*1 On October 7, 2020, Plaintiff M.H, a minor by and through his guardian ad litem Nakitta Yuong, (“Plaintiff”) filed a Motion to Compel Subsequent Deposition of Defendant Carranza and Request for Sanctions (“Motion”) seeking an order (1) requiring defendant Carranza to appear for a second deposition; (2) finding the Officer Involved Shooting (“OIS”) Report is not Confidential pursuant to the terms of the parties' Stipulated Protective Order; and (3) granting Plaintiff monetary sanctions pursuant to Federal Rules of Civil Procedure 30 and 37. ECF Docket No. (“Dkt.”) 57.

As an initial matter, having reviewed the portions of the transcript of the deposition of defendant Carranza submitted by both parties and the papers filed in connection with this Motion, the Court finds the behavior by counsel for both parties unreasonable, inappropriate, and unbecoming of officers of the court. It is disappointing to see so much attention focused on spewing vitriol at the other side and so little focused on the merits of and relevance of the discovery sought. This Court further admonishes counsel that if there are further accusations of improper, unprofessional conduct regarding discovery in this action, this Court will set a hearing and impose sanctions for improper, unprofessional conduct or false accusations of such conduct. See E & J Gallo Winery v. Encana Energy Servs., Inc., No. CV-F-03-5412 AWI (LJO), 2005 WL 6408198, at *3 (E.D. Cal. July 5, 2005); see also FED. R. CIV. P. 30(d)(2); 28 U.S.C. § 1927.

Regarding the merits of Plaintiff's Motion, for the reasons set forth below, Plaintiff's Motion is GRANTED IN PART and DENIED IN PART.

I. PROCEDURAL HISTORY

On December 4, 2019, Plaintiff filed a Complaint against defendants City of San Bernardino, County of San Bernardino,[1] and Does 1-50 in San Bernardino County Superior Court. Dkt. 1-1. Plaintiff seeks monetary damages in connection with the officer-involved fatal shooting of Mr. Sokhom Hon (“Decedent”) on or around March 10, 2019. Id.

On February 5, 2020, defendant City of San Bernardino removed the action to this Court. Dkt. 1.

On April 13, 2020, the Court issued the civil trial scheduling order requiring amended pleadings to be filed by July 13, 2020 and setting a discovery cut-off of November 30, 2020 and a jury trial for April 13, 2021. Dkt. 17.

On May 4, 2020, the parties filed a proposed Stipulated Protective Order. Dkt. 24. That same day, the Court approved the Protective Order. Dkt. 25.

On June 29, 2020, defendant City of San Bernardino responded to Plaintiff's Request for Production No. 25 seeking all documents relating to officer involved shooting incidents by any San Bernardino Police Department police officer since 2009. Dkt. 58-7, Declaration of Steve Rothans (“Rothans Decl.”), ¶¶ 3, 14, Ex. 8. As part of its response, defendant City of San Bernardino stated: “this responding defendant is withholding reports pertaining to two officer-involved shootings that occurred during that time period, because a criminal prosecution pertaining that incident is pending and disclosure of the investigative materials in this civil lawsuit may jeopardize that criminal prosecution.” Id. Specifically, one of the reports being withheld was in connection with People v. Jorge Pelayo, Jr., Case No. FSB18001101. Rothans Decl., ¶ 3.

*2 On July 30, 2020, Plaintiff served a notice of deposition of officer Paul Carranza to occur on August 20, 2020 via Zoom and a request for production of documents at the time of the deposition. Rothans Decl, ¶ 15, Ex. 9.

On July 31, 2020, Plaintiff filed a First Amended Complaint (“FAC”) substituting the doe defendants with Officers Kerie Brown, Paul Carranza, and Joaquin Larios, and Sergeant Chris Johnson (collectively with City of San Bernardino, “Defendants”). Dkt. 37.

On August 14, 2020, Defendants filed an Answer to the FAC. Dkt. 47.

On August 20, 2020, Plaintiff took the deposition of defendant Carranza via Zoom. Dkt. 58-1, Declaration of Yana G. Henricks (“Henricks Decl.”), ¶¶ 9, 26, Ex. 1, portions of deposition of defendant Carranza (“Carranza Depo”); Rothans Decl., Ex. 5, additional portions of Carranza Depo.

On August 26, 2020, Plaintiff's counsel sent defendant's counsel meet and confer letters regarding the upcoming depositions of defendants Johnson, Larios, and Brown, and a possible motion to compel another deposition of defendant Carranza. Henricks Decl., ¶¶ 35, 36, Exs. 2, 3. Defendants' counsel responded to the meet and confer letters the same day. Id., ¶ 37, Ex. 4.

On August 27, 2020, Plaintiff took the deposition of defendant Johnson. Henricks Decl., ¶ 31. During the deposition of defendant Johnson, Defendants' counsel requested the OIS Report and related testimony be designated confidential. Id., ¶ 32. The parties agreed to meet and confer regarding the confidentiality of the OIS Report off the record after the depositions of defendants Johnson, Larios, and Brown. Id.

On August 28, 2020, Plaintiff took the deposition of defendant Larios. Id., ¶ 31. During the deposition of defendant Larios, Defendants' counsel requested the OIS Report and related testimony be designated confidential. Id., ¶ 32.

On September 1, 2020, Plaintiff took the deposition of defendant Brown. Id., ¶ 31. According to Plaintiff's counsel, Defendants' counsel did not designate the OIS Report as confidential on the record. Id., ¶ 32.

On September 23, 2020, counsel for both parties met and conferred via telephone, but were unable to resolve their dispute regarding a subsequent deposition of defendant Carranza and the confidentiality designation of the OIS Report. Id., ¶ 39.

On October 7, 2020, Plaintiff filed the instant Motion along with a Joint Stipulation pursuant to Local Rule 37-2 seeking an order (1) requiring defendant Carranza to appear for a second deposition; (2) finding the OIS Report is not Confidential pursuant to the terms of the parties' Stipulated Protective Order; and (3) granting Plaintiff monetary sanctions pursuant to Federal Rules of Civil Procedure 30 and 37. Dkt. 57, Mot.; Dkt. 58, JS. Specifically, Plaintiff seeks to depose defendant Carranza regarding the following:

Dkt. 57-1, proposed order.

On October 29, 2020, Defendants filed an “Update Re: Plaintiff's Motion to Compel Subsequent Deposition of Defendant Carranza, Deny Confidential Designation of Officer Involved Shooting Report”, advising the Court that the criminal action People v. Jorge Pelayo, Jr., San Bernardino County Superior Court case no. FSB18001101, has been resolved and Mr. Pelayo has been convicted. Dkt. 60. On November 4, 2020, Plaintiff filed a Supplemental Brief clarifying that Defendants' Update does not render any portion of the Motion moot. Dkt. 62.

*3 The matter thus stands submitted.

II. DEFENDANT CARRANZA DEPOSITION

A. APPLICABLE LAW

Federal Rule of Civil Procedure 26(b)(1) provides that parties may obtain discovery regarding:

FED. R. CIV. P. 26(b)(1). Relevant information “need not be admissible in evidence to be discoverable.” Id. A court “must limit the frequency or extent of discovery otherwise allowed” if “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” FED. R. CIV. P. 26(b)(2)(C).

“A party seeking discovery may move for an order compelling an answer ... if ... a deponent fails to answer a question asked under Rule 30 or 31[.]” FED. R. CIV. P. 37(a)(3)(B)(i). “A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).” FED. R. CIV. P. 30(c)(2).

B. DISCUSSION

To the extent Plaintiff seeks to reopen defendant Carranza's deposition in order to follow up on unspecified topics on the grounds Defendants' counsel unreasonably delayed or frustrated the deposition, Plaintiff's Motion is DENIED. Plaintiff's counsel unilaterally chose not to use the approximately one hour of defendant Carranza's deposition that remained when the deposition terminated. Moreover, the Court finds the technical issues experienced as a result of the deposition occurring via remote videoconference due to the COVID-19 concerns were not Defendants' fault. The Court is sensitive to the fact that attorneys throughout the country are having to quickly adjust to the realities of videoconference depositions in light of the COVID-19 pandemic. It is apparent here that counsel failed to work together in advance of the deposition to make sure all the exhibits, particularly the extremely large video files, would be available for use and viewing by the witness, court reporter, and videographer.

Here, there was no court ordered limitation and no motion to terminate the deposition of defendant Carranza pursuant to Federal Rule of Civil Procedure 30(d)(3). Accordingly, the only question is whether Defendants' counsel's instructions not to answer were necessary to preserve a privilege. Specifically, the Court will now consider whether Defendants' counsel improperly instructed defendant Carranza not to answer questions regarding (a) prior and subsequent use of force incidents, and (b) text messages with co-defendants.

1. Prior and Subsequent Use of Force Incidents

*4 During defendant Carranza's deposition, Plaintiff's counsel asked questions regarding (1) an OIS incident approximately one year before the incident in this case where defendant Carranza shot Jorge Pelayo and (2) a use of force incident approximately five days after the incident in this case involving Vassie Washington, Lashonda Siglar, and Sonya Manning. Carranza Depo 84:11–86:3, 86:17–88:2, 90:2–91:11, 222:8–225:11, 226:23–227:13. In Plaintiff's Supplemental Brief, Plaintiff now seeks to inquire regarding a third incident involving use of force against two suspects on or about August 25, 2018 (the “Musante incident”). Dkt. 62 at 2.

a. Pelayo Incident

At defendant Carranza's deposition in response to questions regarding the Pelayo incident, Defendants' counsel stated the following objections and instructed defendant Carranza not to answer any questions involving the incident.

Carranza Depo 86:17–87:13.

In support of Defendants' opposition to the Motion, as set forth in the Joint Stipulation, Defendants submit the declaration of San Bernardino Police Department Detective Joshua Cunningham. Dkt. 58-18, Declaration of Joshua Cunningham (“Cunningham Decl.”). Detective Cunningham explains defendant Carranza is a witness in the criminal case People v. Jorge Pelayo, Jr., Case No. FSB18001101 and allowing defendant Carranza to testify about the criminal case in a civil lawsuit, where the scope of discovery is much broader than in a criminal prosecution “would provide the criminal defendant with free discovery and information that [he] would not otherwise be entitled to in the absence of this civil lawsuit.” Id., ¶¶ 3-4.

In Defendants' Update, however, Defendants state the criminal case against Mr. Pelayo has been resolved and Mr. Pelayo has been convicted. Dkt. 60. Defendants, therefore, concede the Pelayo incident is no longer protected from disclosure by the official information privilege, but argue the Court should, nevertheless, deny a second deposition because “[P]laintiff's counsel unilaterally terminated the deposition when the witness and [Defendants'] counsel were prepared to stay [in] [Boise, Idaho] to complete the deposition.” Dkt. 60 at 3.

“Federal common law recognizes a qualified privilege for official information.” Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990) (citing Kerr v. U.S. Dist. Ct. for N. Dist. of Cal., 511 F.2d 192, 198 (9th Cir. 1975), aff'd, 426 U.S. 394 (1976)). The discoverability of official documents should be determined under the “balancing approach that is moderately pre-weighted in favor of disclosure.” Kelly v. City of San Jose, 114 F.R.D. 653, 661 (N.D. Cal. 1987). The party asserting the privilege must properly invoke the privilege by making a “substantial threshold showing.” Id. at 669.

*5 Here, in light of the criminal prosecution that was pending at the time of defendant Carranza's deposition (and at the time the instant Motion was filed), the Court finds Defendants' counsel properly instructed defendant Carranza not to answer questions regarding the Pelayo incident in order to preserve the privilege. Nevertheless, because the official information privilege is no longer applicable and in light of the relevance of the Pelayo incident to Plaintiff's claims in this action, the Court will permit Plaintiff to take a second deposition of defendant Carranza at Plaintiff's expense. This deposition may be designated confidential by Defendants pursuant to the terms of the Protective Order already issued in this action. Defendants' objections on state law grounds are OVERRULED. Miller v. Pancucci, 141 F.R.D. 292, 298 (C.D. Cal. 1992) (holding “federal law controls on issues of privilege” in an action brought pursuant to Section 1983, even where plaintiffs also allege state law violations under the court's supplemental jurisdiction) (citing Kerr, 511 F.2d at 197, Kelly, 114 F.R.D. at 656, and Youngblood v. Gates, 112 F.R.D. 342, 344 (C.D. Cal. 1985)).

b. Washington, Siglar, and Manning Incident

At defendant Carranza's deposition in response to questions regarding the incident with Washington, Siglar, and Manning, Defendants' counsel admitted he was “not familiar with the incident,” Carranza Depo 223:8–21, but instructed defendant Carranza not to answer and objected to the line of questioning on the grounds (a) “the subject incident is not relevant to the claims or defenses in this case,” (b) it is “not proportionate to the needs of the litigation,” (c) it is “protected by the official information privilege”; and (d) because of the state torts, it is also protected by “[California] Evidence Code 1043, 1045, et seq.” and “[California] Penal Code 832.7, et seq.” Carranza Depo 84:11–85:1, 222:12–223:2, 226:16–227:10. Nevertheless, defendant Carranza stated he did not recall the incident. Id. at 225:16–226:1, 226:16–21.

Defendants' opposition, as set forth in the Joint Stipulation, fails to make any effort to justify instructing defendant Carranza not to testify regarding the Washington, Siglar, and Manning incident. See JS at 33–36. Defendants merely argue defendant Carranza testified he did not recall the incident, and therefore, requiring him to appear for a second deposition would be futile. Id.

Here, Defendants' counsel's instruction not to answer was not proper, and the Court is shocked Defendants' counsel would so instruct his client despite counsel's admission he was unfamiliar with the incident. The incident that occurred only five days after the OIS incident in this case could be relevant to Plaintiff's Monell[2] claim for failure to train. Defendant does not dispute the relevance of the incident in the opposition to the Motion and fails to support the assertion of official information privilege with a declaration. Dkt. 58 at 36; see, e.g., Kelly, 114 F.R.D at 669 (finding a party asserting the official information privilege must file an objection and make a “substantial threshold showing” by submitting a declaration or affidavit from a responsible official with personal knowledge of the matters attested to by the official). Defendants' objections on state law grounds are equally meritless. See Miller, 141 F.R.D. at 298 (citing Kerr, 511 F.2d at 197, Kelly, 114 F.R.D. at 656, and Youngblood, 112 F.R.D. at 344).

Nevertheless, it appears Plaintiff's counsel was eventually permitted to ask questions regarding the incident and defendant Carranza consistently stated he did not recall the incident despite being shown the police report. Carranza Depo 228:8–230:12. Plaintiff does not set forth any additional areas of testimony he was prevented from exploring regarding this incident. Therefore, it appears permitting Plaintiff to depose defendant Carranza a second time regarding this incident would be futile.

c. Musante Incident

*6 Regarding the Musante incident, Plaintiff's counsel failed to ask any questions regarding this incident at the deposition despite having an hour remaining in which to do so. The Court, therefore, declines to permit Plaintiff's counsel a second bite at the apple.

2. Text Messages with Co-Defendants

At defendant Carranza's deposition, Plaintiff's counsel asked questions regarding the extent of communications between the co-defendants and whether they had communicated via phone, email, or text regarding the incident at issue in this action. Defendants' counsel instructed defendant Carranza not to answer questions regarding his or defendant Larios' cell phone numbers, Carranza Depo 25:8–11; 38:7–17, and the content or number of text messages between defendants Carranza and Larios, id. at 39:8–41:8. Defendants' counsel objected to such questions on the grounds they are not relevant to the claims or defenses in this action, are not proportional to the needs of the litigation, and invade the officers' privacy rights. Id. at 25:8–11; 38:7–17; 39:8–41:8. While Plaintiff's counsel did not specifically ask for defendant Brown's cell phone number or the content of text messages with defendant Brown, it is clear she assumed such questions would be met with the same objections. See 50:16–17, 51:14–21.

The Court finds Plaintiff's counsel's questions regarding the extent of the relationship between the co-defendants as well as communications directly relating to the incident are relevant to bias and credibility and therefore relevant to Plaintiff's claims. FED. R. CIV. P. 26(b)(1). In addition, any potential privacy concerns are sufficiently addressed by the Protective Order already issued in this action. Soto v. City of Concord, 162 F.R.D. 603, 616 (N.D. Cal. 1995). Hence, Defendants' counsel's instructions not to answer were improper.

When asked about the production of documents, defendant Carranza stated he did not bring any documents to the deposition in response to the request in the Notice of Deposition seeking all “communications with any person related to the incident giving rise to this lawsuit.” Carranza Depo 43:17–44:3. In response to a question asking whether defendant Carranza had ever “communicated” with defendant Larios about the incident, defendant Carranza said, “Other than what was spoken about in front of our attorney, I have not spoken to Office Larios about the incident.” Id. at 44:8–16. When asked what type of text message communications he had with defendant Brown and whether they were “social”, defendant Carranza stated he could not recall. Id. at 51:8–21. It therefore appeared at the time of the deposition that defendant Carranza had not conducted any search for responsive communications with the co-defendants.

In her declaration in support of the Motion, however, Plaintiff's counsel states that at their depositions, both defendants Larios and Brown testified they “had texted Carranza in relation to the shooting of decedent.” Henricks Decl., ¶ 14. In Defendants' counsel's declaration in support of the opposition, Defendants' counsel explains: “Officer Joaquin Larios, Officer Ke[r]rie Brown, and Sergeant Johnson all testified at their depositions that they never spoke with Officer Carranza via text, email, or phone call regarding the shooting that gives rise to this case. The Officers only testified that they texted Officer Carranza wishing him well and letting him know he was in their thoughts and prayers following the officer-involved shooting. The extent of the Officers text conversation did not reach beyond that.” Rothans Decl., ¶ 9. Neither party has produced the relevant portions of the co-defendants' depositions. Nevertheless, the Court is not impressed with Defendants' counsel's attempts to distinguish whether wishing defendant Carranza well following the incident should be considered a communication “related” to the incident. Such communications are clearly relevant to bias and credibility and relate to the incident – even if the parties did not discuss the shooting itself.

*7 Hence, Plaintiff's Motion to compel a second deposition of defendant Carranza to explore the relationship and extent of communications between defendant Carranza and his co-defendants is GRANTED. In addition, consistent with the discussion above, defendant Carranza shall produce any documents responsive to the original request for documents attached to the Notice of Deposition, including text messages.

III. CONFIDENTIALITY OF OIS REPORT

A. APPLICABLE LAW

Federal Rule of Civil Procedure 26(c) provides, in relevant part:

When determining whether and to what extent information may be shielded from public view, courts distinguish between materials produced during discovery but not filed with the court versus materials attached to “judicial records.” United States ex rel. Brown v. Celgene Corp., No. CV 10-3165 GHK (SS), 2016 WL 6542729, at *3–4 (C.D. Cal. Mar. 14, 2016). In the case of judicial records, courts further distinguish between evidence attached to non-dispositive motions and dispositive motions. The Ninth Circuit has noted that “Rule 26(c) gives the district court much flexibility in balancing and protecting the interests of private parties” when crafting an appropriate protective order to govern discovery. Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006).

With respect to information obtained through court-sanctioned discovery that has yet not been “admitted” in a judicial proceeding, the Supreme Court has expressly found that where a “protective order is entered on a showing of good cause as required by Rule 26(c), is limited to the context of pretrial civil discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 37 (1984). According to the Seattle Times Co. Court, protective orders not only protect a private party's interests, but also further a “substantial government interest” because discovery permitted by the Federal Rules “has a significant potential for abuse,” which the government “has a substantial interest in preventing.” Id. at 35; see Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092 (9th Cir. 2016) (citing with approval Anderson v. Cryovac, Inc., 805 F.2d 1, 13 (1st Cir. 1986), for the proposition that “[t]here is no tradition of public access to discovery, and requiring a trial court to scrutinize carefully public claims of access would be incongruous with the goals of the discovery process”).

*8 The Ninth Circuit instructs that a court “considering a motion for a continuation of the protective order must proceed in two steps.” In the Matter of Roman Cath. Archbishop of Portland in Oregon (Father M.), 661 F.3d 417, 424 (9th Cir. 2011). The court must first determine whether “particularized harm will result from disclosure of information to the public,” and if the court concludes that such harm will result from disclosure of the discovery documents, then it must proceed to balance “the public and private interests to decide whether [maintaining] a protective order is necessary.” Id. Factors a court may consider in balancing those interests include:

Id. at 424 n.5 (quoting Glenmede Tr. Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995)).

B. ANALYSIS

As an initial matter, the Court finds Defendants did not waive the confidentiality of the OIS Report by failing to designate it as confidential at defendant Brown's deposition. Defendants had designated the same OIS Report as confidential at the depositions of defendants Larios and Johnson only a few days before Brown's deposition, and the parties had agreed to continue to meet and confer regarding the confidentiality of the OIS Report after the conclusion of Brown's deposition. Plaintiff's apparent attempt to mislead Defendants into waiving confidentiality is not well taken.

Moreover, for the reasons discussed below, there is good cause to find the OIS Report should remain confidential pursuant to the terms of the Protective Order.

First, the parties entered into a valid Protective Order, in which they both agreed good cause existed for designating the OIS Report confidential. See dkt. 25 at 2 (“The SBPD's investigative report may contain police reports, witness statements, reports of evidence analysis, records of Decedent Hon, as well as information about individuals who are not parties to this litigation, among other things.”). Particularly in light of the information contained in the OIS Report about individuals who are not parties to this litigation, the Court finds “particularized harm will result from disclosure of information to the public.” Father M., 661 F.3d at 424.

Second, the Court finds there is no proper purpose or reason why the OIS Report should be de-designated at this time. While relevance to the causes of action was the basis for requiring the document to be produced, it does not justify lifting the confidentiality designation. Additionally, the OIS Report does not need to satisfy the requirements of the official information privilege to be designated confidential under the parties' Protective Order. Moreover, no motions have been filed requiring the OIS Report to be filed on the record at this time. See Kamakana,447 F.3d at 1180 (noting there is a strong presumption of access to judicial records - which unlike non-dispositive pleadings that are generally only tangentially related to the underlying cause of action, and discovery which is not filed and part of the judicial record at all - applies fully to dispositive pleadings that resolve a dispute on the merits).

*9 Third, both parties have access to the OIS Report. Thus, releasing the information will not promote fairness or efficiency in the current action, as both parties already have access to the information. See United States ex rel. Brown, 2016 WL 6542729, at *7 (holding “because all parties to the litigation are in possession of the challenged materials, whether the sharing of information among litigants will promote fairness and efficiency is not at issue” (internal quotations omitted)).

Hence, in light of these considerations, the Court declines to lift the Protective Order and, thus, DENIES Plaintiffs' Motion challenging the confidentiality designation of the OIS Report without prejudice.

IV. EXPENSES

A. APPLICABLE LAW

“Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.” 28 U.S.C. § 1927.

In addition, pursuant to Federal Rule of Civil Procedure 30(d), “[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.

Pursuant to Federal Rule of Civil Procedure 37(a)(5)(C),[3] however, if a discovery motion is granted in part and denied in part, “the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” FED. R. CIV. P. 37(a)(5)(C).

B. ANALYSIS

Here, Plaintiff's Motion is granted in part and denied in part as set forth above. In addition, as noted in the Introduction, the Court finds both parties' counsel engaged in improper and unprofessional conduct throughout defendant Carranza's deposition. As discussed above, Defendants' counsel's instructions not to answer were generally inappropriate, particularly in light of the Protective Order already issued in this action. On the other hand, Plaintiff's counsel regularly asked the same question multiple times and asked questions involving incomplete hypotheticals, but then berated defendant Carranza for being unable to respond. See, e.g., Carranza Depo 34:9–35:8, 68:18–72:6, 108:6–110:25, 133:2–4, 134:9–15, 138:7–143:1, 214:5–21. While the Court was particularly offended by Defendants' counsel telling Plaintiff's counsel that she “need[ed] to take [her] medication”, id. at 124:8–9, Plaintiff's counsel then called Defendants' counsel “nasty,” id. at 237:10, and repeatedly accused Defendants' counsel of lying, see, e.g., id. at 237:23–238:5. Plaintiff's counsel then terminated the deposition while Defendants' counsel was attempting to find out whether he had managed to successfully download the video as Plaintiff's counsel had requested. Id. at 242:6–244:20.

In addition, counsel for both parties failed to work together in advance of the deposition to remedy obvious potential technical issues. Plaintiff's counsel's expectation that Defendants' counsel would be able to download the body camera footage during the deposition, while paying sufficient attention to the deposition to interpose objections when necessary, was wholly unreasonable. It, therefore, appears the majority of the actual substance of the instant Motion (as opposed to the portion dedicated to spewing vitriol at the other side), could have been avoided had counsel been more willing to communicate in advance of the deposition.

*10 Hence, Plaintiff's request for an award of sanctions or expenses incurred in preparation of the Motion is DENIED. The Court will consider a separate motion to apportion fees and expenses incurred for the portion of a second deposition of defendant Carranza regarding his communications and relationships with co-defendants. In filing any such motion for expenses, along with any other supporting documents, Plaintiff shall submit a copy of the transcript of the second deposition and shall file it under seal if Defendants request that it be designated confidential pursuant to the Protective Order.

V. ORDER

Accordingly, Plaintiff's Motion is GRANTED IN PART and DENIED IN PART.

Defendant County of San Bernardino was voluntarily dismissed from the action on February 10, 2020. Dkt. 9.

Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978).

Plaintiff also argues sanctions are warranted pursuant to Rule 37(d). JS at 28. Rule 37(d), however, only applies where a party fails to appear at his deposition. FED. R. CIV. P. 37(d)(1)(A)(i) (“The court where the action is pending may, on motion, order sanctions if: (i) a party ... fails, after being served with proper notice, to appear for that person's deposition[.]”).