Johnson v. Sager et al

Filing 33

ORDER granting dfts' 25 Motion for Protective Order by Hon. James P. Donohue.(RS)cc Johnson

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 ROBERT E. JOHNSON, Case No. C11-1117-RSM-JPD 10 Plaintiff, 11 12 v. 13 STEVEN SAGER, et al., 14 ORDER GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER Defendants. 15 16 Defendants move for a protective order to conduct depositions telephonically with pro 17 se plaintiff Robert E. Johnson, who is a state prisoner proceeding in forma pauperis with a 18 civil-rights action. (Dkt. 25); see Fed. R. Civ. P. 26(c)(1), 30(b)(4). Mr. Johnson opposes this 19 motion, contending that observing the deponents in-person is essential to his case and 20 outweighs defendants’ assertions of undue burden and expense. (Dkt. 32.)1 Having reviewed 21 the papers filed in support of and in opposition to defendants’ motion, the Court GRANTS 22 defendants’ motion for a protective order to conduct depositions telephonically unless Mr. 23 Johnson can, without incurring additional debt, personally pay the out-of-pocket expenses of 24 defendants attending the depositions in-person. (Dkt. 25.) 25 1 26 The Court granted plaintiff’s motion for an extension of time to file an opposition to defendants’ discovery motion. (Dkt. 30.) ORDER GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER PAGE - 1 1 BACKGROUND 2 Although Mr. Johnson is currently incarcerated in Coyote Ridge Corrections Center in 3 Connell, his claims of discrimination refer to conduct that occurred while a prisoner at the 4 Monroe Correctional Complex (“MCC”) in Monroe, and all defendants work at MCC. (Dkt. 5 7.) Monroe is located over 200 miles from Connell. Nonetheless, Mr. Johnson seeks to depose 6 all defendants in-person, either through being transferred to MCC or through defendants 7 traveling to Connell, and has rejected defendants’ offer to have the depositions take place 8 telephonically. (Dkt. 32.) 9 DISCUSSION 10 Two provisions in the Federal Rules of Civil Procedure authorize courts to require that 11 a deposition be conducted telephonically. Rule 30(b)(4) provides that “the court may on 12 motion order [ ] that a deposition be taken by telephone or other remote means.” Rule 26(c)(1) 13 authorizes a judge to issue a protective order specifying the time, place, and method of 14 discovery upon a showing of, inter alia, “undue burden or expense.” Motions brought under 15 Rules 30(b)(4) and 26(c)(1) are ordinarily subject to different standards. A Rule 30(b)(4) 16 motion focuses on the prejudice that a telephonic deposition would impose, whereas a Rule 17 26(c) motion focuses on the prejudice a deponent would suffer if compelled to appear in 18 person. Although Mr. Johnson reasonably contends that it is important to observe defendants’ 19 demeanor in-person, defendants also reasonably assert that such depositions constitute an 20 undue travel burden and expense. Balancing these competing interests, the Court finds that 21 unless Mr. Johnson bears the expenses of defendants attending the depositions in-person, the 22 depositions should take place telephonically. 23 24 I. Rule 30(b)(4) As the party opposing defendants’ Rule 30(b)(4) motion, Mr. Johnson bears the burden 25 of showing that he will suffer prejudice if the motion to conduct defendants’ depositions 26 telephonically is granted. See, e.g., Clinton v. California Dep’t of Corr., 2009 WL 210459, at ORDER GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER PAGE - 2 1 *3 (S.D. Cal. Jan. 20, 2009); United States v. $160,066.98 from Bank of America, 202 F.R.D. 2 624, 629 (S.D. Cal. 2001); Cressler v. Neuenschwander, 170 F.R.D. 20, 21 (D. Kan. 1996); 3 Jahr v. IU Int’l Corp., 109 F.R.D. 429, 431 (M.D.N.C.1986). “Generally, leave to take 4 depositions by remote electronic means should be granted liberally.” Brown v. Carr, 253 5 F.R.D. 410, 412 (S.D. Tex. 2008). 6 The Court agrees with Mr. Johnson’s assertion that his inability to see defendants and 7 to judge their personal demeanors constitutes an important consideration in the decision to 8 permit a telephonic deposition, particularly because Mr. Johnson contends that defendants have 9 acted dishonestly and with discriminatory intent. See, e.g., Anguile v. Gerhart, 1993 WL 10 414665, at *3 (D. N.J. Oct. 7, 1993) (granting plaintiff's motion for initial telephonic 11 deposition, provided that second deposition would be in person). On the other hand, 12 telephonic depositions inherently lack face-to-face questioning, and to deny a request to 13 conduct a telephonic deposition solely because of the opponent's inability to observe the 14 witness would be tantamount to repealing Fed. R. Civ. P. 30(b)(4). See Jahr, 109 F.R.D. at 15 432. The Court disagrees with Mr. Johnson’s contention that he will be prejudiced by his 16 inability to question defendants as to specific documents because this concern is easily 17 remedied. Defendants may send the critical documents to Mr. Johnson in advance of the 18 deposition. 19 The Court finds that telephonic depositions do not so prejudice Mr. Johnson’s ability to 20 prepare his case as to justify ordering in-person depositions at defendants’ or the Court’s 21 expense. The Court therefore grants defendants’ motion to conduct the depositions 22 telephonically unless Mr. Johnson pays the out-of-pocket expenses for in-person depositions in 23 order to personally observe defendants’ responses and demeanors.2 See, e.g., Brown v. Carr, 24 236 F.R.D. 311, 313 (S.D. Tex. 2006) (“Plaintiff may not expect the Court, or defendants to 25 26 2 The Court is agnostic about whether defendants choose to attend, demanded and plaintiff-financed, inperson depositions in Connell or to transfer Mr. Johnson to MCC. The Court will not, however, order defendants to transfer Mr. Johnson, an administrative decision that generally is best left to prison officials. ORDER GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER PAGE - 3 1 pay for these fees and expenses simply because he is an indigent inmate proceeding pro se in 2 this action.”); see United States v. MacCollom, 426 U.S. 317, 321 (1976) (“The established 3 rule is that the expenditure of public funds is proper only when authorized by Congress, not 4 that public funds may be expended unless prohibited by Congress.”); cf. 42 U.S.C. § 1997e(f) 5 (“To the extent practicable, in any action brought with respect to prison conditions in Federal 6 court pursuant to section 1983 of this title . . . by a prisoner confined in any jail, prison, or 7 other correctional facility, pretrial proceedings in which the prisoner's participation is required 8 or permitted shall be conducted by telephone, video conference, or other telecommunications 9 technology without removing the prisoner from the facility in which the prisoner is 10 confined.”). 11 II. 12 Rule 26(c) While Rule 30(b)(4) evaluates the prejudice to the party opposing the motion, Rule 13 26(c) examines harm to the moving party. To receive a protective order, a party must certify 14 that he has “in good faith conferred or attempted to confer with other affected parties in an 15 effort to resolve the dispute without court action,” and that absent the protective order, he will 16 suffer “annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 17 26(c)(1). The burden of proof is on the party seeking the order. See Beckman Indus. v. 18 International Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). 19 The parties acknowledge that defendants sought in good faith to resolve this dispute 20 without court intervention by offering since October 2011 to conduct telephonic depositions 21 with certain expenses paid for by defendants and that Mr. Johnson rejected those offers. (Dkt. 22 25-1, at 1–19; Dkt. 32, at 1–2.) Defendants have also demonstrated that they would suffer 23 undue burden and expense if they acceded to Mr. Johnson’s demands. Defendants all work at 24 MCC, Mr. Johnson is incarcerated in Connell, and it would be costly for the six defendants to 25 travel over 200 miles to attend the depositions in-person while having others take over their job 26 responsibilities; alternatively, transferring Mr. Johnson implicates monetary, administrative, ORDER GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER PAGE - 4 1 and security concerns. (Dkt. 25, at 4.) The Court therefore grants defendants’ motion for a 2 protective order to conduct depositions telephonically unless Mr. Johnson can, without 3 incurring additional debt, personally pay the out-of-pocket expenses of defendants attending 4 the depositions on-person. 5 6 CONCLUSION The Court GRANTS defendants’ motion pursuant to Rules 26(c) and 30(b)(4) for a 7 protective order to conduct depositions telephonically unless Mr. Johnson can, without 8 incurring additional debt, personally pay the out-of-pocket expenses of defendants attending 9 the depositions in-person. (Dkt. 25.) 10 11 12 13 DATED this 24th day of January, 2012. A JAMES P. DONOHUE United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER PAGE - 5

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