United States District Court, D. Arizona
Rosemary Márquez United States District Judge.
before the Court is Defendants' “First Motion for
Extension of Time of Deadlines” (Doc. 92),
Plaintiff's “Motion to Strike Reply to Response to
Motion” (Doc. 97), and Defendant's “Motion to
Supplement Defendants' Reply to Plaintiff's Response
to Their Motion for Extension of Time (Doc. 108). Also before
the Court is a dispute as to whether Plaintiff may depose
Defendant Charles Ryan, the Director of the Arizona
Department of Corrections.
was formerly incarcerated at the Arizona State Prison
Complex. (Doc. 74.) In his fourteen-count Second Amended
Complaint, Plaintiff alleges numerous violations of his
constitutional rights stemming from the conditions in which
he was confined while incarcerated. (Id.) Named
defendants include several correctional officers, including
sergeants, as well as Arizona State Prison Complex Warden
Alfred Ramos and Arizona Department of Corrections Director
Charles Ryan. (Id.) Defendants pled numerous
affirmative defenses, including Plaintiff's alleged
failure to exhaust administrative remedies and qualified
immunity. (Docs. 76, 82.) The Court's December 3, 2018
Scheduling Order (Doc. 84) provided for discovery to end on
May 31, 2019.
Motion for Extension of Time (Doc. 92)
29, 2019, Defendants filed a Motion for Extension of Time
(Doc. 92), seeking extensions of deadlines established in the
Court's December 3, 2018 Scheduling Order (Doc. 84.)
Defendants request a thirty-day extension of the deadlines to
complete discovery, file dispositive motions, and file a
joint proposed pretrial order. (Doc.
92.)Plaintiff responds by apparently requesting
a longer extension, stating that “Defendants'
proposal offers no window for the parties to resolve
discovery disputes”; however, Plaintiff does not
propose an alternative timeline. (Doc. 93.) As good cause
exists for an extension of the deadlines to complete
discovery, file dispositive motions, and file a joint
proposed pretrial order, and Plaintiff does not oppose an
extension of the deadlines, the Court will grant
Defendants' Motion for Extension of Time (Doc. 92).
Motion to Strike Reply (Doc. 97) and Motion to Supplement
Reply (Doc. 108)
30, 2019, the parties and the Court's law clerk held a
telephonic conference to discuss a dispute as to the
deposition of Director Ryan. At that time, Defendants'
“Motion for Extension of Time” (Doc. 92) for
discovery was pending before the Court. During the telephonic
conference, the parties represented to the Court that the
dispute as to Director Ryan's deposition was ready for
resolution by the Court without further briefing.
Nevertheless, later that day, Plaintiff submitted written
argument regarding the disputed deposition of Director Ryan
in the form of a “Response to Defendants' Motion
for Extension of Time.” (Doc. 93.) Defendants then
filed a “Reply to Plaintiff's Response to Their
Motion for Extension of Time” (Doc. 94), in which they
addressed with extended argument the issue of the disputed
deposition and requested “the Court to issue a
protective order so that Director Ryan not be required to
appear for a deposition.” (Doc. 94.) Plaintiff then
filed a Motion to Strike Defendants' Reply (Doc. 97),
arguing that Defendants' motion for a protective order in
the guise of a Reply was procedurally improper. The Motion to
Strike generated a Response from Defendants (Doc. 98), a
clarification by Plaintiff (Doc. 99), and Plaintiff's
Reply to Defendants' Response to the Motion to Strike.
(Doc. 100). Defendants subsequently filed a “Motion to
Supplement Defendants' Reply to Plaintiff's Response
to Their Motion for Extension of Time, ” in which they
present “newly-discovered evidence” relevant to
“whether ADC Director Ryan should be required to give a
deposition in this case.” (Doc. 108.)
Court will grant Plaintiff's Motion to Strike (Doc. 97)
and order Defendants' Reply to Plaintiff's Response
to Defendants' Motion for an Extension of Time (Doc 94)
stricken. The Court issued a Scheduling Order in this case on
December 3, 2018. (Doc. 84). That Order provides instructions
for handling discovery disputes in this matter. (Id.
at 4(d)). The Order provides that the parties “shall
not file written discovery motions without leave of
Court.” (Id.) It further provides that upon
providing a summary of a discovery dispute to the Court's
law clerk, the Court may “set a telephonic conference,
order written briefing, or decide the dispute without
conference or briefing.” (Id.) In this
instance, Defendants have violated the Court's Scheduling
Order by submitting extended briefing pertaining to a
discovery dispute without prior leave of Court.
Defendants' Reply to Plaintiff's Response to
Defendants' Motion for an Extension of Time (Doc. 94)
will therefore be stricken.
Reply (Doc. 94) that Defendants seek to
“supplement” in Defendants' Motion to
Supplement (Doc. 108) will be stricken, the Motion to
Supplement will be denied as moot.
Deposition of Charles Ryan
noticed Director Ryan to appear at a deposition on May 31,
2019, but agreed during the May 30, 2019 telephonic
conference to stay that notice pending the Court's
resolution of the propriety of the deposition. Plaintiff
asserts that he has a right to depose Director Ryan because
he is a named defendant. Defendant argues that Director Ryan
should not be made to appear for a deposition because he is a
high-ranking government official who does not possess
knowledge directly relevant to Plaintiff's action.
district court may limit discovery “to protect a party
or person from annoyance, embarrassment, oppression, or undue
burden or expense.” Fed.R.Civ.P. 26(c). The need to
limit the use of subpoenas served on high-ranking government
officials was recognized by the Supreme Court in United
States v. Morgan.313 U.S. 409, 421-22 (1941). Following
Morgan, courts have developed limits on depositions
of individuals at the “apex” of government or
corporate hierarchies, holding that such “apex
depositions” may be precluded by the Court under Rule
26(c) where the discovery sought “can be obtained from
some other source that is more convenient, less burdensome,
or less expensive.” Apple Inc. v. Samsung
Elecs. Co., 282 F.R.D. 259, 263 (N.D. Cal. 2012). The
Ninth Circuit has noted, in particular, that ...