. The Court needn’t review the recording or analyze whether
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Plaintiff waived this objection, because the motion to which the October 31, 2014 order pertains
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clearly only requested a copy of the transcript. It did not attack the deposition as inadmissible or
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otherwise. Most of Plaintiff’s argument in the present motion concerns the latter issue. Anyway,
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Plaintiff consented to the deposition by his actions, i.e., by answering the questions put to him
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despite his contemporaneously objection to the deposition. At a deposition that all parties agree
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is permitted, a party may preserve objections to specific questions, though the deponent must
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answer the questions if they do not implicate a privilege. In such a case, answering does not
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indicate a waiver of objections made on the record. But here, where the objection is not
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evidence-based, but rather concerns permission for the deposition to proceed at all, participation
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in the deposition must be interpreted as a waiver to such a challenge, even if evidentiary-based
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objections to particular questions may still be preserved.
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Second, on December 9, 2014, the Magistrate Judge granted Defendants’ motion to
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extend the discovery deadline before awaiting a response by Plaintiff, because the discovery
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deadline would expire in the meantime. Plaintiff argues that the entry of the order without
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considering Plaintiff’s objections was a violation of due process. Plaintiff also notes that the
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deadline for Defendants to request an extension of discovery expired before they filed their
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motion to extend discovery. As Plaintiff, notes, however, the deadline fell on a Saturday, so the
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motion was not in fact due until the following Monday, which was the day it was filed. There
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was therefore no error in the Magistrate Judge considering the motion. The questions remain
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whether the refusal to await objections by Plaintiff was contrary to law and whether there was
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good cause to extend the deadline. There was good cause. Defendants reasonably argued they
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needed an extension in the case it became necessary to depose Plaintiff again, seeing as Plaintiff
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had made objections to his prior deposition having been taken at all. Next, the entry of the order
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extending time without considering objections thereto did not implicate due process, because
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notice and an opportunity to be heard are not constitutionally required for orders that “simply
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preserve[] the status quo and do[] not finally affect the parties’ rights.” In re Victoria Station,
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Inc., 875 F.2d 1380, 1386 (9th Cir. 1989) (citing Mullane v. Cent. Hanover Bank & Trust Co.,
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339 U.S. 306, 314 (1950)).
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Third, on February 18, 2015, the Magistrate Judge denied Plaintiff’s motions to strike his
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deposition transcript and Defendants’ reply as to their motion to dismiss, because those
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documents were neither pleadings subject to Rule 12(f), nor scandalous or impertinent even if
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they were subject to the rule. This was no error.
CONCLUSION
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IT IS HEREBY ORDERED that the Objections (ECF Nos. 86, 104, 108) are DENIED.
IT IS SO ORDERED.
Dated this 25th day of March, 2015.
Dated this 4th day of March, 2015.
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_____________________________________
ROBERT C. JONES
United States District Judge
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