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Boerste v. Ellis, LLC

United States District Court, W.D. Kentucky, Louisville Division

July 17, 2019

ELLIS, LLC, et al., Defendants.



         Before the Court is the Motion for Leave to Continue the Depositions of Defendants Michael Cotton and Kevin Bewley filed by Plaintiff, Bryan Tyler Boerste (“Plaintiff”). (DN 61.) Defendants Michael Cotton (“Cotton”) and Kevin Bewley (“Bewley”) both filed Responses to the Motion (DNs 63, 64), and Plaintiff filed a Reply (DN 65). Therefore, this matter is ripe for review.

         For the reasons set forth below, Plaintiff's Motion (DN 61) is GRANTED IN PART and DENIED IN PART.

         I. BACKGROUND

         A. Factual and Procedural Background

         On August 4, 2016, prior to the date this action was removed to this Court and only a few months after the April 16, 2016, incident (the “Incident”) that is the subject of this action, Plaintiff took the depositions of Defendants Cotton and Bewley. (DN 61, at PageID # 1023-24; DN 61-1; DN 61-2.) At the time those depositions were noticed, Plaintiff did not know that Cotton and Bewley were under criminal investigation for their roles in the Incident. (Id. at 1024.) However, at the outset of Bewley's deposition, his counsel stated that recent correspondence from the City of Springfield indicated that there was an ongoing criminal investigation into the Incident. (DN 61-1, at PageID # 1043.) As a result of that investigation, Bewley's counsel proposed that Bewley's deposition be postponed by agreement until after the investigations were completed and closed. (Id.) Counsel indicated that should the deposition proceed, Bewley would invoke his Fifth Amendment privilege against self-incrimination as to a No. of topics and would only answer questions regarding his personal identifying information and general biographical information. (Id.) Because Bewley's counsel was not willing to provide a specific date as to when Bewley would testify without invoking his Fifth Amendment privilege, Plaintiff's counsel refused to postpone the deposition. (Id. at 1043-44.) Bewley testified pursuant to the limitations his counsel had outlined and invoked his Fifth Amendment privilege as to multiple questions posed to him. (Id. at 1045-63.) During his deposition, Cotton likewise refused to answer multiple questions on the basis of his Fifth Amendment privilege. (DN 61-2.) Both Bewley and Cotton were formally charged related to their actions during the Incident a few weeks after their depositions. (Id.)

         Because of the pending criminal charges, this Court stayed discovery as to Bewley and Cotton. (DNs 13, 29.) This stay was not dissolved until September 28, 2018. (DN 56.) Plaintiff then noticed the “continuation” of Bewley's deposition for October 29, 2018, and Cotton's deposition for October 30, 2018. (DN 61, at PageID # 1026.) Counsel for Bewley and Cotton informed Plaintiff's counsel that the rescheduled depositions would be limited to those questions previously objected to based upon each defendant's Fifth Amendment privilege. (DNs 63-2, 63-3, 64-1, 64-2.) Plaintiff's counsel responded to confirm the location of Cotton's deposition and to confirm that October 30, 2018, would work for remaining counsel. (DNs 64-3, 64-4.) He did not address the limitations described by counsel for Cotton and Bewley. (Id.)

         At the October 29, 2018, deposition, Bewley's counsel instructed Bewley only to answer those questions that were asked during the previous August 4, 2016, deposition but were not answered then on the basis of privilege. (DN 61-3, at PageID # 1126-27.) His counsel stated on the record that Plaintiff's counsel had been previously informed of this limitation but chose not to address the same prior to the deposition. (Id. at 1127.) While Bewley did answer some questions within the scope identified by his counsel, he refused to answer others. (Id. at 1133.) Plaintiff's counsel suspended the deposition because of Bewley's refusals to answer. (Id. at 1133-34.) Plaintiff's counsel then cancelled Cotton's deposition, set for the next day, because of concern the same issue would arise. (DN 58; DN 61-3, at PageID # 1134.) The Court held a telephonic status conference with the Parties regarding the dispute on November 6, 2018, but the Parties were unable to come to an informal resolution of the same. (Id.) The Court then granted Plaintiff leave to file the instant Motion. (Id.)

         B. The Instant Motions

         In his Motion to Continue the Depositions, Plaintiff argued that he did not need to request leave of Court to continue Cotton and Bewley's depositions on October 29-30, 2018, because their depositions were not completed. (DN 61, at PageID # 1030.) He further argued that even if he should have requested leave originally, the circumstances now justify the Court granting him leave to reconvene the depositions without any limitations on the topics to be discussed and the questions to be answered. (Id. at 1031-33.) Plaintiff also requested the costs associated with scheduling and attending Bewley's October 29, 2018, deposition given counsel's instructions to Bewley not to answer certain questions. (Id. at 1033-36.)

         Bewley argued in response that the burden was on Plaintiff to seek leave to continue his deposition prior to its initiation. (DN 63.) He stated that because Plaintiff's counsel did not object to the limitation on Bewley's testimony proposed by his counsel prior to the deposition, he “led all parties to believe the stipulation as stated was agreed to in full.” (Id. at PageID # 1149.) Bewley argued that the circumstances neither justify requiring him to sit for a third deposition nor any award of sanctions. (Id. at 1152-53.)

         Cotton argued that absent his stipulation, Plaintiff was required to seek leave of Court prior to taking his deposition a second time. (DN 64.) Cotton then stated that the Court should deny Plaintiff's motion for leave given any difficulty or delay here was “solely the product of Plaintiff's actions.” (Id. at PageID # 1311.) Further, Cotton proposed that even if the Court granted Plaintiff leave to continue Cotton's deposition, Plaintiff should be limited to questions to which Cotton had previously invoked his Fifth Amendment privilege. (Id. at 1311-14.)

         In his Reply, Plaintiff noted that Cotton and Bewley's attorneys did not object during the August 4, 2016, depositions when Plaintiff indicated he reserved the right to recall them at a later date. (DN 65, at PageID # 1324.) He argued that “new information and documents have been obtained since August 4, 2016 warranting additional testimony pertaining to topics previously discussed.” (Id. at 1325.) However, Plaintiff did not specifically identify any such new information or documents.


         A. Legal Standard

         If a deponent “has already been deposed in [a] case, ” then “[a] party must obtain leave of court” in order to reopen the deposition. Fed.R.Civ.P. 30(a)(2)(A)(ii). “[T]he court must grant leave to [reopen the deposition] to the extent consistent with Rule 26(b)(1) and (2).” Id. at (a)(2). Rule 26(b)(1) is the touchtone for the scope of civil discovery. Rule 26(b)(1) provides, in relevant part, as follows regarding the scope of discovery:

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). Rule 26(b)(2) addresses limitations on the frequency and extent of discovery. Subpart (b)(2)(A) gives the court discretion to alter limits on written discovery and the No. and length of depositions under Rule 30. Id. at (b)(2)(A). Subpart (b)(2)(B) addresses limitations on discovery of electronically stored information, which is not ...

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