1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 LANCE BLACK, an individual, Case No.: 3:21-cv-01990-RBM-JLB

11 Plaintiff, ORDER OVERRULING 12 v. PLAINTIFF’S OBJECTIONS

13 CITY OF SAN DIEGO, et al., [Doc. 173] 14 Defendants. 15 16 On May 2, 2025, Magistrate Judge Jill L. Burkhardt issued an Order Denying 17 Plaintiff’s Application for Leave to Conduct Deposition by Video and to Prepare Transcript 18 Using Voice Recognition Technology (“Magistrate Judge Decision”). (Doc. 172.) On 19 May 14, 2025, Plaintiff Lance Black filed an Objection to Order Denying Plaintiff’s 20 Application for Leave to Conduct Deposition by Video and to Prepare Transcript Using 21 Voice Recognition (“Objections”). (Doc. 173.) On May 27, 2025, Defendants filed a 22 Response to Plaintiff’s Objections (“Response”). (Doc. 174.) Plaintiff filed an Opposition 23 to Defendant’s Response to Plaintiff’s Objections (“Reply”) on June 2, 2025. (Doc. 175.) 24 For the reasons outlined below, Plaintiff’s Objections to the Magistrate Judge’s 25 Decision are OVERRULED. 26 I. BACKGROUND 27 The Magistrate Judge’s Decision accurately summarizes the briefing filed by the 28 parties and identifies the status conferences held (Doc. 172 at 2–3) to address Plaintiff’s 1 Application for Leave to Conduct Deposition by Video and to Prepare Transcript Using 2 Voice Recognition Technology According to Rule 30(b)(3)(A) (“Plaintiff’s Application”) 3 (Doc. 153). Plaintiff’s Application was fully briefed, including supplemental briefing 4 ordered by the Magistrate Judge to address specific issues, and a status conference. (Docs. 5 160, 162–166, 168, 170–171.) 6 Plaintiff seeks to conduct at least 13 depositions using artificial intelligence (“AI”) 7 software and a notary public and videographer, Casey Stark, to prepare and certify the 8 deposition transcripts. (Doc. 173-1 at 5; Doc. 153 at 1–2.) Plaintiff also requests “[t]hat 9 the transcripts produced by Mr. Stark, so long as produced according to Rule 30, maybe 10 submitted as ‘transcripts’ for all purposes, including motions, the pretrial requirements of 11 Rule 26, and at trial itself.” (Doc. 153 at 2.) As the Magistrate Judge explained, Plaintiff 12 is “essentially indigent,” and he hopes to reduce his expense for each remaining deposition 13 from approximately $4,000 to $1,500 by using Mr. Stark to create and certify the 14 depositions. (Doc. 172 at 4 (citing Doc.153 at 3, 5).) 15 In their Response to Plaintiff’s Objections, Defendants reiterate that they “do not 16 oppose Mr. Stark acting as a videographer or deposition officer.” (Doc. 174 at 2.) They 17 also note that they “do not interpret the Magistrate Judge’s [Decision] as disallowing the 18 ability of Mr. Stark to serve in those roles.” (Id.) However, Defendants do continue to 19 “oppose utilizing the AI program for creating, and Mr. Stark certifying, the deposition 20 transcript.” (Id.) 21 II. LEGAL STANDARDS 22 A district court’s review of a non-dispositive decision by a magistrate judge is 23 limited. “The district judge in the case must consider timely objections and modify or set 24 aside any part of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 25 72(a); see also

(b)(1)(A) (“A judge of the court may reconsider any pretrial 26 matter … where it has been shown that the magistrate judge’s order is clearly erroneous or 27 contrary to law.”); Grimes v. City & Ctny. of San Francisco,

, 240 (9th Cir. 28 1991) (“The district court shall defer to the magistrate’s orders unless they are clearly 1 erroneous or contrary to law.”). 2 “The ‘contrary to law’ standard applies to a magistrate judge’s purely legal 3 determinations.” McAdam v. State Nat’l Ins. Co.,

(S.D. Cal. 4 2014) (citing Computer Econs., Inc. v. Gartner Grp., Inc.,

(S.D. 5 Cal. 1999)). “A magistrate judge’s conclusions of law are ‘contrary to law’ if the magistrate 6 judge applies an incorrect legal standard, misapplies the applicable standard, or fails to 7 consider an element of the applicable standard.” Thai v. Cnty. of Los Angeles, Case No. 8 15-cv-583-WQH-NLS,

, at *3 (S.D. Cal. Apr. 5, 2022) (citations 9 omitted). “The ‘clearly erroneous’ standard, which applies to a magistrate judge’s findings 10 of fact, is ‘significantly deferential, requiring a definite and firm conviction that a mistake 11 [h]as been committed.’” Thai,

, at *3 (quoting Concrete Pipe & Prods. 12 v. Constr. Laborers Pension Tr.,

(1993)). 13 III. DISCUSSION 14 Plaintiff argues: (1) the Magistrate Judge’s Decision is contrary to the Federal Rules 15 of Civil Procedure because it interferes with his ability to conduct this case inexpensively; 16 (2) the Magistrate Judge exceeded her jurisdiction in finding Mr. Stark was not qualified 17 to be the deposition officer under the terms proposed by Plaintiff; (3) the Magistrate 18 Judge’s Decision is contrary to the Federal Rules of Civil Procedure regarding the 19 appointment of a deposition officer, the conduct of a deposition, and the preparation of a 20 transcript; (4) Defendants waived the issue of confidentiality; and (5) the number of 21 depositions Plaintiff is taking should not be considered. Because the Court finds the 22 Magistrate Judge’s Decision does not conflict with the Federal Rules of Civil Procedure or 23 exceed the Magistrate Judge’s jurisdiction and confidentiality and the number of 24 depositions were properly considered, Plaintiff’s Objections are overruled. 25 A. The Magistrate Judge’s Decision Does Not Conflict with the Federal 26 Rules of Civil Procedure 27 Plaintiff seeks to conduct depositions using a notary public and videographer, Mr. 28 Stark, as the deposition officer and for Mr. Stark to “prepare and certify the deposition 1 transcript, aided by AI transcription software.” (Doc. 173-1 at 5.) Plaintiff argues that 2 because Federal Rules of Civil Procedure 1 and 30(b)(3)(A) provide for the inexpensive 3 conduct of litigation, the Magistrate Judge’s Decision denying Plaintiff’s Application to 4 conduct these depositions by a less expensive method is “clearly contrary to the law.” (Id. 5 at 7.) Plaintiff also asserts in his objection that because Rule 26(b)(2)(A) only specifies 6 that courts may limit the number of depositions and interrogatories and the length of 7 depositions, imposing any other limit on how a deposition is conducted is contrary to the 8 law. (Id. (citing Rule 26(b)(2)(A).) For the reasons set forth below, the Court overrules 9 these objections. 10 Rule 1 provides that the Federal Rules of Civil Procedure “govern the procedure in 11 all civil actions and proceedings in the United States district courts” and “should be 12 construed, administered, and employed by the court and the parties to secure the just, 13 speedy, and inexpensive determination of every action and proceeding.” 14 Rule 30(b)(3)(A) states: 15 (3) Method of Recording. (A) Method Stated in the Notice. The party who notices the 16 deposition must state in the notice the method for recording the 17 testimony. Unless the court orders otherwise, testimony may be recorded by audio, audiovisual, or stenographic means. The 18 noticing party bears the recording costs. Any party may arrange 19 to transcribe a deposition.

20 21 Rule 26(b)(2)(A) states: 22 (2) Limitations on Frequency and Extent. (A) When Permitted. By order, the court may alter the limits 23 in these rules on the number of depositions and interrogatories or 24 on the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 25 36. 26 27 If the Court were to interpret Rule 1, Rule 30(b)(3)(A), and Rule 26(b)(2)(A) as 28 Plaintiff suggests in his Objections—prohibiting a magistrate judge from imposing 1 parameters on a party’s preferred method of creating and certifying a deposition to reduce 2 the expense—then a magistrate judge could never impose any limitation or restriction 3 whatsoever on how a deposition is recorded, transcribed, or certified. (Doc. 173-1 at 7 4 (citing Lucas v. Curran,

(E.D. Pa. 1974)). Followed to its logical 5 conclusion, a magistrate judge would always have to accept a party’s less expensive 6 method regardless of legitimate concerns raised by an opposing party. The Court is not 7 persuaded this is a reasonable interpretation of the Federal Rules of Civil Procedure, 8 particularly given the broad discretion given to magistrate judges to manage discovery. 9 See Fed. R. Civ. P. 26(b) (Discovery Scope and Limits). 10 Additionally, the sentence in Rule 30(b)(3)(A) addressing how a deposition is 11 recorded begins with “[u]nless the court orders otherwise.” This is consistent with a 12 judge’s discretion to impose limits on how discovery is conducted, including as to 13 depositions. This case itself illustrates why a court might “order[] otherwise.” Rule 14 30(b)(3)(A). An opposing party has identified numerous legitimate concerns with having 15 many depositions—at least 13—taken and certified by an untested method that raises 16 concerns in the handling of confidential information subject to a Protective Order. (Doc. 17 172 at 23, 5–7.) The Magistrate Judge’s denial of Plaintiff’s Application was not contrary 18 to law and this objection is overruled. 19 B. The Magistrate Judge Did Not Exceed Her Jurisdiction or Violate the 20 Rules Regarding a Deposition Officer or the Enabling Act1 21 Plaintiff argues the Magistrate Judge exceeded her jurisdiction and violated the 22 Federal Rules, including the Rules Enabling Act, in denying his request because the Federal 23 Rules of Civil Procedure do not dictate the qualifications, the level of experience, or the 24 methods by which depositions are conducted and transcripts certified. (Doc. 173-1 at 7– 25 14.) Plaintiff quotes limitations identified in the Magistrate Judge’s Decision regarding 26 27 1 Given the overlap in these two sections of Plaintiff’s Objections, the Court addresses them 28 1 Mr. Stark’s experience and then characterizes these as improper “requirements” imposed 2 by the Magistrate Judge that are incompatible with the Federal Rules minimal requirements 3 that a deposition be taken before for a deposition officer able to administer oaths. (Id. at 4 8–9 (“These critiques are entirely incompatible with the Federal Rules of Civil Procedure 5 28, 29, 30, and 32.”).) Plaintiff asserts that a judge cannot impose any limitation on who 6 conducts, creates, and certifies a deposition—even when numerous challenges are raised 7 by an opposing party—because no Rule specifies those limitations. (Id. at 8–12; see also 8 Doc. 172 at 5 (Magistrate Judge’s Decision identifying Defendants’ many challenges to 9 Mr. Stark creating and certifying transcripts because of confidentiality concerns with the 10 AI platform as well as concerns regarding the accuracy of a deposition created and certified 11 as proposed).) Plaintiff asserts the Magistrate Judge’s Decision constitutes the creation of 12 a rule that conflicts with the Federal Rules. (Doc. 173-1 at 12–14.) Plaintiff also asserts 13 that his proposal sufficiently addresses the concerns raised regarding the accuracy and 14 clarity of the record. (Doc. 173-1 at 10–12.) 15 The Court is not persuaded that the Magistrate Judge’s discussion of the limitations 16 in Mr. Stark’s experience and qualifications, issues raised by Defendants, constitute the 17 creation and implementation of improper requirements for a deposition officer. Rather, the 18 Magistrate Judge thoroughly considered Mr. Stark’s background and experience to 19 determine whether Plaintiff’s less-expensive proposal for the creation and certification of 20 at least 13 depositions will work in this particular case. (Doc. 172 at 6–7.) For example, 21 after summarizing Mr. Stark’s proposed method of training the AI program in real time 22 through modifications made as testimony is being taken, the Magistrate Judge fairly 23 concludes that “this practice is untested in a real-life deposition setting and could lead to 24 unanticipated delays and problems.”2 (Id. at 6.) This is not the creation of a requirement 25

26 27 2 The potential for “delays and problems” is particularly problematic in this case given the original fact discovery deadline, extended multiple times, was more than six months ago. 28 1 that Mr. Stark have certain prior experience. It is the recognition that an untested method 2 for the creation, the transcription, and the certification of deposition transcripts using an 3 AI platform that raises “legitimate concerns” regarding confidentiality is not a permissible 4 option for Plaintiff’s remaining 13 depositions in this case. 5 As the Magistrate Judge acknowledged here, there may be cases and circumstances 6 that would warrant depositions being taken as Plaintiff proposes. (Doc. 172 at 7 n.1 (“This 7 is not to say that Mr. Stark, or someone else with his experience and skills, aided by AI 8 transcription software, would not be an appropriate deposition officer in a different case. 9 For all the reasons addressed in this order, though, this is not the right case.”). Here, 10 however, the Magistrate Judge properly denied the request to conduct 13 depositions in 11 this case in a way that was untested and raised concerns as to accuracy and maintaining 12 confidentiality. Accordingly, these objections are overruled. 13 C. Confidentiality 14 Plaintiff asserts that Defendants have “waived the issue of confidentiality” by not 15 designating prior depositions as confidential and by their own use of a third-party platform 16 to transmit files. (Doc. 173-1 at 14; Doc. 174 at 8–10.) Plaintiff also asserts that, to the 17 extent the Magistrate Judge “gave any weight to the City of San Diego’s Artificial 18 Intelligence and Generative Artificial Intelligence Policy when forming its decision, that 19 policy should not bear any weight, as federal law should control.” (Doc. 173-1 at 14–15.) 20 The Magistrate Judge assessed Defendants’ challenges as to confidentiality to be 21 legitimate, discussed the AI platform’s disclaimer on the use of the data, and concluded 22 that providing information designated as confidential under the terms of the Protective 23 Order to the AI platform when it is unclear “how the information will be stored and used, 24 violates the Protective Order and is not justified in this case.” (Doc. 172 at 7–8.) This 25 consideration of confidentiality, among other reasons for denying Plaintiff’s Application, 26 is not contrary to law or clearly erroneous. See Thai,

, at *3 (defining 27 contrary to law as applying “an incorrect legal standard, misapply[ying] the applicable 28 standard, or fail[ing] to consider an element of the applicable standard” and defining clearly 1 erroneous as requiring a “definite and firm conviction that a mistake [h]as been 2 committed.”) (citations omitted). The Magistrate Judge appropriately considered 3 Defendants’ challenges to confidentiality in using the AI platform and found its use would 4 violate the Protective Order. This analysis and conclusion are not contrary to law and there 5 was no mistake committed in reaching this conclusion. 6 Defendants not designating prior depositions confidential is not a broad waiver of 7 confidentiality as to these 13 remaining depositions. The limited authority relied on by 8 Plaintiff for this assertion is distinguishable. In Richmark Corp. v. Timber Falling 9 Consultants, the court found a party waived a specific objection to discovery requests and 10 interrogatories by not raising the objection in response to the initial discovery requests, or 11 in response to a motion to compel, or in response to a motion to stay discovery, or before 12 the Ninth Circuit.

, 1473 (9th Cir. 1992). The issue was first raised in a 13 reply brief on imposition of contempt sanctions and the court found at that point, the 14 objection was waived. Id. Here, Plaintiff’s Application sought to take 13 depositions a 15 particular way and to obtain approval for the use of these depositions for motions and trial. 16 (See supra Section I.) Defendants opposed Plaintiff’s proposal based on confidentiality 17 concerns, among many other issues. (Id.) Defendants did not waive a challenge to the 18 submission of confidential information to the AI platform as proposed by Plaintiff because 19 this was the first time it was proposed. And, to the extent Plaintiff is arguing Defendants 20 broadly waived all confidentiality challenges as to anything that might arise in the 21 remaining 13 depositions because they did not designate the prior four depositions as 22 confidential, the Court is not persuaded. Plaintiff has not provided any authority for the 23 proposition that Defendants’ waiver, to the extent there was any, could be that broad. As 24 noted above, Richmark Corp., the only case cited by Plaintiff, is distinguishable because it 25 involved specific challenges that were not raised through numerous stages of litigation. 26 959 F.2d at 1473. 27 Similarly, Defendants’ use of a third-party cloud service to transmit information 28 does not constitute a waiver of all confidentiality challenges in Plaintiff’s use of an AI 1 platform to transcribe or record depositions. Plaintiff asserts that “[b]y providing 2 information designated as confidential to Google Drive, Defendants should be considered 3 to have waived the issue.” (Doc. 173-1 at 14; see also Doc. 175 at 8–10.) Essentially, 4 Plaintiff is asserting that because Defendants have used a different third-party service in a 5 way that might have confidentiality concerns similar to Plaintiff’s use of an AI platform, 6 the Court should find Defendants have waived all confidentiality challenges regarding the 7 AI platform’s use for depositions. While these services or platforms both involve third- 8 party platforms and might both raise confidentiality concerns, Plaintiff cites no authority 9 for the proposition that Defendant’s use of Google Drive constitutes a waiver as to all 10 confidential information. 11 The Court is also not persuaded there was any error in consideration of the City’s 12 Artificial Intelligence and Generative Artificial Intelligence Policy. Plaintiff seems to 13 suggest that the Magistrate Judge applied the City’s Policy, instead of federal law, to 14 determine what is and is not confidential. However, the Magistrate Judge does not rely on 15 the City’s Policy as a basis for denying Plaintiff’s Application. The Magistrate Judge’s 16 Decision acknowledges Defendants’ arguments regarding the prohibitions in the City’s 17 Policy regarding the submission of confidential information to AI platforms without 18 appropriate controls (Doc. 172 at 5), but the denial does not rely on violation of the Policy 19 (id. at 7–8). It relies on the information being submitted to an AI platform being 20 confidential and a violation of the Protective Order. (Id.) 21 Plaintiff’s objections regarding confidentiality and consideration of the City’s Policy 22 are overruled. 23 D. Consideration of the Number of Depositions 24 Plaintiff objects that the “number of depositions is not at issue and any ruling should 25 not consider it.” (Doc. 173-1 at 15.) Plaintiff asserts that the number cannot be considered 26 because no prior objection was made to the number of depositions and the parties’ 27 discovery plan provided for Plaintiff to take 26 total depositions. (Id.) 28 l The Magistrate Judge’s consideration of the number of depositions and their 2 ||necessity was not clearly erroneous or contrary to law. To the extent the Magistrate Judge 3 |}even relies on the number of depositions in denying Plaintiff's Application,’ these are 4 || permissible considerations. If there were problems with the proposed method, curing those 5 problems would cause further delay of this case and the number of depositions at issue 6 || would increase the delays.* This objection is overruled. 7 IV. CONCLUSION 8 Plaintiff's Objections are OVERRULED. 9 IT IS SO ORDERED. 10 || Dated: July 10, 2025 RR Bo Gs ? L > 11 HON. RUTH BERMUDEZ MONTENEGRO 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 0 > The Magistrate Judge’s Decision briefly notes this point after rejecting Plaintiffs proposal as an untested method that could result in delays and problems and then finding that 21 ||conducting the depositions as requested by Plaintiff would violate the Protective Order. (Doc. 172 at 6-8.) In this respect, it is not clear that the Magistrate Judge even relies on the number and necessity for the depositions in denying Plaintiff's Application. Even if 23 ||she does, the Magistrate Judge provides numerous other reasons for denying □□□□□□□□□□□ 4 Application. (Doc. 172 at 1-7.) * However, to the extent Defendants’ assertion that Plaintiff's Objections should be 25 overruled because he has “overlitigat[ed]” this case (Doc. 174 at 3-4) were intended to %6 address this objection, the Court is not persuaded that bears on this issue. If Defendants had legitimate challenges to how Plaintiff has pursued discovery in this case, those issues 27 ||should have been raised with the Magistrate Judge in a timely fashion. They are not a 3 || Proper basis to overrule Plaintiff's Objections the Magistrate Judge’s Decision. 10