Fernandez v. Duarte

• Court: District Court, S.D. California
• Decided: December 18, 2024
• Docket: 3:22-cv-00446
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FRANK J. FERNANDEZ, Case No.: 3:22-cv-00446-BAS-VET

12 Plaintiff, REPORT & RECOMMENDATION 13 v. ON PLAINTIFF’S MOTION TO SUPPRESS DEPOSITION 14 E. DUARTE,

Defendant. 15 16 17 This Report and Recommendation is submitted to United States District Judge 18 Cynthia Bashant pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule 72.1.c. 19 I. INTRODUCTION 20 Before the Court is Plaintiff’s Motion to Suppress Deposition of Plaintiff (“Motion 21 to Suppress”). Doc. No. 72. Therein, Plaintiff requests that the Court “suppress and void” 22 his May 3, 2024 deposition, which the Court interprets as a request to suppress Plaintiff’s 23 deposition testimony. The sole basis for the Motion to Suppress is Defendant’s failure to 24 obtain leave of court to depose Plaintiff pursuant to Federal Rule of Civil Procedure 25 30(a)(2)(B).1 Id. at 1. Having considered the Motion to Suppress, and the record before it, 26 27 1 Unless otherwise indicated, all references to a “Rule” are to the Federal Rules of Civil 28 1 and for the reasons stated below, the undersigned RECOMMENDS DENYING 2 Plaintiff’s Motion to Suppress. 3 II. DISCUSSION 4 Rule 30 permits a party, by oral questions, to depose any person, including a party, 5 without leave of court. Fed. R. Civ. P. 30(a)(1). Rule 30, however, requires a deposing 6 party to obtain leave of court when the deponent is “confined in prison.” Fed. R. Civ. P. 7 30(a)(2)(B). There is no exception to this requirement when the deponent is a party to the 8 lawsuit. See Ashby v. McKenna, 331 F.3d 1148, 1150 (10th Cir. 2003). 9 Because Plaintiff is incarcerated, Rule 30 requires that Defendant obtain leave of 10 court to depose Plaintiff. Defendant admits deposing Plaintiff on May 3, 2024 without first 11 obtaining leave of court. See Doc. No. 69 at 2 (Defendant’s related request for retroactive 12 leave to depose Plaintiff under Rule 30(a)(2)). Nevertheless, Defendant has since sought 13 and obtained the requisite leave under Rule 30. See Doc. No. 85. Specifically, following a 14 request by Defendant, the Court gave Defendant leave to depose Plaintiff pursuant to Rule 15 30(a)(2) and made its order effective as to Plaintiff’s May 3, 2024 deposition. Id. 16 Accordingly, because the Court granted Defendant leave to depose Plaintiff, the singular 17 basis for Plaintiff’s Motion to Suppress is moot. 18 Furthermore, even if the issue were not moot, there is no rule requiring suppression 19 when a party fails to obtain leave of court under Rule 30(a)(2). Courts considering this 20 issue hold that, where the prisoner is a party to the action and makes no showing of injury 21 caused by the failure to obtain leave of court, suppression is not required. See, e.g., 22 Kendrick v. Schnorbus, 655 F.2d 727, 729 (6th Cir. 1981) (holding that failure to comply 23 with Rule 30(a)(2)(B) did not warrant suppressing an already taken deposition where the 24 deponent was in prison, the plaintiff to the lawsuit, and could not show any real injury); 25 Vogelsberg v. Kim, No. 17-cv-596-JDP, 2019 U.S. Dist. LEXIS 164523, at *3–4 (W.D. 26 Wis. Sept. 19, 2019) (refusing to strike deposition for technical violation of Rule 30 where 27 plaintiff-detainee failed to identify any prejudice); Osborne v. Vasquez, No. 3:12-cv-213 28 (JCH), 2013 U.S. Dist. LEXIS 36567, at *12 (D. Conn. Mar. 8, 2013) (denying motion to 1 ||suppress based on argument that defendants failed to obtain leave of court to conduct the 2 deposition); Subil v. U.S. Marshal, No. 2:04-CV-0257-PS, 2008 U.S. Dist. LEXIS 71390, 3 || at *2—-4 (N.D. Ind. Sept. 19, 2008) (denying motion to suppress because prisoner was party 4 ||to action, made no showing of injury, and failed to object to deposition prior to being 5 || deposed). 6 Suppression is similarly not required here. Plaintiff fails to specify or articulate any 7 resulting injury based on the failure to obtain leave and thus makes no showing of prejudice 8 harm. See Doc. No. 72 at 1. Moreover, as the party initiating this civil rights suit, the 9 || likelihood of unfair prejudice or surprise to Plaintiff is minimal. Based on a review of 10 Plaintiffs deposition transcript, it is also clear that Plaintiff failed to object to the 11 || deposition based on failure to obtain leave of court. In short, other than creating delay and 12 || wasting party and judicial resources by forcing a second, duplicative deposition of Plaintiff, 13 ||the undersigned sees no basis to suppress Plaintiff's deposition testimony. 14 CONCLUSION 15 Based on the foregoing, the undersigned RECOMMENDS that Plaintiff's Motion 16 ||to Suppress be DENIED. 17 IT IS HEREBY ORDERED that any written objection to this Report and 18 ||Recommendation must be filed and served on all parties no later than December 30, 2024. 19 || The pleading should be captioned “Objections to Report and Recommendation.” 20 IT IS FURTHER ORDERED that any reply to the objections shall be filed and 21 ||served on all parties no later than January 6, 2025. The parties are advised that failure to 22 || file objections within the specified time may waive the right to raise those objections on 23 appeal. See Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991). 24 IT IS SO ORDERED. 25 ° 26 Dated: December 18, 2024 rec— 27 Honorable Valerie E. Torres United States Magistrate Judge 28