United States District Court, D. Maryland
MEMORANDUM AND ORDER
William M. Nickerson Senior United States District Judge.
the Court is Plaintiff's Motion for Leave to Take
Depositions of Defendants Openshaw and Lynch. ECF No. 171.
The motion is fully briefed. Upon review of the parties'
submissions and the applicable case law, the Court determines
that no hearing is necessary, Local Rule 105.6, and that the
motion should be granted.
action arises out of the seizure and arrest of Plaintiff
Roxana Orellana Santos on October 7, 2008, by two Deputies in
the Frederick County Sheriff Office, Defendants Jeffrey
Openshaw and Kevin Lynch. On January 7, 2011, Plaintiff took
the depositions of Defendant Charles Jenkins, the Frederick
County Sheriff, and Defendant Openshaw. Plaintiff deposed
Defendant Lynch on January 13, 2011. At issue in the pending
motion is whether Plaintiff should be permitted to depose
Defendants Openshaw and Lynch a second time. Specifically,
now that the Fourth Circuit Court of Appeals has found that
the Deputies violated Plaintiff's constitutional rights
and has remanded the case for consideration of
Plaintiff's municipal and official-capacity claims,
Plaintiff seeks to depose them on issues related to municipal
liability. Plaintiff also seeks to depose the
Deputies on issues related to new factual allegations in the
Third Amended Complaint, which was filed post-remand. Under
Rule 30(a)(2)(A)(ii) of the Federal Rules of Civil Procedure,
Plaintiff must obtain leave of court if the parties have not
stipulated to the deposition of a deponent who has already
been deposed in the case. In ruling on such a request, the
court “must grant leave to the extent consistent with
Rule 26(b)(1) and (2).” Fed.R.Civ.P. 30(a)(2)(A)(ii).
Defendants argue that second depositions of Defendants
Openshaw and Lynch would be inconsistent with Rule
26(b)(2)(C)(ii), which provides that “the court must
limit the frequency or extent of discovery otherwise allowed
by these rules or by local rule if it determines that . . .
the party seeking discovery has had ample opportunity to
obtain the information by discovery in the action.” The
Court concluded that, due to the procedural posture of this
action at the time those previous depositions were taken,
Plaintiff did not have that ample opportunity to obtain the
information from these deponents that she now seeks.
is no dispute that the previous depositions were taken during
a period of “limited” discovery pursuant to a
ruling of Judge Benson Everett Legg in September of 2010.
Early in this litigation, the issue arose as to whether, when
arresting Plaintiff, the Deputies were acting under state or
federal law. In a conference call, memorialized by a
subsequent written order, Judge Legg ruled that this case
would proceed with a “preliminary period of limited
discovery” to explore that issue. ECF No. 57. During
this period, Plaintiff would be permitted to take the
depositions of Sheriff Jenkins and the Deputies and they, in
turn, would be able to take the deposition of Plaintiff.
Id. While Judge Legg prohibited the depositions of
the federal defendants during this period of limited
discovery, Defendants suggest that he imposed no restrictions
on the scope of the depositions of Sheriff Jenkins and the
at the beginning of the deposition of Sheriff Jenkins,
counsel put the following agreement on the record:
MR. KARP [Defendants' counsel]: Before we begin, Counsel
has kindly agreed to my request that I put briefly on the
record what I believe to be a limitation on today's
deposition. The Court has not limited Plaintiffs in any way,
at least expressly, from inquiring of the Sheriff as to
certain topics. However, the state of discovery is such that
it is my view that until and unless it is determined that the
deputies on the scene violated the Plaintiff's
constitutional rights, issues concerning [topics related to
municipal liability] are irrelevant.
I have asked Counsel if he will forebear from at least
detailed questions on those topics until and unless those
matters are actually at issue in this case, and while I will
not and don't purport to represent what Counsel,
Plaintiff's Counsel's position is on this topic, I
will simply state that circumstances of the event at issue
and anything reasonably collateral thereto. Thank you.
MR. HAYES [Plaintiff's counsel]: And we did have a
discussion off the record on this topic, and, as Mr. Karp
said, when we finish with the Sheriff here today we will
suspend the deposition so that should we get back to these
topics, have an opportunity to get back to the topics later
on we'll do it then. And I think that's what we
MR. KARP: That's agreed.
Dep. at 7-8. The Court notes that while no similar agreement
was put into the record during the depositions of the
Deputies, the deposition of Sheriff Jenkins was held on the
same day as that of Deputy Openshaw and a week before Deputy
Court also notes that, after the Fourth Circuit Court of
Appeals remanded this case to this Court for consideration of
Plaintiff's municipal and official capacity claims, Judge
William Quarles rejected an argument similar to the argument
Defendants are making here when he granted, in part,
Plaintiff's motion for leave to file her Third Amended
Complaint. Judge Quarles characterized Judge Legg's order
for limited discovery as withholding from Plaintiff the
opportunity to engage in discovery on the “broader
issues about local policies and practices relevant to
Santos's municipal liability claims.” ECF No. 148
at 14 n.22.
Judge Legg's discovery order may not have expressly
limited the scope of the Deputies' depositions, the
record reveals that the parties reasonably understood, and
the Court recognized, that discovery on issues related to
municipal liability would be deferred until after a finding
of individual liability. Furthermore, there can be no dispute
that Plaintiff was unable to explore issues related to the
new factual allegations added in the Third Amended Complaint
concerning events that occurred after those original
depositions. Plaintiff's motion will be granted.
IT IS this 4th day of January, 2017, by the United States
District Court for the District of Maryland, ORDERED:
That Plaintiff's Motion for Leave to Take Depositions of
Defendants Openshaw ...