Opinion
LEAD CASE NO. C13-17 RAJ MEMBER CASE NO. C13-762 RAJ
09-22-2014
"AMY", Plaintiff, v. JOSHUA OSMUN KENNEDY Defendant.
CONSOLIDATED
ORDER
This matter comes before the court on the following motions: (1) Amy's motion to compel discovery responses and produce documents (Dkt. # 77); (2) Vicky's motion to compel deposition testimony (Dkt. # 79); (3) Attorney Elliott's motion to strike or renote (Dkt. # 83); and (4) plaintiffs' motion for extension of time to file motions to compel (Dkt. # 96).
Plaintiff's filed their motions to compel (Dkt. ## 77 & 79) on July 7, 2014, which was also the deadline for completing discovery (Dkt. # 69). The court's scheduling order states that all motions related to discovery must be noted on the motion calendar no later than the Friday before discovery closes pursuant to LCR 7(d)(3). Dkt. # 69 at 1. Thus, plaintiff's motions are untimely. Nevertheless, the court may modify the case schedule only for good cause. Fed. R. Civ. Proc. 16(b)(4).
A. Amy's Motion to Compel Discovery
Amy moves the court for an order compelling defendant to produce certain documents and respond to certain interrogatories set forth in plaintiffs' first request for production of documents and interrogatories, as well as to produce a privilege log. Amy also moves the court for an order compelling defendant's criminal defense counsel to produce certain documents and provide a privilege log. Dkt. # 77 at 1.
Amy seeks production of Disc #10 and for encryption codes for all the discs produced pursuant to Requests 1 and 2. However, plaintiffs first received the ten discs on May 22, 2013 as part of initial disclosures. Dkt. # 78 (Freeman Decl. iso Mot. to Compel ("MTC")) ¶ 4. Based on the record before the court, the first discovery conference regarding these discs took place on June 9, 2014. Dkt. # 87 (Hart Decl.) ¶ 2. Amy has failed to provide any explanation why she waited more than one year to conduct a discovery conference with respect to the discs. Accordingly, the court finds that Amy has failed to demonstrate good cause with respect to the discs.
Nevertheless, the court has concerns with respect to the encryption issue. Out of abundance of caution and to ensure fairness, defendant's counsel shall make his copies of the ten discs available for inspection and copying to plaintiff's counsel within fourteen days of this order. If defendant's copies of the discs are also encrypted, the parties shall meet and confer within twenty-one days of this order to determine whether defendant's criminal counsel or the government would be willing to allow plaintiff's counsel to inspect and copy the original files. The parties shall file a joint status report informing the court regarding the result of inspection and/or any such discussions with defendant's criminal counsel or the government, if any, no later than six weeks from the date of this order.
With respect to the remaining discovery requests, Amy served the discovery requests on January 3, 2014. Dkt. # 78 (Freeman Decl. iso MTC) ¶ 5. On January 21, 2014, defendant requested a temporary extension on the deadline to respond to allow time for the parties to explore the possibility of settlement. Dkt. # 97 (Freeman Decl. iso Mot. for Leave for Extension ("Leave Mot.")) ¶ 11. Plaintiffs agreed to a February 19, 2014 deadline. Id. ¶ 12. On February 19, 2014, defendant served boilerplate objections, did not produce any documents, and did not answer any interrogatories. Id. ¶ 13. By late March, plaintiffs declined to delay discovery any longer because the parties did not reach settlement. Id. ¶ 14. Rather than follow up with defendant and meet and confer regarding the inadequate responses, plaintiffs served subpoenas to defendant's criminal attorneys. Id. ¶¶ 15-17. Based on the record before the court, June 2, 2014 is the first time plaintiffs attempted to meet and confer regarding the inadequate February 19 responses. Id. ¶ 19.
Although the parties met and conferred regarding the discovery requests several times in June 2014, plaintiffs have not provided any reason why they waited over three months to meet and confer regarding the blanket objections defendant served. Nor has plaintiff provided any explanation as to why they did not file a motion for relief from deadline prior to the discovery cutoff. Indeed, as early as June 20, 2014, plaintiffs received additional responses from defendant which they deemed to be deficient, and plaintiffs waited until the last day of discovery to file a motion to compel. Plaintiffs should have immediately filed a motion for relief from deadline requesting an extension in the case schedule at that point in time. They did not. Rather, the motion to extend the case schedule was filed on August 14, 2014, well after the discovery deadline. Dkt. # 96. The court recognizes that defendant is also to blame for the significant delay in providing discovery responses. However, defendant's delay does not excuse Amy's lack of diligence in pursuing the discovery.
Accordingly, the court finds that Amy has not demonstrated good cause to extend the case schedule with respect to defendant's discovery responses.
Amy also seeks an order compelling defendant's criminal attorneys to produce certain documents. Amy served a subpoena duces tecum on Suzanne Elliott on April 14, 2014. Dkt. # 97 (Freeman Decl. iso Leave Mot.) ¶ 15. Ms. Elliott served general objections on May 15, 2014. Id. ¶ 16. On June 2, 2014, plaintiffs sent a meet and confer letter to Ms. Elliott, identifying deficiencies in her objections and requesting privilege logs. Id. ¶ 19. In that letter, plaintiffs requested a conference call to discuss the discovery requests, and provided dates of availability of June 4, June 9 or June 10. Dkt. # 97-9 at 2 (Ex. I to Freeman Decl. iso Leave Mot. at 1). Plaintiffs and Ms. Elliott participated in the meet and confer conference on June 9, 2014. Dkt. # 97 (Freeman Decl. iso Leave Mot.) ¶ 20. During the conference, Ms. Elliott stated that the applicable ethical rules prohibit her from producing any responsive documents, and that she would not do so without a court order. Dkt. # 78 (Freeman Decl. iso MTC) ¶ 13.
Amy has withdrawn the motion with respect to Gilbert Levy.
Despite knowing that Ms. Elliott would not produce documents absent court order on June 9, 2014, Amy waited to file her motion until July 7, 2014. She does not explain why she waited one month to file the motion, or why she did not seek leave to extend the case schedule to resolve the discovery dispute with Ms. Elliott prior to the last day of discovery. The court understands that there were outstanding discovery requests between the parties at that time as well. Nevertheless, the court sees no reason why Amy did not, at a minimum, request an extension of the discovery deadline as to Ms. Elliott's subpoena.
The court finds that Amy has not demonstrated good cause to extend the discovery deadline with respect to Ms. Elliott's subpoena.
Accordingly, the court finds that the motion to compel discovery responses is untimely, and DENIES the motion to compel. Dkt. # 77. The court also DENIES plaintiffs' motion for extension of time to file this motion to compel. Dkt. # 96. The court notes that this conclusion renders Ms. Elliott's motion to strike or re-note MOOT. Dkt. # 83.
B. Vicky's Motion to Compel Deposition Testimony
Vicky argues that the court should compel defendant to testify regarding three categories of questions that defendant refused to answer: (1) those in which he invoked the Fifth Amendment right against self-incrimination; (2) those in which he asserted "privacy" as a basis for not answering questions related to current and past residences, and (3) those regarding his assets.
On May 27, 2014, Vicky requested available dates for defendant's deposition between June 2 and June 6, June 9 and June 11, or June 30, 2014. Dkt. # 98-1 at 2 (Ex. 1 to Hepburn Decl. iso Leave Mot.). However, defendant's counsel requested available dates after June 22, 2014. Dkt. # 98-3 at 2 (Ex. 3 to Hepburn Decl. iso Leave Mot.). Vicky then served defendant with a notice of deposition for June 23, 2014. Dkt. # 98-4 at 4-5 (Ex. 4 to Hepburn Decl. iso Leave Mot.). Defendant requested that the deposition be moved to June 24, 2014. Dkt. # 98-5 at 2 (Ex. 5 to Hepburn Decl. iso Leave Mot.). However, Vicky's counsel was unavailable on June 24, so she suggested June 26 and 27, 2014. Dkt. # 98-7 at 2 (Ex. 7 to Hepburn Decl. iso Leave Mot.). Defendant's deposition was held on June 27, 2014. Dkt. # 81-1 at 1 (Ex. 1 to Am. Hepburn Decl.).
The court has already addressed the delay caused by both sides with respect to written discovery. Although the court acknowledged Amy's lack of diligence with respect to the written discovery, the court believes that delays by defendant exacerbated Vicky's ability to take defendant deposition in a timely manner prior to the close of discovery. Accordingly, the court has not considered the delays caused by both sides with respect to the written discovery for purposes of the deposition.
During the deposition, defendant repeatedly invoked the Fifth Amendment with respect to all questions relating to the circumstances that led to his arrest and conviction, refused to answer questions about his current and past residence based on "privacy" concerns, and refused to answer questions regarding his assets. On July 1, 2014, Vicky sent defendant a meet and confer letter stating that defendant's refusal to answer the questions posed were improper, and requesting a conference on July 3 or July 7 to discuss the matter. Dkt. # 80-2 (Ex. 2 to Hepburn Decl.). Defendant's counsel responded that he would not be available until July 9. Dkt. # 81 (Am. Hepburn Decl.) ¶ 16.
The court finds that based on these facts, Vicky was diligent in her attempt to depose defendant and in her attempt to meet and confer prior to filing the motion to compel. The court also finds that defendant's delay caused significant disruption and prevented Vicky from filing the motion to compel timely. Accordingly, the court finds good cause to amend the case schedule to consider the motion to compel deposition testimony, and GRANTS the motion for extension of the case schedule as to this motion.
With respect to the questions where defendant invoked the Fifth Amendment, the questions included whether he possessed or transported images of Amy or Vicky and whether he harmed Amy or Vicky by viewing their images, as well as questions regarding the circumstances of his detention at SeaTac airport and regarding the location of images on his computer. See Dkt. # 81-1 at 6-7, 14, 29-33 & # 81-2 at 1-4, 9-11 (Exs. 1 & 2 to Am. Hepburn Decl., Kennedy Depo. at 28:22-29:14, 38:18-25, 58:15-68:23, 73:13-75:8).
In her opening brief, Vicky appears to argue that the court should strike defendant's testimony where he invoked the Fifth Amendment. Dkt. # 79 (Mot. to Compel Depo. ("MTCD")) at 6. It is unclear to the court why Vicky would request the court to strike testimony in a motion to compel additional deposition testimony. In reply, Vicky argues that defendant must choose between possible further criminal jeopardy or sanctions and/or adverse inferences drawn against him in this civil action. Dkt. # 100 (Reply) at 3. Again, it is unclear to the court why Vicky is requesting an adverse inference instruction at this stage of the proceedings.
Nevertheless, it appears that Vicky also requests that the court order defendant to answer questions relevant to the claims alleged, that Vicky is a victim of defendant's crime and that she has suffered damages. Dkt. # 79 (MTCD) at 6, 8.
Defendant argues that under the doctrine of dual sovereignty, the mere fact that defendant has already been prosecuted and convicted in federal court would not prevent him from being subject to prosecution in state court for the same conduct. Dkt. # 85 (Opp'n) at 3 (citing State v. Ivie, 136 Wn. 2d 173, 178 (1998)). Defendant is mistaken. The case and language quoted by defendant applies to whether "nonjudicial punishment" imposed by the military against defendants for drunk driving amounted to criminal prosecution as referenced in RCW 10.43.040. Ivie, 136 Wn. 2d at 176-177.
Although the federal constitution does not bar subsequent prosecutions by different sovereigns, states may elect to provide greater protections from double jeopardy. State v. Rivera-Santos, 166 Wn. 2d 722, 727, 214 P.3d 130 (Wn. 2009). Washington has elected to provide greater protections. RCW 10.43.040; Ivie, 136 Wn. 2d at 176 ("RCW 10.43.040 prohibits a Washington prosecution if the defendant has already been prosecuted for the same offense by the federal government or another state or county.").
RCW 10.43.040 provides: "Whenever, upon the trial of any person for a crime, it appears that the offense was committed in another state or county, under such circumstances that the courts of this state had jurisdiction thereof, and that the defendant has already been acquitted or convicted upon the merits, in a judicial proceeding conducted under the criminal laws of such state or county, founded upon the act or omission with respect to which he is upon trial, such former acquittal or conviction is a sufficient defense."
Defendant has already been convicted for possession and transportation of child pornography in federal court. Washington therefore prohibits his prosecution for possession and transportation of child pornography under the equivalent state statutes. RCW 10.43.040; see RCW 9.68A.060-0.70. Accordingly, defendant improperly invoked the Fifth Amendment privilege during his deposition. Defendant has not identified any other crime for which his testimony would result in criminal prosecution. Vicky is entitled to responses, and defendant must answer the questions regarding the circumstances and basis for his detention, arrest, prosecution, and conviction for possession and transportation of child pornography.
The court notes that the statute of limitations has also expired on any potential state crime for possession or transportation of child pornography. RCW 9A.04.080(1)(h) (three-year statute of limitations for felonies not enumerated in other subsections).
Defendant also refused to answer questions regarding his current and former residences on the grounds of "privacy." However, counsel for defendant did not and has not identified any privilege in defendant's refusal to answer these questions, but rather clarified that the objection was that it seeks information beyond the scope of discovery. Dkt. # 81-1 at 24-25 (Ex. 1 to Am. Hepburn Decl., Kennedy Depo. at 49:6-50:16).
Federal Rule of Civil Procedure 30(c)(2) governs objections during depositions. Rule 30(c)(2) provides:
An 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 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. . . . 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).
Here, defendant had no privilege protecting the information sought, and thus must have answered the questions posed. Additionally, the court finds that questions regarding past residences and with whom he lived are relevant to defendant's counterclaim that plaintiffs violated the notice provisions of RCW 6.25.070 and due process rights under the Fourteenth Amendment to the U.S. Constitution when they recorded the writ of attachment against the titles to his two residences. Dkt. # 21 (Am. Ans. & Countercl.) ¶¶6.1-6.7. These questions are also relevant to Amy's affirmative defense to the counterclaim that she diligently sought to serve defendant with the attachment motion papers at both his residences, but defendant evaded service. Dkt. # 35 at 2-3 ¶ (i).
Accordingly, defendant improperly refused to answer questions regarding his past residences and with whom he lived.
Finally, questions regarding defendant's assets are relevant to the issue of damages. Defendant improperly refused to answer these questions.
The court finds that defendant violated Rule 30(c)(2) when he refused to answer questions regarding the three categories identified by plaintiffs.
C. Conclusion
For all the foregoing reasons, the court DENIES Amy's motion to compel except as specified in the order with respect to the encryption issue (Dkt. # 77), GRANTS Vicky's motion to compel deposition testimony (Dkt. # 79), and DENIES in part and GRANTS in part plaintiffs' motion for extension of the case schedule (Dkt. # 96). Ms. Elliott's motion to strike or re-note is MOOT. Dkt. # 83. Defendant is ORDERED to make himself available and to answer questions he previously refused to answer within twenty-one days of this order. See Dkt. # 81 (Am. Hepburn Decl.) ¶¶ 6-11, 14-15. Plaintiffs may only ask questions that defendant refused to answer on the three grounds raised in Vicky's motion to compel deposition testimony. The court expects defendant to fully comply with Rule 30(c)(2), his discovery obligations, and all other applicable rules. Fed. R. Civ. Proc. 30(c)(2). If defendant refuses to answer questions in the second deposition, except when necessary to preserve a privilege, he will be sanctioned for violation of court order and Federal Rule of Civil Procedure 30(c)(2).
The court is not aware of any privilege that defendant could assert, and defendant has not identified any, other than the Fifth Amendment privilege, which the court has rejected. Accordingly, the court expects that defendant will answer every question, regardless of whether counsel objects.
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Dated this 22nd day of September, 2014.
/s/_________
The Honorable Richard A. Jones
United States District Judge