Raiser v. San Diego County

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 AARON RAISER, Case No.: 19-cv-0751-GPC-KSC

12 Plaintiff,

ORDER:

13 v.

(1) OVERRULING PLAINTIFF’S

14 SAN DIEGO COUNTY, et al.,

OPPOSITIONS TO THE

15 Defendants. MAGISTRATE JUDGE’S ORDER;

AND

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17 (2) ADOPTING THE REPORT AND

RECOMMENDATION

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19 [ECF Nos. 101, 112, 128, 131]

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21 I. INTRODUCTION

22 On January 13, 2021, Magistrate Judge Karen S. Crawford issued (1) an Order

23 denying Plaintiff’s request for additional time to comply with the Magistrate Judge’s

24 Chambers Rule VIII.A, and for monetary sanctions against Defendants; and (2) a Report

25 and Recommendation (“R&R”) recommending that this Court deny Plaintiff’s request for

26 default judgment (referenced in Plaintiff’s underlying documents as “terminating

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1 sanctions”) against Defendants.1 ECF No. 112. Plaintiff challenged these decisions in

2 two Oppositions, in which the later document amends the former. See ECF Nos. 128,

3 131. Upon considering the moving papers and the record of the case, the Court

4 OVERRULES Plaintiff’s Oppositions and ADOPTS in full the R&R.

5 II. RELEVANT BACKGROUND

6 At the center of this dispute is Plaintiff’s desire to conduct depositions without a

7 court reporter reasoning that a public notary would suffice. Defendants did not agree to

8 such arrangements and declined to attend the depositions that Plaintiff scheduled without

9 a court reporter. Eventually, Plaintiff sought sanctions for Defendants’ failure to attend

10 the depositions. Accordingly, a detailed description of the procedural history is provided.

11 A. Plaintiff’s Initial Deposition Requests

12 On August 13, 2020, at 6:30 PM and 6:39 PM, Plaintiff sent two emails to

13 Defendants’ counsel concerning depositions. The emails asked if Defendants agreed to

14 (1) conduct depositions via Zoom, and (2) have the deposition “be taken before any

15 person.” See ECF No. 70-1 at 35–38.2

16 The next day, before Defendants had an opportunity to respond to Plaintiff’s email

17 and before the Parties met and conferred,3 see id. at 5, 40, Plaintiff filed an Ex Parte

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20 1 Hereinafter, the Court replaces the phrase “terminating sanctions” with “default

judgment.” See Fed. R. Civ. P. 37(b)(2)(A)(vi). This is to avoid the potential confusion

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of interpreting “terminating sanctions” to mean “terminating existing sanctions,”

22 although the Court is aware that “terminating sanctions” is a term used as well.

23 2 References to specific page numbers in a document filed in this case correspond to the

page numbers assigned by the Court’s Electronic Case Filing (“ECF”) system.

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3 Indeed, the Court observes that the docket entry was made at 4:27 PM, see ECF No. 68,

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which means that Plaintiff gave Defendants less than 24 hours to respond, not even

26 accounting for the fact that Plaintiff sent the emails after typical business hours. See also

ECF No. 70 at 10.

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1 Application. ECF No. 68. The Ex Parte Application, in part, asked for: (1) depositions

2 via Zoom, (2) “record[ing] the depositions using Zoom and then to have them transcribed

3 later if needed,” and (3) “‘any person’ be the deposition officer.” See ECF No. 68-1 at

4 11–12.

5 Responding to Plaintiff’s Ex Parte Application, Defendants filed an Opposition on

6 August 19, 2020. ECF No. 70. As part of the Opposition, Defendants discussed how

7 Plaintiff’s Ex Parte Application was procedurally improper, including Plaintiff’s failure

8 to meaningfully engage in meet-and-confer communications. Cf. Magistrate Judge

9 Crawford Chambers Rule VIII.A; CivLR 26.1. And while Defendants did not oppose

10 conducting depositions via Zoom, they stated they do not waive the protections provided

11 under Federal Rule of Civil Procedure (“FRCP”) 30 to have a deposition officer present.

12 Defendants raised a host of concerns, such as: (1) how the deposition officer must

13 conduct the recording of the deposition and not be a party to the lawsuit, (2) whether

14 Plaintiff can adequately and reliably record his questioning, especially given Plaintiff’s

15 internet connection issues, (3) admissibility concerns unless a stenographic transcript is

16 created, and (4) how Plaintiff will almost certainly need to hire an individual to create a

17 transcript of any recording of the deposition. See ECF No. 70 at 10–11.

18 On September 2, 2020, Plaintiff made a similar request in another Ex Parte

19 Application (among many other Ex Parte Applications filed in the process). ECF No. 78.

20 Here, Plaintiff requested that he himself be the deposition officer. Defendants

21 immediately filed an Opposition, once again discussing the need for FRCP 30

22 protections, such as a third-party officer, a certified deposition transcript, and the officer

23 administering oaths. See ECF No. 79.

24 B. Plaintiff’s First Deposition Notice

25 While the Magistrate Judge’s ruling on Plaintiff’s Ex Parte Applications was

26 pending, the Parties also corresponded with each other regarding deposition dates. See

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1 ECF No. 101 at 4. Eventually Plaintiff sent Defendants the deposition notices. The

2 notices were signed by Plaintiff on August 26, 2020, and informed Defendants that the

3 depositions will take place on September 10, 2020. See ECF No. 101-3. On August 27,

4 2020, Defendants’ counsel via email acknowledged receipt, but asked “who the

5 [deposition] officer is, who will be responsible for recording the deposition, and if

6 [Plaintiff] hired a court reporter.” ECF No. 101 at 4.

7 No part of the record indicates that Plaintiff replied to the counsel’s August 27,

8 2020 email. Instead, on September 9, 2020, Plaintiff emailed Defendants’ counsel that

9 “depositions are on for tomorrow” since Plaintiff had hired a “California notary.” See id.

10 at 5. Counsel replied the same day that the presence of a notary would merely solve the

11 issue regarding an appropriate oath administrator, still failing to address the other

12 concerns Defendants raised in their Oppositions. Counsel also expressed to Plaintiff that

13 it would be best to wait for the Magistrate Judge to issue rulings on Plaintiff’s other

14 pending Ex Parte Applications, and that Defendants would not appear at the September

15 10, 2020 deposition absent a court order. See id. About an hour later, Plaintiff disclosed

16 the name of the deposition officer, and stated that she can record the deposition and that

17 no rules prohibit Plaintiff or anyone from making the transcript. See id. at 7. While

18 Plaintiff also asked Defendants’ counsel if they can contact the Magistrate Judge

19 concerning the matter, the counsel informed he was disinclined to do so. This was

20 because according to the counsel, Plaintiff had already filed briefings that “directly raise

21 the issues we’d call about,” and the Magistrate Judge’s Chambers Rules do not allow for

22 a same-day conference. See id.

23 C. The Magistrate Judge’s Order on Depositions

24 On October 5, 2020, the Magistrate Judge issued an Order concerning the various

25 Ex Parte Applications that Plaintiff filed, including the ones concerning Plaintiff’s

26 requests to conduct depositions in the way discussed above. Specifically, the Magistrate

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1 Judge denied “Plaintiff’s request to conduct depositions without an independent,

2 qualified deposition officer who meets the requirements of Rule 30 of the Federal Rules

3 of Civil Procedure.” ECF No. 87 at 8.

4 D. Plaintiff’s Second Deposition Notice

5 On October 12, 2020, Plaintiff reached out to Defendants’ counsel regarding

6 potential deposition dates. See ECF No. 101 at 5. Defendants’ counsel replied back,

7 once again asking whether Plaintiff hired a court reporter, and asking how Plaintiff plans

8 on taking depositions given Plaintiff’s affirmative representations to the Court that he

9 will not need them. See id. at 6. Plaintiff responded: “same plans as the last depo

10 notices.” Id. When Defendants’ counsel asked if that would mean using the same notary,

11 recording the depositions via Zoom, and then creating the transcript later, Plaintiff

12 answered there is no reason the notary cannot conduct the oaths “and other housekeeping

13 items,” record the deposition, “and then get a transcript from there.” Plaintiff further

14 stated “there is nothing that prohibits me from doing the transcript and then [Defendants]

15 reviewing it alongside the video which they can make or have.” Id.

16 Signed October 14 and 15, 2020, Plaintiff sent Defendants deposition notices, one

17 to be held on October 30, 2020, and another on November 17, 2020. See ECF Nos. 101-

18 4, 101-5. And on October 26, 2020, Defendants’ counsel emailed Plaintiff that the

19 depositions are not proper in light of the Magistrate Judge’s decisions, thus informing

20 Plaintiff that Defendants would not appear for the depositions. See ECF No. 101 at 6–7.

21 E. Plaintiff’s Subsequent Ex Parte Applications

22 Magistrate Judge Crawford’s Chambers Rule VIII.A requires parties to “meet and

23 confer” before filing any discovery motion. See also CivLR 26.1 (requiring conference

24 and a certificate of compliance thereof). On November 25, 2020, Plaintiff filed an Ex

25 Parte Application for an extension to comply with the meet and confer requirement. See

26 ECF No. 100. Then, on November 30, 2020, based upon Defendants’ failure to attend

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1 the scheduled depositions, Plaintiff filed his Ex Parte Application for an order “To Allow

2 Direct Briefing on Sanctions for Non-Appearance At Depositions.” ECF No. 101-1. The

3 application moved for sanctions primarily under FRCP 37 and sought permission to

4 bypass any meet and confer requirements. See id. at 1.

5 Magistrate Judge Crawford denied both Ex Parte Applications on January 13,

6 2021. See ECF No. 112. As part of the decision, the Magistrate Judge found that the

7 FRCP 37 sanctions issue could be addressed without requiring additional briefing,

8 because Plaintiff’s November 30, 2020 Memorandum already argued the basis for

9 sanctions, and Defendants filed an Opposition brief addressing the FRCP 37 sanctions.

10 See id. at 2–3. Accordingly, the Magistrate Judge denied Plaintiff’s Ex Parte

11 Applications “to the extent it seeks an order from the Court compelling defendants to

12 appear for depositions and/or an order from the Court awarding monetary sanctions

13 against defendants for declining to appear for noticed depositions.” Id. at 13. Relatedly,

14 the Magistrate Judge recommended that this Court deny Plaintiff’s request for default

15 judgment. Id. Plaintiff filed an Opposition, then an Amended Opposition. See ECF Nos.

16 128, 131.

17 III. STANDARD OF REVIEW

18 The Magistrate Judge’s authority and this Court’s corresponding standard of

19 review over her decision(s) differs based on whether the Magistrate Judge’s decision on

20 the matter would be dispositive versus non-dispositive. Here, the Magistrate Judge’s

21 January 13, 2021 Order has both dispositive and non-dispositive elements. This is

22 because while discovery issues are generally considered non-dispositive, see, e.g.,

23 Cervantes v. San Diego Police Chief Shelley Zimmerman, No. 17-CV-1230-BAS-NLS,

24 2019 WL 3072307, at *2 (S.D. Cal. July 15, 2019) (citing Maisonville v. F2 America,

25 Inc., 902 F.2d 746, 748 (9th Cir. 1996)), Plaintiff also seeks default judgment as the

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1 sanctions remedy, which if granted would dispose the entire case. Thus, the Court

2 discusses the standard of review for both.

3 A. Dispositive Issues

4 If a matter would dispose of a claim or defense of a party, the magistrate judge

5 must issue an R&R instead of an order, and the district court must review the R&R de

6 novo. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Bastidas v. Chappell, 791 F.3d

7 1155, 1159 (9th Cir. 2015) (citation omitted). At the same time, the objection to the

8 R&R must identify which specific portion of the R&R the party objects to. See 28 U.S.C.

9 § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions

10 of the report or specified proposed findings or recommendations to which objection is

11 made.” (emphases added)); Ali v. Grounds, 236 F. Supp. 3d 1241, 1249 (S.D. Cal. 2017)

12 (“Only objections that reference specific portions of the report and recommendation will

13 trigger de novo review—general or conclusory objections do not suffice.”), aff’d, 772 F.

14 App’x 580 (9th Cir. 2019).

15 B. Non-Dispositive Issues

16 In contrast, if the matter is not dispositive, the magistrate judge may decide the

17 matter on her own and “issue a written order stating the decision.” See Fed. R. Civ. P.

18 72(a). The district court reviews whether the decision is “clearly erroneous or is contrary

19 to law.” See id. “The ‘clearly erroneous’ standard applies to factual findings and

20 discretionary decisions made in connection with non-dispositive pretrial discovery

21 matters.” FDIC v. Fid. & Deposit Co. of Maryland, 196 F.R.D. 375, 378 (S.D. Cal.

22 2000) (citations omitted); see also McAdam v. State Nat. Ins. Co., 15 F. Supp. 3d 1009,

23 1013 (S.D. Cal. 2014) (discussing how this standard is “significantly deferential,

24 requiring ‘a definite and firm conviction that a mistake has been committed.’”). The

25 “contrary to law” standard “permits independent review of purely legal determinations by

26 the magistrate judge.” FDIC, 196 F.R.D. at 378 (citations omitted).

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1 The district court reviews the non-dispositive decision “under a far more

2 deferential standard,” one that is “clearly intended [to make the decision] final unless a

3 judge of the court exercises his ultimate authority to reconsider the magistrate’s

4 determination.” See United States v. Abonce-Barrera, 257 F.3d 959, 968–69 (9th Cir.

5 2001). And similar to the discussion supra Section III.A, the objection must articulate

6 which specific part of the non-dispositive order the party protests. See Fed. R. Civ. P.

7 72(a) (discussing how the district court must “consider timely objections and modify or

8 set aside any part of the order that is clearly erroneous or is contrary to law” (emphases

9 added)); cf. Jang v. Sagicor Life Ins. Co., No. EDCV171563JGBKKX, 2019 WL 988690,

10 at *2 (C.D. Cal. Jan. 25, 2019) (requiring the objecting party to “designat[e] the specific

11 portions of the ruling objected to”); Somers v. Digital Realty Tr. Inc., No. 14-CV-05180-

12 EMC, 2017 WL 3602479, at *2 (N.D. Cal. Aug. 22, 2017) (rejecting plaintiff’s

13 objections because he “utterly failed to specify the basis for his objections”).

14 IV. DISCUSSION

15 With the standard of review in mind, this Court finds no basis to overturn the

16 Magistrate Judge’s January 13, 2021 Order. As an initial matter, the Court does not

17 entertain Plaintiff’s blanket statement that he “objects to any and all findings of fact

18 found in ECF 112,” or that he “raises many other issues of fact and law,” ECF No. 131 at

19 1, 15, for reasons discussed supra pages 7–8 of this Order. Cf. Morris v. Barra, No.

20 10CV02642 AJB BGS, 2012 WL 5928144, at *2 (S.D. Cal. Nov. 26, 2012) (“Plaintiff's

21 broad objection to the entirety of [the Magistrate Judge’s] order is overruled.”).

22 Before navigating Plaintiff’s thicket of contentions, the Court clarifies what precise

23 dispute is in front of the Court. The Court is reviewing whether the Magistrate Judge was

24 wrong: (1) to deny an extension of time to meet and confer before filing any FRCP 37

25 sanctions motion, (2) to deny “briefing” on the merits of sanctions, (3) to deny monetary

26 sanctions against Defendants, and (4) to deny default judgment against Defendants. Only

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1 the last issue undergoes de novo review. For the rest, Plaintiff must show how the

2 Magistrate Judge’s decision was clearly erroneous or contrary to law. The Court

3 analyzes each.

4 A. Denial of “Extension” of Time

5 The Ex Parte Application filed on November 25, 2020 requested an “extension” to

6 comply with the meet and confer requirements before filing any FRCP 37 sanctions

7 motions. See ECF No. 100. The Magistrate Judge denied this Ex Parte Application for

8 two main reasons. First, this Application itself did not comply with the meet and confer

9 requirements. Second, any extension would be “futile” since the meet and confer

10 requirement is intended to resolve a dispute informally without the need for briefing, and

11 the Parties had already briefed the FRCP 37 issue by the time the Ex Parte Application

12 was ruled on. See ECF No. 112 at 2.

13 To be clear, the November 25, 2020 was in violation of Magistrate Judge

14 Crawford’s Chamber Rules. Compare Magistrate Judge Crawford Chambers Rule

15 VIII.A (requiring “telephone or video conference”), and CivLR 26.1.a (“The court will

16 entertain no motion pursuant to Rules 26 through 37, Fed. R. Civ. P., unless counsel will

17 have previously met and conferred concerning all disputed issues. Under no

18 circumstances may the parties satisfy the meet and confer requirement by exchanging

19 written correspondence.”), with ECF No. 100 at 1 (“Plaintiff met and conferred about this

20 ex parte via email . . . .”). And since the Court agrees that the Parties effectively briefed

21 the issue, Magistrate Judge Crawford’s decision was neither in clear error nor contrary to

22 law.

23 B. Denial of Direct Briefing

24 Similar to the reasoning above, the Magistrate Judge rejected the Ex Parte

25 Application filed on November 30, 2020, ECF No. 101, which requested a direct briefing

26 on the sanctions issue without first undergoing a meet and confer. The Magistrate Judge

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1 concluded that the Parties effectively already briefed the issue based on their filings. See

2 ECF No. 112 at 2–3.

3 Plaintiff objects to the Magistrate Judge’s conclusion that “plaintiff has already

4 briefed and filed his Rule 37 motion.” See ECF No. 131 at 2. Yet Plaintiff presents no

5 argument as to how the “actual” brief will be any different from what he presented in his

6 memorandum, see ECF No. 101-1, as all he says is “Plaintiff attempted to set forth the

7 issues for the R. 37 motion for sanctions.” ECF No. 131 at 2. That “attempt” in fact

8 fully briefed the FRCP 37 issue. See ECF No. 101-1 at 10–16. In addition, for reasons

9 discussed infra Sections IV.C and D, no viable sanctions claim exists to begin with.

10 Therefore, the Magistrate Judge’s decision to deny any further briefing was not in clear

11 error or contrary to law.

12 Relatedly, while Plaintiff alleges that the Magistrate Judge did not consider

13 Plaintiff’s Reply brief concerning his November 30, 2020 Ex Parte Application, see ECF

14 No. 131 at 2, this allegation is also not a valid basis to overturn the Magistrate Judge’s

15 decision. The Magistrate Judge’s decision was filed on January 13, 2021. ECF No. 131.

16 And in her decision, the Magistrate Judge stated that she reviewed “the record,” id. at 3,

17 which implicitly includes every filing occurred before the Order, including Plaintiff’s

18 Notice of Intent to File Reply (filed December 7, 2020), ECF No. 104, and the Reply

19 (filed December 11, 2020), ECF No. 108. The Magistrate Judge is under no obligation to

20 explicitly reference a reply brief, and Plaintiff does not provide any authority to argue

21 otherwise. Other than pinpointing a passage where the Magistrate Judge emphasizes the

22 two main documents, Plaintiff has no other basis to support his allegation.

23 But more importantly, even if the Magistrate Judge decided not to consider

24 Plaintiff’s Reply brief, that was in her purview to do so under her Chambers Rules. See

25 Magistrate Judge Crawford Chambers Rule X (“Unless otherwise directed by the Court, a

26 decision will be issued in most cases without a hearing or reply.”); cf. Judge Curiel

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1 Chambers Rule 2 (“The Court may rule upon ex parte motions without requiring a

2 response from the opposing party.”). In sum, the Magistrate Judge’s decision to forego

3 any additional briefing was efficient case management that the Court upholds.

4 C. Denial of Monetary Sanctions

5 Based on what was in front of her, the Magistrate Judge concluded that monetary

6 sanctions against Defendants was unwarranted, regardless of any “direct” briefing that

7 Plaintiff requested. The bulk of Plaintiff’s opposition stems from his insistence that his

8 scheduled depositions were procedurally valid. See ECF No. 131 at 4–14. But important

9 to note upfront, whether Plaintiff’s proposed depositions were procedurally adequate

10 (which they were not, as explained infra Section IV.C.1) is a separate issue from whether

11 the Court must issue sanctions against Defendants.

12 FRCP 37 governs sanctions for failure to cooperate in discovery, including non-

13 attendance for scheduled depositions. On motion,4 a court may order sanctions if a party

14 fails to appear for deposition after proper notice. Fed. R. Civ. P. 37(d)(1)(A). Such

15 sanctions may include reasonable expenses or even default judgment, “unless the failure

16 was substantially justified or other circumstances make an award of expenses unjust.”

17 See Fed. R. Civ. P. 37(d)(1)(3) (cross-referencing FRCP 37(b)(2)(A)(i) to (vi), which lists

18 the available sanctions options).

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22 4 Such motion may be filed without an order compelling discovery. See generally James

M. Wagstaffe, Federal Civil Procedure Before Trial § 11:2402 (2017) (citing Fed. R.

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Civ. P. 37(d); Hilao v. Estate of Marcos, 103 F.3d 762, 764-765 (9th Cir. 1996)).

24 However, the motion must still be accompanied by “a certification that the movant has in

good faith conferred or attempted to confer with the party failing to act in an effort to

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obtain the answer or response without court action.” Fed. R. Civ. P. 37(d)(1)(B). No part

26 of the record indicates that Plaintiff filed such certification in seeking FRCP 37 sanctions

(or planned on doing so). See ECF Nos. 100, 101.

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1 Applying the standard for issuing sanctions, the Court defers to the Magistrate

2 Judge’s decision that Defendants’ refusal to attend the scheduled depositions was, in fact,

3 substantially justified, and that the circumstances would make any award of expenses

4 against Defendants unjust. Plaintiff’s proposed method of deposition was not

5 procedurally sound. Given that the Magistrate Judge was deciding on the very dispute of

6 whether Plaintiff’s proposed deposition method was appropriate, Defendants not

7 attending the first set of noticed depositions was warranted. And once the Magistrate

8 Judge issued an Order directing Plaintiff to comply with the protections provided under

9 FRCP 30, Plaintiff’s second set of noticed depositions to proceed with the “same plans as

10 the last depo notices,” ECF No. 101 at 6, similarly warranted non-attendance.

11 1. Procedural Safeguards for Depositions

12 Plaintiff questions why a court reporter would be necessary when a public notary

13 could administer the oath, record the deposition conducted over Zoom, and keep a copy

14 of the deposition recording to properly authenticate the deposition. See, e.g., ECF No.

15 131 at 5, 9. And as to the transcript of the deposition, Plaintiff sees no reason why he

16 could not prepare the transcript himself based on the recording. See, e.g., id. at 8, 12–14.

17 FRCP 30 sets the parameters on what would be considered a legitimate deposition.

18 “The parties may stipulate—or the court may on motion order—that a deposition be

19 taken by telephone or other remote means.” Fed. R. Civ. P. 30(b)(4). “Unless the parties

20 stipulate otherwise, a deposition must be conducted before an officer appointed or

21 designated under Rule 28.” Fed. R. Civ. P. 30(b)(5)(A). FRCP 28, in turn, discusses that

22 within the United States, the deposition must be taken before “(A) an officer authorized

23 to administer oaths either by federal law or by the law in the place of examination; or (B)

24 a person appointed by the court where the action is pending to administer oaths and take

25 testimony.” Fed. R. Civ. P. 28(a)(1).

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1 Of course, certain people are disqualified to be a deposition officer altogether. “A

2 deposition must not be taken before a person who is any party’s relative, employee, or

3 attorney; who is related to or employed by any party’s attorney; or who is financially

4 interested in the action.” Fed. R. Civ. P. 28(c). Thus, Plaintiff and counsel for

5 Defendants may not serve as deposition officers in this lawsuit.

6 The deposition officer also has multiple duties. One of them includes ensuring that

7 “[t]he deponent’s and attorneys’ appearance or demeanor [are not] distorted through

8 recording techniques” should the deposition be recorded non-stenographically. See Fed.

9 R. Civ. P. 30(b)(5)(B). The accurate recording of the deposition is a serious matter.

10 Courts routinely reject deposition recordings, including those conducted by Zoom,

11 because the recording was “without the hiring and presence of a videographer, who has

12 her own procedures and technology for a certified video deposition,” Alcorn v. City of

13 Chicago, 336 F.R.D. 440, 442 (N.D. Ill. 2020). See, e.g., Nusbaum v. MBFG Ltd. P’ship,

14 No. CIV.A. 07-1032, 2009 WL 2605320, at *1 to *2 (W.D. Pa. Aug. 21, 2009)

15 (discussing how the court “cannot risk the integrity of the recording by allowing a person

16 with no previous experience as either a deposition videographer or deposition officer to

17 serve as both,” especially given the person’s lack of experience recording a deposition).

18 Relatedly, if a deposition transcript (or an excerpt thereof) were to be introduced

19 for summary judgment, the party “must attach the court reporter’s certification that the

20 deposition is a true and correct copy of the deponent’s testimony, as the court reporter

21 who transcribed the testimony has the requisite personal knowledge of the transcript’s

22 accuracy,” and without such certificate, the transcript is inadmissible for purposes of

23 summary judgment. See Matthews v. McDonald, No. 14CV1340-MMA (BLM), 2016

24 WL 29622, at *6 (S.D. Cal. Jan. 4, 2016) (citations omitted), aff’d sub nom. Matthews v.

25 Shulkin, 698 F. App’x 550 (9th Cir. 2017); see also Hochroth v. Ally Bank, 461 F. Supp.

26 3d 986, 998 (D. Haw. 2020); cf. Fed. R. Civ. P. 30(f) (discussing the procedures for

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1 deposition transcripts and the related certifications). Of note, “it would be inappropriate

2 for Plaintiff to prepare transcripts of the videotaped depositions. This is especially true

3 given the acrimonious tenor of this litigation to date, and the high likelihood that

4 Defendant would challenge the accuracy of any transcript prepared by Plaintiff.”

5 Nusbaum, 2009 WL 2605320, at *2.

6 The discussion above collectively indicates that, while the parties may conduct a

7 Zoom deposition, there must still be a third-party deposition officer present. And while a

8 public notary may be a deposition officer, that public notary must be in position to certify

9 that the recording of the deposition (or copies thereof) is not distorted. Further, the

10 deposition transcript must be certified by someone other than the litigating parties to

11 ensure its accuracy.

12 The last two requirements are where Plaintiff fails, as already articulated by both

13 the Defendants and the Magistrate Judge. No part of the case record, including Plaintiff’s

14 instant Opposition brief, indicates that the public notary was in position to certify that no

15 distortion in the recording occurred. At best, a public notary who “was not a veteran

16 court reporter,” ECF No. 131 at 13, was going to record the deposition herself using

17 Zoom’s “record” feature “so it could be authenticated and to allow a proper chain of

18 custody,” see id. at 5, 8–9, 12. This explanation offers little as to how the recording and

19 the copies will be certified. Cf. Alcorn, 336 F.R.D. at 443 (discussing how the officer

20 must have “the appropriate training to . . . ensure that a video deposition is properly

21 recorded with established procedures to go on or off the record, limit noise and

22 interruptions, address technical glitches, and frame the camera view on the witness”).

23 Indeed, having the public notary record the Zoom session is a position that has been

24 expressly rejected by a sister court for being procedurally insufficient. See id. As to the

25 transcription of the deposition, Plaintiff’s Oppositions make clear that it is he who wishes

26 to transcribe. See, e.g., ECF No. 131 at 8 (“[T]here is nothing that prohibits me from

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1 doing the transcript . . . .”). Case law above resoundingly considers such “transcription”

2 inadequate. See, e.g., Nusbaum, 2009 WL 2605320, at *2.

3 Plaintiff provides no supporting authority to justify a different conclusion, other

4 than repeating select passages of the FRCP that no one contests. No one is disagreeing

5 that FRCP 30(b)(4) permits stipulation to conduct deposition over Zoom. No one is

6 disagreeing that FRCP 30(b)(3)(A) allows the deposition to “be recorded by audio,

7 audiovisual, or stenographic means.”5 And no one is disagreeing that FRCP 28(a)

8 permits a public notary to be the deposition officer—but only if that public notary is also

9 qualified to certify as to the non-distortion of the deposition recordings per FRCP

10 30(b)(5)(B), which is a provision that Plaintiff opportunely omits in his brief. Just

11 because Plaintiff’s proposal satisfies parts of the procedure does not permit him to

12 circumvent other parts. All provisions are mandatory. Thus contrary to what Plaintiff

13 thinks, see, e.g., ECF No. 131 at 7, 8, Plaintiff was not in “full compliance,” and failed to

14 meet “all the procedural safeguards.”

15 Plaintiff believes that he may avoid these procedures because there are certain

16 measures that Defendants could take to check against potential abuse, such as filing a

17 motion in limine, recording the matter themselves to verify the transcript, or hiring a

18 court reporter themselves.6 See, e.g., ECF No. 131 at 10. These measures are false

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5 Plaintiff cites this passage to argue that a court reporter need not be present. See ECF

22 No. 131 at 6–7. While a “court reporter” need not be present, a deposition officer that

could comply with its FRCP 30 duties must be present. See Fed. R. Civ. P. 30(b)(5)(A)

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(“Unless the parties stipulate otherwise, a deposition must be conducted before an officer

24 appointed or designated under Rule 28.”); Grano v. Sodexo Mgmt., Inc., 335 F.R.D. 411,

415 (S.D. Cal. 2020) (requiring the officer to attend the deposition via the same remote

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means used to connect the other remote participants).

26 6 Plaintiff also argues that Defendants’ counsel could have emailed Plaintiff for

27 clarification. See ECF No. 131 at 12–13. Pages 4–5, supra, indicate that the counsel

1 choices. Defendants should not be the ones devoting their energy and incurring litigation

2 costs when it is Plaintiff who is violating procedure. A conclusion otherwise would

3 incentivize procedural breaches at two different levels. Plaintiff would get away with

4 contravening the rules, and Defendants would need to expend resources because of it.

5 Finally, Plaintiff’s self-serving “white bowtie with gold trim” analogy assumes that

6 the procedural requirements governing depositions are equivalent to mere dress codes.

7 They are not.7 Cf. Progressive Sols., Inc. v. Stanley, No. 16-CV-04805-SK, 2018 WL

8 1989547, at *7 (N.D. Cal. Mar. 8, 2018) (discussing the material consequences that

9 occurred when the rules governing deposition were not followed, in which one party

10 accused the other of forgery and fabrication of the evidence); Pavone v. Citicorp Credit

11 Servs., Inc., 60 F. Supp. 2d 1040, 1045 (S.D. Cal. 1997) (rejecting deposition transcripts

12 for failure to comply with the proper certification procedures), aff’d, 172 F.3d 876 (9th

13 Cir. 1999). See generally Alcorn, 36 F.R.D. at 442–44 (discussing the various reasons

14 why “[c]ertification of a deposition is not a trivial function”). Plaintiff is not entitled to

15 decide which measures are superfluous. The FRCP does. And since his entire analogy is

16 unsupported by any legal authority but only his own insistence that the procedures are

17 unnecessary, the Court rejects it.

18 Ultimately, the defective nature of Plaintiff’s proposed depositions provides

19 sufficient grounds to affirm the Magistrate Judge’s decision that Defendants’ failures to

20 attend the deposition was “substantially justified” or that a sanctions award against them

21 would be “unjust.” See Fed. R. Civ. P. 37(d)(3).

22

23

24

indeed asked. Yet Plaintiff either failed to respond in a timely manner, or provided an

25 answer which indicated that the proposed depositions would stay procedurally improper.

26 7 Of course, even if they were mere dress codes, Plaintiff must comply if the rules require

so. Plaintiff is not entitled to cherry-pick which rules to follow.

27

1 2. Depositions Scheduled for September 10, 2020

2 Even setting aside the problems with Plaintiff’s proposed depositions, the Court

3 does not find that the Magistrate Judge’s decision was clearly erroneous or contrary to

4 law when she declined to issue monetary sanctions against Defendants for not appearing

5 for the September 10, 2020 deposition. Defendants were substantially justified in not

6 attending the deposition without a protective order, because the very issue was waiting a

7 decision from the Magistrate Judge—all due to Plaintiff prematurely filing an ex parte

8 motion. Any sanctions against Defendants would be unjust given the procedural

9 circumstances of Plaintiff’s filing(s).

10 As explained in the Magistrate Judge’s January 13, 2021 Order, it was Plaintiff

11 who jumped the gun and filed the ex parte deposition motions before Defendants had the

12 chance to meaningfully sort out the issue with Plaintiff. Being forced to file the

13 opposition briefs, Defendants raised their concerns on August 19 and September 2, 2020,

14 and thus the entire issue was in front of the Magistrate Judge. And while the Magistrate

15 Judge’s opinion on the matter was pending, it was prudent to withhold any deposition,

16 since it makes no sense to conduct a deposition that may be deemed inadmissible,

17 incurring time and energy to all Parties for nothing. This is especially true given that it

18 was Plaintiff himself who represented to the Court that a deposition would not be

19 necessary. See, e.g., ECF No. 71-1 at 2 (asking “to avoid having to do depositions if

20 possible” on August 21, 2020); ECF No. 74-1 at 6 (explaining how it is easier to

21 exchange interrogatories “than forcing the parties to engage in depositions” on August

22 23, 2020).

23 Plaintiff argues that Defendants should have filed a protective order instead. See,

24 e.g., ECF No. 131 at 12. No part of Defendants’ brief responds to the Magistrate Judge’s

25 reasoning that a protective order would have been duplicative and procedurally improper.

26 Defendants already raised their concerns—twice—to correspond to Plaintiff’s two ex

27

1 parte motions. And filing a protective order would have been denied by the Magistrate

2 Judge for being premature absent any meet-and-confer, something that Defendants could

3 not do because Plaintiff already filed his ex parte motions to force depositions his way.

4 In sum, Defendants were justified in their conduct.

5 Plaintiff also avers that Defendants engaged in “bad faith” when the counsel

6 represented to Plaintiff that the Magistrate Judge’s Chamber Rules does not allow same

7 day conferences. See ECF No. 131 at 11. Regardless of what Plaintiff thinks, the

8 Chambers Rules indeed show an aversion to conferences held the same day. See, e.g.,

9 Magistrate Judge Crawford Chambers Rule VIII.E.3 (“This Court considers a minimum

10 of seven (7) days prior to the anticipated filing date of the Joint Motion for Determination

11 of Discovery Dispute to be a reasonable time period for a party to participate

12 meaningfully in the preparation of a Joint Motion.”). The counsel’s statement does not

13 demonstrate bad faith, and certainly does not warrant a decision that the Magistrate Judge

14 clearly erred in declining to issue sanctions.

15 3. Depositions Scheduled for October 30 and November 17, 2020

16 Defendants were further justified to decline attending the October 30 and

17 November 17, 2020 depositions. On October 5, 2020, the Magistrate Judge explicitly

18 denied “Plaintiff’s request to conduct depositions without an independent, qualified

19 deposition officer who meets the requirements of Rule 30 of the Federal Rules of Civil

20 Procedure.” ECF No. 87 at 8. As discussed supra pages 12–14 of this Order, the

21 requirements under FRCP 30 include (1) the deposition officer to be in position to certify

22 that the recording of the deposition is not distorted, which is more than just recording the

23 Zoom session by herself, and (2) a certification of the deposition transcript, which must

24 be done by someone other than the litigating parties. Yet when Defendants’ counsel once

25 again inquired to Plaintiff about these concerns, Plaintiff doubled down on his “same

26 plans as the last depo notices,” insisting that he can transcribe the deposition record

27

1 himself. See ECF No. 101 at 5–6; cf. ECF No. 68-1 (initially requesting in his Ex Parte

2 Application to “record the depositions using Zoom and then to have them transcribed

3 later if needed”). Such measures violated the Magistrate Judge’s instructions, despite

4 what Plaintiff believes, see ECF No. 131 at 13–14.

5 In light of a proposal that contravened what the Magistrate Judge had ordered,

6 Defendants could rely on the Magistrate Judge’s October 5, 2020 Order to not attend. A

7 reliance on a court order that directly spoke to the matter substantially justifies the non-

8 attendance, and any sanctions award against Defendants for adhering to the Magistrate

9 Judge’s Order would be unjust. This is true even without any protective order on the

10 record, since the Magistrate Judge’s Order already instructed what a proper “deposition”

11 must entail. There is no basis to find that the Magistrate Judge’s decision to decline any

12 penalty was clearly erroneous or contrary to law.

13 D. Denial of Default Judgment

14 The same reasons as to why monetary sanctions are unwarranted demonstrate why

15 default judgment, a “very severe” penalty, Connecticut Gen. Life Ins. Co. v. New Images

16 of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007), would be inappropriate. A default

17 judgment is only justified if there was “willfulness, bad faith, and fault.” Id. (quoting

18 Jorgensen v. Cassiday, 320 F.3d 906, 912 (9th Cir. 2003)); see also Computer Task Grp.,

19 Inc. v. Brotby, 364 F.3d 1112, 1115–17 (9th Cir. 2004) (finding willfulness when the

20 defendant engaged in “a consistent, intentional, and prejudicial practice”).

21 Even under de novo review of the Magistrate Judge’s decision, the discussions

22 supra Section IV.C demonstrate, at minimum, that Defendants were not engaging in any

23 form of willful, bad faith, and faulty conduct. Defendants were justified in waiting on

24 any deposition until the Magistrate Judge spoke on the matter. And once the Magistrate

25 Judge spoke, Defendants rightfully protested attending a deposition that violated the

26 Magistrate Judge’s instructions.

27

1 Plaintiff questions why the Magistrate Judge did not consider the 5-factor test in

2 “support” of default judgment. See ECF No. 131 at 15. It is because the test was not

3 triggered by the facts. The 5-factor test on whether sanctions should be in the form of

4 default judgment, see, e.g., Porter v. Martinez, 941 F.2d 732, 733 (9th Cir. 1991);

5 Connecticut Gen. Life, 482 F.3d at 1096, requires facts warranting sanctions. This Order

6 has explained how Defendants did nothing wrong with respect to the instant dispute.

7 And as the preceding paragraph demonstrates, a default judgment requires a finding of

8 willfulness, bad faith, and fault. Since this necessary condition was not met, there was no

9 basis for default judgment, and thus the Magistrate Judge was not required to engage in

10 the 5-factor analysis.8 Cf. Connecticut Gen. Life, 482 F.3d at 1096 (discussing how the

11 5-factor test is “a way to think about what to do, not a set of conditions precedent for

12 sanctions or a script that the district court must follow”).

13 Plaintiff’s other arguments do not convince the Court either. Plaintiff argues that

14 the depositions were “critical” to his case and that his chances of prevailing are “ruined.”

15 See ECF No. 131 at 14–15. Page 17, supra, discusses how he admitted that they are not.

16 See ECF No. 71-1 at 2; ECF No. 74-1 at 6; see also ECF No. 87 at 7 (“[P]laintiff has

17 stated in other Ex Parte Applications that the depositions he wants to take would be

18 unnecessary if he is granted an extension of the current discovery deadline so that

19 pending discovery disputes can be resolved, and he can serve defendants with additional

20 discovery requests.”). Plaintiff also argues how “this is a civil rights case having great

21

22

8 Even if the Court considered the factors that Plaintiff so urges, Plaintiff fails. The 5-

23

factor test accounts for: “(1) the public’s interest in expeditious resolution of litigation;

24 (2) the court’s need to manage its dockets; (3) the risk of prejudice to the party seeking

sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the

25

availability of less drastic sanctions.” Connecticut Gen. Life, 482 F.3d at 1096. With

26 summary judgment also pending before the Court, at least three factors (factors 3 to 5)

weigh against default judgment.

27

1 || importance.” ECF No. 131 at 15. This begs the question as to whether he prevails on the

2 ||merits. Finally, Plaintiff argues there was bad faith based on the discovery dispute

3 || relating to the California Law Enforcement Telecommunications System (““CLETS”’)

4 ||documents. See id. This is wholly unrelated since Plaintiff must show how the non-

5 || attendance of the deposition was in bad faith. Even assuming that the CLETS dispute is

6 || relevant, the Magistrate Judge has decided on the matter, see ECF No. 110 at 2-4, and no

7 || part of the Magistrate Judge’s Order supports a claim of bad faith which is an allegation

8 || beyond what the Magistrate Judge ordered Defendants to do.

CONCLUSION

10 Despite Plaintiff's numerous contentions, Plaintiff's arguments fail to persuade the

11 ||Court. In sum, the Magistrate Judge was justified in declining any request for an

12 ||““extension” for a meet-and-confer or “briefing.” Plaintiff's proposed depositions were

13 || procedurally unsound. Even if the depositions were proper, Defendants were justified in

14 || not attending. Even if Defendants were supposed to attend, Plaintiff is not entitled to

15 ||monetary sanctions, let alone default judgment. For the reasons discussed in this Order,

16 || the Court OVERRULES Plaintiff's Oppositions to the Magistrate Judge’s January 13,

17 Order, ECF Nos. 128, 131, and ADOPTS the Magistrate Judge’s Report and

18 || Recommendation to deny default judgment.

19 IT IS SO ORDERED.

20

21 ||Dated: July 8, 2021 72 +

22 Hon. athe Cee

23 United States District Judge

24

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27 21

28 19-cv-0751-GPC-KSC