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Sarnowski v. Peters

United States District Court, D. Oregon, Pendleton Division

October 6, 2017

KATHERINE SARNOWSKI, Personal Representative of the Estate of Damion Banks, Plaintiff,
COLLETTE PETERS, Personally; TONIA RIDLEY, Personally; BRIDGETT WHELAN, Personally; JOHN MYRICK, Personally; and SGT. ANNETTE HOUSTON, Personally, Defendants.


          PATRICIA SULLIVAN United States Magistrate Judge

         Before the Court is plaintiff's Motion to Compel Discovery (Docket No. 39). Plaintiff seeks to compel the depositions of defendants Collette Peters, John Myrick, Tonia Ridley, and Bridgett Whelan, and to compel defendants to respond to certain interrogatories and requests for production. Although plaintiff requested oral argument, the Court has determined that her Motion is suitable for decision without oral argument. For the following reasons, the Court GRANTS IN PART AND DENIES IN PART plaintiff's Motion to Compel.


         This action concerns the death of Damion Banks, an inmate in Oregon Department of Corrections (“ODOC”) custody at the Two Rivers Correctional Institution (“TRCI”). 2d Am. Compl. (Docket No. 21). Defendants are ODOC and TRCI officers and employees. Id. ¶ 4. Plaintiff alleges that Banks died from inmate assault and severe trauma, and defendants were deliberately indifferent to his safety, housing, and health. Id. ¶¶ 28, 32, 34-42. Medical examiners reported Banks' cause of death as natural: “pulmonary hemorrhage due to pheochromocytosis.” Id. ¶ 22.[1] Plaintiff alleges that there are inconsistences as to observations of Banks' health, statements in medical records, and evidence of violence. Id. ¶¶ 19, 24-26, 28. Plaintiff alleges that other TCRI inmates died suspiciously, that gangs threatened Banks, and that Banks told his family he feared for his life. Id. ¶¶ 10-14, 21. Banks' injuries were inflicted (or his health deteriorated) on February 4, 2014, and he died the next day. Id. ¶¶ 15-20, 28-29.


         Plaintiff is Banks' mother and the personal representative of his estate. Plaintiff brings two causes of action, under 42 U.S.C. § 1983, for “Eighth Amendment, Cruel and Unusual Punishment - Failure to Protect, ” and “Deliberate Indifference to Serious Medical Need.” 2d Am. Compl., at 8-9. In support of her § 1983 claims, plaintiff alleges that defendants failed to respond properly to Banks' request to be transferred to a lower-security facility, which would have “likely” prevented his death; failed to properly monitor inmate telephone calls, whereby they could have learned of Banks' report that he feared for his life; failed to maintain the closed circuit television system (“CCTV”) in violation of the “ODOC REPAIR program, ” where monitoring would have deterred the violence against Banks; failed to maintain proper staffing and monitoring of inmates in common areas, thereby permitting intimidation and assault; and failed to provide Banks medical treatment, or to train and staff medical personnel, who “may have been able to intercede and save [Banks'] life.” Id. ¶¶ 34-41.

         Defendant Peters is the current ODOC director. 2d Am. Compl. ¶ 4. Myrick is the former TRCI superintendent, and at the times relevant to the pleadings was Assistant Superintendent of Security at TRCI. Id. Ridley was the Assistant Superintendent of General Services at TRCI, and Whelan was Medical Services Manager at TRCI. Id.

         On April 17, 2017, pursuant to the Court's informal discovery dispute procedures, counsel for plaintiff emailed to inform the Court that the parties had a discovery dispute. In a subsequent email, on April 27, 2017, plaintiff's counsel presented his position and argument; defense counsel responded by email on May 8, 2017. The Court held a status conference on June 14, 2017, regarding the dispute. (Docket No. 36). Because of various deficiencies with both parties' presentation of the arguments, the Court directed the parties to submit motions to compel regarding the disputed discovery requests.

         Plaintiff seeks an order compelling the depositions of Peters, Myrick, Ridley, and Whelan, and responses to interrogatories and requests for production. Plaintiff served the discovery requests on March 5, 2017; defendants responded on March 24, 2017. Pl. Mot., at 4 (Docket No. 39). Plaintiff provides the disputed discovery requests as to Peters and Myrick.


         Under Fed.R.Civ.P. 37(a)(3)(B)(iii) and (iv), a party may move for an order compelling answers to interrogatories or the production of requested documents.

Parties may obtain discovery regarding any nonprivileged 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).

On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed . . . if it determines that: (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 to compel discovery has the burden of establishing that its request satisfies the relevancy requirement of Rule 26(b)(1). In turn, the party opposing discovery has the burden of showing that discovery should not be allowed and also bears the burden of clarifying, explaining, and supporting its objections.” Frontier Recovery, LLC v. Lane County, No. 09-6017-TC, 2009 WL 2253726, at *2 (D. Or. July 24, 2009); Yufa v. Hach Ultra Analytics, No. 1:09-cv-3022-PA, 2014 WL 11395243, at *1 (D. Or. Mar. 4, 2014) (“If a party elects to oppose a discovery request, the opposing party bears the burden of establishing that the discovery is overly broad, unduly burdensome, or not relevant. Boilerplate, generalized objections are inadequate and tantamount to not making any objection at all.” (citation and quotation omitted)). If a party objects to a discovery request, it is the burden of the party seeking discovery on a motion to compel to demonstrate why the objection is not justified. Weaving v. City of Hillsboro, No. CV-10-1432-HZ, 2011 WL 1938128, at *1 (D. Or. May 20, 2011). In general, the party seeking to compel discovery must inform the court which discovery requests are the subject of the motion to compel, and, for each disputed request, inform the court why the information sought is relevant and why the objections are not meritorious. Id.

         “Failure to object to a discovery request within the time permitted by the Federal Rules of Civil Procedure, or within the time to which the parties have agreed, constitutes a waiver of any objection.” L.R. 26-5(a); see also Fed. R. Civ. P. 33(b)(4) (“Any ground not stated in a timely objection is waived . . . .”).


         I. Depositions of Defendants Peters, Myrick, Ridley, and Whelan

         Plaintiff moves to compel the depositions of Peters, Myrick, Ridley, and Whelan. Defendants respond that these defendants are “high ranking government officials” who are normally not subject to deposition.

         Defendants cite case law, much of it out-of-circuit, regarding the burden a party must meet in seeking to depose high ranking government officials. Kyle Eng'g Co. v. Kleppe, 600 F.2d 226, 231 (9th Cir. 1979) (“Heads of government agencies are not normally subject to deposition, ” regarding defendant Administrator of the Small Business Administration); Simplex Time Recorder Co. v. Sec'y of Labor, 766 F.2d 575, 580, 586 (D.C. Cir. 1985) (“top Department of Labor officials, who the ALJ found to have no personal knowledge of the facts surrounding this particular case”); In re United States (Kessler), 985 F.2d 510, 512 (11th Cir. 1993) (Commissioner of Food and Drug Administration); In re United States (Holder), 197 F.3d 310, 314 (8th Cir. 1999) (Attorney General and Deputy Attorney General); Boga v. City of Boston, 489 F.3d 417, 423 (1st Cir. 2007) (Mayor of Boston); Thomas v. Cate, 715 F.Supp.2d 1012, 1048 (E.D. Cal. 2010) (Governor of California); Baine v. Gen. Motors Corp., 141 F.R.D. 332, 335 (M.D. Ala. 1991) (vice president of General Motors Corp.); United States v. Sensient Colors, Inc., 649 F.Supp.2d 309, 320 (D.N.J. 2009) (former Environmental Protection Agency Regional Administrator); Low v. Whitman, 207 F.R.D. 9, 12 (D.D.C. 2002) (Deputy Chief of Staff to the Administrator of the Environmental Protection Agency). However, the degree of superiority and authority of the contested deponents in those cases far exceeds that of Myrick, Ridley, and Whelan. Myrick was the Assistant Superintendent of Security at TRCI; Ridley was the Assistant Superintendent of General Services; and Whelan was Medical Services Manager. These are positions directly relevant to plaintiff's claims regarding housing, monitoring, staffing, security, safety, and medical care, and not necessarily high ranking officials. Defendants' objections to the depositions of Myrick, Ridley, and Whelan are unavailing. The Court GRANTS plaintiff's Motion to Compel as to deposing these three defendants.

         Peters, however, as the ODOC director, is a high-ranking executive official:

An official may be deemed “high-ranking” when he or she has substantial authority and seniority, such that a deposition might significantly hinder the official's ability to function as a high-level public servant. Individuals with “substantial authority” have been found to include those who have a high level of responsibility for budget, personnel and resource issues.

Natty v. Donahoe, No. CV 11-10147-DSF(CWx), 2013 WL 12140158, at *2 (C.D. Cal. Jan. 10, 2013) (citation and quotation omitted). The director of a state's correctional institutions has substantial authority and seniority, with responsibility for budgeting, personnel, and resources.[2]

         The Court thus proceeds to the next stage of the inquiry:

[O]nce the Court determines that an official is entitled to invoke the [deposition] privilege, the burden shifts to the party seeking to depose the high-ranking official. A party seeking the deposition of a high-ranking government official must show: (1) the official's testimony is necessary to obtain relevant information that is not available from another source; (2) the official has first-hand information that cannot reasonably be obtained from other sources; (3) the testimony is essential to the case at hand; (4) the deposition would not significantly interfere with the ability ...

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