1 WO 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA
11 Hayden A Beaulieu, No. CV-17-00608-TUC-RM
12 Plaintiff, ORDER
13 v.
14 H. Lopez, et al.,
15 Defendants. 16 17 Pending before the Court are Plaintiff’s Motion to Suppress Transcript of 18 Deposition (Doc. 114), Motion for Extension of Discovery Deadline (Doc. 118), and 19 Motion to Remove Case from Detainee Track (Doc. 119). Defendant McLean has filed 20 responses to the Motion to Suppress Transcript (Doc. 117) and the Motion for Extension 21 of Time (Doc. 122) and Defendants Capas and Lopez have joined in both responses 22 (Docs. 121, 123). The Court will separately address each of Plaintiff’s three motions. 23 Plaintiff was released from incarceration on or about December 20, 2019 and now 24 resides in Phoenix. (Doc. 120). 25 A. Motion to Suppress Transcript of Deposition 26 On November 12, 2019, Defendants Lopez, Capas, and McLean, through counsel, 27 deposed Plaintiff. (Doc. 114 at 1.) The deposition took place in Red Rock Correctional 28 Center in Eloy, Arizona, where Plaintiff was incarcerated at the time. (Id.) Plaintiff filed 1 the pending Motion to Suppress Transcript on December 16, 2019. (Doc. 114.) Plaintiff 2 asserts that “he was under physical duress during the deposition due to his restraints and 3 lack of food or restroom breaks.” (Id. at 1.) He contends that this “physical duress 4 impacted his ability to recall specific events when answering the deposition question[s].” 5 (Id.) He states that “he was not allowed to stand up for a break” and that although “[t]here 6 was a short break in the middle of the deposition, he was not permitted by prison staff to 7 walk or use the restroom.” (Id. at 2.) Defendants oppose the Motion to Suppress. (Docs. 8 117, 121.) In support of their opposition, Defendants provide documentation in the form 9 of deposition testimony excerpts showing that Plaintiff was informed of the ability to take 10 breaks, a break was taken at 12:48 p.m., and Plaintiff affirmatively answered that nothing 11 would prevent him from being able to answer questions fully and truthfully. (Doc. 117-1 12 at 10, 12–13.) Additionally, the parties stipulated that Plaintiff would have until January 13 10, 2020 to review the transcript of the deposition and make any necessary corrections. 14 (Id. at 17); Fed. R. Civ. P. 30(e). 15 “An objection to an error or irregularity at an oral examination is waived if. . . it 16 relates to the manner of taking the deposition. . . and it is not timely made during the 17 deposition.” Fed. R. Civ. P. 32(d)(3)(B)(i). The evidence before the Court shows that, if 18 Plaintiff was in fact denied a break, he did not object to the denial during the deposition. 19 The objection has been waived. Fed. R. Civ. P. 32(d)(3)(B)(i). 20 Additionally, Plaintiff has not provided, nor has the Court located, any legal 21 authority that would permit the Court to strike Plaintiff’s deposition testimony from the 22 record under the circumstances of which he complains.1 See Spence v. Kaur, No. 23 216CV1828TLNKJNP, 2019 WL 2566970, at *2 (E.D. Cal. June 21, 2019) (Plaintiff 24 failed to identify any legal authority or show good cause to support striking an entire 25 1 There are other circumstances in which courts have found suppression of deposition 26 testimony appropriate. See, e.g., Bernstein v. Brenner, 51 F.R.D. 9, 11 (D.D.C 1970) (discussing suppression of unsigned deposition); Cont'l Can Co. v. Crown Cork & Seal, 27 Inc., 39 F.R.D. 354, 356 (E.D. Pa. 1965) (discussing suppression of deposition where party was deprived of opportunity to cross-examine deponent). However, the Court has 28 not located any authority that would permit striking deposition testimony under the circumstances alleged by Plaintiff. 1 deposition after it was completed); see also Griffin v. Johnson, No. 2 113CV01599LJOBAMPC, 2016 WL 4764670, at *1 (E.D. Cal. Sept. 12, 2016) (Court 3 defers to prison officials regarding the manner in which deposition is taken). 4 Furthermore, Plaintiff had an opportunity to review the transcript and make changes to its 5 form or substance pursuant to Fed. R. Civ. P. 30(e). See, e.g., Herring v. Teradyne, Inc., 6 No. CIV. 01CV1835-L(JFS), 2002 WL 32068318, at *2 (S.D. Cal. Nov. 4, 2002) (“Rule 7 30(e) does not limit the types of changes a deponent may make to his or her deposition 8 transcript”). When changes are made, both the original answers and the amended 9 answers, along with reasons for the amendments, are admitted into evidence. Podell v. 10 Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2d Cir. 1997). Changes to the deposition 11 testimony pursuant to Rule 30(e) may provide Plaintiff with the relief he seeks. Plaintiff’s 12 Motion to Suppress Transcript of Deposition will be denied. 13 B. Motion for Extension of Discovery Deadline 14 Plaintiff filed a Motion for Extension of Time to Complete Discovery on 15 September 5, 2019. (Doc. 89.) The Court granted that motion on November 1, 2019 and 16 extended the parties’ discovery deadline to January 13, 2020. (Docs. 96, 97.) At that time, 17 Plaintiff was incarcerated and was experiencing difficulties accessing discovery 18 materials. (Doc. 97 at 4.) The Court found that Plaintiff had shown good cause to extend 19 the discovery deadline. (Id. at 4–5.) Plaintiff filed a second Motion to Extend Discovery 20 Deadline on November 12, 2019 (Doc. 99), which the Court denied on November 19, 21 2019 because it had recently granted an extension and Plaintiff had not shown good cause 22 for a further extension (Doc. 103). 23 Plaintiff’s instant Motion for Extension of Discovery Deadline, filed on December 24 30, 2019, asserts four grounds for extending the discovery deadline: (1) his recent 25 incarceration delayed his ability to access witnesses whom he intends to have testify; (2) 26 he was never able to review 2,000 pages of discovery documents and did not receive 27 those documents upon his release from incarceration; (3) in relation to his deposition, 28 Plaintiff has requested to have the deposition testimony struck and “is not opposed” to the 1 deposition being retaken, but doing so would require extending discovery; and (4) the 2 period of time between Plaintiff’s release from incarceration on December 20, 2019 and 3 the current deadline of January 13, 2020, is insufficient. (Doc. 118.) Defendants oppose 4 Plaintiff’s request for a third extension of the discovery deadline. (Docs. 122, 123.) 5 Extensions of time are permitted “for good cause.” Fed. R. Civ. P. 6(b)(1). “This 6 rule should be liberally construed to advance the goal of trying each case on the merits.” 7 Rachel v. Troutt, 820 F.3d 390, 394 (10th Cir. 2016). “The Court may modify the 8 schedule on a showing of good cause if it cannot reasonably be met despite the diligence 9 of the party seeking extension.” Fed. R. Civ. P. 16 advisory committee’s note to 1983 10 Amendment.
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1 WO 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA
11 Hayden A Beaulieu, No. CV-17-00608-TUC-RM
12 Plaintiff, ORDER
13 v.
14 H. Lopez, et al.,
15 Defendants. 16 17 Pending before the Court are Plaintiff’s Motion to Suppress Transcript of 18 Deposition (Doc. 114), Motion for Extension of Discovery Deadline (Doc. 118), and 19 Motion to Remove Case from Detainee Track (Doc. 119). Defendant McLean has filed 20 responses to the Motion to Suppress Transcript (Doc. 117) and the Motion for Extension 21 of Time (Doc. 122) and Defendants Capas and Lopez have joined in both responses 22 (Docs. 121, 123). The Court will separately address each of Plaintiff’s three motions. 23 Plaintiff was released from incarceration on or about December 20, 2019 and now 24 resides in Phoenix. (Doc. 120). 25 A. Motion to Suppress Transcript of Deposition 26 On November 12, 2019, Defendants Lopez, Capas, and McLean, through counsel, 27 deposed Plaintiff. (Doc. 114 at 1.) The deposition took place in Red Rock Correctional 28 Center in Eloy, Arizona, where Plaintiff was incarcerated at the time. (Id.) Plaintiff filed 1 the pending Motion to Suppress Transcript on December 16, 2019. (Doc. 114.) Plaintiff 2 asserts that “he was under physical duress during the deposition due to his restraints and 3 lack of food or restroom breaks.” (Id. at 1.) He contends that this “physical duress 4 impacted his ability to recall specific events when answering the deposition question[s].” 5 (Id.) He states that “he was not allowed to stand up for a break” and that although “[t]here 6 was a short break in the middle of the deposition, he was not permitted by prison staff to 7 walk or use the restroom.” (Id. at 2.) Defendants oppose the Motion to Suppress. (Docs. 8 117, 121.) In support of their opposition, Defendants provide documentation in the form 9 of deposition testimony excerpts showing that Plaintiff was informed of the ability to take 10 breaks, a break was taken at 12:48 p.m., and Plaintiff affirmatively answered that nothing 11 would prevent him from being able to answer questions fully and truthfully. (Doc. 117-1 12 at 10, 12–13.) Additionally, the parties stipulated that Plaintiff would have until January 13 10, 2020 to review the transcript of the deposition and make any necessary corrections. 14 (Id. at 17); Fed. R. Civ. P. 30(e). 15 “An objection to an error or irregularity at an oral examination is waived if. . . it 16 relates to the manner of taking the deposition. . . and it is not timely made during the 17 deposition.” Fed. R. Civ. P. 32(d)(3)(B)(i). The evidence before the Court shows that, if 18 Plaintiff was in fact denied a break, he did not object to the denial during the deposition. 19 The objection has been waived. Fed. R. Civ. P. 32(d)(3)(B)(i). 20 Additionally, Plaintiff has not provided, nor has the Court located, any legal 21 authority that would permit the Court to strike Plaintiff’s deposition testimony from the 22 record under the circumstances of which he complains.1 See Spence v. Kaur, No. 23 216CV1828TLNKJNP, 2019 WL 2566970, at *2 (E.D. Cal. June 21, 2019) (Plaintiff 24 failed to identify any legal authority or show good cause to support striking an entire 25 1 There are other circumstances in which courts have found suppression of deposition 26 testimony appropriate. See, e.g., Bernstein v. Brenner, 51 F.R.D. 9, 11 (D.D.C 1970) (discussing suppression of unsigned deposition); Cont'l Can Co. v. Crown Cork & Seal, 27 Inc., 39 F.R.D. 354, 356 (E.D. Pa. 1965) (discussing suppression of deposition where party was deprived of opportunity to cross-examine deponent). However, the Court has 28 not located any authority that would permit striking deposition testimony under the circumstances alleged by Plaintiff. 1 deposition after it was completed); see also Griffin v. Johnson, No. 2 113CV01599LJOBAMPC, 2016 WL 4764670, at *1 (E.D. Cal. Sept. 12, 2016) (Court 3 defers to prison officials regarding the manner in which deposition is taken). 4 Furthermore, Plaintiff had an opportunity to review the transcript and make changes to its 5 form or substance pursuant to Fed. R. Civ. P. 30(e). See, e.g., Herring v. Teradyne, Inc., 6 No. CIV. 01CV1835-L(JFS), 2002 WL 32068318, at *2 (S.D. Cal. Nov. 4, 2002) (“Rule 7 30(e) does not limit the types of changes a deponent may make to his or her deposition 8 transcript”). When changes are made, both the original answers and the amended 9 answers, along with reasons for the amendments, are admitted into evidence. Podell v. 10 Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2d Cir. 1997). Changes to the deposition 11 testimony pursuant to Rule 30(e) may provide Plaintiff with the relief he seeks. Plaintiff’s 12 Motion to Suppress Transcript of Deposition will be denied. 13 B. Motion for Extension of Discovery Deadline 14 Plaintiff filed a Motion for Extension of Time to Complete Discovery on 15 September 5, 2019. (Doc. 89.) The Court granted that motion on November 1, 2019 and 16 extended the parties’ discovery deadline to January 13, 2020. (Docs. 96, 97.) At that time, 17 Plaintiff was incarcerated and was experiencing difficulties accessing discovery 18 materials. (Doc. 97 at 4.) The Court found that Plaintiff had shown good cause to extend 19 the discovery deadline. (Id. at 4–5.) Plaintiff filed a second Motion to Extend Discovery 20 Deadline on November 12, 2019 (Doc. 99), which the Court denied on November 19, 21 2019 because it had recently granted an extension and Plaintiff had not shown good cause 22 for a further extension (Doc. 103). 23 Plaintiff’s instant Motion for Extension of Discovery Deadline, filed on December 24 30, 2019, asserts four grounds for extending the discovery deadline: (1) his recent 25 incarceration delayed his ability to access witnesses whom he intends to have testify; (2) 26 he was never able to review 2,000 pages of discovery documents and did not receive 27 those documents upon his release from incarceration; (3) in relation to his deposition, 28 Plaintiff has requested to have the deposition testimony struck and “is not opposed” to the 1 deposition being retaken, but doing so would require extending discovery; and (4) the 2 period of time between Plaintiff’s release from incarceration on December 20, 2019 and 3 the current deadline of January 13, 2020, is insufficient. (Doc. 118.) Defendants oppose 4 Plaintiff’s request for a third extension of the discovery deadline. (Docs. 122, 123.) 5 Extensions of time are permitted “for good cause.” Fed. R. Civ. P. 6(b)(1). “This 6 rule should be liberally construed to advance the goal of trying each case on the merits.” 7 Rachel v. Troutt, 820 F.3d 390, 394 (10th Cir. 2016). “The Court may modify the 8 schedule on a showing of good cause if it cannot reasonably be met despite the diligence 9 of the party seeking extension.” Fed. R. Civ. P. 16 advisory committee’s note to 1983 10 Amendment. “Diligence” may be shown if (1) the movant assisted the Court in creating a 11 workable schedule; (2) the movant’s non-compliance with the scheduling order is 12 occurring because of matters which could not have been reasonably foreseen or 13 anticipated; and (3) the movant was diligent in seeking an extension as soon as it became 14 apparent he could not comply with the order. See Lopez v. Florez, No. 1:08-CV-01975- 15 LJO, 2013 WL 1278417, at *1 (E.D. Cal. Mar. 26, 2013). 16 Plaintiff has not demonstrated good cause to extend the discovery deadline, nor 17 has he demonstrated that he made diligent efforts to comply with the current deadline of 18 January 13, 2020. Plaintiff’s instant motion repeats some of the same arguments made in 19 his November 12, 2019 motion for extension of time, which was denied. Plaintiff clearly 20 anticipated the difficulties with discovery set forth in his previous motion for extension. 21 Merely repeating the same contentions, without demonstrating diligent efforts to conduct 22 discovery while incarcerated by providing additional specific information regarding his 23 efforts and potential barriers to accomplishing his goals, does not provide good cause for 24 a further extension of time. The Court has already extended the discovery deadline 25 multiple times in order to accommodate Plaintiff’s pro se status and the difficulties of 26 litigating his case while incarcerated. Absent a stronger showing of good cause and 27 diligence, the Court declines to grant a further extension of the discovery deadline in this 28 case. 1 C. Motion to Remove Case from Detainee Track 2 Plaintiff moves to have the case removed from the detainee track. (Doc. 119.) The 3|| Court’s previous order placed this case on the detainee track pursuant to LRCiv 16.2(b)(2) following Plaintiffs re-incarceration in August of 2019. (Docs. 96, 97.) Plaintiff has now been released and is residing in Phoenix. (Doc. 120.) The Court will 6|| grant Plaintiff's Motion to Remove Case from Detainee Track. 7 Accordingly, 8 IT IS ORDERED that: 9 (1) Plaintiff's Motion to Suppress Transcript of Deposition (Doc. 114) is 10 denied. 11 (2) Plaintiff's Motion for Extension of Discovery Deadline (Doc. 118) is 12 denied. 13 (3) Plaintiff's Motion to Remove Case from Detainee Track (Doc. 119) is 14 granted. This case is ordered assigned to the Standard Track pursuant to 15 LRCiv 16.2(b)(3). 16 Dated this 15th day of January, 2020. 17 18 ff 19 —, ty ly by) □□ 20 a) Z Honorable Rostsiary □□□□□□□ 21 United States District □□□□□ 22 23 24 25 26 27 28
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