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Andrich v. Dusek

United States District Court, D. Arizona

July 1, 2019

Devin Andrich, Plaintiff,
v.
Kevin Dusek, et al., Defendants.

          ORDER

         Honorable Rosemary Márquez United States District Judge.

         Pending 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.

         I. Background

         Plaintiff 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.

         II. Motion for Extension of Time (Doc. 92)

         On May 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.)[1]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).

         III. Motion to Strike Reply (Doc. 97) and Motion to Supplement Reply (Doc. 108)

         On May 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.)

         The 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.

         As the 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.

         IV. Deposition of Charles Ryan

         Plaintiff 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.

         A. Legal Standard

         A 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 ...


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