United States District Court, D. Nevada
ORDER MOTION TO COMPEL (ECF NO. 36); AND MOTION FOR
SANCTIONS PURSUANT TO FED. R. CIV. P. 30 AND 27 (ECF NO.
FERENBACH UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff Hector Torres' motion to compel
(ECF No. 36) and motion for sanctions (ECF No. 37). For the
reasons stated below, Plaintiff's motion to compel is
granted, and Plaintiff's motion for sanctions is denied.
case arises from Defendant Bellagio firing Plaintiff Torres.
Bellagio employed Torres as a server in its Employee Dining
Room. On April 21, 2015, Plaintiff suffered an injury to his
back (ECF No. 20 at 4). Plaintiff was terminated on April 21,
2016 (Id. at 8). On February 25, 2017, Plaintiff
brought suit against Defendant for violating the Americans
with Disabilities Act (ECF No. 1 at 1). Discovery commenced
on April 17, 2017 (ECF No. 16 at 1). On October 31, 2017,
Defendant filed a motion for a protective order regarding the
deposition of Fed.R.Civ.P. 30(b)(6) (“30(b)(6)”)
deponents (ECF No. 28 at 5). On November 17, 2017, the Court
held a hearing on the motion, during which the Court made
various rulings about limitations for 30(b)(6) topics (ECF
No. 34). The Court ordered that “the parties will try
and submit a stipulation as discussed during this hearing. If
the parties are unable to agree to a stipulation then the
emergency motion for protective order 28 will proceed as
stated on the record.” (Id.).
December 5, 2017, Defendant designated Jessica Harbaugh as a
30(b)(6) deponent. (ECF No. 36-4). Ms. Harbaugh is an
employee relations representative for Bellagio. (ECF No. 20
at 5). On the morning of December 15, 2017, Plaintiff and
Defendant reached a Stipulation of Facts covering
twenty-eight agreed upon topics. (ECF No. 36-7). Of
particular relevance is topic twenty-eight. Topic
twenty-eight pertains to an agreement by the two parties
about when, and to what extent, Defendant Bellagio viewed the
Plaintiff as disabled pursuant to the American Disabilities
Act. (Id. at 6).
afternoon December 15, 2017, Plaintiff deposed Ms. Harbaugh
both as a 30(b)(6) deponent and as a percipient witness.
Plaintiff had given notice to Defendant that he intended to
depose Ms. Harbaugh as a 30(b)(6) deponent as well as a
percipient witness. (ECF No. 36-8). When the deposition of
Ms. Harbaugh turned to the question of Torres' disability
status, Plaintiff's counsel stated “Actually, I
think that's another one that's covered by our
stipulation, so we'll defer to the stipulation for that
in terms of the Bellagio's answer. But as part of your
personal deposition, did you understand that basically Hector
had a disability?” (ECF No. 36-9 at 76). Defendant's
counsel objected, and instructed Ms. Harbaugh not to answer
the question. (ECF No. 36-9 at 76). Plaintiff Hector Torres
filed an emergency motion to compel further deposition of
percipient witness Jessica Harbaugh and a motion for
sanctions against Defendant. (ECF No. 36, and ECF No. 37).
Specifically, Plaintiff seeks to further question Ms.
Harbaugh about the topic Defendant told her not to respond
Defendant's Instruction for Witness to not Answer
motion argues that Defendant violated Fed.R.Civ.P. 30 when it
instructed Ms. Harbaugh not to answer the question (ECF No.
36 at 10). Defendant contends that it instructed Ms. Harbaugh
not to answer the questions in order to preserve a court
ordered limitation (ECF No. 39 at 10). Specifically,
Defendant alleges that they were preserving the limitation
ordered by the Court by narrowing the deposition to facts
that the stipulation did not cover. Id. Plaintiff
argues that the court order that gave rise to the stipulation
only references deposition restrictions for 30(b)(6)
deponents. (ECF No. 40 at 3). Plaintiff further argues that
although Bellagio's understanding of Plaintiff's
disability status had been stipulated to, they were entitled
to question Ms. Harbaugh about her personal knowledge as a
percipient witness. (ECF No. 36 at 3).
a rule, instructions not to answer questions at a deposition
are improper.” Detoy v. City of San Francisco,
196 F.R.D 362, 365 (N.D. Cal. 2000). An attorney “may
instruct a deponent not to answer only when necessary to
preserve a privilege, to enforce a limitation ordered by the
court, or to present a motion under Rule 30(d)(3).”
Court did not order that the parties enter into a stipulation
of the facts, nor did it set a limitation on discovery of
percipient witnesses. The Court Order states only that
“the parties will try and submit a stipulation as
discussed during this hearing. If the parties are unable to
agree to a stipulation then the emergency motion for
protective order will proceed as stated on the record.”
(ECF No. 34). The record only pertains to discovery of
30(b)(6) deponents and topics. (Mins. of Hr'g, ECF No. 34
at 22:50) (where the Court states “that takes care of
everything on the 30(b)(6) topics.”); see also (ECF No.
28 at 1). Both the Court's order and the
transcript of the hearing are silent as to any limitations on
deposing percipient witnesses. Thus, any court ordered
limitation would only apply to 30(b)(6) deponents, and not to
an individual be deposed as a percipient witness.
the Court has determined that the Order is silent as to
percipient witnesses, the next inquiry is whether Ms.
Harbaugh was being deposed as a 30(b)(6) deponent or as a
percipient witness. A party can depose an individual both as
a 30(b)(6) deponent and as a percipient witness. See
Dynetix Design Sols. Inc. v. Synopsys Inc., No. CV
11-05973 PSG, 2012 WL 5943105, at *2 (N.D. Cal. Nov. 27,
2012) (stating that “The designation of Chan as
Dynetix's 30(b)(6) witness does not somehow divest
Synopsys' right to take individual deposition of Mr.
Chan. Ninth Circuit courts have held that individuals noticed
as an individual witness under Rule 30(b)(1) and also as the
corporate representative under 30(b)(6)…”).
instance, Plaintiff was questioning Ms. Harbaugh in her
capacity as a percipient witness. Plaintiff noticed Defendant
that it intended to depose Ms. Harbaugh as a percipient
witness. (ECF No. 36-5). In fact, Plaintiff had designated
Ms. Harbaugh as a percipient witness to be deposed before
Defendant named her as a 30(b)(6) deponent. (ECF No. 36-3;
ECF No. 36-5). Plaintiff also explicitly stated that he was
not asking Ms. Harbaugh this question in her capacity as a
30(b)(6) deponent, but rather was asking as part of her
personal deposition. (ECF No. 36-9 at 76). Since
Plaintiff's question was directed at Ms. Harbaugh in her
capacity as a percipient witness, the question was not
covered by any Court ordered limitation. It was not proper
for Defendant's counsel to instruct Ms. Harbaugh not to
answer the question. The Court will grant Plaintiff further
deposition of Ms. Harbaugh.
Further Sanctions are not Appropriate ...