Small v. City of Wilmington et al

Filing 70

ORDER denying 63 MOTION To Enlarge The Number of Depositions Plaintiff May Take. Counsel is reminded to read the order in its entirety for critical information. Signed by Magistrate Judge Robert T. Numbers, II on 11/19/2018. (Collins, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:17-CV-00071-FL
Johnny Small,
Plaintiff,
v.

Order

City of Wilmington, et al.,
Defendants.

Plaintiff Johnny Small asks the court to allow him to depose 27 specific individuals, several
more than contemplated by the Case Management Order. D.E. 63. Defendants assert that the
request for additional depositions is premature since Small has not taken all of the depositions that
the court has authorized him to take. D.E. 34, 66, 68. In order to ensure that discovery remain
proportional to the needs of this case, the court will deny the motion without prejudice to Small’s
renewing it after he has exhausted the number depositions allowed under the Case Management
Order. D.E. 34.
I.

Background
Someone shot and killed Pamela Dreher in a flower shop in Wilmington, North Carolina

in 1988. The Wilmington Police Department’s (“WPD”) investigation led them to arrest Small for
the crime. A New Hanover County jury believed that the evidence established that Small was
responsible for Dreher’s death and convicted him of first degree murder in April 1989. A judge
sentenced him to life in prison.

Over three decades later a key witness, David Bollinger, told authorities that both his
statement to police and his trial testimony implicating Small were false. Bollinger claims that
various Wilmington police officers coerced him into providing the false statement and testimony.
After Bollinger recanted, Small filed a petition for post-conviction relief. In 2016,
following a hearing, a state court granted Small a new trial. The court noted its concern with the
WPD’s handling of the case, particularly its conduct with respect to the minor witnesses. Rather
than proceed with a new trial, the State dismissed the charges against Small.
Small now seeks to recover damages from the City of Wilmington and various individuals
involved in the investigation that led to his arrest and convicted for alleged violations of his
constitutional rights.
Early on the parties discussed the parameters for discovery in this case. The resulting Rule
26(f) report explained that that each party could take up to 15 depositions. D.E. 33 at ¶ B(3). It
also set forth a qualifier stating that “the parties will reconsider this limitation if circumstances
warrant, particularly if numerous witnesses are disclosed under Rule 26(a).” Id. The Report also
notes that “[t]he total number of depositions will likely exceed the number permitted under Rule
30” but that a higher limit was justified given the number of parties and the nature of the claims.
Id.
The court then issued a case management order allowing Small to take 15 depositions and
each Defendant to take 10 depositions. D.E. 34 at I(G) The order did not address modification of
the number of depositions. Id.
In their initial disclosure, Defendants identified 60 witnesses who may have information
relevant to the instant claims. Small has asked the court to allow him to depose at least 27 of those
individuals. The Defendants oppose Small’s motion.

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II.

Analysis
Federal Rule of Civil Procedure 30 governs this matter. It directs that “[a] party must obtain

leave of court . . . if the parties have not stipulated to the deposition and [it] would result in more
than 10 depositions being taken[.]” Fed. R. Civ. P. 30(a)(2)(A)(i). The burden of persuading the
court that additional depositions are necessary rests with the party seeking to take added
depositions. Talismanic Props., LLC v. Tipp City, Ohio, 309 F. Supp. 3d 488, 497 (S.D. Ohio
2017). That more than the allotted number of individuals may have discoverable information in a
case does not signify that additional depositions are required. Id. Instead, “the moving party must
make a particularized showing why extra depositions are necessary.” Id. (citation omitted).
In considering a motion for leave to take additional depositions, a court will consider if:
(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable
from some other source that is more convenient, less burdensome, or less
expensive; (ii) the party seeking discovery has had ample opportunity by discovery
in the action to obtain the information sought; or (iii) the burden or expense of the
proposed discovery outweighs its likely benefit, taking into account the needs of
the case, the amount in controversy, the parties’ resources, the importance of the
issues at stake in the litigation, and the importance of the proposed discovery in
resolving the issues.
Thykkuttathil v. Keese, 294 F.R.D. 601, 602–03 (W.D. Wash. 2013). The breadth and complexity
of the case is another factor for a court to weigh in determining whether enlargement is warranted.
Id.
A court generally will not grant leave to increase the number of depositions until the
moving party has exhausted the ten depositions permitted as of right under Rule 30(a)(2)(A). Smith
v. Ardew Wood Prod., Ltd., No. C07-5641 FDB, 2008 WL 4837216, at *1 (W.D. Wash. Nov. 6,
2008). And before resorting to a request for relief from Rule 30’s restrictions, a party must exhaust
less expensive and burdensome means of discovery. Id. When a compelling reason is not

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presented, the court has the discretion, and even the obligation, to deny leave to take additional
depositions. Talismanic Props., 309 F. Supp. at 497 (citation omitted).
In considering this motion, the court is mindful that Rule 26(b)(2)(C) directs that it shall
“limit the frequency or extent of discovery” if it determines that “the discovery sought is
unreasonably cumulative or duplicative, or can be obtained from some other source that is more
convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C). And “[b]y
specifically limiting the number of depositions, the drafters of Rule 30 clearly did not contemplate
that depositions should either be unlimited in quantity, or be available without a showing of need.”
Archer Daniels Midland Co. v. Aon Risk Servs., Inc. of Minn., 187 F.R.D. 578, 587 (D. Minn.
1999).
Small contends that the scope of this case is considerable and necessitates the additional
depositions. He points out that the conviction dates back nearly 30 years, and his claims involve
several participants and implicate the policies and practices of the WPD. Small contends discovery
is required on the investigation, prosecution, and post-conviction proceedings, requiring an
examination into law enforcement officers, witness, and co-defendants.
Defendants oppose the additional depositions. They contend that Small’s request is
premature. They also argue that he has failed to show that the additional depositions would not be
unreasonably cumulative or duplicative. They also indicate that the cost of taking dozens of
depositions is not proportional to the needs of the case.
Although Small has identified 27 additional proposed deponents, and has broadly stated
the supposed relevancy of their testimony, he has not shown that each additional deponent is
essential to his discovery. Small identifies the anticipated testimony of each proposed deponent,
but he has not established that any of the named individuals are likely to possess information that

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is not duplicative of information given by prior deponents or that the same information could not
be obtained by other, less burdensome means. And at a minimum, Small should exhaust his current
allotment of 15 depositions and make other, less formal attempts to obtain information from
witnesses before seeking leave to depose additional individuals
This case is undoubtedly intricate in terms of participants, witnesses, statements, and time.
But the court finds that revisiting this issue after the parties’ have completed the depositions
contemplated by the Case Management Order would be the most prudent approach to resolution
of the pending motion. At that time, the parties should have a better understanding of what
additional depositions may be relevant without being unreasonably cumulative and duplicative.
This approach is the best way to balance the costs and other burdens of the requested discovery
with its likely benefits. And it still permits Small to obtain individualized discovery by other, less
onerous means—document requests, interrogatories, requests for admission, stipulations, or
affidavits—from the witnesses identified in Defendants’ initial disclosures. This method may
accomplish Small’s goals of procuring statements from the individual witnesses identified while
minimizing the burden on him and the Defendants.
III.

Conclusion
For the reasons set forth above, Small’s motion to increase the number of depositions he

may take (D.E. 63) is denied without prejudice. Small may renew his motion following completion
of the depositions allowed by the court’s August 9, 2017 Case Management Order (D.E. 34). The
renewed motion should include a detailed explanation of the information Small hopes to obtain
from each additional deponent, the efforts Small has made to obtain information from the proposed
deponent short of deposition (or why a deposition is the only possible method to obtain the

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information), and why he believes the total number of depositions he seeks is proportional to the
needs of the case.
Dated: November 2018.
Dated: November 19, 2018
______________________________________
ROBERT T. NUMBERS, II
Robert T. Numbers, II
UNITED STATES MAGISTRATE JUDGE
United States Magistrate Judge

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