UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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STEPHEN IFEANYI AMOBI, et al., )
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Plaintiffs, )
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v. ) Civil Action No. 08-1501 (HHK/JMF)
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DISTRICT OF COLUMBIA DEP’T )
OF CORRECTIONS, et al., )
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Defendants. )
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MEMORANDUM OPINION
This case has been referred to me for resolution of discovery disputes. Five discovery
motions are currently pending: 1) Motion for Sanctions for Failure to Respond to Discovery
Requests [#34] (“Mot. to Sanction”), 2) Motion for Protective Order Precluding its 30(b)(6)
Designee’s Deposition on March 23, 2009 [#38] (“Mot. to Protect”), 3) Motion for Extension of
Time to Complete Discovery [#40] (“Mot. to Extend”), 4) Motion to Quash Subpoena [#42]
(“Mot. to Quash”), and 5) Motion to Strike Surreply [#48] (“Mot. to Strike”). I will address each
of these in turn.
I. Motion to Strike.
Defendants correctly argue that there is no automatic right to file a surreply to be found in
the Federal Rules of Civil Procedure or the Local Rules of this Court. Plaintiffs did not seek
leave of court to file their surreply to the Motion for a Protective Order. Accordingly, that
surreply [#46] shall be stricken, and the Motion to Strike shall be granted.
II. Motion for Protective Order.
The time has passed for taking the deposition that defendants sought to preclude by their
motion for a protective order. Thus, the motion is moot. I will address defendants’ contention
that their counsel should be excused for failing to appear at the deposition in my analysis of the
pending Motion for Sanctions. The Motion for a Protective Order will be denied as moot.
III. Motion to Quash.
This case arises out of an allegation that plaintiff Stephen Amobi was discriminated
against by the D.C. Department of Corrections. Plaintiff was employed as a corrections officer in
the D.C. Jail. He alleges that he was releasing an inmate when the inmate struck him and he
responded by restraining the inmate as he was required to do. Despite his allegedly proper
behavior, plaintiff was prosecuted for assault and ultimately acquitted. In addition to his
prosecution, plaintiff was terminated from his job, and deficiencies in the review process form
part of the basis of his complaint in this case.
Plaintiffs served a subpoena on the U.S. Attorney’s Office (“USAO”) seeking the
USAO’s files related to the criminal prosecution. Defendants are seeking to quash that subpoena
on the grounds that the documents it seeks are privileged. Plaintiffs argue that defendants do not
have standing to object to the third-party subpoena and that the USAO is a sophisticated entity
that can preserve its own rights. I have recently addressed this very issue.
It is certainly true that a party may challenge a subpoena when
enforcement of it may disclose information that that party can
claim is privileged at common law or by statute or rule. That
would mean that the Defendants could challenge enforcement of
the subpoena if they showed it threatened the disclosure of
information that was protected by the attorney-client or work
product privileges. But, these defendants could not challenge the
subpoena on the grounds that it threatened the disclosure of
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information that was privileged because of the attorney-client
relationship between the insurance carrier and its counsel or
because it represented the work product of the insurance carrier’s
counsel. They have no standing to make such an objection.
Novak v. Capital Mgmt. & Dev. Corp., 241 F.R.D. 389, 394 (D.D.C. 2007). While admittedly, a
party may have standing to move to quash a subpoena directed to a third party where that
subpoena infringes on the moving party’s rights, the defendants here have no right to claim work
product or attorney-client privilege on behalf of the USAO. Cf. Khouj v. Darui, 248 F.R.D. 729,
732 n.6 (D.D.C. 2008) (noting that parties have standing to move to quash subpoenas seeking
their financial records from third-party banks because they have a legitimate interest in protecting
their private financial information); Fed. R. Crim. P. 17(c)(2) (allowing government in criminal
cases to move to quash subpoenas if compliance would be unreasonable or oppressive without
limitation – no comparable provision applies in civil matters).
Because the defendants here have no right to claim privilege regarding the USAO’s files,
I will deny the Motion to Quash.
IV. Motion for Sanctions.
Plaintiffs submitted written discovery requests to defendants on January 22, 2009.
Defendants filed dispositive motions on February 4 and 5, 2009. Also on February 5, defendants
filed a motion to stay discovery pending resolution of the dispositive motions. Judge Kennedy
granted the stay temporarily while the motion to stay could be fully briefed and decided. The
stay began on February 9 and was ultimately lifted on February 27. Plaintiffs filed this motion on
March 13, 2009, faulting defendants for a number of things and seeking dismissal, or, in the
alternative, that defendants be precluded from admitting any evidence at trial as a sanction.
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1. Written discovery.
Plaintiffs first argued that defendants had not responded to plaintiffs’ written discovery
requests. Defendants counter that this complaint is premature and moot because when the
motion was filed, the deadline for answering the discovery responses had not passed, and they
have since been answered. I agree that defendants should not be sanctioned for failing to answer
discovery responses before their due date. Accordingly, I will not award sanctions for this
behavior.
2. Inspection.
Plaintiffs next argue that the parties had arranged for an inspection of D.C. Jail on March
18, 2009, but plaintiffs were concerned that defendants were going to cancel the visit. This
concern would better have been addressed in a motion to compel, not a motion for sanctions.
And, that issue has been rendered moot because the jail visit occurred on March 18.
3. Depositions.
Finally, plaintiffs accuse defendants of intentionally refusing to schedule depositions in a
calculated attempt to run out the clock on discovery. Plaintiffs identify (1) two depositions that
were scheduled to take place during the discovery stay; (2) 11 depositions that plaintiffs sought
to take during the week of March 9; (3) a 30(b)(6) deposition of the Metropolitan Police
Department (“MPD”) and several of its members; and (4) the 30(b)(6) deposition that is the
subject of the motion for a protective order. Plaintiffs argue that defendants should be sanctioned
for counsel’s failing to appear at these depositions and failing to offer alternative dates.
Defendants’ counsel responded that they were unable to appear at the depositions due to
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witnesses’ scheduling conflicts and counsel’s professional obligations. Defendants’ counsel
informed plaintiffs’ counsel that those obligations, including preparation for two other trials,
would make it impossible for defendants’ counsel to complete their discovery obligations within
the original deadline. Defendants’ counsel sought plaintiffs’ counsel’s consent to seek an
extension, and plaintiffs’ counsel refused.
First, failure to appear for the depositions that were postponed because of the discovery
stay is not sanctionable – those depositions were cancelled by the Court.
Defendants’ counsel’s failure to appear for the 30(b)(6) deposition that was the subject of
the motion for a protective order is also not sanctionable under Rule 37 because defendants had a
pending motion for a protective order. Fed. R. Civ. P. 37(d)(2) (“A failure described in [section
of Rule 37 that permits sanctions for failure to appear at one’s own deposition] is not excused on
the ground that the discovery sought was objectionable, unless the party failing to act has a
pending motion for a protective order under Rule 26(c).”). The fact that conduct is not
sanctionable under Rule 37 does not render it proper, however. In this particular instance, had I
been given time to consider it, I would have granted the motion for a protective order as counsel
had a conflict and had attempted to work with opposing counsel, to no avail, to reschedule. But,
lest anyone take this opinion as justification for filing last minute motions for protective orders
and failing to appear, I feel it prudent to point out that Rule 37 is not the only available vehicle
for sanctions and I would not hesitate to use my inherent authority to control discovery to
sanction a party for filing a frivolous motion for a protective order solely to avoid attending a
deposition.
In regard to the remaining depositions, I understand plaintiffs’ frustration and
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commendable desire to abide by Judge Kennedy’s scheduling order. While I agree that failure to
appear for depositions is the sort of conduct that is eligible for sanction under Rule 37, I do not
think that sanctions are appropriate in this case. See Fed. R. Civ. P. 37(d)(1)(A). This is not a
case where defendants’ counsel completely ignored the notices of deposition and failed to
appear. Compare Perez v. Berhanu, 583 F. Supp. 2d 87, 88-89 (D.D.C. 2008). Rather,
defendants’ counsel informed plaintiffs all along that he would not be able to complete the many
depositions that plaintiffs sought to take in the time remaining for discovery. Plaintiffs also
suggest that the reason defendants’ counsel was unavailable was because defendants were being
obstructionist. Defendants’ counsel explains, however, that he was preparing for a jury trial on
March 30, and, at the relevant time, was also looking forward to trials on April 20 and 27. While
that does not excuse his obligations in this case completely, it certainly explains why he was so
busy in the last few weeks of March. Given this information, I don’t see any evidence of bad
faith on the defendants’ counsel’s part that convinces me that she should be punished at all, let
alone by the drastic sanctions that plaintiffs seek.
For these reasons, the Motion for Sanctions will be denied.
V. Motion to Extend.
Finally, defendants have filed a motion seeking to extend the discovery deadline for 90
days and to set a new briefing schedule. Because I am satisfied that defendants have
demonstrated that they have legitimate conflicts that have interfered with the discovery process, I
will grant the motion. However, given the scheduling problems that have plagued this case, I
will order the parties to meet and confer regarding the discovery that remains outstanding. The
parties shall then file a joint scheduling order within ten days of the date of this Opinion that
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includes dates and times for depositions that have yet to be taken. I will order that those
depositions be taken at the scheduled dates and times, and barring medical emergency, natural
disaster, or a comparably serious reason, failure to appear for those depositions will be
punishable by contempt.
VII. Conclusion.
For the reasons stated herein, docket nos. 34 and 42 will be denied, docket nos. 40 and 48
will be granted, and no. 38 will be denied as moot.
An Order accompanies this Memorandum Opinion.
Date: April 28, 2009 /S/
JOHN M. FACCIOLA
U.S. MAGISTRATE JUDGE
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