United States District Court, D. Oregon, Pendleton Division
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.
OPINION AND ORDER
PATRICIA SULLIVAN United States Magistrate Judge
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.
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. 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.
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.
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.
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.
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.
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
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).
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.
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 . . . .”).
Depositions of Defendants Peters, Myrick, Ridley, and
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.
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
however, as the ODOC director, is a high-ranking executive
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
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