Fanaro v. County of Contra Costa

Background

Fanaro alleged that a group of defendants, including Thomas Leon, assaulted him while he was confined at the Martinez Detention Facility. Because Leon was incarcerated at Pelican Bay State Prison, the court granted Fanaro permission to depose him and ordered Pelican Bay to make him available. The deposition occurred virtually on December 9, 2020, with Fanaro’s counsel, counsel for various defendants, Leon, and correctional officer Joshua Rush present.

Leon invoked the Fifth Amendment privilege against self-incrimination in response to every question. The court had previously determined that Leon’s blanket refusal was improper, but declined to impose monetary sanctions against him. Instead, the court allowed Fanaro to use Leon’s refusals to seek adverse inferences at trial and barred Leon from testifying in his defense on those matters. The court also previously declined to sanction the California Department of Corrections and Rehabilitation because it believed Leon was primarily responsible for ending the deposition and Fanaro’s deposition costs had not been wasted.

After reviewing the deposition video, the court revisited the sanctions ruling. The court stated that the video showed conduct by Rush that was improper, a false statement in Rush’s declaration, and misleading representations by the California Department of Corrections and Rehabilitation and the California Attorney General’s Office.

Legal standard

Federal Rule of Civil Procedure 30(d)(2) allows a court to impose an appropriate sanction, including reasonable expenses and attorney’s fees, on a person who impedes, delays, or frustrates a fair deposition. The court stated that district courts have broad discretion in choosing a discovery sanction.

Court’s analysis

The court reaffirmed that the deposition had been improperly terminated. A court-ordered deposition could be terminated only by court order. Even if an emergency justified pausing the deposition, the proper response would have been to postpone it rather than cancel it entirely.

The court found three important facts from the video. First, Rush’s sworn statement that Leon had “yelled” an expletive was false. The video showed that Leon spoke the word as a quiet aside, at the same or a lower volume than his other statements. The court also found that the department’s filing misleadingly connected the expletive to Leon’s later removal from the deposition, even though more than 15 minutes separated the two events.

Second, the video showed that Rush twice whispered to Leon that, if he wanted to leave, he should say so loudly and that the officers would take him back. Leon then asked to return to his cell. The court found that Leon made the ultimate decision to end the deposition, but Rush’s statement prompted the decision and assured Leon that the request would succeed. The court explained that Leon was required to remain for the questions and invoke the privilege separately in response to each one.

Third, the court rejected the department’s explanation that Leon had become angry, agitated, or volatile. The video showed that Leon had remained calm for many minutes before his removal and invoked the privilege in an even tone. The court also found that Rush’s statement that he had been speaking to his partner was false and that the department’s explanations were pretextual and misleading.

The court rejected the argument that Rush was protecting Leon’s Fifth Amendment rights. According to the court, those rights did not allow the deposition to be canceled after the first series of questions. The court also rejected the argument that Rush was merely honoring Leon’s earlier requests to leave, finding that the last such request had occurred at least 10 minutes before Rush intervened and that Leon could not unilaterally end the deposition.

Disposition

The court partially superseded its prior order and sanctioned the California Department of Corrections and Rehabilitation $500 under Rule 30. The sanction was intended to partially compensate Fanaro for attorney’s fees and costs connected with preparing for and attending the deposition. The court stated that those costs were not entirely wasted and that Leon was primarily responsible for the deposition’s termination. The department was ordered to pay Fanaro’s counsel, Qiana Washington, within 30 days. The court also admonished the California Attorney General’s Office for misleading the court and distorting the record.