1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CINDY WAGNER, No. 2:20-CV-0403-JAM-DMC 12 Plaintiff, 13 v. ORDER 14 SHASTA COUNTY, 15 Defendant. 16 17 Plaintiff, who is proceeding with retained counsel, brings this civil action. 18 Pending before the Court is Plaintiff’s renewed motion, ECF No. 85, for an order allowing 19 Plaintiff to take the deposition of Defendant’s counsel, Mildred O’Linn, Esq. Plaintiff relies on 20 the joint statement filed in support of the original motion to compel defense counsel’s deposition, 21 ECF No. 73, which was denied without prejudice to renewal following a second deposition of Mr. 22 Wagner, ECF No. 77. Defendant has filed a separate opposition, ECF No. 86, to Plaintiff’s 23 renewed motion. 24 The parties appeared before the undersigned for a telephonic hearing on August 25 17, 2022, at 10:00 a.m., following which the matter was submitted. 26 / / / 27 / / / 28 / / / 1 I. PROCEDURAL BACKGROUND 2 This action proceeds on Plaintiff’s original complaint, filed in the Shasta County 3 Superior Court and removed to this court under the court’s federal question jurisdiction. See 4 ECF No. 1. Plaintiff alleges excessive force during her incarceration at the Shasta County Jail 5 in Redding, California. See id. Pursuant to the most recent modified scheduling order, the 6 deadline to complete all discovery was June 3, 2022. See ECF No. 60. 7 On May 25, 2022, the Court granted Defendant’s motion to allow a second 8 deposition of Mr. Wagner, Plaintiff’s estranged husband, who had recanted his original 9 deposition testimony in a recorded statement obtained by defense counsels’ investigator on 10 November 5, 2021. See ECF No. 75. The Court also ordered a copy of the November 5, 2021, 11 recorded statement be produced to Plaintiff. See id. Finally, the Court extended fact discovery 12 to June 17, 2022, for the limited purpose of taking Mr. Wagner’s second deposition. See id. 13 Plaintiff’s original motion for leave to depose defense counsel Ms. O’Linn was denied without 14 prejudice to renewal following Mr. Wagner’s second deposition. See ECF No. 77. 15 To date, Defendant has been unable locate Mr. Wagner and his second 16 deposition has not been taken. 17 18 II. DISCUSSION 19 Plaintiff properly seeks advance leave of Court pursuant to Federal Rule of Civil 20 Procedure 30(a)(2)(A)(i) because the deposition currently sought would exceed the limit on ten 21 depositions, which have already been taken. Defense remains of the position that, pursuant to 22 the Court’s prior order denying leave to take Ms. O’Linn’s deposition without prejudice to 23 renewal following Mr. Wagner’s second deposition, the renewed request continues to be 24 premature because Mr. Wagner’s second deposition has not yet been taken. 25 A party seeking leave to take in excess of ten depositions under Rule 26 30(a)(2)(A)(i) must make a particularized showing that the discovery is necessary. See C&CC 27 Jewelry Mfg., Inc. v. West, 2011 U.S. Dist. LEXIS 24706, 2011 WL 767839, at *1 (N.D. Cal. 28 2011). The Court may permit the deposition of opposing counsel in limited circumstances 1 when the party seeking the deposition shows: (1) no other means exist to obtain the 2 information; (2) the information sought is relevant and non-privileged; and (3) the information 3 is crucial to the preparation of the case. See Shelton v. American Motors Corp., 805 F.2d 1323, 4 1327 (8th Cir. 1986); see also Cave Consulting Grp., Inc. v. OptumInsight, Inc., 2017 U.S. Dist. 5 LEXIS 183672, at *22-23 (N.D. Cal. 2017) (applying Shelton). Motions to depose opposing 6 counsel are disfavored. See Harter v. CPS Security (USA), Inc., 2013 U.S. Dist. LEXIS, at 7 *21-22 (D. Nev. 2013). 8 Here, the burden lies with Plaintiff to make a particularized showing for an 9 eleventh deposition and to show the need for a disfavored deposition of opposing counsel. 10 Plaintiff has failed to do so. Plaintiff has not shown that Ms. O’Linn’s deposition is necessary 11 for her to prosecute her claims on the merits. While Plaintiff states that Ms. O’Linn’s 12 testimony is necessary for a motion to disqualify defense counsel, Plaintiff has not shown why 13 disqualification is necessary to prosecute her claims on the merits. To the extent Plaintiff 14 asserts that Ms. O’Linn may have had improper communications with Mr. Wagner because he 15 was represented by counsel at the time, Plaintiff has not adequately explained how such 16 communications result in prejudice to her case. This is particularly so given that the Court has 17 ordered the recorded statement be produced and allowed for a second deposition of Mr. Wagner 18 to explore what he did or did not tell defense counsel. Nor has Plaintiff demonstrated that Ms. 19 O’Linn possesses information which is crucial to preparation of Plaintiff’s case. Again, there is 20 no showing of potential prejudice relating to privileged information in particular or her claims 21 in general should Ms. O’Linn not be deposed. 22 If Mr. Wagner is indeed represented by Plaintiff’s counsel, as Plaintiff contends, 23 Mr. Wagner continues to be the best source for what he did or did not tell Ms. O’Linn during 24 their brief conversation prior to the recorded statement being obtained by defense counsels’ 25 investigator. Moreover, Plaintiff’s counsel, who purportedly represents Mr. Wagner, is in the 26 best position to locate Mr. Wagner and provide that information to Defendant for purposes of 27 serving a deposition subpoena. 28 / / / 1 Finally, it appears to the Court that Plaintiff is already in possession of the 2 information she now seeks by way of Ms. O’Linn’s deposition. Specifically, the Court notes 3 Ms. O’Linn’s declaration, executed on March 21, 2022, and filed with the Court at ECF No. 62- 4 1. In that declaration, Ms. O’Linn provides answers to the questions Plaintiff’s counsel stated 5 at the hearing he intends to ask, specifically questions about the nature and content of Ms. 6 O’Linn’s communication with Mr. Wagner. Ms. O’Linn first states that she has personal 7 knowledge of the matters outlined in her declaration. See id. at 1. Ms. O’Linn further states:
8 3. On November 5, 2021, Mr. Wagner contacted our office and indicated that he wanted to correct his prior testimony given at his 9 deposition. Mr. Wagner indicated that he and Ms. Wagner [Plaintiff] were in the process of divorcing and that he wanted to correct statements 10 that he had made regarding the subject use of force incident and plaintiff’s alleged injuries. He further indicated that he knew that by 11 correcting such testimony he may be in danger of the penalties associated with committing perjury, but that he wanted to do so 12 nonetheless. Mr. Wagner affirmatively stated that plaintiff had offered him monetary inducements in the form of half of whatever recovery she 13 obtained in the lawsuit for him to provide favorable testimony for her at his deposition and that plaintiff was malingering with regard to her 14 alleged injuries.
15 Id. at 2. 16 Ms. O’Linn also stated in her declaration that, due to the nature of Mr. Wagner’s 17 representations, it was not appropriate for them to speak. See id. Ms. O’Linn had no further 18 contact with Mr. Wagner. As indicated above, Ms. O’Linn stated in her declaration that the 19 matters contained therein were based on her personal knowledge. 20 The Court finds that Ms. O’Linn’s declaration sets forth the very limited nature 21 of her communication with Mr. Wagner on two discreet topics – Mr. Wagner’s contention that 22 Plaintiff offered him a monetary inducement for his original deposition testimony, and Mr. 23 Wagner’s contention that Plaintiff is malingering with respect to her injuries. Ms. O’Linn’s 24 declaration also establishes that Mr.
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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CINDY WAGNER, No. 2:20-CV-0403-JAM-DMC 12 Plaintiff, 13 v. ORDER 14 SHASTA COUNTY, 15 Defendant. 16 17 Plaintiff, who is proceeding with retained counsel, brings this civil action. 18 Pending before the Court is Plaintiff’s renewed motion, ECF No. 85, for an order allowing 19 Plaintiff to take the deposition of Defendant’s counsel, Mildred O’Linn, Esq. Plaintiff relies on 20 the joint statement filed in support of the original motion to compel defense counsel’s deposition, 21 ECF No. 73, which was denied without prejudice to renewal following a second deposition of Mr. 22 Wagner, ECF No. 77. Defendant has filed a separate opposition, ECF No. 86, to Plaintiff’s 23 renewed motion. 24 The parties appeared before the undersigned for a telephonic hearing on August 25 17, 2022, at 10:00 a.m., following which the matter was submitted. 26 / / / 27 / / / 28 / / / 1 I. PROCEDURAL BACKGROUND 2 This action proceeds on Plaintiff’s original complaint, filed in the Shasta County 3 Superior Court and removed to this court under the court’s federal question jurisdiction. See 4 ECF No. 1. Plaintiff alleges excessive force during her incarceration at the Shasta County Jail 5 in Redding, California. See id. Pursuant to the most recent modified scheduling order, the 6 deadline to complete all discovery was June 3, 2022. See ECF No. 60. 7 On May 25, 2022, the Court granted Defendant’s motion to allow a second 8 deposition of Mr. Wagner, Plaintiff’s estranged husband, who had recanted his original 9 deposition testimony in a recorded statement obtained by defense counsels’ investigator on 10 November 5, 2021. See ECF No. 75. The Court also ordered a copy of the November 5, 2021, 11 recorded statement be produced to Plaintiff. See id. Finally, the Court extended fact discovery 12 to June 17, 2022, for the limited purpose of taking Mr. Wagner’s second deposition. See id. 13 Plaintiff’s original motion for leave to depose defense counsel Ms. O’Linn was denied without 14 prejudice to renewal following Mr. Wagner’s second deposition. See ECF No. 77. 15 To date, Defendant has been unable locate Mr. Wagner and his second 16 deposition has not been taken. 17 18 II. DISCUSSION 19 Plaintiff properly seeks advance leave of Court pursuant to Federal Rule of Civil 20 Procedure 30(a)(2)(A)(i) because the deposition currently sought would exceed the limit on ten 21 depositions, which have already been taken. Defense remains of the position that, pursuant to 22 the Court’s prior order denying leave to take Ms. O’Linn’s deposition without prejudice to 23 renewal following Mr. Wagner’s second deposition, the renewed request continues to be 24 premature because Mr. Wagner’s second deposition has not yet been taken. 25 A party seeking leave to take in excess of ten depositions under Rule 26 30(a)(2)(A)(i) must make a particularized showing that the discovery is necessary. See C&CC 27 Jewelry Mfg., Inc. v. West, 2011 U.S. Dist. LEXIS 24706, 2011 WL 767839, at *1 (N.D. Cal. 28 2011). The Court may permit the deposition of opposing counsel in limited circumstances 1 when the party seeking the deposition shows: (1) no other means exist to obtain the 2 information; (2) the information sought is relevant and non-privileged; and (3) the information 3 is crucial to the preparation of the case. See Shelton v. American Motors Corp., 805 F.2d 1323, 4 1327 (8th Cir. 1986); see also Cave Consulting Grp., Inc. v. OptumInsight, Inc., 2017 U.S. Dist. 5 LEXIS 183672, at *22-23 (N.D. Cal. 2017) (applying Shelton). Motions to depose opposing 6 counsel are disfavored. See Harter v. CPS Security (USA), Inc., 2013 U.S. Dist. LEXIS, at 7 *21-22 (D. Nev. 2013). 8 Here, the burden lies with Plaintiff to make a particularized showing for an 9 eleventh deposition and to show the need for a disfavored deposition of opposing counsel. 10 Plaintiff has failed to do so. Plaintiff has not shown that Ms. O’Linn’s deposition is necessary 11 for her to prosecute her claims on the merits. While Plaintiff states that Ms. O’Linn’s 12 testimony is necessary for a motion to disqualify defense counsel, Plaintiff has not shown why 13 disqualification is necessary to prosecute her claims on the merits. To the extent Plaintiff 14 asserts that Ms. O’Linn may have had improper communications with Mr. Wagner because he 15 was represented by counsel at the time, Plaintiff has not adequately explained how such 16 communications result in prejudice to her case. This is particularly so given that the Court has 17 ordered the recorded statement be produced and allowed for a second deposition of Mr. Wagner 18 to explore what he did or did not tell defense counsel. Nor has Plaintiff demonstrated that Ms. 19 O’Linn possesses information which is crucial to preparation of Plaintiff’s case. Again, there is 20 no showing of potential prejudice relating to privileged information in particular or her claims 21 in general should Ms. O’Linn not be deposed. 22 If Mr. Wagner is indeed represented by Plaintiff’s counsel, as Plaintiff contends, 23 Mr. Wagner continues to be the best source for what he did or did not tell Ms. O’Linn during 24 their brief conversation prior to the recorded statement being obtained by defense counsels’ 25 investigator. Moreover, Plaintiff’s counsel, who purportedly represents Mr. Wagner, is in the 26 best position to locate Mr. Wagner and provide that information to Defendant for purposes of 27 serving a deposition subpoena. 28 / / / 1 Finally, it appears to the Court that Plaintiff is already in possession of the 2 information she now seeks by way of Ms. O’Linn’s deposition. Specifically, the Court notes 3 Ms. O’Linn’s declaration, executed on March 21, 2022, and filed with the Court at ECF No. 62- 4 1. In that declaration, Ms. O’Linn provides answers to the questions Plaintiff’s counsel stated 5 at the hearing he intends to ask, specifically questions about the nature and content of Ms. 6 O’Linn’s communication with Mr. Wagner. Ms. O’Linn first states that she has personal 7 knowledge of the matters outlined in her declaration. See id. at 1. Ms. O’Linn further states:
8 3. On November 5, 2021, Mr. Wagner contacted our office and indicated that he wanted to correct his prior testimony given at his 9 deposition. Mr. Wagner indicated that he and Ms. Wagner [Plaintiff] were in the process of divorcing and that he wanted to correct statements 10 that he had made regarding the subject use of force incident and plaintiff’s alleged injuries. He further indicated that he knew that by 11 correcting such testimony he may be in danger of the penalties associated with committing perjury, but that he wanted to do so 12 nonetheless. Mr. Wagner affirmatively stated that plaintiff had offered him monetary inducements in the form of half of whatever recovery she 13 obtained in the lawsuit for him to provide favorable testimony for her at his deposition and that plaintiff was malingering with regard to her 14 alleged injuries.
15 Id. at 2. 16 Ms. O’Linn also stated in her declaration that, due to the nature of Mr. Wagner’s 17 representations, it was not appropriate for them to speak. See id. Ms. O’Linn had no further 18 contact with Mr. Wagner. As indicated above, Ms. O’Linn stated in her declaration that the 19 matters contained therein were based on her personal knowledge. 20 The Court finds that Ms. O’Linn’s declaration sets forth the very limited nature 21 of her communication with Mr. Wagner on two discreet topics – Mr. Wagner’s contention that 22 Plaintiff offered him a monetary inducement for his original deposition testimony, and Mr. 23 Wagner’s contention that Plaintiff is malingering with respect to her injuries. Ms. O’Linn’s 24 declaration also establishes that Mr. Wagner was provided notice that it was inappropriate for 25 them to communicate further. It is unclear what further information Plaintiff would be able to 26 obtain from deposing Ms. O’Linn. Plaintiff has not adequately explained why she cannot 27 pursue her efforts at disqualification of defense counsel on the current record. 28 As explained above, the deposition of an opposing party’s attorney is highly 1 | disfavored in the context of a pending action and, in this case, is a step secondary to the 2 || deposition of Mr. Wagner. Until such time as there is a second deposition of Mr. Wagner to 3 || sort out what, if anything, was said to and by Ms. O’Linn not otherwise reflected in her 4 || declaration, the deposition of Ms. O’Linn will not be permitted at this time. 5 As to taking Mr. Wagner’s second deposition, the Court previously extended 6 || discovery to June 16, 2022, for this limited purpose. If Mr. Wagner is located, the Court will 7 || entertain a request to further extend the time within which to take Mr. Wagner’s deposition. 8 | Absent such a request, discovery remains closed. 9 10 Il. CONCLUSION 11 Accordingly, IT IS HEREBY ORDERED that Plaintiff's renewed motion, ECF 12 | No. 85, for an order allowing Plaintiff to take the deposition of Defendant’s counsel, Mildred 13 | O’Linn, Esq., is denied. 14 15 | Dated: August 22, 2022 Ss..c0_, 16 DENNIS M. COTA 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28