United States District Court, D. Arizona
CINDY K. JORGENSON, District Judge.
This case has been referred to Magistrate Judge Leslie A. Bowman for all pretrial matters. On July 8, 2014 Magistrate Judge Bowman issued an Order denying Defendant State Farm's motion to reopen the deposition of Plaintiff Bryan Barten. (Doc. 362.) Defendant has filed objections to the Order. (Doc. 368.) Plaintiff responds and Defendant replies. (Docs. 379, 382.) In addition, on July 22, 2014 Magistrate Judge Bowman issued an Order regarding Plaintiff's Motion to Compel documents relating to his sixth and seventh requests for production, dated February 19 and February 22, 2013. (Doc. 367.) On July 28, 2014, Plaintiff filed his partial objection to the Order denying in part his motion to compel, and Defendant has responded. (Docs. 369, 378.)
The Court will affirm the Order of the Magistrate Judge regarding re-opening of the deposition of Barten. The Court will also dismiss as moot the appeal of the Magistrate Judge's order regarding Plaintiff's Motion to Compel.
I. Denial of Re-opening of Barten's Deposition
Plaintiff Bryan Barten was covered by a personal injury protection (PIP) policy issued by Defendant, State Farm, when he was involved in an automobile accident in 1995 and rendered a quadriplegic. In this present action, Barten claims State Farm breached this policy by failing to pay benefits due and failing to inform him of the extent of his benefits. He claims that he was ignorant of certain benefits to which he was entitled-specifically attendant care benefits-and that State Farm took improper advantage by failing to explain the benefits. State Farm, on the other hand, claims that Barten had actual or constructive knowledge of the benefits based on communication with and representation by attorney George Sinas and that State Farm's claims representatives were aware of Sinas's April 1995 letter indicating that he was representing Barten as to any PIP benefits, believed Barten was aware of available benefits and would have considered that fact in handling the claim.
Barten testified at his deposition that Sinas represented him for only about a year after his April 1995 accident, that his father dealt with Sinas, and that Barten was not aware of what Sinas was doing for him and had no real communication with Sinas in that year, implying that Sinas did not advise him about the IPI benefits available. (Doc. 362 at 2; ref. Doc. 308 at 5-6.) Barten further testified that he did not seek legal representation from Sinas after 1996. (Doc. 362 at 2; ref. Doc. 308 at 7.)
State Farm seeks to reopen the deposition based on documents obtained from Sinas in response to a subpoena duces tecum and Order from the United States District Court for the Western District of Michigan. (Doc. 308.) Barten asserted attorney-client privilege as to some documents. (Doc. 308, Ex. 2, Barten v. State Farm, No. 1:13-mc-00027, (W.D.Mich. Oct. 30, 2013).) The district court ordered Sinas to produce non-privileged documents and to submit a privilege log for documents withheld on the basis of attorney-client or work-product privilege, and it reviewed withheld documents in camera. There was a representation agreement for a period of one year following the accident. The district court noted that this is consistent with Barten's testimony at the deposition. ( Id., Ex. 2 at 3.) Apparently, there was no written agreement to extend the attorney-client relationship. ( Id. ) On February 11, 2006, Barten wrote directly to State Farm regarding reimbursement for a modified vehicle; the letter, which was copied to Sinas, stated "[u]pon advice of my attorney George T. Sinas, who cited cases..., I am requesting that State Farm" issue a check for a special needs vehicle. ( Id. ) Barten testified in his depositon that he did not consider Sinas his attorney at that time. According to the Michigan District Court, the privilege log shows communications between Sinas and Barten relating to Barten's claim in 2004 through 2008. ( Id. at 3.)
B. Magistrate Judge's Order
State Farm moved to reopen Barten's deposition in order to inquire about Sinas's representation of Barten. (Doc. 308.) State Farm claimed that Barten falsely testified at his deposition "(1) that Sinas represented him for only about a year after his accident, (2) that he was not aware of what Sinas was doing for him during that first year, (3) that he was not involved with Sinas and had only limited contact with him during that year because his father was handling everything, and (4) that he had not spoken to Sinas since October 2005." (Doc. 362 at 2; ref. Doc. 320 at 1.)
On July 7, 2014, Magistrate Judge Bowman issued an Order denying the request to reopen the deposition, noting that the Rules of Civil Procedure require leave to reopen a deposition. Fed.R.Civ.P. 30(a)(2)(A)(ii). A court must limit such discovery if
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(2)(C). A court may exercise discretion in deciding a motion to reopen a deposition. Dixon v. Certainteed Corp., 164 F.R.D. 685, 690 (D. Kan. 1996).
The Order reasoned that inconsistent or contradictory testimony is not enough by itself to justify reopening a deposition. (Doc. 362 at 3.) It also observed that this is especially true where the testimony in question occurs at the beginning of the discovery. ( Id. at 4.) The magistrate judge found that State Farm chose to depose Barten in November of 2012, before conducting any other discovery in this case and that it now wants "to question [Barten] about these newly discovered documents, the real scope of Sinas's representation, and the extent of his contact and communications with Sinas over the years." ( Id. at 4; ref. Doc. 308 at 3.) The Magistrate Judge found that a new deposition would likely be duplicative because State Farm admitted it already "questioned Barten at his deposition regarding his relationship with Sinas and the nature and extent of Sinas's representation of him." (Doc. 362 at 4; ref. Doc. 308 at 5.) State Farm asked Barten "during what period of time he understood Sinas was the attorney on his case" and Barten provided lengthy testimony about the relationship, including that he "knew that Sinas sent letters to State Farm requesting certain No-Fault benefits, ... wage loss benefits, medical treatment, replacement services, a modified vehicle, and modifications to his parents' home." ( Id. ) The Magistrate Judge found that Barten already ...