SUMMERVILLE et al v. NEW JERSEY STATE POLICE et al
Filing
102
ORDER AND ORDER denying 92 Motion for Reconsideration; that the deposition Colonel Fuentes shall be conducted on written questions pursuant to and in accordance with the dictates of Federal Rule of Civil Procedure 31. The deposition shall be commenced as soon as practicable and shall be completed by March 31, 2018.. Signed by Magistrate Judge James B. Clark on 1/11/2018. (ld, ).
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
STANLEY SUMMERVILLE, et al.,
Civil Action No. 14-7653 (KM)
Plaintiffs,
OPINION AND ORDER
v.
NEW JERSEY STATE POLICE, et al.,
Defendants.
CLARK, Magistrate Judge
THIS MATTER comes before the Court on Defendants’ renewed motion for a
protective order preventing Plaintiffs from taking the deposition of one of the Defendants in this
action, State Police Colonel Joseph R. Fuentes [Docket No. 92]. While the basic substantive
background of this case has been addressed previously by the Court, see Docket No. 89 (Opinion
and Order affirming initial denial of protective order), a brief restatement is appropriate. The
current operative pleading in this Section 1983 action is the Third Amended Complaint. See
Docket No. 33. The Third Amended Complaint alleges that certain Defendant State Troopers
improperly engaged in racial profiling and violated Plaintiffs’ Fourth Amendment rights when
they confronted Plaintiffs in the parking lot of a shopping center mall. See id. ¶¶ 5,6, 36-67.
The Third Amended Complaint also names as a defendant Colonel Fuentes, the ultimate
commanding officer of the Defendant State troopers. Plaintiffs contend that Colonel Fuentes is
liable for the improper actions of the Defendant State Troopers because of his “failure to act,
inadequate training of officers, and acquiescence in a pattern and practice of unlawful stops.”
Docket No. 89, at 2. On August 24, 2015, Colonel Fuentes filed a motion for dismissal of the
1
Third Amended Complaint. Docket No. 37. That motion was denied by Order and Opinion of
Judge McNulty dated March 11, 2016. Docket No. 51.
The current dispute stretches back approximately a full year. Following the denial of
Colonel Fuentes’ motion to dismiss, the Plaintiffs noticed his deposition. Colonel Fuentes
promptly objected to being deposed, and the parties contacted the undersigned regarding the
dispute. By Letter Order dated January 12, 2017, the undersigned directed the parties to submit
written arguments outlining their respective positions. Docket No. 68. Soon thereafter, the
parties submitted letters/briefs providing their arguments. Docket No. 69 (Plaintiffs); Docket
Nos. 70 & 71 (Defendant). The undersigned heard oral argument on February 17, 2017, see
Docket No. 77 (Transcript), and immediately thereafter denied Colonel Fuentes’ request for a
protective order, determining that his deposition was appropriate and should go forward.
Colonel Fuentes appealed this decision to Judge McNulty, Docket No. 75, who affirmed by
Opinion and Order dated July 27, 2017. Docket No. 89. On August 11, 2017, Colonel Fuentes
filed a motion for reconsideration of Judge McNulty’s decision, Docket No. 92. Colonel Fuentes
for the first time included with that motion his answers to interrogatories, which he urges
establish that he has no specific knowledge that might justify his deposition in this matter.
Because the interrogatories submitted with the motion for reconsideration had not been filed with
Colonel Fuentes’ previous application for a protective Order, Judge McNulty deemed the
reconsideration motion instead to be a renewed motion for a protective order, and he referred it
to the undersigned for determination. See Docket No. 97.
Although Colonel Fuentes has submitted a somewhat lengthy initial brief and a reply
brief in support of his renewed request for a protective order, see Docket Nos. 92-1 & 95, his
argument essentially boils down to a claim that he is a high-ranking and busy state official who
2
cannot and should not be forced to submit to a deposition because “intervening discovery
efforts” – namely, his answers to interrogatories – have “already provided Plaintiffs with the
information they seek.” In other words, Colonel Fuentes claims that the information provided in
his answers to interrogatories coupled with his disclaimer of any other relevant knowledge serves
to obviate the kind of “extraordinary circumstances” that would otherwise be required to compel
a live deposition of a high-ranking state official like himself. Furthermore, Colonel Fuentes
claims that his deposition is unnecessary because his answers to interrogatories establish that he
does not possess the “unique personal knowledge” that would normally be necessary to justify a
deposition of a high-ranking official. In support of his position, Colonel Fuentes refers the
Court’s attention to a number of federal cases. See United States v. Morgan, 313 U.S. 409
(1941); United States v. Sentient Colors, Inc., 649 F. Supp.2d 309 (D.N.J. 2009); Buono v. City
of Newark, 249 F.R.D. 469 (D.N.J. 2008); Bagley v. Blagojevich, 486 F. Supp.2d 786 (C.D. Ill.
2007).
The Plaintiff counters that Colonel Fuentes has raised nothing new that might serve to
justify reversal of this Court’s prior Order that Colonel Fuentes must submit to a live deposition.
Plaintiffs flatly reject Colonel Fuentes’ argument that his interrogatory answers constitute an
adequate “alternative source” for the information they seek, pointing out that, in answering those
interrogatories, Colonel Fuentes has chosen “an obstructionist strategy by offering objection
after objection and motion after motion to prevent Plaintiffs from discovering supervisory
liability evidence.” Docket No. 93, at 5. Plaintiffs go on to defend the Court’s initial decision
permitting the deposition of Colonel Fuentes by noting that the Court “was well within [its]
discretion” in deciding this discovery matter. Finally, the Plaintiffs vigorously challenge the
3
assertion by Colonel Fuentes that Buono or any of the other case authorities justify a protective
order preventing his deposition in this matter. Id. At 3-4.
It is axiomatic that, with respect to the resolution of discovery disputes, “[d]istrict courts
provide magistrate judges with particularly broad discretion.” Halsey v. Pfeiffer, 2010 WL
3735702, Civil Action No. 09-1138 (D.N.J. Sept. 17, 2010) (citing Farmers & Merchants
National Bank v. San Clemente Financial Group, 174 F.R.D. 572, 585 (D.N.J. 1997). It is
further well-established that high-ranking government officials are not obligated to testify each
and every time their deposition is noticed, given society’s general interest in “ensuring that high
level government officials are permitted to perform their official tasks without disruption or
diversion.” Buono, 249 F.R.D. at 470 n.2 (citation omitted). Rather, as Judge McNulty noted in
his Opinion and Order of July 27, 2017, a high-ranking government official may not be deposed
absent “extraordinary circumstances,” id., which specifically requires a showing that
1) the official’s testimony is necessary to obtain relevant
information that is not available from another source; 2) the
official has first-hand information that cannot reasonable be
obtained from other sources; 3) the testimony is essential to the
case at hand; 4) the deposition would not significantly interfere
with the ability of the official to perform his government duties;
and 5) the evidence sought is not available through less
burdensome means or alternative sources.
Id. (citation omitted). Thus, given what appears to be the uncontested assertion that Colonel
Fuentes is indeed a high-ranking government official, and considering the record as updated by
the most recent submissions of the parties, the Court must determine if the five factors identified
in Buono justify subjecting Colonel Fuentes to a deposition in this matter.
With respect to the first three factors identified in Buono, the undersigned has previously
found, and continues to adhere to the finding, that Colonel Fuentes is the only one who can
testify definitively in this matter regarding his own alleged “failure to act, inadequate training of
4
officers, and acquiescence in a pattern and practice of unlawful stops.” Perhaps he has extensive
knowledge, perhaps he has no knowledge at all, but only Colonel Fuentes can say for sure.
Therefore, ab initio, his testimony is clearly necessary to obtain relevant information not
available from another source (factor 1), he surely has first-hand information that cannot
reasonable be obtained from other sources (factor 2), and his testimony is definitely essential to
the case at hand (factor 3). Consequently, the first three factors listed in Buono counsel in favor
of permitting Plaintiffs to depose Colonel Fuentes.
With respect to the fourth factor identified in Buono, while the Court understands and
appreciates that Colonel Fuentes is an important and busy public official, it is not altogether sure
that his appearing for a deposition in this matter would impose an unworkable hardship. As an
initial observation, the Court notes that it has been forced to take on faith the assertion by
Colonel Fuentes that his appearing for a deposition would do just that, since the Colonel has
never engaged in a meaningful or detailed explanation of just how a deposition would interfere
with his ability to perform his duties. Certainly, the Court appreciates the possibility that an
Order compelling his deposition in this matter might be used to try and justify his appearing for
deposition in additional similar matters, but at this point that appears to be merely speculation.
What troubles the Court most with respect to this factor is that, unlike the public figures in most
of the cases cited by Colonel Fuentes, he is a party defendant in this action and is sued in his
personal capacity. Given that reality, and the Court’s general skepticism that a brief deposition
of Colonel Fuentes would impose an undue burden, the Court concludes that the fourth factor
listed in Buono does not counsel against permitting Plaintiffs to conduct the requested
deposition.
5
Finally, regarding the fifth factor identified in Buono, the Court initially notes that, in
arguing against the requested deposition, Colonel Fuentes places great emphasis on the argument
that he has indeed already provided Plaintiffs’ with the information they seek through a less
burdensome means -- namely, answers to interrogatories. The Plaintiffs, in turn, urge that the
answers to interrogatories by Colonel Fuentes were hardly complete or sufficient; rather,
Plaintiffs posits that the answers included objection after objection designed “to prevent
Plaintiffs from discovering supervisory liability evidence.” Docket No. 93, at 2. There is at least
some truth in Plaintiffs’ assertions. A review of all of the interrogatories answered by Colonel
Fuentes, see Docket No. 92-2, and particularly the answers to the “supervisory liability”
interrogatories, reveals quite plainly that they are littered with the kinds of relevance and
overbreadth objections that would not normally justify an instruction not to answer in a
deposition setting. Therefore, Plaintiffs have demonstrated that they have neither fully nor
effectively received the information they seek through a less burdensome means, and the Court
concludes that the fifth factor listed in Buono does not counsel against permitting Plaintiffs to
conduct the requested deposition.
Given all of the foregoing, the Court remains unconvinced that a protective order barring
the deposition of Colonel Fuentes is appropriate. However, the Court does remain keenly
sensitive to the burdens that high-ranking police officials in the State of New Jersey face every
day, and the Court is not eager to impose any greater burden on Colonel Fuentes or his
organization than is absolutely necessary. Accordingly, in an effort to balance the Plaintiffs need
for unvarnished information with the interest of not overburdening Colonel Fuentes, the Court
herewith directs that the deposition of Colonel Fuentes shall be conducted on written questions
pursuant to and in accordance with the dictates of Federal Rule of Civil Procedure 31. The
6
deposition is to be commenced as soon as is practicable and is to be completed by March 31,
2018.1
IT IS therefore on this 11th day of January, 2018,
ORDERED that the renewed motion of Defendant Colonel Joseph R. Fuentes for a
protective order [Docket No. 92] is DENIED, and it is further
ORDERED that the deposition Colonel Fuentes shall be conducted on written questions
pursuant to and in accordance with the dictates of Federal Rule of Civil Procedure 31. The
deposition shall be commenced as soon as practicable and shall be completed by March 31,
2018.
s/ James B. Clark, III
JAMES B. CLARK, III
United States Magistrate Judge
1
The Court is aware that a deposition on written questions is not generally as spontaneous or
wide-open as a live deposition, and the Court anticipates Plaintiffs’ concern that this exercise
may devolve into a “do-over” of Colonel Fuentes’ interrogatory answers. That is not the intent
of the Court, and Defendant is admonished that if wide-ranging objections and instructions not to
answer are interposed in response to Plaintiffs’ questions in lieu of direct answers, the Court will
consider converting the deposition to an in-person format. As noted supra, objections based on
relevance or overbreadth are not commonly a reason for instructing a witness not to answer.
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?