Steven Floyd Voss v. Isidaro Baca et al

Filing 110

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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1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 7 8 9 10 11 ______________________________________ ) ) STEVEN FLOYD VOSS, ) ) Plaintiff, ) ) vs. ) ) ISIDRO BACA et al., ) ) Defendants. ) ) 3:14-cv-00066-RCJ-WGC ORDER 12 13 This is a prisoner civil rights action brought under 42 U.S.C. § 1983. Plaintiff has asked 14 the Court to overrule three orders of the Magistrate Judge as clearly erroneous or contrary to law. 15 See Fed. R. Civ. P. 72(a). 16 First, on October 31, 2014, the Magistrate Judge denied Plaintiff’s motion for Defendants 17 to provide him with a copy of a transcript of Plaintiff’s deposition as moot, because Defendants 18 had already done so. The Magistrate Judge also denied the motion insofar as it sought to strike 19 or exclude the deposition, finding that he had approved Plaintiff’s deposition, although he had 20 not reviewed the audio recording of the August 28, 2014 hearing at which Defendants claimed 21 the approval had been given. The Court needn’t review the recording or analyze whether 22 Plaintiff waived this objection, because the motion to which the October 31, 2014 order pertains 23 clearly only requested a copy of the transcript. It did not attack the deposition as inadmissible or 24 1 of 3 1 otherwise. Most of Plaintiff’s argument in the present motion concerns the latter issue. Anyway, 2 Plaintiff consented to the deposition by his actions, i.e., by answering the questions put to him 3 despite his contemporaneously objection to the deposition. At a deposition that all parties agree 4 is permitted, a party may preserve objections to specific questions, though the deponent must 5 answer the questions if they do not implicate a privilege. In such a case, answering does not 6 indicate a waiver of objections made on the record. But here, where the objection is not 7 evidence-based, but rather concerns permission for the deposition to proceed at all, participation 8 in the deposition must be interpreted as a waiver to such a challenge, even if evidentiary-based 9 objections to particular questions may still be preserved. 10 Second, on December 9, 2014, the Magistrate Judge granted Defendants’ motion to 11 extend the discovery deadline before awaiting a response by Plaintiff, because the discovery 12 deadline would expire in the meantime. Plaintiff argues that the entry of the order without 13 considering Plaintiff’s objections was a violation of due process. Plaintiff also notes that the 14 deadline for Defendants to request an extension of discovery expired before they filed their 15 motion to extend discovery. As Plaintiff, notes, however, the deadline fell on a Saturday, so the 16 motion was not in fact due until the following Monday, which was the day it was filed. There 17 was therefore no error in the Magistrate Judge considering the motion. The questions remain 18 whether the refusal to await objections by Plaintiff was contrary to law and whether there was 19 good cause to extend the deadline. There was good cause. Defendants reasonably argued they 20 needed an extension in the case it became necessary to depose Plaintiff again, seeing as Plaintiff 21 had made objections to his prior deposition having been taken at all. Next, the entry of the order 22 extending time without considering objections thereto did not implicate due process, because 23 notice and an opportunity to be heard are not constitutionally required for orders that “simply 24 2 of 3 1 preserve[] the status quo and do[] not finally affect the parties’ rights.” In re Victoria Station, 2 Inc., 875 F.2d 1380, 1386 (9th Cir. 1989) (citing Mullane v. Cent. Hanover Bank & Trust Co., 3 339 U.S. 306, 314 (1950)). 4 Third, on February 18, 2015, the Magistrate Judge denied Plaintiff’s motions to strike his 5 deposition transcript and Defendants’ reply as to their motion to dismiss, because those 6 documents were neither pleadings subject to Rule 12(f), nor scandalous or impertinent even if 7 they were subject to the rule. This was no error. CONCLUSION 8 9 10 11 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. 12 13 14 _____________________________________ ROBERT C. JONES United States District Judge 15 16 17 18 19 20 21 22 23 24 3 of 3

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