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Walker v. City of North Las Vegas

United States District Court, D. Nevada

October 5, 2017

THOMAS WALKER, et al., Plaintiffs,
v.
CITY OF NORTH LAS VEGAS, et al., Defendants.

          ORDER (DOCKET NO. 141)

          NANCY J. KOPPE, UNITED STATES MAGISTRATE JUDGE.

         Pending before the Court is Plaintiffs' motion for sanctions pursuant to Fed.R.Civ.P. 37(d). Docket No. 141. Defendants filed a response in opposition. Docket No. 144. Plaintiffs filed a reply. Docket No. 147.

         I. STANDARDS

         A. Fed.R.Civ.P. 30(b)(6) Depositions

         Fed. R. Civ. P. 30(b)(6) provides for the deposition of a public or private corporation. It requires a written notice that states “with reasonable particularity the matters for examination.” Fed R. Civ. P. 30(b)(1). Upon such notice, the served party is required to designate a witness and “prepare [him or her] to fully and unevasively answer questions about the designated subject matter.” Great Am. Ins. Co. of N.Y. v. Vegas Const. Co., 251 F.R.D. 534, 539 (D. Nev. 2008). As part of that requirement, the served party “must prepare [the] deponent[] by having [him or her] review prior fact witness deposition testimony as well as documents and deposition exhibits.” Id. at 539

         B. Fed.R.Civ.P. 37(b) and Fed.R.Civ.P. 37(d) Sanctions

         Fed. R. Civ. P. 37(b)(2) provides for sanctions if a party's designated witness for a Fed.R.Civ.P. 30(b)(6) deposition fails to obey an order, such as failing to appear at a noticed deposition. While the 30(b)(6) witness may be physically present, it is well established that producing a 30(b)(6) witness who is not adequately prepared is “tantamount to a nonappearance.” Id. at 543; see also U.S. Bank, NA v. Recovery Servs. Nw., Inc., 2017 U.S. Dist. LEXIS 23900, *15 (D. Nev. Feb. 17, 2017). The Court may issue any of the sanctions provided by Fed.R.Civ.P. 37(b)(2)(A)(I)-(vi), as well as reasonable expenses caused by the failure to appear. Fed.R.Civ.P. 37(b)(2)(c).

         Fed. R. Civ. P. 37(d)(3) provides for sanctions instead of or in addition to the sanctions provided by Fed.R.Civ.P. 37(b) if a 30(b)(6) witness fails to attend the deposition. It provides essentially the same sanctions that are provided by Fed.R.Civ.P. 37(b)(2)(c), mainly, reasonable expenses caused by the failure to appear. The Court has “great latitude” in fashioning sanctions pursuant to Fed.R.Civ.P. 37. See Lew v. Kona Hosp., 754 F.2d 1420, 1425 (9th Cir. 1985).

         II. ANALYSIS

         A. Plaintiffs' Request for Deposition Topics and Defendants' Untimely Objection

         Topics 10, 11, and 12 of the deposition notice served on Defendant City of North Las Vegas requested the 30(b)(6) witness to be prepared to testify on the number and facts and circumstances of search warrant services where varying levels of force were used on dogs present during the execution of a search warrant. Docket No. 141-1 at 3. Plaintiffs submit Defendants' objection to the scope of the deposition topics during the deposition was untimely. Docket No. 141 at 5. In response, Defendants submit they do not object to the scope of these deposition topics. Docket No. 144-2 at 1; see also Docket No. 144 at 5. Defendants further submit that Officer Garcia “reviewed over a hundred search warrant plans from 2010 to 2015... [h]e reviewed prior deposition testimony regarding the noticed topics.” Docket No. 144 at 2. Defendants contend that “there is no physical way to determine every search warrant service at which a dog may have been present because whether a dog is present at a search warrant service is not inherently tracked in any report.” Docket No. 144-2 at 2.

         The Court finds that Officer Garcia was prepared, and answered the questions as best he could with the information available. Defendants did not claim, and do not claim, that topics 10, 11, and 12 are overbroad. Therefore, Defendants have made no objection to these topics, timely or otherwise.

         B. Plaintiffs' Failure to Allow for Review

         Defendants submit Plaintiffs' counsel should have permitted the 30(b)(6) witness to review the police report introduced by Plaintiffs' counsel at the deposition and return to the deposition. Docket No. 144 at 3. In reply, Plaintiffs submit that Defendants' offer for the witness to “interpret” the police report was insufficient because “interpreting” a police report during a deposition for the first time would not yield the facts and circumstances Plaintiffs sought. Docket Nos. 144 at 6, 147 at 5. Plaintiffs also submit that Defendants were aware of Plaintiffs' counsel's busy schedule ...


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