Unreported / Non-Citable
Background
Matthew Johnson, a former pretrial detainee at the San Francisco County Jail, sued jail employees under 42 U.S.C. § 1983, alleging unconstitutional conditions of confinement. During discovery the defendants sought to depose him. On October 9, 2026, defense counsel emailed Johnson's lawyer requesting deposition availability by the parties' October 15 meet-and-confer; no dates were offered, and counsel followed up asking for dates by October 16.
On October 16, Johnson's lawyer told defense co-counsel by phone that he could not reach Johnson and that Johnson's mother could not locate him either. Over the next eleven days he kept trying, including checking the Sheriff's Office inmate locator, without success. On October 27, after defense counsel asked whether Johnson was refusing to appear, his lawyer replied within half an hour that he still could not reach him. The defendants served the deposition notice that day, setting the deposition for November 10. Johnson's lawyer asked them to withdraw it; on November 2 defense counsel declined but offered to reschedule to any November date if available dates were provided. None were.
As of November 4, Johnson's lawyer still had not located him: Johnson was not in the Sheriff's custody, calls and texts to his last known number went unanswered, his voicemail was full, and his mother had not been reachable for two weeks. Johnson moved on November 4 to quash the notice and for a protective order, noticing the motion for hearing on December 10, a month after the deposition date. The court shortened time by treating the motion as an administrative motion.
The Court’s Holding
The court denied the motion. The defendants may depose Johnson without leave of court and conferred with his lawyer before serving the notice, as the local rules require. Because a deposition notice to a party is not a subpoena, there was nothing to quash; the motion was properly treated as one for a protective order under Rule 26(c), which requires good cause supported by a particular and specific demonstration of fact showing specific prejudice or harm, not stereotyped and conclusory statements.
Johnson made no such showing. The only ground was that his lawyer could not find him, which explained why the lawyer could not offer dates but not why the defendants should be barred from a deposition they were entitled to take. The defendants had asked for dates for nearly three weeks before serving the notice, set the deposition two weeks out, and offered to move it to any November date proposed. As the plaintiff who chose to bring the case, Johnson must prosecute it, including by participating in discovery; his lawyer's inability to prepare or produce him went to whether the deposition could happen, not whether it should. The defendants, by contrast, faced real prejudice because deposing the plaintiff is part of defending their case.
The deposition will proceed on November 10, 2026, as noticed, unless the parties agree on another November date. Johnson's failure to appear will not, on this record, be excused under Rule 37(d)(2); if he does not appear, the defendants may seek sanctions under Rule 37(d), which can include dismissal, and may move to dismiss for failure to prosecute under Rule 41(b). The court suggested the parties confer by Monday, November 9, to agree on a later date, noting the week of November 16 made the most sense given the holidays.
Key Takeaways
- A lawyer's inability to locate his client is not good cause under Rule 26(c) to bar a deposition the opposing party is entitled to take.
- A deposition notice to a party is not a subpoena, so there is nothing to quash; the proper vehicle is a protective-order motion requiring a particularized showing of specific harm.
- A plaintiff who chooses to bring a case must prosecute it, including by participating in discovery such as his own deposition.
- The defendants' diligence—requesting dates for nearly three weeks, setting the deposition two weeks out, and offering any November date—weighed against a protective order.
- If the plaintiff fails to appear, the defendants may seek Rule 37(d) sanctions, including dismissal, and a Rule 41(b) dismissal for failure to prosecute.
Why It Matters
The order illustrates the demanding good-cause standard for Rule 26(c) protective orders: a party's unavailability, without more, does not justify barring a properly noticed deposition, and counsel's inability to reach a client goes to the deposition's feasibility, not its propriety.
By preserving the defendants' remedies under Rules 37(d) and 41(b), the court signaled that a plaintiff's failure to appear for a properly noticed deposition can lead to severe consequences, including dismissal.