Wilcox v. Portfolio Recovery Associates, LLC

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2                                                                           
3                   UNITED STATES DISTRICT COURT                            
4                        DISTRICT OF NEVADA                                 
5                                                                           
   BRUCE WILCOX, et al.                                                     
6                                      Case No. 2:20-cv-01545-JAD-NJK       
        Plaintiffs,                                                         
7                                               Order                       
   v.                                                                       
8                                          [Docket Nos. 84, 90]             
   PORTFOLIO RECOVERY ASSOCIATES,                                           
9  LLC,                                                                     
10       Defendant.                                                          
11      Pending before the Court is Defendant’s motion to compel depositions.  Docket No. 84.  
12  Also pending before the Court is Plaintiffs’ motion for protective order regarding the depositions 
13  Defendant seeks to compel.  Docket No. 90.  The Court construes pro se filings liberally, Blaisdell 
14  v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013), and, therefore, construes Plaintiffs’ motion to 
15  be a response to Defendant's motion.  Defendant filed a reply to its motion to compel, notifying 
16  the Court of Plaintiffs’ purported failure to respond to its motion to compel.  Docket No 93.  
17  Defendant also filed a response to Plaintiffs’ motion for protective order.  Docket No. 95.  The 
18  Court construes Defendant’s response to Plaintiffs’ motion to also be a reply in support of 
19  Defendant’s motion to compel.  See Docket No. 93 at 2.  For the reasons more fully discussed 
20  below, Defendant’s motion to compel depositions is  GRANTED and Plaintiffs’ motion for 
21  protective order is DENIED.                                              
22      Plaintiffs’ claims arise primarily from Defendant’s alleged violations of the Fair Debt 
23  Collection Practices Act.  See Docket No. 74 at 11.  Defendant now seeks to compel Plaintiffs’ 
24  depositions, see Docket No. 84, to which Plaintiffs object on the basis of spousal privilege, see 
25  Docket No. 90.                                                           
26  I.  STANDARDS                                                            
27      “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any 
28  party’s claim or defense and proportional to the needs of the case ….”  Fed. R. Civ. P. 26(b)(1). 
1  Relevance during discovery is broader than relevance at trial.  E.g., F.T.C. v. AMG Services, Inc., 
2  291 F.R.D. 544, 552 (D. Nev. 2013).  “The party seeking to avoid discovery bears the burden of 
3  showing why that discovery should not be permitted.”  V5 Tech. v. Switch, Ltd., 334 F.R.D. 306, 
4  309 (D. Nev. 2019).  Meeting that burden requires the objecting party to explain “how each of its 
5  objections is applicable, by providing the relevant standard for each objection and a meaningfully 
6  developed argument as to how the standard has been met.”  Hinostroza v. Denny’s Inc., 2018 WL 
7  3212014, *1 (D. Nev. 2018) (citing Green v. Bacca, 226 F.R.D. 624, 653 (C.D. Cal. 2005)).  
8  “[B]road discretion is vested in the trial court to permit or deny discovery.”  Hallett v. Morgan, 
9  296 F.3d 732, 751 (9th Cir. 2002).                                       
10  II.  DISCUSSION                                                          
11      Plaintiffs must sit for depositions in this case.  Plaintiffs are the initiating parties in this 
12  action and, therefore, their depositions are key to developing the record.  Indeed, the Federal Rules 
13  of Civil Procedure frame party depositions as being nearly compulsory.  See Fed. Rs. Civ. P. 30(a) 
14  (leave of the court generally not required to depose a party); 37(d)(1)(A) (parties can be sanctioned 
15  for failing to appear at their noticed deposition).  Further, unless there is a pending motion for 
16  protective order, a party must appear at his deposition even if he considers the discovery sought 
17  objectionable.  Paige v. Consumer Programs, Inc., 248 F.R.D. 272, 275 (C.D. Cal. 2008).  
18  Notwithstanding their obligation as parties to sit for depositions, Plaintiffs submit that spousal 
19  privilege bars their depositions.                                        
20      Privileges in cases asserting federal law claims are governed by federal common law except 
21  as modified by the Constitution, federal statute, or a rule prescribed by the Supreme Court.  Fed. 
22  R. Evid. 501.  “The Supreme Court has recognized two privileges that arise from the marital 
23  relationship. The first permits a witness to refuse to testify against his or her spouse.”  United 
24  States v. Montgomery, 384 F.3d 1050, 1056 (9th Cir. 2004) (citing Trammel v. United States, 445 
25  U.S.  40,  53  (1980)).    This  “adverse  spousal  testimony  privilege”  applies  only  in  criminal 
26  prosecutions.  Transfirst Holdings, Inc. v. Magliarditi, Case No. 2:16-cv-00322-APG-NJK, 2016 
27  WL 3067437, at *3 (D. Nev. May 31, 2016) (quoting United States v. Griffin, 440 F.3d 1138, 1143 
28  (9th Cir. 2006), and, citing Trammel, 445 U.S. at 52).                   
1      “The second privilege, called the ‘marital communications’ privilege,” protects private 
2  communications made between spouses.  Montgomery, 384 F.3d at 1056 (quoting Wolfle v. United 
3  States, 291 U.S. 7, 14 (1934)).  Because this is not a criminal prosecution, Plaintiffs may only rely 
4  on the marital communications privilege.  “The privilege (1) extends to words and acts intended 
5  to be a communication; (2) requires a valid marriage; and (3) applies only to confidential 
6  communications, i.e., those not made in the presence of, or likely to be overheard by, third parties.”  
7  Id. (internal citations omitted).  Courts “narrowly construe the marital communications privilege 
8  because it obstructs the truth-seeking process.”  Veracities PBC v. Strand, 602 F. Supp. 3d 1354, 
9  1357 (D. Or. 2022) (quoting United States v. Marashi, 913 F.2d 724, 729-30 (9th Cir. 1990)).  
10  Invocation of the marital communications “privilege must be made and sustained on a question-
11  by-question or document-by-document basis.”  Transfirst Holdings, at *3 (quoting United States 
12  v. Christensen, 801 F.3d 970, 1007 (9th Cir. 2015), amended and superseded on other grounds by, 
13  828 F.3d 763 (9th Cir. 2015)).  “Failure to object waives the marital communications privilege.”  
14  Id. (citing United States v. Vo, 413 F.3d 1010, 1017 (9th Cir. 2005)).  If a communication is found 
15  to be a marital communication, it is “presumptively confidential , and the party seeking disclosure 
16  of such communications bears the burden of demonstrating otherwise.”  Veracities, 602 F. Supp. 
17  3d at 1357 (quoting Marashi, 913 F.2d at 730)).                          
18      Plaintiffs make too broad an assertion of spousal privilege.  A deponent may be asked any 
19  number of questions regarding topics relevant to the litigation.  Without knowing what information 
20  a  specific  question  seeks,  it  is  impossible  to  determine  whether  the  sought  information  is 
21  privileged.  Plaintiffs are spouses and, therefore, the marital communications privilege may be 
22  applicable to some portion of their deposition testimony.  There is, however, discovery sought by 
23  Defendant at Plaintiffs’ depositions that is not within the marital communications privilege.  
24  Plaintiffs initiated this case and, consequently, exposed themselves to the discovery process.  The 
25  marital communications privilege may protect them from certain discovery inquiries.  The marital 
26  communications privilege, however, cannot bar Plaintiffs’ depositions entirely. 
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 1)  TI.    CONCLUSION 
2        Accordingly, Defendant’s motion to compel depositions is GRANTED.'  Docket No. 84. 
     Plaintiffs are ORDERED to sit for depositions at a time and place to be noticed by Defendant.’ 
    Plaintiffs’ motion for a protective order is DENIED.  Docket No. 90. 
5        IT IS SO ORDERED. 
6        Dated: June 15, 2023                                  
7                                                   HEX  x 
                                                  Nancy J.     pe 
8                                                  United  States  Magistrate Judge 
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24]  !      The Court grants Defendant’s motion only to the extent that it asks the Court to compel 
35  Plaintiffs’ depositions.  Any other relief is denied. 
   2      Defendant requests that the Court order Plaintiffs to sit for their depositions before this 
26]|  case’s June 21, 2021, discovery deadline.  Docket No.  95 at 5.  The Court declines to order 
   Plaintiffs to sit for a deposition at any specified time or locations.  To the extent an extension of 
    the discovery deadlines is necessary, the parties may file a stipulation seeking such relief.  The 
  parties are reminded of the Court’s expectation that they will fulfill their responsibility to act 
28]  cooperatively in discovery, including in the scheduling of depositions and extension of deadlines.