Yeager et al v. Fort Knox Security Products

Filing 69

MEMORANDUM DECISION granting 56 Motion to Compel. Plaintiffs request for sanctions is denied. Signed by Judge Ted Stewart on 4/25/13. (ss)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

GENERAL CHARLES E. “CHUCK”
YEAGER (RET.), an individual; PMS II,
LLC, a Delaware limited liability
company,

MEMORANDUM DECISION &
ORDER

Plaintiffs,

Case No. 2:11-cv-00091

vs.

Chief District Judge Ted Stewart

FORT KNOX SECURITY PRODUCTS,
INC., a Utah Corporation,

Magistrate Judge Dustin Pead

Defendant.

This matter was referred to Magistrate Judge Dustin Pead by Chief District Judge Ted
Stewart pursuant to 28 U.S.C. § 636(b)(1)(A) (Document Number 21). Currently before the
Court is Defendant Fort Knox Security Products Inc.’s (“Defendant”) Motion To Compel
Plaintiff Charles Yeager (“Plaintiff) To Provide Full and Complete Deposition Testimony
(Document Number 56). The Court has carefully reviewed the motion and memoranda
submitted by the parties. The Court elects to determine the motion on the basis of the written
memoranda and finds that oral argument would not be helpful or necessary. See DUCivR 7-1(f).
BACKGROUND
On October 16, 2012, during the course of Plaintiff’s deposition, Defendant’s counsel
pursued a line of questioning related to paragraph thirty-eight (38)1 of the Complaint:
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In its entirety, paragraph thirty eight (38) reads, “[o]n information and belief, in making
the disclosure described above, Defendant was guilty of oppression, fraud, or malice, in that

Q:

[Defendant’s counsel] [In paragraph 38 of the complaint] you claim that Fort
Knox and Tom James and TJ, the principals of Fort Knox, acted with oppression,
fraud or malice against you. Do you really believe that these folks acted with
fraud or oppression or malice against you?

A:

[Plaintiff’s counsel] Objection, that question calls for a legal conclusion. It
inquires as to the basis for legal conclusion in a charging allegation in a pleading.
Lacks foundation and may–well, it is also compound as framed. I will instruct the
witness not to answer.

Later, the attorneys again discussed the issue in the following exchange:
Q:

[Defendant’s counsel] So are you—is your instruction regarding then—based on
what you’ve just stated, are you going to instruct him not to answer any questions
about the complaint that was filed?

A:

[Plaintiff’s counsel] Look, you can ask him about factual background and factual
matters, which you’ve done. You’re of course free to do that. But to ask him
about language drafted by lawyers in a charging allegation, including legal
conclusions, when he’s told you he didn’t have any hand in drafting it, I--.

Defendant made the disclosure with the intent to injure and annoy by utilizing General Yeager’s
established, well known name, likeness and identity with a willful and conscious disregard of his
rights. Plaintiffs therefore request an award of punitive damages.” (Document Number 2).
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In response to Plaintiff’s counsel’s objection, Defendant’s counsel indicated that he
would reserve the right to re-depose Plaintiff on this issue after bringing Plaintiff’s objection
before the Court.2
Four months after the conclusion of the deposition, Defendant filed its currently pending
motion to compel asserting that Plaintiff should be compelled to answer questions regarding the
specific allegations contained in the Complaint (Document Number 56). Plaintiff opposed the
motion arguing: (1) Defendant failed to meet and confer; and (2) at the deposition, Defendant
raised an “improper contention question relating solely to legal allegations in the Complaint”
(Document Number 62).
ANALYSIS
As an initial matter, Plaintiff argues that the motion to compel should be denied because
Defendant failed to include a certification indicating that it had in good faith attempted to meet
and confer with Plaintiff regarding this issue. See Fed. R. Civ. P. 37(a)(2)(B) (providing that
motion to compel “must include a certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make disclosure or discovery in an effort to
obtain it without court action”); DUCivR 37-1(a) (providing that “the court will not entertain any
discovery motion. . . unless counsel for the moving party files with the court, at the time of filing
the motion, a statement showing that the attorney making the motion has made a reasonable
effort to reach agreement with opposing attorneys on the matters set forth in the motion”).

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Cited portions of the relevant deposition transcript, at Document Number 56-1.
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Plaintiff asserts that Defendant’s only meet and confer effort was during the October 16, 2012,
deposition, and that the parties’ conversation during the deposition was not sufficient to support a
meet and confer effort under the rules (Document Number 62).
Upon review, the Court agrees with Defendant. First, Defendant specifically references
its attempt to meet and confer during the course of the deposition and attaches a transcript of that
conversation to its pending motion. Second, based upon its review of the transcript and the
position taken by Plaintiff, the Court is not persuaded that a subsequent discussion would have
been efficacious. While Plaintiff suggests another discussion should have been conducted during
the four month time period between Plaintiff’s deposition and the filing of the motion to compel,
the Court finds that while such discussion may have been helpful in providing a more recent
statement of the dispute, the dispute would remain nonetheless. As a result, the Court concludes
that Defendant has satisfied his obligations under Rule 37 and local civil rule 37-1. See Fed. R.
Civ. P. 37(a)(2)(B); DUCivR 37-1(a). The court also finds that Defendant’s motion to compel
along with those portions of the transcript in which the objection was raised, contain an adequate
statement or certification that said obligation was satisfied. See Fed. R. Civ. P. 37(a)(2)(b);
DUCR 37-1(a).
Plaintiff’s second argument attempts to distinguish between factually based questions,
which Plaintiff contends are permissible, and legal definition or element based questions, which
Plaintiff contends are not permitted at a deposition because they are beyond the knowledge of a
lay witness deponent. In accordance with this division between lines of questioning, Plaintiff
asserts that he appropriately responded to deposition questions addressing the factual basis of the
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complaint, and properly objected to questions inquiring into the legal definition of the terms
“fraud,” “oppression,” and “malice” (Document Number 62). Defendant, on the other hand,
argues that Federal Rule of Civil Procedure controls and that counsel’s instruction for Plaintiff to
not answer questions was in violation of the Rule (Document Number 65).
Federal Rule of Civil Procedure 30(c)(2) states:
[a]n objection at the time of the examination— whether to evidence,
to a party’s conduct, to the officer’s qualifications, to the manner of
taking the deposition, or to any other aspect of the deposition— must
be noted on the record, but the examination still proceeds; the testimony
is taken subject to any objection. An objection must be stated concisely
in a nonargumentative and nonsuggestive manner. A person may instruct
a deponent not to answer only when necessary to preserve a privilege,
to enforce a limitation ordered by the court, or to present a motion under
Rule 30(d)(3).
Pursuant to Rule 30(d)(3), a deponent:
may move to terminate or limit [the deposition] on the ground that it is
being conducted in bad faith or in a manner that unreasonably annoys,
embarrasses, or oppresses the deponent or party. The motion may be
filed in the court where the action is pending or the deposition is being
taken. If the objecting deponent or party so demands, the deposition
must be suspended for the time necessary to obtain on order.
Based thereon, the Court concludes that Plaintiff’s counsel had one of two options on
how to proceed at the deposition, neither of which was exercised. See Kingston v. Nelson, 2007
WL 2985046 *5 (D. Utah ) (finding deponent’s counsel had two options when objecting to
questioning at deposition). First, Plaintiff’s counsel could have lodged his objections on the
record, and then proceeded to allow Plaintiff to answer the questions subject to the noted
objections. Id. (citing Fed. R. Civ. P. 30(c)). Second, if Plaintiff’s counsel believed that

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Defendant’s counsel was acting in bad faith, or in a manner that unreasonably “annoy[ed],
embarrass[ed], or oppresse[d] the deponent,” Plaintiff’s counsel could have stopped the
deposition and sought a protective order pursuant to Rule 26(c) of the Federal Rules of Civil
Procedure. Id. (citing Fed. R. Civ. P. 30(d)(3)). Thus, despite Plaintiff’s claims in his
opposition, which fail to even address or analyze Rule 30, the rules do not demarcate between
deposition questions addressing factual as opposed to legal matters.
As a result, the Court concludes that Plaintiff should have lodged his objection through
one of the two avenues specifically addressed under the Rule. Having failed to do so, the Court
hereby grants Defendant’s motion to compel and orders Plaintiff to again appear for deposition
for the limited purpose of addressing Defendant’s counsel’s questions regarding Paragraph thirtyeight (38) of the Complaint. The deposition shall occur no later than twenty (20) days from the
date of this Order and shall not effect any of the other established discovery deadlines (Docket
Number 48). At the deposition, Plaintiff and his counsel are ordered to fully abide by the
requirements of Rule 30.
In so ruling, the Court denies Defendant’s request for reasonable expenses and attorney
fees incurred in bringing the motion to compel. Pursuant to Federal Rule of Civil Procedure 37,
expenses and fees may be appropriately awarded against the party whose conduct necessitated the
motion to compel, unless: (i) the movant filed the motion before attempting in good faith to
obtain discovery; (ii) the objection or non-disclosure was “substantially justified”; or (iii) “other
circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A)(i)(ii)(iii). Here,
the Court previously concluded that Defendants’ counsel made a good faith effort to confer with
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Plaintiff, and, given the clear directives set forth under Rule 30, the Court does not find that
Plaintiff’s objection was substantially justified. See Fed. R. Civ. P. 37(a)(5)(A)(i)(ii). Given,
however, the unique culmination of factors present in this case the Court finds that an award of
expenses would be unjust and therefore sanctions are not appropriate. See Fed. R. Civ. P.
37(a)(5)(A)(iii) (reasonable expenses and attorney fees not awarded if “other circumstances make
an award of expenses unjust”). Specifically, the Court finds that Plaintiff’s objection was limited
to an extremely narrow and discrete area of questioning and as a result the deposition was able to
proceed in all other regards. Cf. Kingston v. Nelson, 2007 WL 2985046 *5 (D. Utah ) (numerous
objections to questions throughout deposition). Furthermore, Defendant waited four months
after the deposition before filing its motion to compel. For these reasons, the Court finds that an
award of expenses would be unjust and therefore denies Plaintiff’s request for sanctions.
CONCLUSION
Based upon the foregoing, IT IS HEREBY ORDERED that Plaintiffs’ motion to compel
is GRANTED subject to the specifications set forth herein. Plaintiffs’ request for sanctions is
DENIED.
DATED this 25th day of April , 2013.

BY THE COURT:

_________________________
DUSTIN PEAD
United States Magistrate Judge
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