O'Callaghan v. U.S. Bank Nat'l Assn.
O'Callaghan v. U.S. Bank Nat'l Assn.
2019 WL 13299498 (D. Or. 2019)
June 27, 2019

You, Youlee Y.,  United States Magistrate Judge

Bad Faith
Sanctions
Cost Recovery
Failure to Produce
Proportionality
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Summary
The court addressed three issues related to the late disclosure of notes, the deposition of Greg Cunningham, and documents regarding Elliot Jaffee and Kathryn Albright. The court granted and denied various requests, but no ESI was discussed.
BRIGID O'CALLAGHAN, Plaintiff,
v.
US BANK NATIONAL ASSOCIATION, Defendant
Case No. 3:17-cv-02039-YY
United States District Court, D. Oregon
Filed June 27, 2019

Counsel

Stephen L. Brischetto, Attorney at Law, Portland, OR, Dezi Rae S. Robb, Law Offices of Stephen L. Brischetto, Portland, OR, for Plaintiff.
Jonathan G. Rue, K&L Gates LLP, Portland, OR, Jennifer Neth Warberg, Littler Mendelson, PC, Portland, OR, for Defendant.
You, Youlee Y., United States Magistrate Judge

ORDER

*1 On June 19, 2019, the parties appeared for a telephone discovery hearing and presented three issues for the court's consideration. Each issue is addressed in turn below.
1. Late Disclosure of Notes
Due to the late disclosure of notes prepared by former US Bank employee Maureen McGovern, plaintiff seeks to reopen the depositions of six witnesses (Harvey, Ellis, Collins, McGovern, Dunn and Croak) and add an additional deposition (Bigelow). Plaintiff also seeks attorney's fees and costs associated with bringing this motion and conducting the additional depositions. Defendant does not object to reopening the depositions of McGovern, Collins, and Dunn, but objects to plaintiff's other requests.
Federal Rule of Civil Procedure 30(a)(2) provides that “[a] party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(2) ... if the parties have not stipulated to the deposition and ... the deposition would result in more than 10 depositions being taken under this rule or Rule 31 by the plaintiffs, or by the defendants, or by the third-party defendants....” Rule 26(b)(2) authorizes the court to “alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions and interrogatories or on the length of depositions under Rule 30.” “In general, if the parties cannot agree to exceed the ten allowed depos per side, more than ten must be justified under the ‘benefits vs. burdens’ approach of Rule 26(b)(2).” Authentec, Inc. v. Atrua Techs., Inc., No. C 08-1423 PJH, 2008 WL 5120767, at *1 (N.D. Cal. Dec. 4, 2008) (citing Advisory Comm. Notes to Rule 30(a)(2)). Under Rule 26(b)(2), the court considers whether: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. “A party seeking to exceed the presumptive number of depositions must make a particularized showing of the need for the additional discovery.” Authentec, 2008 WL 5120767, at *1 (citing Bell v. Fowler, 99 F.3d 262, 271 (8th Cir. 1996)).
Here, the depositions that plaintiff seeks to conduct are not unreasonably cumulative and duplicative, and plaintiff has shown that the witnesses’ knowledge regarding the information contained in McGovern's notes cannot be obtained from another source. Thus, plaintiff has made a particularized showing for the need for the depositions.
However, it is uncontroverted that the failure to disclose McGovern's notes was not due to bad faith. Under Rule 37(c)(1)(a), the court has discretion to impose sanctions, including attorney's fees, for a party's failure to produce discovery. See Payne v. Exxon Corp., 121 F.3d 503, 507 (9th Cir. 1997) (“The district court's discretion will not be disturbed unless we have a definite and firm conviction that the court committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.”). Federal courts also “possess certain inherent powers, not conferred by rule or statute, to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Lu v. United States, 921 F.3d 850, 859 (9th Cir. 2019) (citations and quotation marks omitted). “Among the inherent powers recognized by the Supreme Court is the power to fashion an appropriate sanction for conduct which abuses the judicial process.” Id. (citations and quotation marks omitted).
*2 Sanctions issued under a court's inherent power “are available if the court specifically finds bad faith or conduct tantamount to bad faith.” B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1107–08 (9th Cir. 2002). Bad faith is demonstrated by “delaying or disrupting the litigation or hampering enforcement of a court order.” Id. Conduct “tantamount to bad faith” includes “a variety of types of willful actions, including recklessness when combined with an additional factor such as frivolousness, harassment, or an improper purpose.” Id. “Although the Ninth Circuit has declined to decide the precise standard of proof for sanctions awards, it is clear that a bad faith finding supported by clear and convincing evidence will suffice.” Knickerbocker v. Corinthian Colleges, 298 F.R.D. 670, 677 (W.D. Wash. 2014) (citing cases).
Absent any indication of bad faith in this case, the court declines to award plaintiff's requested sanctions of attorney's fees and costs. The case law proffered by plaintiff is not controlling and distinguishable in many respects. Moreover, a party “may recover only the portion of his fees that he would not have paid but for the misconduct.” Lu, 921 F.3d at 860 (citations and quotations marks omitted). While plaintiff contends that she would have conducted her depositions differently, she has not offered more specifics on how to apportion the fees and costs related to doing so. Accordingly, plaintiff's request for attorney's fees and costs is denied.
2. Greg Cunningham Deposition
The parties dispute whether plaintiff should be allowed to take Greg Cunningham's deposition. Defendant contends that plaintiff's failure to previously identify Cunningham and the Diversity and Inclusion program, versus the Affirmative Action program, should preclude her from being allowed to do so. However, discovery is otherwise already being extended in that depositions in this case are being reopened. Moreover, plaintiff has made a particularized showing regarding the necessity of Cunningham's deposition, and the burden or expense of his deposition is not outweighed by its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. Thus, plaintiff's request to depose Cunningham is granted.
3. Documents Regarding Elliot Jaffee and Kathryn Albright
Finally, plaintiff seeks documents regarding Elliot Jaffee and Kathryn Albright as they relate to what plaintiff contends was similarly discriminatory treatment by the Human Resources department. Stacey Dodson testified that Jaffee was an “equal opportunity bully.” Thus, discovery pertaining to Jaffee's conduct is not probative of plaintiff's claims. FRCP 26(b)(1). Albright was employed in Colorado in a different business line. Accordingly, discovery with respect to Albright is also not relevant to plaintiff's claims and is denied. Id.
IT IS SO ORDERED.