The Court has summarized the factual background of the discovery dispute giving rise to Plaintiffs' show-cause motion in the September 9, 2014 Order compelling former Arizona state senator Russell Pearce to comply with a subpoena duces tecum Plaintiffs served on him in late 2013. (See Doc. 1157, Sept. 9, 2014 Order (“Compel Order”) at 1-2.) The “discovery dispute center[s] on the production of electronic records (primarily emails) related to S.B. 1070 when Senator Pearce was a member of the Arizona Legislature.” (Id. at 4.) After Senator Pearce produced records in 2014, Plaintiffs moved for an order compelling production on grounds that Senator Pearce “responded to th[e] subpoena by repeatedly missing his own self-imposed deadlines for production, [and] eventually producing a limited set of documents that fail[ed] to include numerous records known to Plaintiffs that would have been found in any reasonable search.” (Id. at 2.) Senator Pearce countered that he had “personally searched for and produced all documents responsive to Plaintiffs' subpoena” and that those efforts “we[re] more than reasonable.” (Id. at 4 (alteration in original).)

After summarizing the legal standards addressing the requisite due diligence for subpoena recipients, the Court addressed Plaintiffs' argument that Senator Pearce had not conducted a reasonable search of the one personal email account he had access to that could have contained responsive emails to the subpoena. (Id. at 5.)[1] Senator Pearce first searched this personal email account in March 2014. The Court noted that “[Plaintiffs] maintain that other third parties have produced hundreds of pages of emails exchanged with Senator Pearce from and to that email account, but Senator Pearce has produced few of those records—the implication being that Senator Pearce has either not conducted a full search of the account for responsive documents or that he has intentionally failed to turn over other responsive documents.” (Id.) Because Plaintiffs submitted evidence that made it at least plausible that other, unproduced responsive records may have been located in Senator Pearce's personal email account, the Court instructed Senator Pearce to “re-search that account and provide Plaintiffs ‘with declarations or affidavits detailing the nature of his ‘reasonable inquiry’ to locate responsive documents, ... [noting] such declarations [were to] address the inquiry he made on a request-by-request basis.' ” (Id. at 6 (quoting A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 190 (C.D. Cal. 2006)).) The Court closed the discussion by explaining that the “record d[id] not show spoliation or other misconduct that would justify the more drastic remedies proposed by Plaintiffs, such as allowing them to hire a third-party vendor to conduct a search of Senator Pearce's email accounts.” (Id. at 6.)

*2 It is undisputed that to comply with this instruction Senator Pearce performed a second search of the “inbox, sent, and deleted folders” on the personal email account hosted through Microsoft Outlook and also searched twenty-three subject-matter folders for saved emails that Senator Pearce sent or received after his initial March 2014 search for responsive electronic records. (See Doc. 1200, Opp'n to Pls.' MSC at 4-5 (citing Doc. 1188-5, Decl. of Russell Pearce, Oct. 8, 2014; Doc. 1188-7, Decl. of Russell Pearce, Jan. 2, 2015).) Senator Pearce clarified in his January 9, 2015 deposition that he accessed and managed the subject-matter folders (which cover topics like “immigration” and “border issues”) through Outlook. (Doc. 1190-2, Dep. of Russell Pearce, Jan. 9, 2015 (“Pearce Dep.”), at 71:6-24.) Senator Pearce testified that when he wanted to save an email, he dragged and dropped the email into one of these folders listed on the left side of the Outlook interface. (Id.) Senator Pearce's second search yielded thirty-five emails responsive to the subpoena. (Opp'n to Pls.' MSC at 5-6.) Senator Pearce admits that he did not search the subject-matter folders for emails sent or received before March 2014 because “any emails [he] sent or received before March 2014 would have been captured by [his] first search.” (Jan. 2, 2015 Pearce Decl. ¶ 4.)

Plaintiffs now move for an order for Senator Pearce to show cause why he should not be held in contempt for disobeying the Compel Order, for sanctions to be imposed as the Court deems appropriate, and for an order compelling Senator Pearce to permit Plaintiffs to engage a third-party vendor to search his electronic data for records responsive to Plaintiffs' document subpoena. (Pls.' MSC at 1-2; Doc. 1188-1, Pls.' Memo. of Law in Supp. of Their MSC (“Pls.' MSC Memo.”) at 1.) Plaintiffs argue that Senator Pearce did not comply fully with the Compel Order because he searched his records only for emails sent or received after he completed his first search. (Pls.' MSC Memo. at 1.) A court “may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it.” Fed. R. Civ. P. 45(g). Civil contempt “consists of a party's disobedience to a specific and definite court order by failure to take all reasonable steps within the party's power to comply.” Go-Video, Inc. v. Motion Picture Ass'n of Am., 10 F.3d 693, 695 (9th Cir. 1993). Civil contempt sanctions are “penalties designed to compel future compliance with a court order, are considered to be coercive and avoidable through obedience, and thus may be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard.” Int'l Union, United Mine Workers v. Bagwell, 512 U.S. 821, 827 (1994). Once a prima facie showing of contempt is made by clear and convincing evidence, the alleged contemnor must “present some evidence to explain or justify his refusal” to produce the requested information. McPhaul v. United States, 364 U.S. 372, 379 (1960).

Senator Pearce argues, among other things, that he has complied with the Compel Order and that a full search for responsive records occurred because as part of the first search, he sent his attorneys the contents of the twenty-three subject-matter folders and tasked them with determining which of the “thousands” of emails he sent or received that were responsive to the subpoena. (Opp'n to Pls.' MSC at 7-8.) Senator Pearce's counsel has stated in letters to Plaintiffs' counsel that they have not withheld any responsive emails. (Doc. 1188-9, Dec. 29, 2014 Letter from James Peterson to Justin Cox at 2-3 (“The ‘criteria’ used for determining responsiveness were the definitions set forth in Exhibit A of the subpoena, the six requests contained in Exhibit A, and the date limitations of each individual request. No responsive records were withheld.” (quoting a November 17, 2014 letter from James Peterson to Justin Cox)).) The fact that Senator Pearce turned over the contents of the twenty-three subject-matter folders to his counsel would have made a difference in how the Court addressed the compliance issue in the Compel Order. It is not clear why Senator Pearce did not fully develop this background until after the Court granted Plaintiffs' motion to compel. (Senator Pearce's opposition to the motion to compel mentioned only that he sent “likely responsive [electronic] records” to his counsel, not that he sent them the contents of all the subject-matter folders. (Doc. 1120, Opp'n to Pls.' Mot. to Compel Russell Pearce to Comply with Subpoena Duces Tecum at 6).) The analysis in the Compel Order centered on evidence that made it at least plausible that unproduced responsive records may have been located in Senator Pearce's personal email account—i.e., the hundreds of pages of emails sent from or received in Senator Pearce's personal email account that other third parties had produced to Plaintiffs in discovery but that Senator Pearce did not produce. The complete background would have strengthened Senator Pearce's position that the evidence proved nothing except that Senator Pearce did not save those emails and that he has different document retention protocols than the other third parties in this case. (See Oct. 8, 2014 Pearce Decl. ¶ 2 (“As I explained in my earlier declarations, I generally do not retain emails unless I believe they have some particular, long-term significance or interest to me ....”).) These facts would have also addressed the Court's concern that “Senator Pearce [had not] conducted a full search of the [personal email] account for responsive documents or that he ... intentionally failed to turn over other responsive documents.” (See Sept. 9, 2014 Order at 5.)

*3 With this background now fully developed, the Court will not issue a contempt order authorizing additional compliance measures. The Court must balance the need for additional discovery with the burdens that a non-party like Senator Pearce will face in searching for and producing potentially responsive documents. Given the scope of Plaintiffs' discovery efforts in this case leading to the production of hundreds of thousands of documents as well as Senator Pearce's significant compliance efforts to date, the Court concludes that the burdens imposed on Senator Pearce from additional compliance measures would far exceed the utility of another records search of Senator Pearce's computer and email account. (See Pearce MPO at 7 (explaining that through the over 100 hours he has spent searching for responsive records, he has produced nearly 2,000 emails from his tenure as a member of the Arizona Legislature and thousands of pages of documents).) It is unlikely that another search of the subject-matter folders will reveal any unproduced, non-duplicative emails responsive to the subpoena when Senator Pearce has already reviewed those folders and sent the folders' contents to his counsel for further review.

The next discovery dispute centers on whether there is good cause for Plaintiffs to depose Senator Pearce beyond the presumptive seven-hour limit under Federal Rule of Civil Procedure 30(d)(1). (See Pearce MPO at 1-8; Pls.' MAT at 1; Doc. 1190-1, Pls.' Memo. of Law in Supp. of MAT; and in Opp'n to Russell Pearce's MPO (“Pls.' MAT Memo.”) at 3-11.) Plaintiffs deposed Senator Pearce for a full seven hours on Friday, January 9, 2015. According to the parties' briefing, approximately five-and-a-half hours into the deposition shortly after 4 p.m., Plaintiffs' counsel told Senator Pearce that he needed more than seven hours to complete the deposition due to Senator Pearce's central role in the drafting and passage of S.B. 1070. Plaintiffs' counsel rejected Senator Pearce's offer to extend the deposition by an additional twenty minutes and requested that Senator Pearce agree to testify for at least an additional two-and-a-half hours or else Plaintiffs would move for a court order to extend the deposition for another seven hours. Plaintiffs' counsel apparently proposed having Senator Pearce and his attorneys (including primary counsel from Washington, D.C.) continue the deposition into the evening, over the weekend, or on some future date convenient for the parties. No agreement was reached, and the deposition concluded after seven hours.

Plaintiffs now request seven additional hours to depose Senator Pearce. (Pls.' MAT Memo. at 3-11.) Plaintiffs have also requested that any court order compel Senator Pearce to testify about “coaching” they claim he received from his counsel during breaks in the deposition. (Id. at 11-14.) Senator Pearce has moved for a protective order to prevent an extension of the deposition time. (Pearce MPO at 1-8); see Fed. R. Civ. P. 26(c)(1) (“The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense ....”); Fed. R. Civ. P. 30(d)(3)(B) (“The court may order that the deposition be terminated or may limit its scope and manner as provided in Rule 26(c).”). “Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours.” Fed. R. Civ. P. 30(d)(1). “The court must allow additional time consistent with Rule 26(b)(2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.” Id.[2] There are “a variety of factors” relevant to whether there is good cause for extending the time for a deposition, including whether “the examination will cover events occurring over a long period of time”; whether “the witness will be questioned about numerous or lengthy documents”; and whether “the examination reveals that documents have been requested but not produced.” Fed. R. Civ. P. 30(d) advisory committee's note to the 2000 amendment.

*4 Plaintiffs rely on these factors to argue that there is good cause for extending the time for Senator Pearce's deposition. (Pls.' MAT Memo. at 3-4.) Plaintiffs first discuss Senator Pearce's “central role” in this litigation. Characterizing Senator Pearce as “the central and single most important witness in this case,” Plaintiffs claim that “[Senator Pearce's] dominant role in [S.B. 1070's] drafting and passage means he has a ‘unique perspective’ that makes him ‘best positioned’ to explain what the law was intended to do,” circumstances that they contend “weigh heavily” in favor of their request for additional time to depose Senator Pearce. (Id. at 4-5 (quoting Brief of State Senator Russell Pearce as Amicus Curiae in Support of Petitioners at 1-3, Arizona v. United States, 132 S. Ct. 2492, 2494 (2012) (No. 11-182), 2012 WL 523356).) Plaintiffs also describe the characteristics of this case and the nature of Senator Pearce's testimony that they believe weigh in favor of their request for an extension of time. (Id. at 5-7.) They explain that Senator Pearce's testimony covers the long time period between the drafting phase of S.B. 1070 and other precursor legislation and S.B. 1070's passage, and that their equal protection challenge is particularly fact intensive and document heavy, mentioning that a significant percentage of the hundreds of thousands of documents produced in this case relate to Senator Pearce. (Id.)

The Court does not dispute the veracity of these representations; in fact, several prior court orders corroborate them. (See, e.g., Doc. 927, Dec. 11, 2013 Order at 3-5 (listing the elements of an equal protection challenge under Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252 (1977)); Doc. 1116, July 9, 2014 Order at 3 (addressing Plaintiffs' request to extend the case scheduling deadlines, and noting that in “[d]etermining whether there was a racially discriminatory intent or purpose in the enactment of S.B. 1070 necessarily requires considerable discovery” based on the Arlington Heights standards); Sept. 9, 2014 Order at 1 (“Russell Pearce served as an Arizona State Senator when S.B. 1070 was passed, calling himself the author of, and driving force behind S.B. 1070 and other precursor legislation.” (internal quotation marks omitted)).) There is, however, no reasonable basis to extend Senator Pearce's deposition beyond the seven-hour presumptive limit when Plaintiffs waited until the late stages of the deposition to first make a record that they needed additional time to fully question Senator Pearce. Nothing in the record predating the deposition shows that Plaintiffs had concerns about completing the deposition in a single seven-hour period or supports their suggestions that they requested additional deposition time before the deposition occurred or that Senator Pearce refused to be deposed longer than seven hours. (Pls.' MAT Memo. at 2; see Doc. 1099-4, Ex. B-26a, May 12, 2014 Letter from James Peterson to Justin Cox (“Senator Pearce can be available on this day provided that all issues concerning his document production have been resolved. We would object to any continuation of his deposition on a later date due to any issues relating to the document production.”).) Any preliminary disputes the parties had about scheduling Senator Pearce's deposition were related to whether the deposition would occur piecemeal in several sessions before Senator Pearce had produced all records in his possession. Senator Pearce states that he “would not agree to begin his deposition before all records were produced, then reconvene the deposition after his production was complete”—a representation well-supported by the various emails and letters exchanged between counsel. (See Doc. 1198, Combined Opp'n of Non-Party Russell Pearce to Pls.' MAT, and in Reply in Supp. Of Pearce MPO at 2-3.) These scheduling disputes cannot be reasonably interpreted as involving the separate issue of extending the deposition past the presumptive seven-hour limit.

In responding to Senator Pearce's argument that Plaintiffs should have sought additional time from the Court before the deposition, Plaintiffs counter that before Senator Pearce's deposition occurred, they could not know for certain whether they would need additional time to fully depose him. (Pls.' MAT Memo. at 10-11; Doc. 1205, Pls.' Reply Memo. in Supp. of Their MAT (“Pls.' MAT Reply”) at 2-3.) Plaintiffs cite several out-of-state district court orders for the proposition that courts prefer to rule on such motions after the presumptive seven-hour limit has been exhausted. (Pls.' MAT Memo. at 10-11 (citing Brooks v. Motsenbocker Advanced Developments, Inc., No. 07CV773, 2008 WL 2033712, at *3 (S.D. Cal. May 9, 2008); Malec v. Trustees of Boston College, 208 F.R.D. 23, 24 (D. Mass. 2002)).) There is nothing in those cases that persuades the Court that Plaintiffs' extension request is anything but untimely. It makes sense that courts would prefer to wait until after a deposition to consider extension requests when the parties will know if additional time is needed to complete questioning. This procedure avoids having courts prematurely rule on unripe issues that might be mooted if a deposition is completed within the presumptive limit. SeeMotsenbocker, No. 07CV773, 2008 WL 2033712, at *3 (S.D. Cal. May 9, 2008) (denying without prejudice a motion for additional deposition time on the grounds that “there is no complete record before the Court at this time (because the deposition has not yet started)”); Malec, 208 F.R.D. at 24 (same, and explaining: “[T]he better practice is for the deposition to go forward to determine how much is able to be covered in the seven hours and, then, if additional time is needed, for counsel to stipulate to extend the deposition for a specific additional time period. If the parties cannot reach a stipulation, then Court intervention may be sought.”).

*5 In those cases, the parties made a record before the deposition that an enlargement of time might be necessary. A motion would not have been required to make such a record here either. There is nothing unique about this case that would have prevented Plaintiffs from at least suggesting to Senator Pearce or the Intervenor Defendants before the deposition that they might need additional time to question Senator Pearce. Plaintiffs would have known of the form and content of their questioning long before the deposition occurred as well as the type of information they intended to elicit from Senator Pearce based on the voluminous discovery production to date. Although Plaintiffs contend that Senator Pearce has failed to identify any authority for a requirement that Plaintiffs should have asked him to extend the deposition earlier, there is ample support in the Federal Rules of Civil Procedure for the Court to deny their extension request in a posture after the close of discovery and nearing the dispositive motion deadline. (Fact discovery, including depositions, was to be completed by January 30, 2015. Dispositive motions are to be filed by March 17, 2015 (Doc. 1159, Sept. 18, 2014 Order Extending Case Schedule).) Be it on grounds that Plaintiffs had “ample opportunity to obtain the information by discovery in the action” or “the burden or expense of the proposed discovery outweighs its likely benefit” through an extension request this late in the case, Plaintiffs have failed to show good cause for extending the time for Senator Pearce's deposition beyond the presumptive seven-hour limit. See Fed. R. Civ. P. 26(b)(2), 30(d)(1).[3]

The Court also rejects Plaintiffs' position that there is good cause for an extension of time on grounds that Senator Pearce and his counsel prevented Plaintiffs from using the deposition time efficiently. (See Pls.' MAT at 7-8.) Plaintiffs argue that Senator Pearce and his counsel burdened the deposition through what they characterize as “improper objections and apparent coaching of the witness” as well as through purportedly inconsistent testimony from Senator Pearce that required Plaintiffs' counsel to return to topics covered earlier in the deposition.[4] (Id. (claiming that the deposition transcript reflects that Senator Pearce's counsel made a significant number of objections that were incorporated into Senator Pearce's answer and “clearly” had the effect of coaching him)); seeFed. R. Civ. P. 30(c)(2) (“An objection must be stated concisely in a nonargumentative and nonsuggestive manner.”). Plaintiffs attempt to cobble together a pattern of misconduct by Senator Pearce and his counsel from a dozen or so record citations that are either innocuous, taken out of context, or reflect nothing more than Senator Pearce's misunderstanding of the procedural rules governing depositions. (See, e.g., Pearce Dep. at 26:15-25 (Senator Pearce stating, after his counsel objected based on foundation, that, “I hate not to follow counsel's advice of the objecting”) (Plaintiffs' counsel responding, “Oh, he's just doing that for the record. That actually shouldn't influence your answer at all.”); 60:11-61:7 (after Senator Pearce's counsel objected on a number of grounds):

None of the exchanges between Plaintiffs' counsel, Senator Pearce, and Senator Pearce's counsel in the 384-page deposition transcript show misconduct or improper coaching. The case law Plaintiffs cite is therefore inapplicable. See Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa. 1993) (finding misconduct when the plaintiff's counsel interrupted the deposition to privately confer with his client and to review a document before the client answered questions about the document); Luangisa v. Interface Operations, No. 2:11-CV-00951-RCJ, 2011 WL 6029880, at *12 (D. Nev. Dec. 5, 2011) (finding misconduct when the defendants' counsel “impeded and frustrated fair examination” of a witness through “continuous suggestive, argumentative, and unnecessary objections”). Having found no inference of misconduct that would have prevented Plaintiffs from using the deposition time efficiently, the Court rejects this ground for extending the time for Senator Pearce's deposition.

*6 The Court also rejects Plaintiffs' related argument that they are entitled to additional deposition time to question Senator Pearce about coaching they believe he received on breaks in the first deposition. (Pls.' MAT Memo. at 11-14.) Plaintiffs rely entirely on speculation to support this theory. Plaintiffs' counsel did not observe any impropriety, nor does this argument implicate any off-the-record discussion. The theory is instead based principally on what they characterize as inconsistent accounts from Senator Pearce about the role the organization Judicial Watch had in the passage of S.B. 1070. (Id. at 8-9 n.9.) Senator Pearce initially testified that he was “sure” that he received verbal feedback on a draft version of S.B. 1070 from Judicial Watch, although he could not recall the specifics. (See Pearce Dep. at 208:12-24.) He later testified that he never had a conversation with anyone at Judicial Watch about S.B. 1070 until after it passed. (Id. at 346:13-20.) Plaintiffs claim that because later “clarified” testimony occurred after breaks in the deposition and purportedly furthered the interests of his counsel, who works for Judicial Watch, there is an inference that coaching occurred. (Pls.' MAT Memo. at 8-9 n.9.) The Court disagrees. The “clarified” testimony more reasonably suggests that as Senator Pearce reviewed documents in the deposition about the different people and organizations involved in the drafting phase of S.B. 1070, he was better able to recall the details of Judicial Watch's involvement or noninvolvement, a point Senator Pearce made clear on redirect. (See Pearce Dep. at 380:11-21.) The Court will not permit additional deposition time for Plaintiffs' counsel to question Senator Pearce about conversations he had with his counsel during breaks, matters touching on sensitive attorney-client privilege issues.

Plaintiffs have failed to show good cause for the Court to impose a contempt order against Senator Pearce to authorize additional compliance measures. With the new background developed as part of the briefing for Plaintiffs' show-cause motion, the Court is convinced that that another search of the subject-matter folders will not reveal any unproduced, non-duplicative emails responsive to the subpoena when Senator Pearce initially reviewed those folders and sent them to his counsel for further review. Plaintiffs have failed to show good cause for extending the time for Senator Pearce's deposition beyond the presumptive seven-hour limit given their failure to make a record of that need until late in the deposition. They have also failed to show misconduct on the part of Senator Pearce or his counsel in the deposition that would permit additional deposition time.

IT IS ORDERED denying Plaintiffs' Motion for an Order to Show Cause, for Sanctions, and to Compel Russell Pearce to Permit a Third-Party Search of his Electronic Data (Doc. 1188).

IT IS FURTHER ORDERED granting Motion of Non-Party Russell Pearce to Terminate Deposition and for Protective Order (Doc. 1189).

IT IS FURTHER ORDERED denying Plaintiffs' Motion for Additional Time to Depose Russell Pearce and to Compel Deposition Testimony (Doc. 1190).

Dated this 10th day of March, 2015.

The Compel Order addressed several issues not at issue here, including whether there were “facial defects” in the subpoena that deprived the Court of jurisdiction as well as whether Senator Pearce had a legal right to obtain documents in possession and control of the Arizona Legislature, whether the First Amendment privilege described in Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2009), applied to certain withheld documents, and whether Senator Pearce was obligated to produce emails and other electronic documents in a “native format.” (Id. at 3-10.)

Federal Rule of Civil Procedure 26(b)(2) requires courts to “limit the frequency or extent of discovery otherwise allowed” if “the discovery sought is unreasonably cumulative or duplicative”; the requesting party “has had ample opportunity to obtain the information by discovery in the action”; or “the burden or expense of the proposed discovery outweighs its likely benefit.”

Plaintiffs contend that Senator Pearce has never claimed that he has been prejudiced by their delay in seeking additional time to depose him, speculating that “there is no reason to think that this alleged failure would have made any difference”— “Plaintiffs would still be here, after the first deposition had concluded, asking the Court for additional time.” (Pls.' MAT Reply at 3.) The Court does not need to speculate about how Senator Pearce would have responded to some hypothetical situation where Plaintiffs made an earlier extension request. The focus is instead on facts actually contained in the record.

There can be no plausible argument that the inefficiencies or burdens Senator Pearce and his counsel purportedly caused would entitle Plaintiffs to another full day of questioning. The two-and-a-half hour extension Plaintiffs' counsel initially requested in the deposition would be generous under these narrow grounds.