2018-00224678-CU-PO

Marcus Bernard vs. Jesuit High School of Sacramento

Nature of Proceeding: Motion for Protective Order

Filed By: Hale, Michael E.

Plaintiff Marcus Bernard’s (Bernard) motion for protective order is DENIED.

Bernard is directed to file a fresh, stand-alone copy of his first amended complaint. The version in the court’s files contains only the first page and an otherwise blank page with a stamp indicating the document was received in the court’s drop box.

This is a personal injury case. Bernard alleges that when he was a minor attending Defendant Jesuit High School (School), a fellow student attacked him and caused injuries including brain injury. Bernard alleges one of the School’s teachers shares responsibility for his injuries. Although former Dean of Students Timothy Warren

(Warren) was a named defendant, he was dismissed from the lawsuit without prejudice. Warren remains a percipient witness.

The current motion involves Bernard’s oral deposition. Defense counsel indicated prior to deposition that he might require more than seven hours to complete the deposition. Absent a court order, or circumstances that do not apply to this case, seven hours is the maximum number allowed per deposition. (CCP § 2025.290.) Bernard and his counsel will not stipulate to additional time.

Furthermore, when Bernard appeared for deposition, Warren was present. Defense counsel seeks Warren’s presence to assist with the examination, presumably by offering insights into the facts. Bernard objects that Warren is not a party and, because he is retired, cannot be considered an “officer” of the School entitled to be present as such. (See CCP § 2025.420(b)(12).)

By the instant motion, Bernard seeks an order limiting his deposition to seven hours and barring Warren from being personally present. The School and Co-Defendant Michael Cheney (collectively “Defendants”) oppose.

The request for an order limiting the deposition to seven hours is denied. At this point, there is no motion for additional deposition time, and defense counsel should plan on completing the deposition within the normal seven-hour limit. Granted, the court “shall allow additional time…if needed to fairly examine the deponent[.]” (Id., § 2025.290(a).) At this point, the court expresses no opinion whether fairness will require additional time. The court notes, however, that neither Bernard’s legal theories nor his brain injury appear to require a protracted deposition.

The request for an order barring Warren from the deposition room is denied as well. Although Warren has no right to attend, there is nothing improper about his attendance. Bernard’s counsel suggests Warren’s presence is meant to intimidate and harass, but there is no testimony from Bernard indicating Warren has such an effect on him. Nor is there evidence Warren has conducted himself improperly in relation to the deposition.

In the alternative, Bernard argues Warren should be excluded so that he cannot improperly alter his own testimony. But Warren could review Bernard’s deposition transcript to accomplish the same purpose if he wished, and the evidence does not support a finding that Warren intends to offer collusive testimony.

The motion is denied. Nothing bars Bernard or another party from seeking judicial intervention if any impropriety or legitimate concern arises during Bernard’s deposition. The court trusts counsel will make reasonable efforts to resolve any such disputes informally in the first instance.

No monetary sanctions are imposed.