Opinion
Case No. 1:00cv 512
April 9, 2001
DISCOVERY ORDER
In accordance with the memorandum opinion filed this date:
IT IS ORDERED that plaintiff's motion to compel defendant Danny Paul Robinson to answer deposition questions (docket # 26) be and hereby is GRANTED. Defendant Robinson shall submit to further deposition at a date and time to be agreed by plaintiff and defense counsel. All further questions at the continued deposition shall be answered, subject to any relevant objection, unless defense counsel has grounds to act under Fed.R.Civ.P. 30(d)(1).
IT IS FURTHER ORDERED that defendant's motion (docket # 29) and supplemental motion (docket # 30) to strike the deposition of Loretta Jones be and hereby are GRANTED IN PART AND DENIED IN PART. The court orders that the deposition of Loretta Jones be continued for purposes of cross-examination by defense counsel. The witness shall answer all questions, subject to any proper objection lodged by plaintiff, unless plaintiff has grounds for action under Fed.R.Civ.P. 30(d)(1).
IT IS FURTHER ORDERED that plaintiff's "Motion for Defendant to Clarify" defendants' motion to strike (docket # 32) is DISMISSED as moot.
MEMORANDUM OPINION
This is a civil rights action brought by a pro se plaintiff pursuant to 42 U.S.C. § 1983. Presently pending before the court are two discovery motions. The first (docket # 26) is plaintiff's motion to compel defendant Danny Paul Robinson to answer questions which were posed at his deposition. The second is defendants' motion (docket # 29) and supplemental motion (docket # 30) seeking to strike the deposition of Loretta Jones (plaintiff's mother) or for an order continuing that deposition. Plaintiff recently filed a motion for defendants to "clarify" defendants' motion to strike (docket # 32). Upon review of the motions and responses, the court determines that oral argument would not be helpful . See W.D. MICH. LCIVR 7.3(d).
Plaintiff's motion to compel arises from the deposition of Danny Paul Robinson, a defendant in this action. Deputy Robinson refused to answer questions at his deposition, at times on his own initiative and at other times upon the instruction of defense counsel. Defense counsel has filed a perfunctory response to the motion, relying upon concepts of relevance under the Michigan Court Rules. Defense counsel should realize that this matter is pending in the federal courts, and that the Federal Rules of Civil Procedure govern. Counsel's offer to file additional briefing at sometime in the future "[i]f the court desires" is improper. Defense counsel is responsible for representing his clients and filing briefs on their behalf. Defense counsel has failed to even address the effect of Rule 30(d)(1), which severely restricts an attorney's ability to instruct a deponent not to answer. That rule provides that an instruction not to answer is proper "only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under paragraph (3) [motion to terminate or limit deposition]." FED. R. CIV. P. 30(d)(1). Defense counsel's instructions not to answer fit none of these narrow categories, but were based upon a vague notion of "relevance." Lack of relevance is not a ground for an instruction not to answer under Rule 30(d)(1). Defense counsel's only options were to lodge an objection and allow the witness to answer subject to the objection, or to suspend the deposition for purposes of presenting a motion under Rule 30(d)(3). Defense counsel did neither. The instructions not to answer were patently improper, and counsel's conduct, as well as defendant's, is sanctionable. Plaintiff's motion to compel will be granted, and defendant will be ordered to continue the deposition and answer the questions posed and any follow-up questions, subject to defense counsel's objections.
Defendants' motion to strike the deposition of Loretta Jones is prompted by similar behavior, in this instance by plaintiff. Before analyzing the motion, however, the court finds it necessary to again remind defense counsel of the existence of local rules of court and of his obligation to follow them. Defense counsel has presented both a motion and supplemental motion, neither of which is supported by a brief. Local Rule 7.1(a) requires that all motions, except those made during a hearing or trial, be accompanied by a supporting brief. Defense counsel is warned that any future failure to follow the local rules of court or the Federal Rules of Civil Procedure may result in sanctions or disciplinary proceedings.
The transcript of the Loretta Jones deposition, which was taken by plaintiff has been submitted. After plaintiff's direct examination, defense counsel cross-examined, as was his right under the Constitution and law of the United States. After a brief period of cross-examination, plaintiff disrupted the proceedings, contending that the questions were "outside the scope" of the direct examination and were irrelevant to the case. To his credit, defense counsel Jeffrey J. Noorman attempted to reason with plaintiff, without success. Eventually, plaintiff purported to "excuse the witness" and stop the deposition. (p. 31). Although the deposition of Loretta Jones took place on January 24, 2001, plaintiff has not yet applied to this court for a protective order or any other relief envisioned by Rule 30(d)(3).
Plaintiff's obstruction of the deposition of Loretta Jones is intolerable. Plaintiff's pro se status does not entitle her to violate the Rules of Civil Procedure. See Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 561-62 (6th Cir. 2000). Plaintiff's objection that the cross-examination exceeded the scope of direct examination is meritless in the context of a deposition. Plaintiff's objections concerning "relevance" and her concerns about harassment were not grounds for her action. Again, plaintiff had the option of allowing the witness to answer subject to objection or terminating the deposition for purposes of seeking the court's intervention. Plaintiff took neither course. The court will order the continued deposition of Loretta Jones. If plaintiff persists in her obstructive behavior at the continued deposition, the deposition will be stricken and Loretta Jones will be precluded from testifying at trial. Plaintiff's "motion to clarify" defendants' motion to strike (docket # 32) will be dismissed as moot.
The conduct of defense counsel Smith at plaintiff's deposition and plaintiff's own conduct at the Loretta Jones deposition are both sanctionable. Because both parties are guilty of misconduct, the court sees no purpose in issuing monetary sanctions, which would cancel each other out. The continued depositions will therefore take place at the expense of the party who originally noticed the deposition. Both parties are warned, however, that any future discovery abuse or failure to abide by the Rules of Civil Procedure may result in the imposition of preclusive sanctions, including any of the sanctions set forth in Rule 37(b) of the Federal Rules of Civil Procedure.