*1 On February 15, 2019, the Special Master granted Defendants' application to file documents under seal (unredacted motion to compel with joint stipulation, and exhibits 14 and 15) related to a proposed motion to compel new depositions of Named Plaintiffs and for additional relief under Rule 30(d)(2). (Dkt. Nos. 266, 270). And on February 19, 2019, Defendants filed the notice of motion and motion to compel new depositions of Named Plaintiffs and for additional relief under Rule 30(d)(2), a joint stipulation, the supporting declaration of Courtney E. Moran with numerous exhibits (“Moran Declaration” (“Decl.”)), and the opposing declaration of Michael Kaufman. (Dkt. Nos. 271, 271-1, 271-2, 272). On February 28, 2019, the Special Master granted Defendants' application to file under seal a supplemental memorandum (Dkt. Nos. 279-280), and on March 5, 2019, Defendants filed their supplemental memorandum supporting the motion to compel. (Dkt. Nos. 283-284). On March 5, 2019, Plaintiffs filed their supplemental memorandum opposing the motion to compel. (Dkt. No. 285).

On March 12, 2019, Plaintiffs filed a notice of motion and motion for a protective order to limit the time and scope of potential new depositions of Named Plaintiffs, a joint stipulation, and the supporting declaration of Douglas A. Smith with exhibits. (Dkt. No. 286). On March 26, 2019, Plaintiffs filed a supplemental memorandum supporting the motion (Dkt. No. 291), and Defendants filed a supplemental memorandum in opposition to the motion. (Dkt. No. 290).

On April 8, 2019, the Special Master issued a Tentative Order, which was served on the parties. Oral argument was held telephonically before Hon. Rosalyn Chapman, Special Master, on April 10, 2019. Michael Kaufman, Staff Attorney with the ACLU Foundation of Southern California, and Douglas A. Smith, an attorney with Skadden Arps Slate Meagher & Flom LLP, appeared on behalf of Plaintiffs, and Brian Ward, Katherine J. Shinners, and Courtney E. Moran, attorneys with the Office of Immigration Litigation, United States Department of Justice, appeared on behalf of Defendants.

I. Relevant Background.

A. Prior Discovery Orders

On October 15, 2018, the Special Master issued an Order granting, in part, and denying, in part, Defendants' motion to compel responses to Defendants' first sets of interrogatories and document requests (“Discovery Order”). (Dkt. No. 228). In ruling on Defendants' motion, the Special Master determined inter alia that Defendants' interrogatories and document requests relating to Plaintiffs' financial circumstances, true identities and names sought information relevant to the parties' claims and defenses, as well as Plaintiffs' roles as class representatives; but interrogatories seeking information about the Guerra factors of danger to the community and flight risk did not seek relevant information.

Both sides timely filed Objections to the Discovery Order, and on December 6, 2018, District Judge Bernal granted, in part, and overruled, in part, each side's Objections. (Dkt. No. 254). More specifically, Judge Bernal upheld the Special Master's determination that information relating to Plaintiffs' financial circumstances is relevant to Plaintiffs' claims as individuals and Plaintiffs' standing and adequacy as proper class representatives; however, the District Court concluded the discovery should not be used to test the credibility of Plaintiffs. (Id. at 5-7). The District Court also limited discovery of Plaintiffs' financial circumstances to “the period beginning 6 months prior to their detention and ending 6 months after their release from detention.” (Id. at 8). Further, the District Court determined “discovery regarding the financial information of the Named Plaintiffs' dependents and members of their households would not be proportional to the needs of the case.” (Id. at 9). Finally, the District Court found discovery relating to the Guerra factors of danger to the community and flight risk is not relevant, and information about Plaintiffs' aliases and identities and former residences relates to the Guerra factors and, thus, “is neither relevant nor necessary to determine their individual financial circumstances in the relevant time period.” (Id.).

B. Plaintiffs' Depositions

*2 On October 1, 2018, Defendants noticed the depositions of Plaintiffs Cesar Matias (“Matias”) and Xochitl Hernandez (“Hernandez”) for October 23 and October 25, 2018, respectively. Moran Decl. ¶¶ 2-3, Exhs. 1-2. Shortly thereafter, Defendants proposed to postpone the depositions until receipt of Plaintiffs' responses and documents covered by the Discovery Order, and issued an amended notice resetting the depositions for November 15 and November 16, 2018. Id. ¶¶ 7-8, Exhs. 6-7. Plaintiffs advised Defendants those dates would not be good for Michael Kaufman (“Kaufman”), one of their attorneys; thus, on November 13, 2018, Defendants re-noticed the depositions for November 19 and November 20, 2018.[1] Id. ¶¶ 9-10, Exhs. 8-9. However, Plaintiffs also objected to the new dates and on November 15, 2018, counsel met and conferred and agreed to hold the depositions on November 27 and November 28, 2018. Id. ¶ 11, Exh. 10. The interpreter and court reporter scheduled for the November 19, 2018 deposition submitted invoices to Defendants for the cancelled session. Id. ¶¶ 17-18, Exhs. 16-17.

On November 12, 2018, Plaintiffs served Defendants with a Local Rule 37-1 letter advising Defendants they were considering moving for a protective order to inter alia “limit the scope of questioning to only relevant matters” at Plaintiffs' depositions. Id. ¶ 12, Exh. 11. Although counsel for the parties met-and-conferred regarding a protective order, Plaintiffs did not file a motion for a protective order prior to their depositions.

Plaintiff Matias's oral deposition was held on November 27, 2018, and Plaintiff Hernandez's oral deposition was held on November 29, 2018 (collectively, “the initial depositions”), while the parties' Objections to the Discovery Order were pending before the District Judge. Moran Decl. ¶ 15, Exh. 14 (Matias Deposition Transcript); ¶ 16, Exh.15 (Hernandez Deposition Transcript) (Dkt. No. 272-1 & 272-2). A Spanish-language interpreter was present at each deposition to translate questions from English into Spanish and Plaintiffs' responses from Spanish into English. Defendants were represented at both depositions by Brian Ward (“Ward”) and Courtney Moran (“Moran”); Ward examined Matias and Moran examined Hernandez. Plaintiff Matias was defended at his deposition by Douglas A. Smith (“Smith”) and Plaintiff Hernandez was defended at her deposition by Erica Sedler (“Sedler”) and Smith. Matias's deposition lasted approximately four hours and Hernandez's deposition lasted approximately three hours. Plaintiffs did not suspend either deposition to seek judicial intervention.

During Matias' deposition, Plaintiffs' counsel instructed Matias not to answer questions a dozen or more times. Here are a few examples from the Matias Deposition Transcript:

During Hernandez's deposition, Plaintiffs' counsel – often double teaming two attorneys (Sedler and Smith) -- instructed Hernandez not to answer more than a dozen times. Here are a few examples from the Hernandez Deposition Transcript:

II. Discovery Disputes.

A. Defendants' Motion to Compel New Depositions

Defendants seek an order compelling new depositions for Matias and Hernandez, contending they could not fairly examine Plaintiffs due to misconduct by Plaintiffs' counsel, who improperly and repeatedly ordered Plaintiffs not to answer questions and, thus, impeded and disrupted the depositions. Defendants assert that during Matias's four-hour deposition and Hernandez's three-hour deposition, Plaintiffs' counsel objected more than 800 times (in the Hernandez deposition alone, 423 times or more than two objections per minute) and instructed Matias and Hernandez not to answer approximately 50 questions without any valid legal basis. Defendants were precluded from asking follow-up questions to those questions Plaintiffs did not answer. Additionally, Plaintiffs' counsel made numerous speaking objections and statements for the record during both depositions, which disrupted Matias's and Hernandez's examinations, confused the deponents, and encouraged them not to answer questions or to give more favorable responses. Finally, Kaufman acted unprofessionally toward Moran during Hernandez's deposition, personally offending her.

*5 Defendants seek sanctions against Plaintiffs for their counsel's improper and obstructionist conduct, including an order requiring Plaintiffs to pay the costs of the interpreters ($1,404) and court reporters (not established) for Plaintiffs' depositions on November 27 and November 29, 2018, and to pay the costs of the interpreters and court reporters for any new depositions. Additionally, Defendants seek an order requiring Plaintiffs to pay the costs of an interpreter and court reporter for the canceled deposition on November 19, 2018, totaling $1,035.00, and to answer questions except for those implicating privileged information or questions explicitly limited by the Court for any future depositions.

Plaintiffs oppose the motion to compel, asserting their counsel complied with Rule 30(c)(2) when instructing them not to answer questions. Plaintiffs assert Defendants were intentionally attempting to elicit information the Special Master found to be irrelevant in the Discovery Order and information beyond the temporal period the District Court found to be relevant on review of the Discovery Order. By objecting and ordering Matias and Hernandez not to answer certain questions, Plaintiffs also assert that they were assuring their objections to the Discovery Order were neither waived nor mooted. Thus, Defendants have not shown grounds to compel new depositions of Named Plaintiffs. Defendants were not denied a fair opportunity to examine Plaintiffs. In fact, Defendants completed the depositions of Matias and Hernandez long before the 7 hour time-limits; Defendants exhausted the questions they wanted to ask. Defendants have not shown that new depositions are warranted since they have not identified specific relevant questions either Matias or Hernandez failed to answer at his or her deposition. In any event, new depositions of Plaintiffs would not be proportional to the needs of the case and would be cumulative and duplicative.

Plaintiffs also contend there was nothing improper about Plaintiffs' counsel's statements for the record, which did not prevent Defendants from asking questions or the witnesses from answering questions. And, there is no merit to Defendants' claim that Kaufman acted unprofessionally and personally attacked Defendants' counsel, Moran. Thus, Defendants have not shown grounds to sanction Plaintiffs.

Lastly, Plaintiffs note, there is no factual basis for Defendants' claim that they should pay for interpreter and court reporter fees for the canceled deposition set for November 19, 2018. Defendants have not provided any proof of the cancellation deadline. And, in any event, the notice for the deposition was not served reasonably in advance of the deposition, as required under Rule 30(b)(1), since it was served on November 13, 2018 – only four business days prior to the date of the deposition. Further, Defendants had advance knowledge the deposition would not take place, and any failure to timely cancel the interpreter's and court reporter's services was solely Defendants' fault.

Plaintiffs request reasonable expenses under Rule 37(a)(5)(B) for defending against Defendants' meritless motion to compel and for having to bring a cross-motion for a protective order.

B. Plaintiffs' Cross-Motion for a Protective Order

Plaintiffs seek a protective order placing six limitations on any new depositions if Defendants' motion to compel is granted. Plaintiffs seek to limit the length of each deposition to two hours or to have each deposition conducted in writing under Rule 31. Additionally, Plaintiffs request Defendants be precluded from: (1) “asking questions seeking information that the Special Master or Judge Bernal have ordered off-limits”; (2) asking “any questions about documents or interrogatory answers that were unavailable to Defendants during the first depositions”; (3) “re-purs[ing] lines of questioning to which they received answers the first time around”; (4) “pursu[ing] lines of questioning they could have pursued the first time around but did not”; and (5) “asking any questions seeking information outside the time period six months before through six months after the Named Plaintiffs' detentions.” Jt. Stip. at 2:23-4:10.

*6 Defendants oppose Plaintiffs' motion for a protective order on several grounds. First, Defendants assert the motion is not timely; rather, Plaintiffs should have followed the procedures in Rule 30(d)(3) and suspended the initial depositions to seek judicial intervention. Second, Plaintiffs cannot show good cause to justify the issuance of a protective order since they have not shown specific prejudice or harm if the protective order is not granted. Third, Plaintiffs unreasonably delayed responding to Defendants' written discovery, forcing Defendants to depose Matias and Hernandez before receiving Plaintiffs' responses. And in light of the dearth of Plaintiffs' responses to Defendants' written discovery, it is particularly important that Defendants be allowed to examine Plaintiffs on subjects inquired about in the written discovery, as well as Plaintiffs' deficient responses. Most importantly, as set forth in the motion to compel, Defendants did not have a fair opportunity to examine Matias and Hernandez during the initial depositions. For this reason alone, Defendants assert, any new depositions should not preclude matters Defendants' attempted to ascertain previously. Finally, Defendants have the right to depose Plaintiffs as class representatives to determine their adequacy, and such examinations clearly are proportional to the needs of the case, among other things.

DISCUSSION

III. Defendants' Motion to Compel.

A. Legal Standards

Rule 30 provides when oral depositions may be taken with and without leave of court: “A party may, by oral questions, depose any person, including a party, without leave of court....”; however, “[a] party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(1) and (2) ... if the parties have not stipulated to the deposition and ... the deponent has already been deposed in the case....” Fed.R.Civ.P. 30(a)(1), (2)(A). Rule 30 further provides that direct “examination and cross-examination of a deponent shall proceed as they would at trial under the Federal Rules of Evidence except Rules 103 and 615.”[3] Fed.R.Civ.P. 30(c)(1).

Objections during an oral deposition are governed by Rule 30(c)(2):

Fed.R.Civ.P. 30(c)(2) (emphases added). The reasons behind Rule 30(c)(2) are clear:

Adv. Comm. Notes to 1993 Amendment to Rule 30(d) (now Rule 30(c)).

Rule 30(d) addresses the length of depositions, what may occur when a deposition is conducted in a manner that does not comply with the federal rules, and sanctions against persons who violate Rule 30. First, subdivision (1) of Rule 30(d) provides that “[u]nless otherwise stipulated or ordered by the court, a deposition is limited to one day of 7 hours. The court must allow additional time consistent with Rule 26(b)(1) and (2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstances impedes or delays the examination.” Fed.R.Civ.P. 30(d)(1).

Second, subdivision (2) of Rule 30(d) provides that “[t]he court may impose an appropriate sanction – including the reasonable expenses and attorney's fees incurred by any party – on a person who impedes, delays, or frustrates the fair examination of the deponent.” Fed.R.Civ.P. 30(d)(2) (emphasis added).

*7 Third, subdivision (3) of Rule 30(d) provides, in part:

Fed.R.Civ.P. 30(d)(3)(A), (B). And fourth, Rule 30(d) provides that Rule 37(a)(5) applies to the award of expenses for bringing a motion. Fed.R.Civ.P. 30(d)(3)(C).

Under Rule 37(a), a party may move to compel an answer to a deposition question when “a deponent fails to answer a question asked under Rule 30....” Fed.R.Civ.P. 37(a)(3)(B)(i). “[A]n evasive or incomplete ... answer ... must be treated as a failure to ... answer” for purposes of Rule 37(a). Fed.R.Civ.P. 37(a)(4). Rule 37(a)(5) provides for the award of reasonable expenses when a motion to compel is granted:

Fed.R.Civ.P. 37(a)(5)(A) (emphases added).

B. Deposition Conduct

“Depositions are designed to provide ‘meaningful testimony' from the witness. Objections that interfere with this goal frustrate the purpose of a deposition and ‘the entire civil justice system's attempt to find the truth.’ ” Thon v. Transport TFI 11, S.E.C., 2014 WL 4206888, *2 (E.D. Mi. 2014) (quoting United States v. Kattar, 191 F.R.D. 333, 338 (D. N.H. 1999)); see also Bd. of Trustees of Leland Stanford Junior Univ. v. Tyco Int'l Ltd., 253 F.R.D. 524, 526-527 (C.D. Cal. 2008) (“A deposition is meant to be a question-and-answer conversation between the deposing lawyer and the witness. There is no proper need for the witness's own lawyer to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness to formulate answers.” (internal quotation marks and alterations omitted)); Luangisa v. Interface Operations, 2011 WL 6029880, *7 (D. Nev. 2011) (“Deposition testimony should be that of the deponent, not a version edited or glossed by the deponent's lawyer through coaching or speaking objections.”).

“Most depositions are taken without judicial supervision. Witnesses often want to avoid giving answers, and questioning may probe sensitive or emotionally fraught subjects, so unless counsel maintain professional detachment decorum can break down.” Redwood v. Dobson, 476 F.3d 462, 467 (7th Cir. 2007). “It is precisely when animosity runs high that playing by the rules is vital. Rules of legal procedure are designed to defuse, or at least channel into set forms, the heated feelings that accompany much litigation. Because depositions take place in law offices rather than courtrooms, adherence to professional standards is vital, for the judge has no direct means of control.” Id. at 469-470.

*8 As an initial matter, Named Plaintiffs' depositions were not the topics of either the Discovery Order or Judge Bernal's review of the Discovery Order. Neither the Special Master nor the District Court has had an opportunity to consider the scope of the examinations or the questions to be asked during Plaintiffs' depositions. Moreover, Plaintiffs intentionally chose not seek a protective order under Rule 26(c) prior to the initial depositions, despite Plaintiffs' counsel having sent a Local Rule 37-1 letter to opposing counsel and having met-and-conferred about a protective order, based in part on relevancy objections to areas of examination.[4] And finally, Plaintiffs chose not to suspend or terminate either Matias's or Hernandez's initial deposition under Rule 30(d)(3) to obtain judicial intervention or a protective order.

Despite the foregoing undisputed facts, Plaintiffs' counsel instructed both Matias and Hernandez not to answer dozens of questions on relevancy grounds. However, Rule 30(c)(2) does not list relevancy as an exception to the rule that counsel may not instruct a deponent not to answer; it is well-recognized that the federal rules do not provide relevancy as a ground for a deponent not to answer a question. In re Stratosphere Corp. Secur. Litig., 182 F.R.D. 614, 619 (D. Nev. 1998); see also Reed v. Duree, 2018 WL 582442, at *1 (N.D. Cal. 2018) (“[A]n objection as to relevance is not a legitimate reason to instruct a deponent to not answer a question.”); Jackson v. Cty. of San Bernardino, 2016 WL 7495816, at *4 (C.D. Cal. 2016) (“A relevance objection is insufficient basis for instructing a witness not to answer.”).

Although Plaintiffs' counsel cited both relevancy and Rule 30(c)(2) as grounds to instruct Matias and Hernandez not to answer questions, Plaintiffs rely solely on Rule 30(c)(2) in opposing Defendants' motion to compel. The focus of the motion to compel is the last sentence of Rule 30(c)(2). Plaintiffs advance the novel claim that under Rule 30(c)(2), counsel may instruct a deponent not to answer questions to “enforce a limitation ordered by the court” – which, here, is the Discovery Order (wherein the Special Master determined certain interrogatories to be irrelevant). And Plaintiffs advance another novel claim, that they were preserving objections to the Discovery Order pending review before the District Court when instructing deponents not to answer. Defendants disagree, arguing Plaintiffs misapprehend Rule 30(c)(2), which requires that any “limitation ordered by the court” must be a limitation to the deposition itself -- either obtained under Rule 26(c) prior to the deposition or while the deposition is suspended under Rule 30(d)(3) and the court intervenes. In other words, Defendants argue that the second exception in Rule 30(c)(2) refers to a court-ordered limitation on the deposition; whereas, Plaintiffs claim it refers to a court-ordered limitation on any sort of discovery, whether interrogatories, document requests, admissions, or the like.

The Special Master agrees with Defendants. The last sentence in Rule 30(c)(2) recognizes the general rule that a deponent must answer all questions during a deposition and specifically restricts exceptions to the general rule to three explicit circumstances: “A person may instruct a deponent not to answer only when necessary [1] to preserve a privilege, [2] to enforce a limitation ordered by the court, or [3] to present a motion under Rule 30(d)(3).” Fed.R.Civ.P. 30(c)(2). The restriction on when a deponent may be instructed not to answer a question was intended to prevent depositions from being disrupted. See Adv. Comm. Notes to the 1993 Amendments to Rule 30(d) (now Rule 30(c)) (“Directions to a deponent not to answer a question can be even more disruptive than objections.”). The words “only when necessary” as a preface to the three exceptions demonstrates the drafters' intention that under Rule 30(c)(2), counsel generally are restricted from instructing deponents not to answer questions. Here, Plaintiffs' counsel improperly instructed Matias and Hernandez not to answer questions during their depositions. By their improper instructions, Plaintiffs' counsel frustrated and impeded the fair examinations of Named Plaintiffs within the meaning of Rule 30(d)(3).

*9 Although the first and third exceptions in Rule 30(c)(2) allowing counsel to instruct a deponent not to answer are fairly clear (despite disagreements over what constitutes privilege), the parties' dispute shows the second exception, i.e., “to enforce a limitation ordered by the court,” is not particularly clear; it is arguably ambiguous. Often the legislative history of a federal rule, i.e., the advisory committee notes, can assist in resolving an ambiguity. See, e.g., United States v. Vonn, 535 U.S. 55, 64 n. 6 (2002) (“In the absence of clear legislative mandate, the Advisory Committee Notes provide a reliable source of insight into the meaning of a rule....”); Republic of Ecuador v. Mackay, 742 F.3d 860, 865 (9th Cir. 2014) (“As the explanatory notes are contemporaneously drafted by the same entity charged with drafting the rules, they are a particularly reliable indicator of legislative intent.”); United States v. Saeteurm, 504 F.3d 1175, 1180 n. 11(9th Cir. 2007) (“We look to Advisory Committee Notes when interpreting a federal rule for ‘guidance and insight.’ ”).

Here, however, the parties disagree about the applicable legislative history of Rule 30(c)(2). On the one hand, Defendants rely on the Advisory Committee Notes to 2000 Amendments to Rule 30(d) (now Rule 30(c)), which state: “It is intended that the rule apply to any objection to a question or other issue arising during a deposition, and to any limitation imposed by the court in connection with a deposition, which might relate to duration or other matters.” (emphasis added)). On the other hand, Plaintiffs rely on the Advisory Committee Notes to 1993 Amendments to Rule 30(d) (now Rule 30(c)), which state: “The second sentence of new paragraph (1) prohibits such directions [to a deponent not to answer] except in the three circumstances indicated: to claim a privilege or protection against disclosure (e.g., as work product), to enforce a court directive limiting the scope or length of permissible discovery, or to suspend a deposition to enable presentation of a motion under paragraph (3).” (emphasis added).

Applying principles of statutory construction, the Special Master construes the 2000 Advisory Committee Notes as clarification of the 1993 Advisory Committee Notes. In this regard, it is significant that “permissible discovery” is broader than “a deposition,” which is only one form of permissible discovery. After the publication of the 1993 Advisory Committee Notes, it appears the advisory committee became aware that its reference to “permissible discovery” did not accurately reflect the advisory committee's intention or purpose behind the last sentence in Rule 30(c)(2). Thus, the advisory committee in 2000 made clear that the intent or purpose of the rule is a limitation “in connection with a deposition” – a more restrictive exception.

Interpreting the last sentence of Rule 30(c)(2) in this manner complements the other portions of Rule 30(c), which direct counsel to examine a deponent as they would at trial, to concisely without argument note objections on the record and to proceed with the examination, and “only when necessary” to instruct a deponent not to answer. To interpret Rule 30(c)(2) to allow counsel to determine ad hoc when to instruct a deponent not to answer a question based on any sort of discovery ruling unrelated to the deposition would vastly expand the circumstances in which questions would not be answered – contrary to the intent and purpose behind Rule 30. Moreover, it would allow counsel to instruct a witness not to answer a question based on relevancy (as here), which would significantly undermine the well-established rule that relevancy is not a ground to instruct a deponent not to answer a question.

Nevertheless, Plaintiffs' interpretation of Rule 30(c)(2) has some superficial appeal – especially when the district judge is the judge who issued the discovery order.[5] It even has some superficial appeal in our case – since our case is a relatively simple action with two plaintiffs, defendants with a common defense, and only one discovery order that addressed a few discrete issues. But when a federal action involves multiple parties, and the district court has ruled on myriad discovery disputes, as is often the case, it would be extremely difficult, if not impossible, to conduct the deposition of a party or Rule 30(b)(6) witness if counsel could instruct the deponent not to answer a question based on counsel's interpretation of a discovery ruling pertaining to written discovery.

*10 Even our relatively simple case presents the type of pitfalls that stem from interpreting Rule 30(c)(2) as Plaintiffs propose. Let us assume, hypothetically, that under the Special Master's Discovery Order, interrogatories about the Guerra factors were found to be irrelevant and the District Court upon de novo review found the interrogatories sought relevant information. And let us further assume Plaintiffs' depositions were conducted (as they were) between the issuance of the Discovery Order and the District Court's ruling on review, and at the depositions, the deponents were instructed not to answer questions related to the Guerra factors as irrelevant, based on the Discovery Order. With the District Court's subsequent ruling that interrogatories related to the Guerra factors sought relevant information, and the deponents' failure to answer such now-relevant questions at their depositions, the witnesses would necessarily have to be recalled and reexamined – delaying the discovery process.

The foregoing scenario could happen over and over again in any given case, as each new discovery order issued (whether by a Magistrate Judge or Special Master), causing delay and disruption of the deposition process. Interpreting Rule 30(c)(2) to require a judicial limitation related to the deposition, as the Special Master does, would not have the same delaying and disruptive effect on the deposition process. Rather, it encourages a party to seek judicial assistance in advance of the deposition so any limitation obtained from the court, as set forth in a protective order, governs the deposition; thus, assuring an orderly deposition.

Further, the Special Master does not find the few, unreported cases cited by the parties to support their respective interpretations of Rule 30(c)(2) to have any precedential value or to be particularly persuasive. For the most part, the cases are devoid of any substantive analysis or reasoning and appear to be idiosyncratic to the facts of the cases. Nevertheless, the Special Master agrees with the observations by the district court in Kasparov v. Ambit Texas, LLC, 2017 WL 4842350, at *6 (N.D. Tex. 2017) (“Depositions have more flexibility than interrogatories because they permit an attorney to ask follow-up questions based on answers to previous questions or repeat questions if a deponent is being evasive” (internal quotation marks and citation omitted)). Since depositions are distinctly different than written discovery, whether interrogatories, document requests or admissions, different considerations come into play when a court considers whether to impose limitations. For example, the burden of obtaining documents in response to a document request may support, for example, a temporal limitation on a document request, but would not necessarily support a request to limit a deposition question seeking the same information. The differences between written discovery and depositions further undermines Plaintiffs' claim that Rule 30(c)(2) allows counsel to instruct a deponent not to answer a question based on an order regarding written discovery.

For all these reasons, the Special Master finds Plaintiffs' counsel improperly instructed Named Plaintiffs not to answer dozens of questions at the initial depositions and, thus, frustrated and impeded the fair examinations of the deponents within the meaning of Rule 30(d)(3). Obviously, the deponents' failures to answer questions precluded Defendants from asking follow-up questions. Accordingly, Defendants have established good cause to grant their motion to compel new depositions of Named Plaintiffs. See, e.g., Kleppinger v. Texas Dept. of Transp., 283 F.R.D. 330, 333 (S.D. Tex. 2012) (“A] party seeking a court order to extend the duration of the examination must show ‘good cause’ exists to justify such an order.” (citations omitted); Advis. Comm. Note to 2000 Amendment to Rule 30(d) (now Rule 30(c)) (same).

Other grounds also exist to grant Defendants' motion based on Plaintiffs' counsel's conduct during the initial depositions. First, based on an erroneous reading of the Discovery Order, Plaintiffs' counsel directed the deponents not to answer questions about whether they had filed federal tax returns[6] -- although the Discovery Order found such information relevant (but ordered tax returns not to be produced because other discovery would supply the same or similar information). See, e.g., Moran Decl. ¶ 15, Exh. 14, Matias Trans. at 85:18-86:13, 148:19-149:8; id. ¶ 16, Exh. 15, Hernandez Trans. at 129:3-130:3.

*11 Second, Plaintiffs' counsel directed Matias and Hernandez not to answer certain questions regarding their financial circumstances although the Special Master (and subsequently Judge Bernal) found interrogatories regarding Plaintiffs' financial circumstances to be relevant. For example, Plaintiffs' counsel instructed Hernandez not to answer the following questions: “Were you earning money in September 2016?” “Does this form contain accurate information about your financial circumstances in September 2016?” Moran Decl, ¶ 12, Exh. 14, Hernandez Trans. 101:20-25, 104:3-10. Questions about Hernandez's financial circumstances in September 2016 are relevant to Hernandez's claims and come within the one year period surrounding Hernandez's detention (six months prior to detention and six months after release).

Third, Plaintiffs' counsel made numerous, unnecessary speaking objections and statements for the record. See, e.g., Specht v. Google, Inc., 268 F.R.D. 596, 598 (N.D. Ill. 2010) (“Objections that are argumentative or that suggest an answer to a witness are called ‘speaking objections' and are improper under Rule 30(c)(2).”). During the Matias deposition, Plaintiffs' counsel made at least a dozen speaking objections and statements for the record. Similarly, during the Hernandez deposition, Plaintiffs' counsel made at least half a dozen speaking objections and statements for the record. Some of the speaking objections and statements for the record caused Named Plaintiffs to forget the questions, coached Named Plaintiffs on how to answer the questions, or to state they were unable to answer the questions, and so on. See, e.g., In re Stratosphere, 182 F.R.D. at 619; Odone v. Croda Int'l PLC, 170 F.R.D. 66, 68 n. 3 (D. D.C. 1997); American Directory Serv. Agency, Inc. v. Beam, 131 F.R.D. 15, 19 (D. D.C. 1990).

Here are a few examples from the Matias Deposition Transcript:

And here are some additional examples from the Hernandez DepositionTranscript:

In addition, Smith “double-teamed” with Sedler (who was quite capably defending Hernandez on her own) to interject his own statements and objections at the Hernandez deposition:

None of the statements for the record were necessary; they frustrated the deponents' examinations. When interpreters are employed to translate questions and answers during a deposition, it is readily apparent that English is not the deponent's native language. If Plaintiffs' counsel were concerned that either deponent did not understand a question and incorrectly answered it, counsel had the opportunity to cross-examine the deponent to clarify the answer (which Plaintiffs did on some topics).

The Special Master is disappointed by Plaintiffs' counsel's conduct during the initial depositions.[7] Counsel certainly did not comport themselves “as they would at trial.”[8] Since Plaintiffs did not move to suspend the depositions in order to seek judicial intervention under Rule 30(d)(3), any claim that the depositions were being conducted in bad faith or the questions were annoying or oppressive is severely undermined. And even assuming arguendo that a line of questioning was annoying or even oppressive, counsel cannot direct a deponent not to answer a question on those grounds. Cobell v. Norton, 213 F.R.D. 16 (D. D.C. 2003).

Moreover, as noted above, it is undeniable that due to Plaintiffs' refusal to answer questions they should have answered, Defendants were precluded from asking follow-up questions. Defendants represent there are several areas of examination they would like to pursue if their motion to compel is granted, including questions about: Plaintiffs' bond hearings, forms Plaintiffs completed regarding financial information, sources of financial support, Plaintiffs' work experiences or jobs they may have held, and the like. When the fair examination of a deponent has been impeded, as here, Rule 30(b)(1) requires additional time to examine the witness consistent with Rule 26(b)(1) and (b)(2). There is no reason Defendants should not be able to pursue the foregoing lines of inquiry, which are relevant to their defenses and Plaintiffs' claims as individuals and class representatives, as well as have the opportunity to pursue additional areas of inquiry arising since the initial depositions, including questions stemming from Plaintiffs' responses or deficient responses to Defendants' written discovery. It is solely Plaintiffs' counsel's conduct that constitutes grounds for the new depositions.

*13 For these several reasons, the Special Master finds good cause to grant Defendants' motion to compel new depositions of Named Plaintiffs.

C. Sanctions

Rule 30(d)(2), as quoted above, provides for “an appropriate” sanction against the person who impedes or obstructs the deposition.[9] Although the rule does not define what is “an appropriate” sanction, it states an “appropriate sanction” includes but is not limited to reasonable expenses and attorney fees incurred by a party. “Courts have used their discretion [under Rule 30(d)(2)] to fashion a variety of remedies.” GMAC Bank v. HTFC Corp., 248 F.R.D. 182, 199, n. 4 (E.D. Pa. 2008). Nevertheless, “monetary sanctions are the sanctions primarily available” under Rule 30(d)(2). Biovail Labs., Inc. v. Anchen Pharmaceuticals, Inc., 233 F.R.D. 648, 653 (C.D. Cal. 2006) (citing Phinney v. Paulshock, 181 F.R.D. 206 n. 49 (D. N.H. 1998), affirmed by, Phinney v. Wentworth Douglas Hosp., 199 F.3d 1 (1st Cir. 1999).); see also GMAC Bank, 248 F.R.D. at 196 (“The imposition of sanctions under Federal Rule of Civil Procedure 30(d)(2) and 37(a)(5)[ ] does not require a finding of bad faith.”).

Courts awarding monetary sanctions against an attorney for misconduct during a deposition, award sanctions covering the costs of either the initial deposition or the new deposition; not both. In addition to improperly directing Matias and Hernandez not to answer questions, the manner in which Smith, in particular, made numerous, lengthy statements for the record when instructing Matias not to answer and interjected himself into the Hernandez deposition, resulted in the depositions – particularly the Hernandez deposition – being unnecessarily acrimonious and contentious. Sanctions are warranted against Smith personally under Rule 30(d)(2). Biovail Labs., Inc., 233 F.R.D. at 654; Cobell, 213 F.R.D. at 32. Accordingly, Smith shall pay the costs of the interpreters and court reporters at Matias's deposition on November 27, 2018, and Hernandez's deposition on November 29, 2018.

The award of reasonable expenses and attorney fees to a successful moving party is another available monetary sanction. Rule 37(a)(5)(A) provides that the court must require the party or attorney whose deposition conduct necessitated the motion to compel to pay the moving party's reasonable attorney fees unless “the opposing party's ... objection was substantially justified; or ... other circumstances make an award of expenses unjust.” (emphasis added). Although the Special Master does not find Defendants' conduct was substantially justified, she acknowledges the 1993 legislative history may support Plaintiffs' interpretation of Rule 30(c)(2). Thus, the legislative history constitutes “other circumstances” making an award of reasonable expenses and attorney fees unjust under Rule 37(a)(5), and attorney fees shall not be awarded against Plaintiffs or their counsel.

There are no additional grounds to award sanctions against Plaintiffs or their counsel. Although Defendants seek the interpreter's and court reporter's fees for a deposition they noticed for November 19, 2018, and subsequently cancelled, they have not explained (in Moran's declaration or otherwise) why the interpreter's services and court reporter's services were not timely cancelled. It is apparent from the communications between counsel for the parties that there was no agreement to hold any deposition on that date, notice of the deposition was untimely, and Defendants were aware from the start that the deposition likely would not go forward. Thus, Defendants have not met their burden and their request is denied.

*14 Finally, Defendants' request for an order requiring Plaintiffs to answer questions except for those implicating privileged information or questions explicitly limited by the Court for any future depositions is denied. As discussed below, the Special Master's attendance at the new depositions of Named Plaintiffs should assure the depositions comport with the federal rules.

IV. Plaintiffs' Motion for a Protective Order

A. Legal Standards

As the parties know, the scope of discovery in this action is governed by Rule 26(b)(1), which provides that “[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id.

Rule 26(b)(2)(C) provides:

Fed.R.Civ.P. 26(b)(2)(C) (emphases added). Subdivision (iii) is a recasting of most of the factors set forth in Rule 26(b)(1).

Protective orders are governed by Rule 26(c), which provides:

Fed.R.Civ.P. 26(c)(1). “Rule 37(a)(5) applies to the award of expenses.” Fed.R.Civ.P. 26(c)(3).

B. Motion for a Protective Order

In the event new depositions of Matias and Hernandez are ordered, Plaintiffs seek a protective order to preclude Defendants from: (1) “asking questions seeking information that the Special Master or Judge Bernal have ordered off-limits”; (2) asking “any questions about documents or interrogatory answers that were unavailable to Defendants during the first depositions”; (3) “re-purs[ing] lines of questioning to which they received answers the first time around”; (4) “pursu[ing] lines of questioning they could have pursued the first time around but did not”; (5) “asking any questions seeking information outside the time period six months before through six months after the Named Plaintiffs' detentions”; and (6) limiting the new depositions to no more than 2 hours or to being conducted under Rule 31.

*15 Recently, the Ninth Circuit has reiterated the well-established standard for the issuance of protective orders under Rule 26(c):

Ground Zero Center for Non-Violent Action v. United States Dept. of Navy, 860 F.3d 1244, 1260 (9th Cir. 2017); Younger Mfg. Co. v. Kaennon, Inc., 247 F.R.D. 586, 588 (C.D. Cal. 2007).

Here, Plaintiffs do not identify any specific prejudice or harm that will result if the protective order is not granted. Generally, Plaintiffs seek to limit or preclude Defendants from examining Matias and Hernandez regarding information they allege is not relevant to the parties' claims and defenses (as determined in the Discovery Order or by Judge Bernal). Plaintiffs also seek to preclude Defendants from examining Matias and Hernandez on topics stemming from discovery obtained since the initial depositions, topics previously covered at the initial depositions or topics that could have been covered, and topics stemming from events that occurred between the initial and any newly held depositions. Lastly, Plaintiffs also seek to limit the duration of the depositions or to change the deposition format.

By definition, irrelevant questions cannot be either prejudicial or harmful to Plaintiffs since the responsive information simply is not relevant. Moreover, the attendance of the Special Master at the new depositions, as discussed below, will assure that repetitious, irrelevant or personally embarrassing questions will be avoided. As to the proposed limitations on the scope of Defendants' examination, Plaintiffs again do not explain how they are prejudiced or harmed by questions addressing Plaintiffs' responses to discovery (produced after the initial depositions) or why Defendants' examinations of Plaintiffs should be limited to only those topics or subjects covered by the initial depositions when the litigation tactics employed by Plaintiffs' counsel precluded Defendants from fairly examining Plaintiffs at the initial depositions. In other words, Plaintiffs have not shown good cause for a protective order under Rule 26(c) limiting the scope of the examinations at the new depositions.

Plaintiffs also request limitations on the scope of the examinations under Rule 26(b)(2)(C), on the grounds of proportionality and avoidance of cumulative or duplicative discovery. However, since Defendants were prevented from fairly examining Plaintiffs at the initial depositions, Plaintiffs have not explained why new depositions would not be proportional to the needs of this case – a class action – or identified the topics for examination that would be “unreasonably duplicative or cumulative” within the meaning of Rule 26(b)(2)(C)(i). A party has the right to depose an opposing party, and Defendants have the right to examine Matias and Hernandez in their individual capacities and as class representatives. Because of Plaintiffs' counsel's improper conduct, it was difficult, if not impossible, for Defendants to fairly examine Plaintiffs in both capacities, to pursue a thorough yet focused examination of each Plaintiff, and to ask thoughtful follow-up questions. Thus, Plaintiffs have not met their burden under Rule 26(b)(2)(C) to show the need to limit the scope of the examinations at the new depositions.

*16 Nevertheless, it is fair to say, Defendants were able to examine Matias more fully than they were able to examine Hernandez, and this difference should affect the length of the new depositions. Since Matias did answer several questions propounded to him, Defendants should not be able to reexamine Matias as to the exact questions he answered; however, they may ask him follow-up questions to those questions. The Hernandez deposition is a different matter. A review of the deposition transcript shows Hernandez answered very few questions, and it is as reasonable to infer Defendants stopped asking Hernandez questions due to their frustration with Plaintiffs' counsel's litigation tactics, as it is to infer Defendants had completed their examination of Hernandez. Thus, other than the foregoing limitation on Matias' examination, there should be no limitations on Defendants' examinations of Named Plaintiffs.

Lastly, Plaintiffs seek to limit the new depositions to two hours, rather than the usual seven hours, or to written questions under Rule 31, rather than oral depositions under Rule 30. As noted above, Defendants could not fairly examine either Matias or Hernandez due to Plaintiffs' counsel's improper instructions not to answer; thus, Defendants should be given the opportunity to fairly examine both Named Plaintiffs. But, since Defendants will not again ask Matias questions he answered, a fair examination of Matias should take less than a full day. As such, the new or recalled deposition of Matias should be scheduled for a four (4) hours, allowing time for the interpretation. There is no basis, however, to limit the time for Hernandez's deposition; thus, the deposition should be scheduled for a full day or 7 hours.[10]

Counsel for the parties have demonstrated their inability or unwillingness to cooperate with each other – or even to treat each other civilly. Accordingly, it appears prudent for the Special Master to attend the new depositions of Named Plaintiffs, to assure Defendants have the opportunity to fairly examine the witnesses and the depositions comport with the federal rules. Pursuant to Rule 26(b)(2)(C), the parties shall equally bear the costs of the Special Master to attend Named Plaintiffs' new depositions. However, the Special Master will afford Defendants, as the party who's right to fairly examine the deponents was impeded, the opportunity to waive the Special Master's presence, if they choose.

ORDER

1. Defendants' motion to compel new depositions of Plaintiffs Cesar Matias and Xochitl Hernandez is granted. The new or recalled deposition of Cesar Matias shall last no more than a four (4) hours and the new deposition of Xochitl Hernandez shall last a full day or 7 hours.

No later than ten (10) days from the date of entry of this Order, the parties shall agree on the dates for the recalled and new depositions, which shall be held no later than May 15, 2019.[11] If the parties cannot agree on the dates, Defendants shall promptly advise the Special Master, who will then schedule the depositions.

2. Defendants' motion for additional relief under Rule 30(d)(2) is granted, in part, and denied, in part:

3. Plaintiffs' motion for a protective order is denied; however, Plaintiffs' request for limitations under Rule 26(b)(2)(C) is granted, in part, as set forth above by precluding Defendants from reexamining Cesar Matias on questions he answered at the initial deposition and by limiting the time for Cesar Matias' deposition.

4. Plaintiffs' motion for attorney fees is denied.

5. Pursuant to Rule 26(b)(2)(C), the parties shall equally pay the cost of the Special Master (JAMS's fees and the Special Master's fees) to attend the recalled and new depositions of Plaintiffs Cesar Matias and Xochitl Hernandez. However, Defendants shall notify the Special Master, no later than five (5) days from the date of entry of this Order, whether they waive her attendance at either or both of the new depositions by filing a Notice of Waiver or Non-Waiver of Paragraph 5 of the Order. If Defendants waive the Special Master's presence, this Paragraph 5 of this Order shall be considered withdrawn or vacated.

IT IS FURTHER ORDERED that the Case Manager shall promptly file and serve this Order on the parties and the District Court.

By:

Hon. Rosalyn Chapman (Ret.), Special Master

1220059390.13B