Todd, PR of Estate of Bordeaux v. US

SANCTIONS: Expenses/attorney fees/costs imposed against US for sending unprepared 30(b)(6) designee to deposition relating to shooting death by BIA officers… Watters.

On 12/3/21 Northern Cheyenne Tribal member Arlin Bordeaux was shot and killed by BIA officers. According to his PR Gregory Todd, Officer Gygi was the first on the scene and emptied a can of pepper spray into Bordeaux’s face and struck him in the head with a baton. Officer Deela arrived a minute later, deployed his Taser twice, and shot Bordeaux at least twice in the back. Todd alleges that the officers failed to conform to the standard of care expected of reasonable officers.

Todd informed the BIA that he intended to depose them pursuant to Rule 30(b)(6). The US did not object and designated Officer Derris Waukazoo as the 30(b)(6) designee. The deposition occurred 9/10/24. Todd now argues that the US failed to produce an adequately prepared designee who could answer the deposition inquiries, and asks the Court to impose sanctions that will remedy the prejudice caused to him and deter the US from such conduct in the future.

Todd argues that the US failed to educate and prepare the deponent to answer the deposition topics that he had noticed: (1) hiring, retention, supervision, and training of Gygi; (2) hiring, retention, supervision, and training of Deela; (3) investigation into incidents involving force by Deela; and (4) location and contents of all incident reports and Taser cam videos involving Deela. He contends that “none of these questions were remotely answered” and “the government wasted the undersigned’s time and money through the deposition.”

The US asserts that Todd failed to satisfy his burden in noticing the deposition because he did not articulate the topics with “reasonable particularity.” It argues that his topics were “overbroad, vaguely worded, and the opposite of ‘painstakingly specific.'” Todd replied that if the US believed the topics were too vague it was their responsibility to object before the deposition.

Todd argues that a party’s failure to bring a prepared witness to a 30(b)(6) deposition is equivalent to a failure to appear and therefore sanctions are appropriate. He asks the Court to impose sanctions because “(1) the conduct at issue is egregious and indefensible; (2) the government has failed to take accountability for their sanctionable conduct; and (3) the government is a frequent litigator in this Court.” The US responded that sanctions are not appropriate because Todd failed to comply with LR 26.3(c) which requires the parties to confer on all disputed issues before filing a discovery motion. Todd argues that the US incorrectly cites LR 26.3(c) because his motion is not a Rule 26 discovery motion but a Rule 37 sanctions motion to address discovery misconduct.

Topics 1 & 2

Topics 1 & 2 of the deposition inquiry were directed at the hiring process of Gygi and Deela. When asked about the hiring of Gygi, Waukazoo responded:

I’ll start with the normal process. We’ll advertise a position. Interested applicants will apply. They’ll be interviewed by the agency. Then the interview packets are sent to our district office and the agency levels will make a recommendation.

Todd’s counsel then asked Waukazoo if he could tell them anything about the hiring of Gygi in particular. Waukazoo responded:

I don’t know unless I have their interview packet because when we do the interview packets they’re sent up to our district office and I don’t have the paperwork to look at it. So if I could see the paperwork I could tell you who did the interviews. And like I said, I could have, but I can’t remember if I was involved in his interview or not.

Todd’s counsel then asked if Waukazoo had reviewed Gygi’s employment packet in preparation for his deposition. Waukazoo replied that he did not review a hiring packet and never received a hiring packet. When asked if he had any information about the hiring of Gygi or Deela he said, “I don’t have access to their background files or anything like that.”

The US had an obligation to educate Waukazoo so he could testify on behalf of the BIA and provide binding answers to the matters in the notice. But Waukazoo did not make any effort to inquire about the hiring process of Gygi or Deela or to obtain their interview packets and could not provide information requiring the hiring process for either officer. He was not an adequately prepared 30(b)(6) deponent.

Topic 4

Under BIA policy, whenever an officer deploys their Taser they are required to prepare an incident report. The tasers are also equipped with a video camera that automatically records for 1 minute following deployment. According to Deela’s Taser Log, he deployed the Taser 57 times across 36 incidents. However, the US only produced 15 incident reports and 1 Taser cam video in discovery. Topic 4 was aimed at discovering all 57 incident reports and Taser cam videos involving Deela and at determining why only 15 reports were produced.

Topic 4 specified that there would be an inquiry into the location of all the incident reports and videos. When asked why, if Deela deployed his Taser 36 times, the BIA only provided 14 incident reports, Waukazoo responded that he was not sure why only those reports were created, he was not aware of any other reports, and he had not made any inquiries to discover why only those reports had been created.

The US contends that the topic of the “location and contents of all incident reports and taser cam videos involving Officer Deela” does not necessarily include the issue of why the US has not produced more incident reports. This argument is unconvincing as Todd had already been provided with 15 incident reports via discovery. Therefore a deposition topic aimed at the location of all incident reports can only be interpreted as an inquiry into what happened to the remaining reports.

The US had an obligation to educate Waukazoo so he could testify on behalf of the BIA and provide binding answers to the matters in the notice. But he admitted that he did not make any effort to enquire as to why incident reports had only been created for part of Deela’s Taser deployments. He was not an adequately prepared 30(b)(6) deponent.

The US cannot object to the contents of the deposition inquiry after the deposition took place

The US argues that Todd failed to satisfy his burden of specifying the topics of inquiry with “reasonable particularity.” Whitting (D.Ariz. 2013). It maintains that the topics were overbroad, vaguely worded, and the opposite of “painstakingly specific.” Todd replied that if the US didn’t understand the topics noticed they should have objected prior to the deposition and to do so now is the type of “discovery games and gamesmanship” that Rule 30(b)(6) is designed to prevent. Further, the enumerated topics were not “dragnet questions” designed to trip up the witness, but 4 simple topics that the designee was unprepared to address.

A Rule 30(b)(6) notice must describe “with reasonable particularity the matters for examination.” Pioneer Drive (D.Mont. 2009). But the US raises this argument too late. If it felt that the inquiries were “ambiguous or overly broad” they should have sought a protective order under Rule 26(c). By failing to object prior to (or even at) the deposition, it cannot attempt to excuse its inadequate preparation by now pointing to problems in the notice. Id.

Further, the Court agrees with Todd that the inquiries were not “dragnet questions.” They were straightforward and focused on the hiring process and employment actions of 2 BIA officers. Waukazoo’s inadequacy was not due to his inability to answer overbroad and vague questions, but to his failure to make an adequate effort to educate himself on the topics listed.

Availability of Rule 37 sanctions

Rule 37(d) grants courts discretion to impose sanctions if a party fails to attend its own deposition. Many courts treat failure to produce a prepared and educated 30(b)(6) witness as tantamount to a nonappearance at a deposition, meriting sanctions. If the designee “is not knowledgeable about relevant factors, and the principal has failed to designate an available, knowledgeable, and readily identifiable witness, then the appearance is, for all practical purposes, no appearance at all.” Resol. Trust (5th Cir. 1993).

Meet & confer requirement

LR 26.3(c)(1) provides that the court will deny any discovery motion unless the parties have conferred concerning all disputed issues before the motion is filed. Rule 37(b) does not contain a meet & confer requirement for motions for sanctions. Caekert (D.Mont. 2024) (citing Acosta (D.Ariz. 2018). “The rationale for this exception is that the parties would have already met and conferred before obtaining the first discovery order — which the opposing party has then [allegedly] violated — and that a second meet and confer is therefore not warranted.” Id. (citing Baicker-Mckee & Janssen Federal Civil Rules Handbook). The rationale for absence of a meet & confer requirement in Rule 37(b) justifies not imposing a meet & confer requirement on this motion.

Appropriate sanctions

Todd does not specify what sanctions he thinks are appropriate but asks the Court to impose severe sanctions because “(1) the conduct at issue is egregious and indefensible; (2) the government has failed to take accountability for their sanctionable conduct; and (3) the government is a frequent litigator in this Court.”

Rule 37(b) provides a wide range of sanctions for failure to comply with discovery orders. Sumitomo (9th Cir. 1980):

“In ascending order of harshness, the district court may: require the delinquent party or his attorney to pay the reasonable expenses, including attorney’s fees, incurred by the innocent party as a result of the failure to obey the order; strike out portions of pleadings; deem certain facts as established for purposes of the action or preclude admission of evidence on designated matters; dismiss all or part of the actions; or render a default judgment against the disobedient party.” (citing Cline (2nd Cir. 1979).

Sumitomo found severe sanctions appropriate because the government disregarded the discovery order for 18 months and sanctions had already been imposed and the “effectiveness of and need for harsh measures is particularly evident when the disobedient party is the government.”

Although the offending party here is the US, severe sanctions are not warranted. Unlike in Sumitomo, the US has not disregarded previous discovery motions nor has it already been sanctioned. The sanctions should deter the US’ conduct and remedy the prejudice it caused Todd. It must pay Todd the expenses reasonably related to the 9/12/24 deposition and reasonable costs & attorney fees incurred in bringing the instant motion. The Court will permit the parties to extend the discovery deadline if they find it necessary to take a new 30(b)(6) deposition.

Todd, PR of Estate of Bordeaux v. US, 45 MFR 5, 11/18/24.

Timothy Bechtold (Bechtold Law Firm), Missoula, and John Heenan (Heenan & Cook), Billings, for Todd; AUSA John Newman.