McGinnis v. Davis

Background

Marcus G. McGinnis brought a self-represented civil-rights action under 42 U.S.C. § 1983, a statute allowing claims against state or local officials for violations of federal rights. He alleged that the defendants were deliberately indifferent to his medical and dental needs. The order states that McGinnis was formerly in custody and was out of custody when defendants located him and arranged his deposition.

Motion to Compel

Defendants filed an unopposed motion asking the court to require McGinnis to attend his deposition and answer questions. Under the discovery rules, parties may seek information relevant to a claim or defense and proportionate to the case. The court found that McGinnis’s deposition was relevant to the claims and possibly the defenses, and that a deposition lasting no more than seven hours was proportionate.

Defendants served notice of a deposition scheduled for April 1, 2021. McGinnis acknowledged that he knew about it but did not appear. Before the deposition, defense counsel spoke with McGinnis and learned that he was considering hiring a lawyer and did not want to speak with defense counsel without one. Counsel then sent two emails offering to continue the deposition if McGinnis wanted to do so and asking him to respond. McGinnis did not respond and did not attend the scheduled deposition.

The court recognized that defendants had not tried to confer with McGinnis after he missed the deposition. The court nevertheless exercised its discretion to decide the motion because defense counsel had already made two attempts to address the scheduling issue before the deposition and McGinnis had ignored them.

Ruling and Schedule

Judge Susan Illston granted defendants’ motion to compel McGinnis’s deposition. Defendants were ordered to schedule the deposition no later than June 25, 2021. McGinnis was ordered to attend and answer the questions asked at the deposition, regardless of whether he was trying to hire a lawyer or had hired one.

The court cautioned that failure to participate in discovery could result in sanctions, including monetary penalties, limits on supporting or opposing claims or defenses, limits on introducing evidence, striking pleadings, or dismissal of claims or the action. The order did not impose those sanctions; it warned that they could be imposed if McGinnis failed to comply.

The court also set deadlines for dispositive motions: defendants had to file and serve their motion by August 6, 2021; McGinnis had to file and serve his opposition by September 3, 2021; and defendants’ reply, if any, was due by September 17, 2021. Because McGinnis was no longer in custody, the court stated that the prisoner mailbox rule did not apply to his opposition and that the opposition had to be filed, not merely mailed, by the deadline.