Shell v. Henderson et al
Filing
1149
ORDER denying 1139 Henderson Motion for Sanctions Under FRCP 26(g). By Magistrate Judge Kathleen M. Tafoya on 3/26/2013. (klyon, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 09–cv–00309-MSK-KMT
SUZANNE SHELL,
Plaintiff,
v.
LEONARD HENDERSON,
FAMILIES AT RISK DEFENSE ALLIANCE,
FRANCINE RENEE CYGAN,
ILLINOIS FAMILY ADVOCACY COALITION,
GEORGIA FAMILY RIGHTS, INC.,
NATIONAL ASSOCIATION OF FAMILY ADVOCATES,
CONNECTICUT DCF WATCH,
BRENDA SWALLOW, and
RANDALL BLAIR,
Defendants.
ORDER
This matter is before the court on “Henderson Motion for Sanctions Under FRCP 26(g)”
[Doc. No. 1139]. Mr. Henderson complains that Plaintiff improperly video recorded Defendant
Henderson’s deposition in violation of the court’s previous orders.
On August 15, 2012, this court held that Plaintiff would not be allowed to take the
depositions of the remaining defendants in person but would be allowed to take the depositions
electronically. (Minute Entry [Doc. No. 809] at 4.) The court also advised Plaintiff that she
could not create the official record of the deposition herself but would need to hire an “officer”
pursuant to Fed. R. Civ. P. 30(b)(5). The officer’s stenographic transcription would be the only
official record of the deposition.
With respect to the method of taking oral testimony at a deposition, Federal Rule of Civil
Procedure 30(b)(3)(A) specifies that “[t]he party who notices the deposition must state in the
notice the method for recording the testimony” and “[u]nless the court orders otherwise,
testimony may be recorded by audio, audiovisual, or stenographic means.” Prior to a noticed
deposition, any party may specify an “additional method” of recording, as follows:
With prior notice to the deponent and other parties, any party may designate
another method for recording the testimony in addition to that specified in the
original notice. That party bears the expense of the additional record or transcript
unless the court orders otherwise.
Fed. R. Civ. P. 30(b)(3)(B). Thus, in general, “unless a court orders otherwise, a party may
[video]tape a deposition as a matter of right, as long as notice is given of the party’s intention to
do so.” Stern v. Cosby, 529 F. Supp. 2d 417, 420 (S.D.N.Y.2007).
The court has reviewed “Plaintiff’s Notice of Deposition Pursuant to Fed. R. Civ. P. 30
and 45” [Doc. No. 1125-1] and notes that Plaintiff provided the following notice
The deposition will be taken before an officer duly authorized by law to take
deposition and continue from day to day until completion. The deposition will be
stenographically recorded, video recorded and will be conducted remotely via
Skype.
Id. (emphasis added.) See Slaughter v. Boeing Co., 2:11–cv–537–DN–BCW, 2012 WL
5473134, *1 (D. Utah Nov. 9, 2012). Therefore the court finds that Plaintiff properly noticed the
deponent of her intent to video record the deposition pursuant to the Rules and her thereafter
doing so is in no way improper.
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Nowhere in the Federal Rules is misuse of said deposition recordings deemed
permissible. A court, in its discretion, may “for good cause” limit discovery or the disclosure
thereof for purposes of protecting a party or person from annoyance, embarrassment, oppression,
or undue burden or expense.” Fed. R. Civ. P 26(c). In fact, this court issued an immediate order
striking Plaintiff’s exhibits purportedly taken from a videotaped deposition of Defendant
Henderson as being invasive of his privacy and not the official record of the deposition. [Doc.
No. 1112.]
As previously ordered, the stenographically recorded version of the deposition
proceedings is the official version for purposes of any court proceedings.
It is ORDERED
“Henderson Motion for Sanctions Under FRCP 26(g)” [Doc. No. 1139] is DENIED.
Dated this 26th day of March, 2013.
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