Zeleny v. Brown

Background

Michael Zeleny moved to compel Chief Dave Bertini to answer deposition questions that defense counsel had instructed him not to answer, along with reasonable follow-up questions. The motion addressed Bertini both individually and as the City of Menlo Park’s witness designated to testify about information known by the organization. Zeleny also sought sanctions under Federal Rule of Civil Procedure 37.

Procedural rulings

The court’s discovery standing order generally required the parties to file a joint discovery letter instead of a formal discovery motion. The court excused Zeleny from that requirement because his attorney had attempted to meet and confer 12 days before the deadline, but defense counsel did not respond for 10 days and provided a substantive response only on the deadline. The court found that the delay made filing a joint letter impossible.

The court found the motion timely. The fact-discovery deadline was October 2, 2020, and the applicable deadline for a motion to compel was October 9, 2020, the date Zeleny filed the motion. The court rejected the argument that the March 2019 deposition was too old to be challenged and concluded that the scheduling order did not limit the scope of Zeleny’s motion.

The defendants did not brief the merits. Instead, they objected to the motion’s filing procedure and asked to file an opposition later if the court wanted one. The court denied permission to file a second opposition brief, explaining that procedural and substantive objections belonged in the original opposition, which was due within 14 days after the motion was filed.

Motion to compel

The court addressed four issues:

1. “Asked and answered” objections. Defense counsel instructed Bertini not to answer certain questions based on an “asked and answered” objection. The court explained that, under Federal Rule of Civil Procedure 30(c)(2), counsel generally may not instruct a witness not to answer merely because counsel believes the question was previously asked. The court also found that the objection was argumentative and suggestive. It overruled the instruction and allowed Zeleny to take further testimony on those questions and reasonable follow-up questions.

2. Names of other protesters. Zeleny sought the names of other protesters about whom the City had surveillance files. The court sustained the defendants’ relevance and privacy objections and denied the motion to compel on this issue. It concluded that the request was not limited to protesters involved in matters similar to Zeleny’s protests and that identifying those individuals could invade their privacy. The court noted that the defendants had offered to provide approximate numbers instead.

3. Attorney-client privilege and the City’s interrogatory response. The City had stated that it had discovered it might not have had legal authority to issue Zeleny a permit for activity on the center median of Sand Hill Road because the median was allegedly controlled by the State of California. When Zeleny asked Bertini what an attorney had told him about that assertion, counsel instructed Bertini not to answer based on attorney-client privilege. The court denied the motion to compel this testimony. It concluded that discovery about ownership and control of the median could proceed without learning what the attorney told Bertini, so the privilege did not prevent discovery of the City’s underlying factual contention.

4. Attorney-client privilege and the permit denial. During questioning about the City’s denial of a permit application, Zeleny asked Bertini what he had told the city attorney. Counsel instructed him not to answer based on attorney-client privilege. The court denied the motion to compel because Zeleny had not shown that the City was using the privilege to hide the true basis for the denial. The court also stated that discussions about a permit application could involve legal advice.

Sanctions

The court denied Zeleny’s request for sanctions. Although the motion to compel was granted as to the “asked and answered” issue, Zeleny waited about a year and a half after the March 19, 2019 deposition to seek sanctions. The court concluded that this timing did not comply with the local rule requiring a sanctions motion to be made as soon as practicable after learning of the relevant circumstances.

Disposition

The court denied the motion for sanctions. It granted in part and denied in part the motion to compel. The court ordered Bertini to be redeposed within 30 days in his individual capacity and, when the questions fell within the noticed topics, in his capacity as the City’s designated witness.