Pitkin et al v. Corizon Health, Inc. et al
Filing
67
OPINION AND ORDER: As explained in greater detail herein, plaintiffs' Motion for Leave to Take Additional Depositions 53 is GRANTED IN PART and DENIED IN PART. Plaintiffs' Motion to Extend Discovery 52 is GRANTED. Discovery is to be completed by 2/1/2018. Signed on 3/13/2018 by Judge Ann L. Aiken. (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
RUSSELL PITKIN and MARY PITKIN,
co-personal representatives of the Estate of
MADALINE PITKIN, deceased,
Case No. 3:16-cv-02235-AA
OPINION AND ORDER
Plaintiffs,
vs.
CORIZON HEALTH, INC., a Delaware
Corporation; CORIZON HEALTH, INC., a
Tennessee Corporation; WASHINGTON
COUNTY, a governmental body in the State
of Oregon; JOSEPH MCCARTHY, MD, an
individual; COLIN STORZ, an individual;
LESLIE ONEIL, an individual; CJ
BUCHANAN, an individual; LOUISA
DURU, an individual; MOLLY JOHNSON,
an individual; COURTNEY NYMAN, an
individual; PAT GARRETT, in his capacity
as Sheriff for Washington County; JOHN
DOES 1-10; and JANE DOES 1-10,
Defendants.
AIKEN, District Judge:
This dispute stems from the death of Madaline Pitkin, which occurred while she was in
custody at Washington County Jail. At the time of Ms. Pitkin's death, defendant Corizon Health,
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Inc. ("Corizon") was a contractor for Washington County, providing inmate health services in
the jail. Before me is a discovery dispute, in which plaintiffs (Ms. Pitkin's parents and personal
representatives of Ms. Pitkin' s estate) seek an extension of the discovery deadlines and leave to
take additional depositions.
Corizon opposes both motions.
The pmties disagree on the
applicable legal standard under which comts may grant leave to take additional depositions, the
relevance of the depositions sought by plaintiffs, and whether an extension of discovery is
warranted. For the reasons set foith below, plaintiffs' Motion to Extend Discovery is granted,
and plaintiffs' Motion for Leave to Take Additional Depositions is granted in pmt and denied in
pmt.
BACKGROUND
On November 30, 2016, plaintiffs filed suit against defendant Corizon and others,
claiming violations of the Fourteenth Amendment to the United States Constitution; plaintiffs
also assert common law claims of wrongful death, negligence, and gross negligence. Discovery
in this case commenced in January 2017, and plaintiffs began taking depositions in April 2017.
In response to the complexity of this case and the resulting scope of discovery, the patties filed a
joint motion for an extension of the discovery deadline in September 2017. I granted the pmties'
request and established a new deadline of December 15, 2017. Notably, defendants at that time
sought to extend discovery beyond the December 15 deadline.
Since April 2017, plaintiffs conducted more than fmty depositions, including corporate
depositions pursuallt to Federal Rule of Civil Procedure 30(b)(6). Plaintiffs also served two
requests for production of documents fewer than thirty days before the close of discovery, on
November 21, 2017, and December 6, 2017, respectively. Corizon objected to those requests on
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timeliness grounds. Then, on December 8, 2017, plaintiffs filed the instant motions to extend
discovery and conduct additional depositions.
LEGAL STANDARD
Federal Rule of Civil Procedure 30(a) establishes a presumptive limit of ten depositions
per party. To exceed this limit, a party must obtain a stipulation from the opposing party or leave
of the court. Fed. R. Civ. P. 30(a)(2)(A)(i). The rule directs the court to follow the standards set
foith in Federal Rules of Civil Procedure 26(b)(1) and 26(b)(2) in detennining whether to grant
such leave. Fed. R. Civ. P. 30(a)(2). Importantly, Rule 30 lists no other standard - apart from
those principles enumerated in Rule 26 - governing requests for additional depositions. See id.
Rule 26(b) establishes a broad scope of discovery, pe1mitting pmties to "obtain discovery
regarding any nonprivileged matter that is relevant to any pmiy's claim or defense and
proportional to the needs of the case." Fed. R. Civ. P. 26(b)(l). Specifically, the rule requires
the comt, in making discovery rulings, to consider "the importance of the issues at stake in the
action, the amount in controversy, the parties' relative access to relevant information, the parties'
resources, the importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit." Id Fmther, the comt must
limit discovery if 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)(i).
In sum, the party seeking leave of the court to conduct additional depositions under Rule
30 bem·s the burden of showing sufficient reasons, consistent with the principles set foith in Rule
26(b)(l) and (2), to justify an extension of the presumptive limit.
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DISCUSSION
I.
A Particularized Showing ofNecessity is Not Required Under Rule 30(a)(2).
Plaintiffs argue that their request to take five additional depositions is justified under the
standards established under Rule 26. Specifically, plaintiffs assert that the following applies to
each of the depositions sought: 1) they are relevant to the claims; 2) the info1mation sought is not
umeasonably cumulative or duplicative; and 3) Corizon cannot establish that the burden imposed
outweighs the benefit to plaintiff. In response, Corizon argues that plaintiffs' request should be
denied because they fail to "make a particularized showing of why the discovery is necessmy."
Defs.' Resp.to Pls.' Mot. for Add'l Dep. 4 (quoting Archer Daniels lYJidland Co. v. Aon Risk
Servs., Inc. oflvfinnesota, 187 F.R.D. 578, 586 (D. Minn. 1999)) (emphasis in defendants' brief).
In making this argument, Corizon misconstrues the requirements of Rule 30(a)(2).
As a threshold matter, the Federal Rules of Civil Procedure do not require a moving party
to make a particularized showing of necessity when seeking leave to take additional depositions.
See Fed. R. Civ. P. 30(a)(2). Furthe1more, imposing such a requirement would unduly increase
the burden on a moving pmty. The plain language of Rule 30 states, inter alia, "the court must
grant leave to the extent consistent with Rule 26(b)(1) and (2)." Id. There is no mention of
necessity or a particularized showing in Rule 26.
Although some comts have adopted the
standard proffered by Corizon, I find no legal basis for doing so. Accordingly, plaintiffs' only
burden is to show sufficient reason, based in the principles set forth in Rule 26(b)(1) and (2), to
exceed the presumptive ten-deposition limit. See id.; see also Lmyngea/ lYJask Co. Ltd. v. Ambu
AIS, 2009 WL 10672436, *3-4 (S.D. Cal. July 17, 2009) (stating that "[t]he plain language of the
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Rules and the Advisory Committee Notes do not reqmre a pmiicularized showing" when
applying Rule 30(a)(2)).
II.
Plaintiffs ~May Take Three of the Five Additional Depositions Sought
In the present case, I find that plaintiffs have sufficiently justified tlu·ee of the five
additional depositions sought, specifically the depositions of Matthew Northup, Darla Busch, and
Cris Rettler. Plaintiff did not, however, provide sufficient reason to support depositions of
Detectives Maggie Brown and Dave Hockin. Each deposition is discussed individually and in
further detail below.
First, Matthew Northup is one of only two employees who last interacted with Ms. Pitkin
before her death. Given Mr. Northup's intimate connection to the events at issue, the relevance
of his unique perspective is readily apparent. And because Mr. Northup's impressions cannot be
obtained from a more convenient source, a deposition would not be unreasonably duplicative.
Notwithstanding Corizon's argument to the contrary, the fact that Tina Barnes (the other
employee present at the time in question) has already been deposed does not dilute the unique
nature or relevance of Mr. Northup's testimony. Lastly, plaintiffs' stated willingness to absorb
much of the cost associated with each of the depositions at issue is futiher evidence that the
burden to Corizon is not outweighed by the benefit to plaintiffs.
Second, the pmiies agree that Darla Busch received a call from a Washington County
deputy expressing concerns about Ms. Pitkin's health before she passed away.
Like Mr.
No1ihup, Ms. Busch's experience is unique and closely tied to the events at issue in this case.
Corizon argues that the deposition of Deputy Kind, who made the above mentioned call to Ms.
Busch, renders Ms. Busch's testimony unreasonably duplicative. I disagree. The impressions of
Ms. Busch are her own. Moreover, the testimony sought is not limited to a single phone call
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with Deputy Kind. Plaintiffs assert they now have reason to believe that Ms. Busch received
multiple calls. Additionally, plaintiffs note the relevance of Ms. Busch's experience in medical
record keeping, insofar as her testimony provides insight into Washington County's record
keeping practices. While Corizon co1Tectly points out that a 30(b)(6) deposition is a proper
method to acquire testimony about the county's general record keeping procedures, nothing in
Rule 30 restricts the scope of a deposition so as to prevent an individual employee from
testifying about their experience related to the implementation of those procedures. See Fed. R.
Civ. P. 30. Indeed, finding otherwise would lead to the absurd result of limiting a party's ability
to ever argue that an employer's policies or procedures-in practice-are distinct from that
which a cmporate representative might articulate in a 30(b)(6) deposition.
Third, Cris Rettler is a fonner physician's assistant at Washington County Jail. Ms.
Rettler resigned her position in 2013, well before the death of Ms. Pitkin. At first glance, her
perceived connection to this case is indeed tenuous. Corizon argues that, because Ms. Rettler
was not employed at Washington County Jail at the time of the events at issue, she "has no
knowledge specific to this case." Defs.' Resp.to Pls.' Mot. for Add'! Dep. 7. Plaintiffs contend,
however, that Ms. Rettler' s work experience with Corizon provides relevant context regarding
the alleged business practices of Corizon, namely the "high turnover rate of Corizon employees
. . . internal problems with Corizon's management of its employees . . . [and) her own
dissatisfaction with Corizon." Pis.' Mot. for Add'! Dep. 6.
While Ms. Rettler's work experience is not directly related to the death of Ms. Pitkin, I
find that her testimony is relevant to the claims at issue in this case. As discussed in response to
plaintiffs' previous motion to compel, plaintiffs seek relief according to a 1'donell theory of
liability under 42 U.S.C. § 1983. Under lvfonell, municipalities and local governments can be
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held liable for deprivations of constitutional rights visited pursuant to an official government
policy or longstanding government custom. Monell v. Dep 't of Soc. Servs. of City of NY., 436
U.S. 658, 690 (1978). To prevail on such a claim, a plaintiff is required to show that the
behavior is so "persistent and widespread" that it can be considered a "pe1manent and well
settled city policy." Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (quoting lvfonell, 436
U.S. at 691)). The custom must be of sufficient "duration, frequency and consistency that the
conduct has become a traditional method of carrying out policy." Id.; see also Oyenik v. Corizon
Health Inc., 696 F. App'x 792, 794 (9th Cir. 2017) (holding that Corizon was not entitled to
summary judgment where the plaintiff had "shown . . . at least a dozen instances" of alleged
deliberate indifference to serious medical need). Given the scope of that burden, I find that Ms.
Rettler's testimony, as a former employee under Corizon's management, is relevant to the claims
asserted. Further, the potential benefit to plaintiffs far outweighs the minimal burden to Corizon.
As stated above, plaintiffs have offered to bear primary responsibility for "the expenses related
to the depositions, such as com1 repo11ers and videographers," which mitigates potential concern
sunounding additional burden to Corizon. Pis.' Mot. for Add'! Dep. 9.
Lastly, plaintiffs seek to depose Detectives Maggie Brown and Dave Hockin. Plaintiffs
argue that the detectives' testimony is necessary to resolve alleged inconsistencies in statements
offered by Washington County and Corizon witnesses. Plaintiffs asse1t that it is critical to talk
with investigators regarding their "recollection of what Corizon and Washington County
employees said during the investigation in the aftermath of Ms. Pitkin's death." Pis.' Mot. for
Add'! Dep. 7.
In response, Corizon asserts that the information sought is umeasonably
duplicative because the best records of the interviews are the contemporaneous recollections of
the detectives, which are contained in the police investigation rep01t. I find Corizon's argument
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persuasive.
Because the entirety of the information sought may be obtained from a more
convenient source, the additional depositions of Detectives Maggie Brown and Dave Hockin
would be umeasonably duplicative.
III.
Discove1y Is Extended for Ninety Days
A discovery extension of ninety days is warranted under the circumstances in this case.
A modification to court-imposed deadlines is within the court's discretion.
Nascimento v.
Dummer, 508 F.3d 905, 909 (9th Cir. 2007). Here, plaintiffs have shown both good cause and
effective use of prior time. The nature of this case is complex, due to the circumstances giving
rise to the dispute and the claims asserted by plaintiffs. Plaintiffs bring both constitutional and
wrongful death claims against multiple defendants (Corizon, Washington County, and several
individual defendants).
Given the complexity inherent to such a case, an extension is
appropriate.
In addition to the depositions discussed above, plaintiffs served two requests for
production of documents, one on November 21 and the other on December 6, both of which
Corizon objected to solely because they did not have the requisite thirty days to respond.
Because timeliness is the only stated basis for Corizon's objection and because discovery has
now been reopened for ninety days, defendants are now required to respond to the
aforementioned document requests. Corizon's objection to any futiher extension, however, is
noted. Lastly, due to the increasingly litigious nature of discovery disputes in this case, the
patties are encouraged to resolve remaining disputes without motions practice. Although the
court stands ready to rule on additional motions to compel, the parties should strongly consider
requesting a status conference to get the comi's assistance before filing yet another round of
discovery briefs.
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CONCLUSION
As explained in greater detail herein, plaintiffs' Motion for Leave to Take Additional
Depositions (doc. 53) is GRANTED IN PART and DENIED IN PART. Plaintiffs Motion to
Extend Discovery (doc. 52) is GRANTED.
IT IS SO ORDERED.
Datedthis
/0~ofMarch2018.
Ann Aiken
United States District Judge
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