Smith v. Phillips et al

Filing 71

ORDER denying plaintiffs' 66 Motion to Exclude Depositions. Signed by Hon. Mary Alice Theiler. (SWT) (cc: Plaintiffs via USPS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ROBERT H. SMITH, et al.,
Plaintiffs,

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Case No. C17-1457-RSL-MAT

v.
ORDER DENYING PLAINTIFFS’
MOTION TO EXCLUDE DEPOSITIONS

RYAN W. PHILLIPS, et al.,
Defendants.

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This is a civil rights action brought under 42 U.S.C. § 1983. This matter comes before the

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Court at the present time on plaintiffs’ motion to exclude depositions. Defendants oppose

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plaintiffs’ motion. The Court, having reviewed plaintiffs’ motion, defendants’ responses thereto,

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and the balance of the record, hereby finds and ORDERS as follows:

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(1)

Plaintiffs’ motion to exclude depositions (Dkt. 66) is DENIED. Plaintiffs, by way

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of the instant motion, seek to exclude their depositions which were taken by defendants’ counsel

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on November 7, 2018 at the Federal Detention Center in SeaTac, Washington (FDC SeaTac).

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Plaintiffs argue in their motion that the depositions should be excluded because they were not

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allowed to cross-examine each other during the depositions as permitted by Fed. R. Civ. P. 30(c),

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and because defendants did not seek leave of court to take the depositions as required by Fed. R.

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Civ. P. 30(a)(2)(B). (See Dkt. 66.) Defendants argue that plaintiffs’ arguments are without merit.
ORDER DENYING PLAINTIFFS’
MOTION TO EXCLUDE DEPOSITIONS - 1

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(See Dkts. 67-69.) The Court concurs.

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The record demonstrates that defendants first attempted to depose plaintiff Smith at FDC

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SeaTac on November 1, 2018. (See Dkt. 66 at 1; Dkt. 68, ¶ 2.) Prior to commencement of the

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deposition, plaintiff Smith objected to proceeding in the absence of his co-plaintiff, James Phillips.

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(Id.) The parties agreed to continue the deposition so that defendants could request that FDC

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SeaTac allow the plaintiffs to attend each others’ depositions. (See Dkt. 68, ¶ 2.) Defendants

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rescheduled the depositions for November 7, 2018, and sought permission from FDC SeaTac

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officials for both plaintiffs to be present for both depositions. (See id., ¶¶ 2-3.) On November 5,

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2018, defendants were advised by FDC SeaTac officials that plaintiffs would not be allowed to be

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in the same room at the same time for “security reasons,” and that the depositions would have to

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be conducted separately. (Id., ¶ 3 and Ex. A at 1.)

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On November 7, 2018, counsel for defendants again went to FDC SeaTac to depose

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plaintiffs. (Dkt. 68, ¶ 3.) Counsel for the Snohomish County defendants advised plaintiff Smith

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that the facility would not allow his co-plaintiff, Mr. Phillips, to be present. (Id. and Ex. B.)

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Counsel further advised plaintiff Smith that defendants would leave the depositions open so that

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plaintiffs could ask each other questions at some future time if they chose to do so. (See id.)

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Plaintiff Smith thereafter agreed to proceed with his deposition. (See id.) Counsel likewise

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advised plaintiff Phillips at the beginning of his deposition that defendants would leave the

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depositions open so that plaintiffs could ask each other questions at some future time if they chose

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to do so. (Dkt. 68, ¶ 3 and Ex. C.)

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According to defendants, the depositions remain open at this time and plaintiffs still have

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the opportunity to examine each other should they choose to do so. (See Dkt. 67 at 2-3.) It appears

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that defendants reasonably worked within the limitations imposed by FDC SeaTac to obtain
ORDER DENYING PLAINTIFFS’
MOTION TO EXCLUDE DEPOSITIONS - 2

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plaintiffs’ depositions and to preserve their right to cross-examine each other. The Court sees no

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defect in this process which would justify exclusion of the depositions.

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To the extent plaintiffs argue that the depositions should be excluded because defendants

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failed to obtain leave of court before taking the depositions, plaintiffs’ argument is frivolous. Local

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Civil Rule (LCR) 30(a)(2) allows a party to take the deposition of a person in custody, and provides

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that the party seeking to take such a deposition “shall attempt to reach agreement with officials of

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the institution as to date, time, place, and maximum duration of the deposition.” LCR 30(a)(2)

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further provides that “[i]f agreement is reached, the party taking the deposition shall give notice as

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provided in Fed. R. Civ. P. 30(b), and no further order of the court is required.” The record makes

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clear that defendants reached agreement with FDC SeaTac to take plaintiffs’ depositions so no

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court order was required.

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Plaintiffs’ suggestion that defendants were required to serve notice of the depositions on

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the warden of FDC SeaTac and on the U.S. Attorney before proceeding with the depositions (see

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Dkt. 70) is incorrect and is based on a simple misreading of LCR 30(a)(b) which requires such

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notice only if agreement with the facility cannot be reached. Plaintiffs again fail to identify any

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defect which would justify exclusion of their depositions.

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(2)

The Clerk is directed to send copies of this Order to plaintiffs, to counsel for

defendants, and to the Honorable Robert S. Lasnik.
DATED this 14th day of January, 2019.

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A

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Mary Alice Theiler
United States Magistrate Judge

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ORDER DENYING PLAINTIFFS’
MOTION TO EXCLUDE DEPOSITIONS - 3