United States District Court, D. Arizona
ROSEMARY MARQUEZ, UNITED STATES DISTRICT JUDGE
before the Court are Plaintiff's Motion to Suppress
Transcript of Deposition (Doc. 114), Motion for Extension of
Discovery Deadline (Doc. 118), and Motion to Remove Case from
Detainee Track (Doc. 119). Defendant McLean has filed
responses to the Motion to Suppress Transcript (Doc. 117) and
the Motion for Extension of Time (Doc. 122) and Defendants
Capas and Lopez have joined in both responses (Docs. 121,
123). The Court will separately address each of
Plaintiff's three motions.
was released from incarceration on or about December 20, 2019
and now resides in Phoenix. (Doc. 120).
Motion to Suppress Transcript of Deposition
November 12, 2019, Defendants Lopez, Capas, and McLean,
through counsel, deposed Plaintiff. (Doc. 114 at 1.) The
deposition took place in Red Rock Correctional Center in
Eloy, Arizona, where Plaintiff was incarcerated at the time.
(Id.) Plaintiff filed the pending Motion to Suppress
Transcript on December 16, 2019. (Doc. 114.) Plaintiff
asserts that “he was under physical duress during the
deposition due to his restraints and lack of food or restroom
breaks.” (Id. at 1.) He contends that this
“physical duress impacted his ability to recall
specific events when answering the deposition
question[s].” (Id.) He states that “he
was not allowed to stand up for a break” and that
although “[t]here was a short break in the middle of
the deposition, he was not permitted by prison staff to walk
or use the restroom.” (Id. at 2.) Defendants
oppose the Motion to Suppress. (Docs. 117, 121.) In support
of their opposition, Defendants provide documentation in the
form of deposition testimony excerpts showing that Plaintiff
was informed of the ability to take breaks, a break was taken
at 12:48 p.m., and Plaintiff affirmatively answered that
nothing would prevent him from being able to answer questions
fully and truthfully. (Doc. 117-1 at 10, 12-13.)
Additionally, the parties stipulated that Plaintiff would
have until January 10, 2020 to review the transcript of the
deposition and make any necessary corrections. (Id.
at 17); Fed.R.Civ.P. 30(e).
objection to an error or irregularity at an oral examination
is waived if. . . it relates to the manner of taking the
deposition. . . and it is not timely made during the
deposition.” Fed.R.Civ.P. 32(d)(3)(B)(i). The evidence
before the Court shows that, if Plaintiff was in fact denied
a break, he did not object to the denial during the
deposition. The objection has been waived. Fed.R.Civ.P.
Plaintiff has not provided, nor has the Court located, any
legal authority that would permit the Court to strike
Plaintiff's deposition testimony from the record under
the circumstances of which he complains. See Spence v.
Kaur, No. 216CV1828TLNKJNP, 2019 WL 2566970, at *2 (E.D.
Cal. June 21, 2019) (Plaintiff failed to identify any legal
authority or show good cause to support striking an entire
deposition after it was completed); see also Griffin v.
Johnson, No. 113CV01599LJOBAMPC, 2016 WL 4764670, at *1
(E.D. Cal. Sept. 12, 2016) (Court defers to prison officials
regarding the manner in which deposition is taken).
Furthermore, Plaintiff had an opportunity to review the
transcript and make changes to its form or substance pursuant
to Fed.R.Civ.P. 30(e). See, e.g., Herring v. Teradyne,
Inc., No. CIV. 01CV1835-L(JFS), 2002 WL 32068318, at *2
(S.D. Cal. Nov. 4, 2002) (“Rule 30(e) does not limit
the types of changes a deponent may make to his or her
deposition transcript”). When changes are made, both
the original answers and the amended answers, along with
reasons for the amendments, are admitted into evidence.
Podell v. Citicorp Diners Club, Inc., 112 F.3d 98,
103 (2d Cir. 1997). Changes to the deposition testimony
pursuant to Rule 30(e) may provide Plaintiff with the relief
he seeks. Plaintiff's Motion to Suppress Transcript of
Deposition will be denied.
Motion for Extension of Discovery Deadline
filed a Motion for Extension of Time to Complete Discovery on
September 5, 2019. (Doc. 89.) The Court granted that motion
on November 1, 2019 and extended the parties' discovery
deadline to January 13, 2020. (Docs. 96, 97.) At that time,
Plaintiff was incarcerated and was experiencing difficulties
accessing discovery materials. (Doc. 97 at 4.) The Court
found that Plaintiff had shown good cause to extend the
discovery deadline. (Id. at 4-5.) Plaintiff filed a
second Motion to Extend Discovery Deadline on November 12,
2019 (Doc. 99), which the Court denied on November 19, 2019
because it had recently granted an extension and Plaintiff
had not shown good cause for a further extension (Doc. 103).
instant Motion for Extension of Discovery Deadline, filed on
December 30, 2019, asserts four grounds for extending the
discovery deadline: (1) his recent incarceration delayed his
ability to access witnesses whom he intends to have testify;
(2) he was never able to review 2, 000 pages of discovery
documents and did not receive those documents upon his
release from incarceration; (3) in relation to his
deposition, Plaintiff has requested to have the deposition
testimony struck and “is not opposed” to the
deposition being retaken, but doing so would require
extending discovery; and (4) the period of time between
Plaintiff's release from incarceration on December 20,
2019 and the current deadline of January 13, 2020, is
insufficient. (Doc. 118.) Defendants oppose Plaintiff's
request for a third extension of the discovery deadline.
(Docs. 122, 123.)
of time are permitted “for good cause.”
Fed.R.Civ.P. 6(b)(1). “This rule should be liberally
construed to advance the goal of trying each case on the
merits.” Rachel v. Troutt, 820 F.3d 390, 394
(10th Cir. 2016). “The Court may modify the schedule on
a showing of good cause if it cannot reasonably be met
despite the diligence of the party seeking extension.”
Fed.R.Civ.P. 16 advisory committee's note to 1983
Amendment. “Diligence” may be shown if (1) the
movant assisted the Court in creating a workable schedule;
(2) the movant's non-compliance with the scheduling order
is occurring because of matters which could not have been
reasonably foreseen or anticipated; and (3) the movant was
diligent in seeking an extension as soon as it became
apparent he could not comply with the order. See Lopez v.
Florez, No. 1:08-CV-01975-LJO, 2013 WL 1278417, at *1
(E.D. Cal. Mar. 26, 2013).
has not demonstrated good cause to extend the discovery
deadline, nor has he demonstrated that he made diligent
efforts to comply with the current deadline of January 13,
2020. Plaintiff's instant motion repeats some of the same
arguments made in his November 12, 2019 motion for extension
of time, which was denied. Plaintiff clearly anticipated the
difficulties with discovery set forth in his previous motion
for extension. Merely repeating the same contentions, without
demonstrating diligent efforts to conduct discovery while
incarcerated by providing additional specific information
regarding his efforts and potential barriers to accomplishing
his goals, does not provide good cause for a further
extension of time. The Court has already extended the
discovery deadline multiple times in order to accommodate
Plaintiff's pro se status and the difficulties
of litigating his case while incarcerated. Absent a stronger
showing of good cause and diligence, the Court declines to
grant a further extension of the discovery deadline in this
Motion to Remove Case from Detainee Track
moves to have the case removed from the detainee track. (Doc.
119.) The Court's previous order placed this case on the
detainee track pursuant to LRCiv 16.2(b)(2) following
Plaintiff's re-incarceration in August of 2019. (Docs.
96, 97.) Plaintiff has now been released and is residing in