Robert R. Estrada v. James K. Rowland J.S. Stainer R. Haase S. Sosa M. Melgado Garcia and N. Haywood

The district court dismissed Robert R. Estrada’s § 1983 action when he attended his deposition but refused to testify. Because a party who appears at a deposition but refuses to testify does not “fail to appear” for the purposes of Federal Rule of Civil Procedure 37(d), we reverse and remand.

I

In 1991, Estrada brought a § 1983 prisoner’s action against several employees of the California Department of Corrections alleging assault and property destruction. On July 2, 1993, a Deputy Attorney General attempted to depose Estrada. While Estrada appeared at the deposition, he repeatedly refused to testify. Estrada offered two justifications. First, the notice of deposition did not state the time at which the deposition would begin. Second, he wanted a signed commitment by the Deputy Attorney General that he would furnish Estrada with a copy of the transcript of the deposition; he claimed that the Attorney General’s office had failed to provide him with a copy of the transcript of another deposition taken for another case. Estrada then ended the deposition:

In response, the defendants moved to dismiss. On November 1, 1993, a federal magistrate recommended dismissal, finding that…