Andrei SMITH, Plaintiff, v. CAFÉ ASIA, et al., Defendants Civil Action No. 07–621 (RWR/JMF) United States District Court, District of Columbia Signed August 25, 2009 Counsel Micah Salb, Zachary Murry, Pro Hac Vice, Lippman Semsker & Salb, LLC, Bethesda, MD, for Plaintiff. Kevin B. Bedell, Greenberg Traurig LLP, McLean, VA, for Defendants. Facciola, John M., United States Magistrate Judge MEMORANDUM ORDER *1 Now pending before this Court is the defendants’ Motion to Compel the Deposition of Andrei Smith and for Sanctions [#77] (“MTC”). Plaintiff brought this suit initially against his former employer, Café Asia, alleging violations of the D.C. Human Rights Act. Plaintiff was deposed in this case in 2007, but amended his complaint in February of 2009 to name several individual defendants. The individual defendants represented to the plaintiff and the Court that they would seek to depose the plaintiff. The parties began a series of discussions regarding deposition scheduling in May 2009. Defendants claim that the parties came to a written agreement, and in support cite a letter dated May 15, 2009 sent from defendants’ counsel to plaintiff’s counsel that purportedly incorporates the terms of an oral agreement between the parties. See Exh. 4 to MTC. Defendants insist that the plaintiff agreed to submit to a re-deposition on June 4, 2009 with no limitations on its scope other than those imposed by the Federal Rules of Civil Procedure and to bring copies of images that plaintiff had on his cell phone to the deposition. Plaintiff argues that he never intended to submit to an unlimited deposition, but only to a deposition that was limited to issues pertaining to the individual defendants. He further argues that defendants’ request that he produce the images is merely an attempt to avoid my earlier resolution of the controversy where I determined that plaintiff only had to make the phone available for inspection by one attorney for what was then one defendant. Defendants noticed the plaintiff’s deposition for June 4, 2009 on May 21, 2009. Exh. 6 to MTC. The notice was sent by first class mail from California to D.C., and was received by plaintiff’s counsel on May 26, 2009. On May 29, 2009, plaintiff wrote to defendants and stated that defendants would have to seek leave of court to depose the plaintiff. Exh. 7 to MTC. Plaintiff also objected to the request to produce on grounds that it was not timely because it did not allow 30 days and it was in derogation of the Court’s Order. Id. The letter stated that if these situations were not addressed, plaintiff would not appear. Id. On June 2, 2009, defendants responded and noted that counsel for the defendants would be unavailable on June 4, 2009 due to a family emergency and asked whether plaintiff would consent to the deposition on the 10th or would continue to require leave of court. Exh. 8 to MTC. Defendants also expressed surprise that plaintiff objected to the request to produce the images and insisted that the parties had already agreed that defendants could question plaintiff about the images and that they would be brought to the deposition. Id. Three other events were scheduled to take place in D.C. around the same time as the plaintiff’s deposition: a status conference on June 9, a 30(b)(6) deposition on June 8, and a deposition of a defendant on June 8. Counsel had attempted to keep all four events temporally close because defendants’ counsel is based in Southern California. Defendants moved for an extension of the discovery deadline and Judge Roberts thus postponed the post-discovery status conference that had been scheduled for June 9. In light of that and because plaintiff’s counsel was not available on June 10 for plaintiff’s deposition, plaintiff’s counsel sought to postpone the other two depositions for a later date. Exh. 9 to MTC. The two depositions ultimately went forward, however. *2 On June 10, defendants’ counsel wrote to plaintiff and apparently there remained some confusion about whether plaintiff was willing to agree to be re-deposed or whether defendants would be required to seek leave of court. Exh. 10 to MTC. Defendants also stated their position that the scope of the deposition should not be limited by anything other than the Federal Rules. Id. Finally, defendants expressed their intent to file a motion for sanctions for plaintiff’s “unilateral decision to cancel” his deposition unless plaintiff agreed to share the costs of defendants’ counsel’s travel from California for a second trip to take plaintiff’s deposition. Id. Plaintiff responded that he would agree to appear for the deposition, but only if its scope was limited to issues relevant to the individual defendants. Exh. 11 to MTC at 1. Plaintiff also argued that it was defendants, not plaintiff, who cancelled the deposition on June 4, 2009. Id.at 2. Plaintiff again objected to producing the images on the cell phone, and finally argued that he is not obligated to pay for travel expenses just because defendants chose to retain counsel who lives 3,000 miles away from the locus of the case. Id. at 3. I. Scope of the deposition It appears that plaintiff has no objection to appearing for a deposition and so I will permit the defendants leave to re-depose him. However, I agree with the plaintiff that there is no demonstrated need to re-open all issues that are relevant in this litigation at the deposition. While I appreciate that there are newly named parties in this case who deserve the opportunity to defend themselves, the defendants have not presented any evidence that their earlier examination was somehow an inadequate or incomplete examination of the issues that were raised at that time. It does not appear that there is any new evidence that has come to light regarding the issues that the defendants claim they must examine the plaintiff on—namely, his allegedly diligent note taking, his work ethic or his discrimination claims against Café Asia. While I appreciate that there are likely new areas of questioning that have not been explored previously that are now important because of the inclusion of the individual defendants, it is equally true that there will be several issues that will overlap. I see no reason to permit defendants to take another crack at the plaintiff on issues on which they have already fully examined him. Thus, I will limit the scope of the plaintiff’s re-deposition to issues that were not and could not have been addressed at his initial deposition. See United States v. Phillip Morris USA Inc., No. 99–CV–2496, 2004 WL 5643766, at *1 n.1 (D.D.C. July 22, 2004) (“Having been given this opportunity defendants conducted Dr. Huber’s deposition in a manner and means which they deemed appropriate, and as such this Court finds that the defendants are not entitled to re-depose Dr. Huber concerning any matters which could have been addressed at the time of his deposition or at any time during the course of the Texas tobacco litigation.”) (emphasis in original); Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 127 F. Supp. 2d 228, 231 n.6 (D.D.C. 2000) (“Although Ms. Means has already been deposed once in this matter, the Court finds that a second deposition is not duplicative because the first deposition was taken four months before the existence of the minority donor list was known. Although the plaintiff may thus re-depose Ms. Means, it must limit its questioning to malfeasance during the first search that was not covered during the first deposition.”); see also Alexander v. FBI, 186 F.R.D. 170, 179 (D.D.C. 1999) (limiting questions at second deposition to those compelled by the court and “those reasonably related to the subject matter these questions involve.”; “second bite at the apple” not permitted). I expect the questioning will be limited primarily to the specific allegations that the plaintiff raises against the individual defendants. II. Images *3 In my earlier Opinion, Smith v. Café Asia, 246 F.R.D. 19 (D.D.C. 2008), I considered the defendants’ request that the plaintiff be required to produce images that were kept on the plaintiff’s cell phone. Because of the sensitive nature of the images, I concluded that the plaintiff did not have to produce them to the defendants—at least until such time as Judge Robertson had occasion to rule on their admissibility at trial—but instead it would be sufficient for the plaintiff to permit one attorney from the defendants’ team to inspect the images. Id. at 20–21. I struck this balance to protect the plaintiff’s privacy while also “permitting defendant access to the sensitive images only so far as necessary to fully inform its discovery and trial preparation.” Id. at 22. To the extent that the defendants’ deposition notice requests plaintiff to produce the images, the request directly contradicts my ruling. SeeExh. 6 to MTC at 2 (“Defendant hereby requests that the deponent ... produce the following documents, records or other materials ... All photographs stored on your cellular telephone that you showed, forwarded, or enabled access to any of your co-workers at Café Asia during your employment at Café Asia.”). But, had defendants asked plaintiff to make the images available for inspection by the attorney that defendants have chosen as the individual who may view the images, that request would be permissible under my Order, provided the reason for the request is to facilitate discovery or argument about the photographs’ admissibility. I will not opine at this time as to whether my discussion of the appropriate scope of the deposition renders the request for the images moot. But, provided that defendants, in good faith compliance with this opinion, express to plaintiff that they need access to the images to conduct the deposition, then plaintiff shall bring the images with him. If, under the restraints I have imposed in this Opinion, examination as to the images is legitimate, inquiry pertaining to them will be permitted. But, upon its conclusion the portion of the transcript pertaining to the images will be sealed, pending my further order, and the images will be returned to plaintiff with the obligation to continue to preserve them. III. Sanctions Both parties seek recovery of expenses incurred in filing or opposing this motion under Federal Rule of Civil Procedure 37(a)(5). I have granted this motion in part and denied it in part, which alone should suggest that neither party advanced a wholly unjustified position. In this circumstance, I think it best for the parties to bear their own costs. Defendants also seek $7,500 in sanctions for what they argue was plaintiff’s failure to appear for his deposition. The figure is comprised of approximately eight hours of travel time at $430 per hour, a $500 plane ticket, and two nights in a hotel. Leaving aside the very open question of whether these sorts of expenses are even compensable, defendants have not satisfied me that plaintiff failed to appear for his deposition. The correspondence attached to the parties’ filings suggests that (1) the parties agreed the deposition should take place on June 4, (2) defendants confirmed their understanding of the agreement in writing, (3) six days after sending the letter, defendants sent a notice of deposition that plaintiff believed was beyond the agreement, (4) plaintiff promptly objected and notified counsel that his client would not appear unless the issues were resolved, and (5) an unexpected obligation rendered defendants unavailable on June 4. Under these circumstances, both parties can be said to have cancelled the deposition for June 4. Defendants argue that the deposition should have been rescheduled to June 9 or 10 so that defendants’ counsel would not have to make a second trip from California to D.C. The fact that no agreeable time could be reached does not mean that plaintiff failed to appear—after the June 4 deposition was cancelled, there was no deposition scheduled to appear for. And, while it may be a source of frustration to break the depositions into two trips, plaintiff is no more required to schedule depositions together so that counsel can minimize travel time than defendants are required to use local counsel rather than an attorney who lives in California. Further, plaintiff suggested to defendants after the status conference was cancelled that the depositions set for June 8 could be re-set as well, meaning that, had the parties worked together, they probably could have rescheduled all the depositions to be taken during one trip. *4 As I do not find that plaintiff failed to appear for his deposition, I will not order sanctions. IV. Conclusion For the reasons stated herein, it is, hereby, ORDERED that plaintiff Andrei Smith shall be made available for a second deposition. It is further, hereby, ORDERED that such deposition shall be limited in scope to areas of inquiry that were not and could not have been explored at Smith’s first deposition. It is, further, hereby, ORDERED that plaintiff shall bring copies of the images on plaintiff’s cell phone to the deposition if defendants so request in light of this Order. Finally, it is, hereby, ORDERED that both parties’ requests for sanctions are denied. SO ORDERED.