Borenstein v. The Animal Foundation

Opinion

3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5

6 BRIAN BORENSTEIN, Case No. 2:19-cv-00985-CDS-NJK 7 Plaintiffs, Order 8 v. [Docket No. 340] 9 THE ANIMAL FOUNDATION, et al., 10 Defendant. 11 Pending before the Court is Plaintiff’s motion to reopen the Rule 30(b)(6) deposition of 12 Clark County and to overrule The Animal Foundation’s objection to the deposition. Docket No. 13 340. Defendant Clark County filed a response in opposition. Docket No. 346. The Animal 14 Foundation did not file a response. Plaintiff filed a reply. Docket No. 349. The motion is properly 15 resolved without a hearing. See Local Rule 78-1. For the reasons discussed below, Plaintiff’s 16 motion is GRANTED in part and DENIED without prejudice in part. 17 I. BACKGROUND 18 As the parties are familiar with the docket, the Court will provide a background specific to 19 the issues at hand. On August 7, 2023, Plaintiff took the Rule 30(b)(6) deposition of Defendant 20 Clark County. Toward the end of the seven hours allotted for that deposition, Defendant The 21 Animal Foundation sought time for cross examination, but the deposition concluded at the seven 22 hour mark without that cross examination. See Docket No. 340 at 2-3. The Animal Foundation 23 then objected to the admissibility of the deposition. Id. The instant motion seeking relief regarding 24 those circumstances followed. 25 II. STANDARDS 26 Depositions are limited to one day of seven hours. Fed. R. Civ. P. 30(d)(1). “The court 27 must allow additional time consistent with Rule 26(b)(1) and (2) if needed to fairly examine the 28 deponent or if the deponent, another person, or any other circumstance impedes or delays the 1 examination.” Id. A showing of good cause is required to obtain an order for further deposition 2 time. Mielke v. Standard Metals Processing, Inc., 2015 WL 2152664, at *4 (D. Nev. May 7, 2015) 3 (collecting cases). 4 III. ANALYSIS 5 Plaintiff’s motion has two components, a request to reopen Clark County’s deposition for 6 further questioning from Plaintiff’s counsel and to reopen Clark County’s deposition for potential 7 cross-examination by Defendant The Animal Foundation. The Court will begin with the latter. 8 A. Reopening Deposition for Cross-Examination 9 At the end of the subject deposition, counsel for The Animal Foundation indicated that he 10 had not been provided sufficient opportunity to cross examine the deponent and objected to the 11 future admission of the deposition on that ground. See Docket No. 340 at 3. Plaintiff now seeks 12 an order allowing additional deposition time so that The Animal Foundation may engage in that 13 cross-examination or, alternatively, to overrule The Animal Foundation’s objection to the 14 admissibility of the deposition. See id. at 8-10. 15 The Animal Foundation did not respond to the motion and has not requested that the 16 deposition be reopened for cross-examination purposes. Indeed, it appears The Animal 17 Foundation expressly declined to seek such relief. See id. at 3; see also Docket No. 340-1 at 6. 18 As such, the Court will grant as unopposed Plaintiff’s request that The Animal Foundation’s 19 objection to the deposition be overruled. See Local Rule 7-2(d). The Animal Foundation cannot 20 argue against the admissibility of this deposition on that basis in the future. 21 B. Reopening Deposition for Plaintiff’s Continued Questioning 22 Plaintiff also requests that Clark County’s deposition be reopened for his own attorney’s 23 further questioning. The central gist of Plaintiff’s position is that opposing counsel engaged in 24 obstructive behavior at the deposition, Docket No. 340 at 7,1 a contention that Clark County denies, 25 Docket No. 346 at 3-5. The deposition transcript at issue, however, was not provided until Plaintiff 26 filed his reply brief. See Docket No. 349-2. Hence, the bulk of argument on this issue was 27 1 Plaintiff argues other points, too, but the crux of the dispute is whether the deposition was 28 delayed by improper objecting. 1}, developed without the aid of the transcript. Moreover, considering that transcript for the first time reply is unwarranted. Cf Brand y. Kijakazi, 575 F. Supp. 3d 1265, 1273 (D. Nev. 2021). Making matters worse, the factual representations in the papers are not supported by declaration. 4! But see Comstock v. Humphries, 786 F.3d 701, 709 (9th Cir. 2015) (“arguments in briefs are not 5] evidence”). The Court declines to rule on this request given these circumstances. If Plaintiff truly 6] requires additional deposition testimony from Clark County, he must promptly file a motion that 1s properly supported by an evidentiary showing and addresses the events as memorialized in the 8|| transcript. CONCLUSION 10 For the reasons discussed above, Plaintiffs motion is GRANTED in part and DENIED 11] without prejudice in part. 12 IT IS SO ORDERED. 13 Dated: September 6, 2023 14 <— a — Nancy J. Koppe* 15 United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28