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Whiting v. Hogan

United States District Court, Ninth Circuit

June 7, 2013

Larry Whiting, Leroy Whiting and Lorenzo Garcia, Plaintiff,
Dana A. Hogan; Clark Moving and Storage of Albany, Inc., and Mayflower Transit, LLC; et al. Defendants.


G. MURRAY SNOW, District Judge.

Pending before the Court are Plaintiffs' Motion for Defendants to Show Cause for Not Presenting Deponent Dana A. Hogan at the Noticed Date; Time; and Place for His Deposition, (Doc. 133), Motion to Expedite Briefing (Doc. 140), Defendants' Motion for Protective Order Re: Dana Hogan's Continued Deposition, (Doc. 135), Motion for Sanctions (Doc. 143), and Motion for Consolidate Argument (Doc. 152). For the reasons discussed below, the Court denies Plaintiffs' Motion and grants in part and denies in part Defendants' Motion.[1], [2]


This matter involves yet another dispute between the Parties relating to discovery. On March 14, 2013, the Court ordered that Plaintiffs would be afforded the opportunity to re-open and continue the deposition of Defendant Dana Hogan on limited topics for two hours and eighteen minutes to be completed by May 13, 2013. (Doc. 110 at 22-23.) The Court further ordered that "[t]he parties shall agree upon a mutually convenient location and date for the deposition. In the alternative, they may jointly stipulate to take the deposition telephonically or by other remote means, pursuant to Fed.R.Civ.P. 30(b)(4)." ( Id. at 21.)

Plaintiffs' counsel contacted Defendants' counsel on March 22, 2013, to request dates of availability and suitable locations to continue Hogan's deposition. (Doc. 133, Ex. 1.) On April 4, 2013, Plaintiffs offered to Defendants the dates of April 25, April 29-May 1, May 6-10, 13, and 15-17, 2013. (Doc. 137-1, Ex. 3.) On April 11, 2013, Defendants' counsel informed Plaintiffs' counsel that because Hogan was currently in Dallas, Texas, Hogan could hold the following week open in his trucking schedule to sit there for the deposition, with Defendants' counsel willing to travel from Phoenix to attend. Plaintiffs' counsel was not available that week due to conflicting commitments but stated "I want to be crystal clear that Plaintiff's [sic] are prepared to depose Defendant Hogan either in Florida; Canada; or any destination he so designates" provided that Plaintiffs' counsel received two weeks' notice. (Doc. 133, Ex. 3.) On April 16, 2013, Plaintiffs' counsel requested Defendants' counsel to provide locations that would be convenient for Hogan on the dates of May 6, 9, and 10, 2013. ( Id., Ex. 5.) On April 17, 2013, Defendants' counsel suggested the possibility of holding the deposition in Albuquerque, New Mexico, where Plaintiffs' counsel is located, on one of those dates if Plaintiffs wished to fly Hogan out to Albuquerque. ( Id., Ex. 6.) Counsel also suggested the alternative of conducting the deposition remotely. ( Id. ) Plaintiffs' counsel responded that Plaintiffs would arrange for Hogan's travel to Albuquerque for the deposition and were available to conduct it on May 6, 2013. ( Id., Ex. 7.)

On April 18, 2013, Defendants' counsel notified Plaintiffs' counsel that Hogan may be able to arrange to drive through Albuquerque on his trucking route and mentioned that although May 6 "may be out, " counsel was "hopeful we can find another day around there" for the deposition. ( Id., Ex. 9.) Defendants' counsel directed Plaintiffs' counsel to "still hold May 6 for now." ( Id. ) On April 24, 2013, Defendants' counsel updated Hogan's availability and stated that Hogan had "tentatively arranged" to pass through Albuquerque twice on his routes but that the plans and dates were not finalized. ( Id., Ex. 10.) However, on April 29, 2013, Defendants' counsel informed Plaintiffs that it was no longer possible for Hogan to appear for the deposition in Albuquerque due to a change in his dispatch orders and suggested conducting the deposition in Phoenix on May 6 or 7, 2013, offering the use of Defendants' counsel's office. ( Id., Ex. 11.) Plaintiffs' counsel replied on April 30, 2013, that he would arrange for Hogan's flight from Phoenix to Albuquerque on May 6 so that he could attend the deposition and return to Phoenix the same evening. ( Id., Ex. 12.) Plaintiffs' counsel notified Defendants' counsel that he had already "setup the court reporter and videographer for May 6th here in reliance on earlier messages about the time, date, and place for Mr. Hogan's deposition." ( Id. ) However, Defendants' counsel informed Plaintiffs' counsel that the "logistics of this" are not viable and that Plaintiffs' counsel may instead fly out to conduct the deposition in Phoenix. (Doc. 137-2, Ex. 11.)

On May 1, 2013, the day after this exchange, Plaintiffs' counsel filed a Notice of Deposition of Defendant Dana A. Hogan with the Court, (Doc. 127), to which Defendants' counsel took objection, (Doc. 137-2, Ex. 12). On May 2, 2013, the court reporter who had been scheduled by Plaintiffs' counsel to record Hogan's deposition on May 6 in Albuquerque informed Plaintiffs' counsel that if the deposition was cancelled, the reporter would levy charges amounting to $375. (Doc. 133, Ex. 13.) On May 2 and 3, 2012, the Parties conferred by telephonic means but were not able to resolve this dispute. ( Id., Ex. 14.) Hogan did not appear for the noticed deposition in Albuquerque on May 6, 2013.

On May 7, 2013, Plaintiffs filed a Motion for Order to Show Cause as to why Hogan did not appear for the deposition. (Doc. 133.) Defendants filed a Motion for Protective Order regarding Hogan's continued deposition on May 9, 2013. (Doc. 135.) Because the two motions address substantially the same issues, the Court will address them together.



Defendants move for a protective order to terminate Hogan's deposition or limit it to a telephonic appearance, pursuant to Fed.R.Civ.P. 26(c).[3] Rule 26(c) states that "[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense" resulting from discovery requests. The burden is upon the movant to prove the necessity of a protective order, "which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements." United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978) (citations omitted). Rule 26(c) lists the following types of protective orders that a Court may issue, among others:

(A) forbidding the disclosure or discovery;
(B) specifying terms, including time and place, for the disclosure or discovery;
(C) prescribing a discovery method other than the one selected by the ...

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