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Anchondo-Galaviz v. State Farm Mutual Automobile Insurance Company

United States District Court, D. Colorado

July 26, 2019

ABRIL ANCHONDO-GALAVIZ, Plaintiff,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.

          ORDER

          NINA Y. WANG, UNITED STATES MAGISTRATE JUDGE

         Pending before the court are two motions relating to the deposition of Sheryl Tanaka which occurred on July 8, 2019 in Honolulu, Hawai'i (“the deposition”):

(1) Defendant State Farm Mutual Automobile Insurance Company's (“Defendant” or “State Farm”) Motion to Require Plaintiff Counsel to Tender Exhibits Used During Deposition of Sheryl Tanaka (“the Exhibits Motion”) [#73, filed July 16, 2019]; and
(2) Defendant's Motion for Leave to Supplement Oral Deposition of Sheryl Tanaka with Written Questions and Answers Pursuant to F.R.C.P. 31(A)(2) (“the Motion to Supplement”; collectively, with the Exhibits Motions, the “Deposition Motions”) [#74, filed July 16, 2019].

         The Exhibits Motion alleges that Plaintiff refused to tender written exhibits used in the deposition to defense counsel as required by the Federal Rules. The Motion to Supplement alleges that Plaintiff's counsel's repeated, lengthy, and unexplained absences from the deposition deprived defense counsel of the ability to follow up and ask any questions of his own. These motions were referred to this Magistrate Judge pursuant to 28 U.S.C. § 636(b), the Order of Reference dated June 11, 2019 [#52], and the Memorandum dated July 16, 2019 [#75]. Based on the Deposition Motions and Plaintiff's Responses [#81; #82] thereto, the Exhibits Motion is GRANTED and the Motion to Supplement is GRANTED IN PART and DENIED IN PART.

         BACKGROUND

         Plaintiff Abril Anchondo-Galaviz (“Plaintiff” or “Ms. Anchondo-Galaviz”) filed this action in Denver District Court on May 30, 2018, after being injured in an automobile collision on February 27, 2013. [#3 at ¶ 1]. At the time of the collision, the Tortfeasor had insurance coverage of $25, 000 for bodily injury. [Id. at ¶ 20]. Plaintiff was insured under Policy No. 206 3169-B11-06A (“Policy”) issued by State Farm. [Id. at ¶ 15]. Under the Policy, Ms. Anchondo-Galaviz carried $100, 000 in uninsured/underinsured (“UI/UIM”) motorist coverage and $5, 000 in medical pay coverage. [Id. at ¶¶ 17, 18].

         As a result of the collision, Ms. Anchondo-Galaviz, with State Farm's permission, accepted $25, 000 for her bodily injury from the Tortfeasor. [Id. at ¶ 23]. Believing the value of her claim to exceed $25, 000, Plaintiff requested UIM benefits on May 2, 2016. [Id. at ¶ 24]. On July 22, 2016, Defendant sent a first offer of UIM benefits in the amount of $23, 416.15, which included a deduction of the $25, 000 paid by the Tortfeasor and $5, 000 for medical payment benefits. In the subsequent months, Plaintiff and Defendant engaged in correspondence regarding her UIM claim, and Plaintiff underwent additional medical treatment. [Id. at ¶¶ 25-43]. On March 23, 2018, Plaintiff sent medical records to State Farm, and requested policy limits of $100, 000. [Id. at ¶ 44]. At the time of the filing of the Complaint, State Farm had not paid Plaintiff. [Id. at ¶ 47]. Ms. Anchondo-Galaviz asserts three claims: (1) breach of contract; (2) common law bad faith breach of contract; and (3) unreasonable delay and denial pursuant to Colo. Rev.Stat. § 10-3-1115 (“statutory bad faith”). [#3]. She seeks relief in the form of economic damages, non-economic damages, and damages for physical impairment and/or disfigurement, as well as interest, costs, and attorney's fees. [Id. at 7].

         State Farm removed the action to the United States District Court for the District of Colorado on May 30, 2018. [#1]. It was originally assigned to, and proceeded before, the Honorable Richard P. Matsch. [#5]. Judge Matsch entered a Scheduling Order in this matter on August 27, 2018. [#19]. The Parties proceeded with discovery, but then stipulated to a sixty-day extension of time for certain pretrial deadlines after discovery issues arose, including a dispute over the deposition of Sheryl Tanaka (“Ms. Tanaka”), a former State Farm employee. [#59, #64]. On July 8, 2019, Plaintiff deposed Ms. Tanaka, in Honolulu. [#73 at ¶ 6]. The court now turns to the conduct of that deposition, and the conduct of counsel in this case generally.

         LEGAL STANDARDS

         I. Rule 30

         Rule 30 of the Federal Rules of Civil Procedure governs depositions by oral examination. Rule 30(f)(2)(A) provides that “Documents and tangible things produced for inspection during a deposition must, on a party's request, be marked for identification and attached to the deposition. Any party may inspect and copy them.” When an attorney taking a deposition questions the deponent with reference to extrinsic documents, those documents must be marked for inspection, attached to the deposition, and available for inspection and copy.

         II. Rule 31

         Rule 31 of the Federal Rules of Civil Procedure governs depositions by written examination. It provides that a party requires leave of court to take a deposition by written questions if the deponent has already been deposed in the case. Fed.R.Civ.P. 31(a)(2)(A)(ii). In addition, Rule 31 sets forth a mechanism by which such examination should proceed. First, “[a] party who wants to depose a person by written questions must serve them on every other party, with a notice stating, if known, the deponent's name and address. … The notice ...


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