Opinion
Case No. CV 01-02069 DDP (SHx)
July 29, 2002
This matter comes before the Court on the defendants' motion for review and reconsideration of Magistrate Judge Hillman's Order entered on June 20, 2002, pursuant to Federal Rule of Civil Procedure 72(a).
I. Background
The plaintiff filed suit on March 5, 2001, alleging that he was over-detained at the Los Angeles jail by the defendants. On September 4, 2001, the parties held a Rule 26(f) conference. Subsequently, on January 4, 2002, the defendants served interrogatories and a request for production of documents on the plaintiff. The defendants received no response to the interrogatories or request for documents within the time permitted Plaintiff, by Federal Rules of Civil procedure 33 and 34. On February 26, 2002, the defendants' counsel requested an in-person meeting with the plaintiff's counsel. Counsel for the plaintiff did not appear at the March 7, 2002 meeting. Instead, he "informed counsel for defendant Baca that he could not recall if there was a Rule 26 meeting." (Def's Mot. at 2:15-17.) A series of failed attempts by the defendants to secure the plaintiff's responses to the defendants' request for written discovery followed.
Defense counsel sent three letters to counsel for the 25 plaintiff, dated March 8, 2002, March 27, 2002 and May 12, 2002, attempting to informally resolve the plaintiff's failure to respond to the interrogatories.
A week prior to the plaintiff's scheduled deposition, counsel for the plaintiff sought to remove the plaintiff's deposition from calendar. Although the plaintiff was not granted a protective order, the plaintiff did not appear at his deposition scheduled for March 26, 2002. Counsel for the defendants sent the March 27, 2002 letter to the plaintiff's counsel, attempting again to meet and confer with the plaintiff pursuant to Central District Local Rule 37-1 regarding the unanswered interrogatories and the plaintiff's failure to appear at his scheduled deposition. Subsequently, the defendants filed the underlying motion for terminating sanctions, or, in the alternative, (1) to compel responses to written discovery and the plaintiff's appearance at his deposition, and (2) for an award of monetary sanctions against the plaintiff and his counsel. The matter was heard by Magistrate Judge Hillman on May 17, 2002.
While, the matter was originally scheduled for May 10, 2002, the Court removed the motion from calendar and instructed counsel to attempt to resolve the matter informally. The parties were unable to reach an agreement and the matter was heard telephonically on May 17, 2002.
On June 20, 2002, Judge Hillman ordered: (1) the plaintiff to provide responses, without objections, to the written discovery propounded on January 4, 2002 by defendants; and (2) the defendants to pay the plaintiff's reasonable costs of appearance at the plaintiff's deposition if the defendants chose to take one. (June 20, 2002 Order at 1:26-28.) These costs include round-trip airfare from Missouri, and a one-night hotel stay. (Id.)
The plaintiff claims to reside in St. Louis, Missouri. (Pl's Opp. at 2:20-22.) Other than his attorney's declaration, the 18 plaintiff has not presented any evidence of his residence. (Id., Ex. F, Interrog. No. 2 Response ("Interrogatory 2. List commencing with the present, all of the addresses (including jails or correctional facilities) at which you have resided in the past ten years. . . . Response to Interrogatory 2. Plaintiff does not remember all the addresses, but remembers he was in the Los Angeles County Jail for about a year and a half from October 1999." (emphasis added)).)
The defendants' Rule 72(a) motion, filed July 3, 2002, asks the Court to review and reconsider Judge Hillman's Order. The defendants request: (1) that the Court set aside Judge Hillman's Order requiring the defendants to pay the plaintiff's travel costs, unless the plaintiff makes a "good cause" showing that he in fact resides in Missouri and is unable to pay his own travel costs; or (2) in the alternative, that the Court grant the defendants the option of taking the plaintiff's deposition in Missouri.
The plaintiff opposes this motion on the grounds that it does not comply with Local Rule 7-3, which provides, in relevant part, "counsel contemplating the filing of any motion shall first contact opposing counsel to discuss thoroughly, preferably in person, the substance of the contemplated motion and any potential resolution." C.D. Local Rule 7-3 (emphasis in original).
The Court finds this argument to be without merit. Given the plaintiff's counsel's repeated failure to respond to defense counsel's attempts to meet and confer, the Court finds any further attempt by the defendants to meet and confer with the plaintiff prior to filing this motion would have been futile.
II. Discussion
A. Standard of Review
1. Rule 72(a) Motions
A magistrate judge has the authority to hear matters that are not dispositive of a claim or defense. Fed.R.Civ.P. 72. These include discovery motions. Bhan v. NME Hosp., 929 F.2d 1404, 1414 (9th Cir. 1991). Reconsideration of a magistrate judge's order is governed by 28 U.S.C. § 636 (b)(1)(A) and Rule 72(a). Section 636(b)(1)(A) provides, in pertinent part: "A judge of the court may reconsider any pretrial matter . . . where it has been shown that the magistrate's order is clearly erroneous or contrary to law." 28 U.S.C. § 636 (b)(1) (A). Rule 72(a) implements § 636(b)(1)(A), providing that:
Within 10 days after being served with a copy of the magistrate judge's order, a party may serve and file objections to the order . . . The district judge to whom the case is assigned shall consider such objections and shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law.
22 Fed.R.Civ.P. 72(a).
Where the magistrate judge determines issues of fact, review by the district court is limited to conclusions that are "clearly erroneous". Medical Imaging Ctrs. of Am., Inc. v. Lichtenstein, 917 F. Supp. 717, 719 (S.D. Cal. 1996). However, § 636(b)(1)(A) provides for de novo review by the district court on issues of law. Medical Imaging, 917 F. Supp. at 719 (citing Adolph Coors Co. v. Wallace, 570 F. Supp. 202 (C.D. Cal. 1983)). Because the defendants claim Judge Hillman committed clear legal error, this Court undertakes a de novo review of the magistrate judge's legal findings.
Central District Local Rule 3.3.1 provides, in pertinent part:
[A]ny party aggrieved by a Magistrate Judge's decision may file . . . and serve a motion for review and reconsideration before the District Judge to whom the case is assigned, specifically designating the portions of the decision objected to and specifying wherein such portions of the decision are clearly erroneous or contrary to law, with points and authorities in support thereof.
Local Rule 3.3.1.
B. Analysis
1. Rule 26(c) Motion for a Protective Order
Upon a motion by a party on matters relating to a deposition, a court "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed.R.Civ.P. 26(c). This includes a court order "that the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time or place." Fed.R.Civ.P. 26(c)(2). The party seeking a protective order has the burden of showing that "good cause" for the order exists. Beckman Indus. Inc. v. International Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). To establish good cause, the moving party must submit "a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements." Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16 (1981) (internal quotation citation omitted).
While the express language of Rule 26 does not set time limits within which a motion for a protective order must be made, there is an implicit requirement that the motion be timely or reasonable. Seminara v. City of Long Beach, 68 F.3d 481, 1995 WL 598097, at *4 (9th Cir.) (citing Brittain v. Stroh Brewery Co., 136 F.R.D. 408, 413 (M.D.N.C. 1991)). A motion for protective order is timely if made prior to the date set for the discovery. Id. However, a court can consider a motion for a protective order timely if good cause to excuse the untimeliness exists. Id.
The defendants claim that it was clear legal error to order them to pay the plaintiff's travel costs to Los Angeles for his deposition. While the Court finds that the plaintiff did not explicitly establish "good cause" for the protective order, Beckman, 966 F.2d at 476, it remains within a court's power to require the payment of a deponent's travel and other costs as a condition for allowing the deposition to be taken at a particular location. Schwarzer, et al., Federal Civil Procedure Before Trial, ¶ 11:438 at 11-91 (1999). Therefore, the Court concurs with the Magistrate Judge's Order that the defendants pay for the plaintiff's travel costs, if he is deposed in Los Angeles.
However, the Court finds that the Magistrate Judge erred in prohibiting the defendants from deposing the plaintiff in Missouri. Subject to a court's power to grant a protective order, the deposition of a party may be noticed wherever the deposing party designates. Turner v. Prudential Ins. Co. of Am., 119 F.R.D. 381, 383 (M.D.N.C. 1998); C. Wright A. Miller, Federal Practice and Procedure § 212 at 403 (1970). The plaintiff has not filed a motion for a protective order in order to prevent his deposition in Missouri, nor has the Court granted such an order. Therefore, the rule that the place of depositions is presumptively where the deponent resides applies to the present case. Mill-Run Tours, Inc. v. Khashoggi, 124 F.R.D. 547, 551 (S.D.N.Y. 1989); see also General Leasing Co. v. Lawrence Photo-Graphic Supply, 84 F.R.D. 130, 131 (W.D. Mo. 1979) ("In the absence of exceptional or unusual circumstances, when a deponent resides at a substantial distance from the deposing party's residence, the deposing party should be required to take the deposition at a location in the vicinity in which the deponent resides, even if the deponent is a party." (internal quotation citation omitted)). Because the plaintiff has not established "good cause" for a protective order preventing the plaintiff from being deposed in Missouri (or requested that such a finding be made), the Court finds that the defendants may depose the plaintiff in Missouri.
While a deposition can take place where the deposing party designates, it is within the Court's power to require payment of a deponent's travel costs in order for the deposition to be taken at that location. Schwarzer, supra, Federal Civil Procedure Before Trial, ¶ 11:438 at 11-91.
The Court notes that the plaintiff's counsel has stated that he "is ready, willing and able to attend plaintiff's deposition in Missouri." (Pl's Opp. to Defs' Disc. Mot. at 6:25-26.) Lastly, in the plaintiff's opposition to the defendants' discovery motion, the plaintiff requested an order requiring that the "defendants' deposition of plaintiff must take place in Missouri on a date and time mutually agreeable to all counsel." (Id. at 8:18-21.)
III. Conclusion
For the foregoing reasons, the Court hereby orders that the defendants may take the plaintiff's oral deposition pursuant to Rule 30(a)(2) under either of the following circumstances:
(1) The defendants may take the plaintiff's deposition in Los Angeles. If the defendants choose to depose the plaintiff in Los Angeles, the defendants shall pay the plaintiff's reasonable costs to appear in Los Angeles, which shall include the cost of a round-trip airfare (based on a 21-day advance purchase fare) and a one-night stay at a hotel, where the deposition shall take place, near Los Angeles International Airport. The deposition shall take place at a date and time mutually agreeable to all counsel.
(2) Alternatively, the defendants may take the plaintiff's deposition in Missouri, the state where the plaintiff resides. If the defendants choose to proceed with the deposition in Missouri, then within five (5) days of the defendants' written request, the plaintiff's counsel shall provide the defendants' counsel with the plaintiff's current address in Missouri. The deposition shall take place at a date and time mutually agreeable to all counsel.
IT IS SO ORDERED.