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Chao v. USA Mining

September 21, 2006

ELAINE L. CHAO, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR PLAINTIFF,
v.
USA MINING, INC., USA BULLION RESOURCES, INC., BUGSY MALONE'S SPEAKEASY, LLC, AND DAN S. GEIGER, AN INDIVIDUAL, DEFENDANTS. AND PENSION BENEFIT GUARANTY CORPORATION, PLAINTIFF,
v.
USA MINING, INC., USA BULLION RESOURCES, INC., BUGSY MALONE'S SPEAKEASY, LLC, AND DAN S. GEIGER, AN INDIVIDUAL, DEFENDANTS.



The opinion of the court was delivered by: Susan K. Lee United States Magistrate Judge

Collier /Lee

MEMORANDUM and ORDER

I. Introduction

Before the Court are: (1) the joint motion of the Plaintiffs, the Secretary of Labor and the Pension Benefit Guaranty Corporation ("Plaintiffs"), for leave of Court to take the deposition of Defendant Dan S. Geiger ("Geiger"), to shorten Geiger's response time and for expedited review [Doc. No. 60]; (2) Geiger's motion for a protective order against deposing him as an individual defendant under Fed. R. Civ. P. 26(c) and 30 (a)(2) and for a temporary stay of further proceedings [Doc. No. 65]; (3) Geiger's motion for a permanent order of telephonic and/or video appearance for all hearings and at civil trial [Doc. No. 66-1]; and (4) Geiger's motion to quash the notice of depositions served on him by Plaintiffs on August 31, 2006, as being improperly served and in violation of Fed. R. Civ. P. 30(a)(2) and (b)(1) [Doc. No. 68].

Geiger has filed a response in opposition to Plaintiffs' joint motion for leave of court to take his deposition, to shorten the time for his response and for expedited review [Doc. No. 67]. Plaintiffs have filed responses to: (1) Geiger's motion for a protective order and for a temporary stay of further proceedings [Doc. No. 70]; (2) Geiger's motion for a permanent order of telephonic and/or video appearance for all hearings and at civil trial [Doc. No. 77-1]; and (3) Geiger's motion to quash the Plaintiffs' notice of depositions [71-1].

Consequently, the aforementioned motions are now ripe for review. For the following reasons: (1) the Plaintiffs' joint motion to take Geiger's deposition [Doc. No. 60] is GRANTED; (2) the aspects of Plaintiffs' joint motion [Doc. No. 60] which seek to shorten the time for Geiger to file a response to their motion and for an expedited hearing will be DENIED as having been rendered MOOT; (3) that aspect of Plaintiffs' joint motion which seeks an extension of the discovery deadline [Doc. No. 60] is GRANTEDas follows: the deadline for the completion of all discovery set forth in this Court's July 20, 2006 Scheduling Order [Doc. No. 49] is extended up to and including Wednesday, November 1, 2006, for the limited purpose of permitting the Plaintiffs to take Geiger's oral deposition; (4) Geiger's motion for a protective order and temporary stay of further proceedings [Doc. No. 65] is DENIED; (5) that aspect of Geiger's motion for a permanent order permitting him to appear at all non-dispositive motion hearings by telephone and/or video conference [Doc. No. 66-1] is DENIED; and (6) Geiger's motion to quash the Plaintiffs' notice of depositions [Doc. No. 68] is DENIED.

II. Plaintiffs' Joint Motion to take Geiger's Deposition

Plaintiffs seek to take the deposition of Geiger under Fed. R. Civ. P. 30(a)(2) [Doc. No. 60 at 3]. Plaintiffs state that before seeking to take Geiger's deposition, they contacted the Taft Correction Institution in Taft, California, where Geiger is incarcerated and learned the correctional institution would prefer the deposition be scheduled on a Friday, Saturday, or Sunday [id. at 4]. Plaintiffs state they contacted Geiger on August 23, 2006 to schedule his deposition for September 15 or 16, 2006, but he would not agree to the deposition "because (1) the Court has not ruled on his motion to dismiss, which if granted, would be dispositive of the action; and (2) his criminal appeal is pending." [id.]. Plaintiffs assert Geiger's deposition is necessary in this action because

Geiger is the central figure in the events surrounding Plaintiffs' allegations and claims . . . as the only individually named defendant in the lawsuit, he is the most knowledgeable individual of the events at issue. Plaintiffs therefore need to be able to depose Defendant Geiger. His deposition is not "unreasonably cumulative or duplicative" and the information sought from his deposition is not "obtainable from some other source." [id. at 5] (emphasis in original). Plaintiffs further request that if Geiger's deposition is not able to proceed on September 15 or 16, 2006, the discovery period be extended until November 1, 2006 [id. at 8].

In his response in opposition to Plaintiffs' joint motion for leave of Court to take his deposition, Geiger asserts that permitting Plaintiffs to take his deposition while his criminal appeal is pending would violate his Fifth Amendment privilege against self-incrimination [Doc. No. 67 at 1-3]. Geiger also asserts that it should be irrelevant that he has "aggressively propounded discovery on Plaintiffs, or engaged in proper motion practice to assert his rights" and it is also irrelevant "that [he] is the only individually named defendant in the lawsuits, or that he may allegedly be the most knowledgeable individual of the events at issue" [id. at 4]. Geiger further asserts the information Plaintiffs seek in his deposition is available to them because they have seized his personal and corporate records [id. at 5]. Finally, Geiger asserts he has not employed tactics to delay discovery [id. at 6-8] and that an oral examination would be a burden to him [id. at 8].

Pursuant to Fed. R. Civ. P. 30(a)(2):

A party must obtain leave of court, which shall be granted to the extent consistent with the principles stated in Rule 26(b)(2), if the person to be examined is confined in prison or if, without the written stipulation of the parties,

(A) a proposed deposition would result in more than ten depositions being taken under this rule or Rule 31 by the plaintiffs, or by the defendants, or by third-party defendants;

(B) the person to be examined already has been deposed in the case; or

(C) a party seeks to take a deposition before the time specified in Rule 26(d) unless the notice contains a certification, with supporting facts, that the person to be examined is expected to leave the United States and be unavailable for examination in this country unless deposed before that time.

No party has asserted that the proposed deposition of Geiger would result in more than ten depositions being taken by any party and no party has asserted Geiger has already been deposed in this case. Further, pursuant to Fed. R. Civ. P. 26(d), a party may not seek discovery from any source prior to the parties' Rule 26(f) discovery planning conference. This Court's scheduling order of July 20, 2006 states, in pertinent ...


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