Curtis Blackwell Deposition

Case 1:18-cv-01261-JTN-ESC ECF No. 58 filed 09/19/19 PageID.
427 Page 1 of 145
UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CURTIS E. BLACKWELL, II,
Plaintiff, Case No. 1:18-cv-1261

v. Hon. Janet T. Neff
Mag. Judge Ellen C. Carmody
LOU ANNA K. SIMON,
MARK DANTONIO, et al.,
Defendants.
PLAINTIFF BLACKWELL’S MOTION TO COMPEL THE TAKING OF DEPOSITION

OF DEFENDANT MARK DANTONIO AND SANCTIONS PURSUANT TO
FED.R.CIV.P. 26(b), 30(d)(1), and 37
PLAINTIFF, CURTIS E. BLACKWELL (“Plaintiff” or “Plaintiff Blackwell”), by and
through his attorneys, THOMAS R. WARNICKE and ANDREW A. PATERSON, and for his
Motion to Compel the Taking of Deposition of Defendant Mark Dantonio and Sanctions
(“Motion to Compel”), states the following:
STATEMENT OF NON-CONCURRENCE
Plaintiff’s counsel explained the nature of this motion and its legal basis to Defendants’
counsel and requested concurrence, via electronic mail and telephone, but was unable to obtain
concurrence in the relief sought at the time of this filing. (Note: Plaintiff is also filing a separate
statement pursuant to Local Rule 7.1(d)).
I. INTRODUCTION
On August 11, 2019, Plaintiff served “Plaintiff’s Notice of Taking Depositions of
Defendants Mark Dantonio, Mark Hollis and Lou Anna K. Simon. (Ex. 1, Email to Defendants’
Counsel). Defendant Dantonio, Hollis and Simon’s counsel responded. (Ex. 2, 8/11/2019 Email
from Defendants’ Counsel). Plaintiff’s Counsel informed Defendants’ Counsel that his
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Case 1:18-cv-01261-JTN-ESC ECF No. 58 filed 09/19/19 PageID.428 Page 2 of 145
preference was to start with Defendant Dantonio’s deposition, followed by Defendants Hollis
and Simon. Plaintiff’s Counsel then reiterated his request to “get Dantonio scheduled asap and
we can go from there.” (Ex. 3, 8/11/2019 Email to Defendants’ counsel).
On August 12, 2019, Plaintiff’s deposition took place. The length of time on the record
for Plaintiff’s deposition testimony was approximately 6 ½ hours. Relevant portions of
Plaintiff’s depositions are attached to provide this Court with the very broad scope and nature of
Defendants’ deposition examination of Plaintiff. (Ex. 4, Excerpts from Plaintiff’s Deposition).
By way of example and not limitation, Counsel for the Defendant Detectives and Counsel for
Coach Dantonio examined Plaintiff at length regarding: a) Auston Robertson [Dep at 95, 113-
116, 125-130, 133-147, 172-182, 190-199, 250-257, 306-337]; b) Michigan State and Dantonio’s
knowledge and approval of Plaintiff working contemporaneously for Michigan State University
and Sound Mind Sound Body, as well as Coach Dantonio and the MSU football team’s
involvement in Sound Mind Sound Body [Dep at 82-92]; c) the Jones Day Report – including its
shortcomings and failures [Dep at 95, 325-333]; d) Defendant Hollis’ breach of Plaintiff’s
employment agreement with MSU by failing to meet with Plaintiff before suspending him [260,
306-310]; and, e) Defendants’ decision to suspend Plaintiff, in part, due to pressure from the
Larry Nassar matter and to cover their own misdoings [Dep at 215-216].
Defendants’ Counsel finished Plaintiff’s deposition, but reserved additional time to
question Plaintiff about his earlier testimony in an underlying matter, to which Plaintiff’s
Counsel agreed. During a break in Plaintiff’s deposition, Plaintiff’s counsel again reiterated in
writing to Defendants’ counsel his request to get dates from Defendants Dantonio, Hollis and
Simon for depositions. Plaintiff’s Counsel also requested in his email that Defendants Davis and
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Miller’s Counsel provided dates for his clients as well. (Ex. 5, 8/12/2019 Email to Defendants’
counsel).
Plaintiff also requested in the same email dates from Defendants’ counsel Davis and
Miller for their respective depositions. 1 Defendant Dantonio’s counsel responded via email
trying to steer the scheduling away from Defendant Dantonio by stating: [S]ince Paul’s clients
will be easy to schedule, why not start with them.” Defendant Dantonio’s Counsel also requested
a time limitation, stating that the decisions Dantonio made could be covered in three hours. He
also mentioned that Robertson (i.e. Auston Robertson) had nothing to do with this case. (Ex. 6,
8/12/2019 Email from Defendant Dantonio’s Counsel).
On August 15, 2019, Defendant Dantonio’s Counsel informed Plaintiff’s Counsel that it
has come to their attention that Defendant Dantonio may be available on August 20. (Ex. 7,
8/15/2019 Email from Defendant Dantonio’s Counsel). Plaintiff’s counsel responded late that
same day that he would discuss it with his client and respond back the following morning. (Ex. 8,
8/15/2019 Email from Plaintiff’s Counsel). On the morning of August 16, 2019, Plaintiff’s
Counsel informed Defendant Dantonio’s Counsel that he was not available on August 20, 2019
and was unable to open that date up on such short notice. However, Plaintiff’s Counsel informed
Defendant Dantonio’s Counsel that he and Mr. Blackwell were available on six alternative dates,
specifically, August 23, 26, 27 and Sept 3, 4, 6 and requested that Defendant Dantonio’s counsel
advise him which of those dates worked for Defendant Dantonio. (Ex. 8, 8/16/2019 Email from
Plaintiff’s Counsel).
Defendant Dantonio’s Counsel responded that Defendant Dantonio was not available on
any of the six alternate dates provided by Plaintiff’s Counsel. Defendant Dantonio’s Counsel
1
Defendants Davis and Miller’s depositions have been set to take place on September 23 and 24,
2019.
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offered a single date in return – August 21, 2019, which was a date that Defendants’ Counsel
knew Plaintiff’s Counsel was not available, and with a limited time-frame on which Dantonio
would appear from 9:30am-12:30pm. (Ex. 9, 8/16/2019 Email from Defendants’ Counsel).
However, as this Court is aware, in accordance with Fed. R. Civ. P. 30(d)(1), “[u]nless otherwise
stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours.”
On August 19, 2019, Defendant Dantonio’s Counsel sent Plaintiff’s Counsel an email
asking if Plaintiff’ Counsel was proceeding with Dantonio’s deposition on August 21, despite
knowing full well that Plaintiff’s Counsel was not available on that date. (Ex. 10, 8/19/2019
Email from Defendants’ Counsel). Plaintiff’s Counsel promptly responded that he was allowed
7 hours under the Fed.R.Civ.P. 30(d)(1) and requested that Defendants’ Counsel provide a date
on which Defendant Dantonio was available for a full day. (Ex. 11, 8/9/2019 Email from
Plaintiff’s Counsel).
Defendant’s Counsel responded that Coach Dantonio did not have 7 hours available on
any of the dates Plaintiff’s Counsel provided. (Ex. 12, 8/19/2019). Plaintiff’s Counsel responded
that “[T]his shouldn’t be that complicated. Please provide me with date on which Def Dantonio
is available for 7 hours under the FRCP. (Ex. 13, 8/19/2019). Defendant Dantonio’s Counsel
responded with: “Tom, let’s be clear. You will not be deposing any of our witnesses on matters
related to Nasser and Robertson. I’m aware that your client thinks that this is an area that will
concern MSU. But it is not relevant to the question whether coach D, or others, reacted to
Blackwell’s assertion of the 5th Amendment. So any deposition should take a fraction of 7 hours,
as long as we adhere to concepts of relevance.” (Ex. 14, 8/19/2019).
After his August 19, 2019 Email, Defendant Dantonio’s Counsel has failed to provide
any dates on which Defendant Dantonio was available for his deposition. Plaintiff’s Counsel
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made another good-faith attempt to get a date locked in for Defendant Dantonio’s deposition.
(Ex. 15, 9/12/2019). Defendant Dantonio’s Counsel responded with more excuses for not
providing dates on which Defendant Dantonio was available for his deposition. (Ex. 16,
9/13/2019). Four additional days have gone by without Defendant Dantonio providing any
available dates. For the time, Defendant Dantonio’s Counsel threatened to file a protective order
to limit the scope of Defendant Dantonio’s deposition.
There is no basis for Defendant Dantonio’s threatened Protective Order, but such is
merely being thrown out as another attempt to further circumvent Defendant Dantonio’s
obligation to appear for his deposition pursuant to the Federal Rules of Civil Procedure.
Accordingly, for the reasons set forth below, Plaintiffs’ Motion to Compel should be granted.
II. LAW AND LEGAL ANALYSIS
a. Defendant Dantonio Shall be Compelled To Take A 7-Hour Deposition In Accordance

With Fed.R.Civ.P. 30(d)(1).
Fed.R.Civ.P. 26(b) governs discovery. Rule 26(b)(1) states the following:
(b) Discovery Scope and Limits.
(1) Scope in General. Unless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's claim or defense and
proportional to the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable. (Emphasis supplied).
Fed.R.Civ.P. 26(d) further provides:
(d) TIMING AND SEQUENCE OF DISCOVERY.
(1) Timing. A party may not seek discovery from any source before the parties
have conferred as required by Rule 26(f), except in a proceeding exempted from
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initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by

stipulation, or by court order.
Fed.R.Civ.P. 30(a) governs the taking of depositions. Fed.R.Civ.P. 30(a) provides:
(a) WHEN A DEPOSITION MAY BE TAKEN.
(1) Without Leave. A party may, by oral questions, depose any person, including
a party, without leave of court except as provided in Rule 30(a)(2). The
deponent's attendance may be compelled by subpoena under Rule 45. (emphasis
supplied).
By its terms, Rule 26(b)(1) permits discovery of relevant evidence as to “any party’s
claim or defense” regardless of whether or not the evidence is admissible at trial. “Relevant
evidence” is evidence that “has any tendency to make a fact more or less probable than it would
be without the evidence” where “the fact is of consequence in determining the action.” Fed. R.
Evid. 401. As noted, information need not be admissible in evidence to be discoverable. Fed. R.
Civ. P. 26(b)(1). Thus, the scope of Rule 26 is broader than that of the Federal Rules of
Evidence. See Lewis v. ACB Business Services, Inc., 135 F.3d 389, 402 (6th Cir. 1998)(the
“scope of examination permitted under Rule 26(b) is broader than that permitted at trial”); see
also Coleman v. American Red Cross, 23 F.3d 1091, 1097 (6th Cir. 1994)(“A court is not
permitted to preclude the discovery of arguably relevant information solely because, if the
information were introduced at trial, it would be `speculative' at best.”).
In the case at bar, Plaintiff clearly has the right to depose Defendant Dantonio for a full 7
hours because it is undisputed that Defendant Dantonio has first-hand knowledge and relevant
information pertaining to Plaintiff’s claims against Defendants, as well as first-hand knowledge
and relevant information with respect to any defenses the Defendants may raise. (See Transcript
from Plaintiff’s deposition attached). Accordingly, Defendants’ counsel’s attempts to limit
Defendant Dantonio’s deposition is clearly unwarranted in light of the alleged facts properly pled
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in this case that clearly indicate Defendant Dantonio contains relevant information as to all of the
claims Plaintiff has properly pled and alleged in his complaint.
CONCLUSION
WHEREFORE, for the foregoing reasons, Plaintiff prays that this Honorable Court
GRANT his motion to compel Defendant Dantonio to sit for a full 7-hour deposition on October
7, 8, or 9 (or any different date set ordered by this Court) in accordance with Fed.R.Civ.P.
30(d)(1); order Defendant Dantonio to pay, as sanctions, the attorneys’ fees and costs Plaintiff
incurred for being forced to file and argue this motion; and ordering any such other sanctions as
are just, consistent with Fed. R Civ. P. 37.
Dated: September 19, 2019 Respectfully submitted,
/s/ Thomas R. Warnicke

THOMAS R. WARNICKE (P47148)
Attorney for Plaintiff
16291 W. 14 Mile Road, Suite 21
Beverly Hills, MI 48025
(248) 930-4411
tom@warnickelaw.com
/s/ ANDREW A. PATERSON

ANDREW A. PATERSON (P18690)
Co-Counsel for Plaintiff
2893 E. Eisenhower Pkwy
Ann Arbor, MI 48108
(248) 568-9712
aap43@outlook.com
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LOCAL RULE 10 and 7.3(b) CERTIFICATION
I, Thomas R. Warnicke, certify that the concurrence requirement set forth in this
document complies with Local Rule 10, including: 8 ½ x 11 inch paper, double-spaced
(except for quoted materials and footnotes); at least one-inch margins on the top, sides, and
bottom; consecutive page numbering; and type size of all text and footnotes that is no
smaller than 10-1/2 characters per inch (for non-proportional fonts) or 12 point (for
proportional fonts).
I also certify that it is the appropriate length pursuant to Local Rule 7.3(b). There is
a total of 2,091 words in this motion and brief, and the name and version of the word
processing software that was used to generate the word count was Microsoft Office Word
365.
Respectfully submitted,

THOMAS R. WARNICKE (P47148)
CERTIFICATE OF SERVICE
I hereby certify that on September 19, 2019, a copy of the foregoing document and this
proof of service was served via the CM/ECF electronic filing system to all attorneys of record. I
declare under the penalty of perjury that the statement above is true to the best of my information,
knowledge, and belief.

Thomas R. Warnicke (P47148)
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EXHIBIT 1
EXHIBIT 4
EXHIBIT 16

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Case 1:18-cv-01261-JTN-ESC ECF No. 58 filed 09/19/19 PageID.

427 Page 1 of 145

UNITED STATES DISTRICT COURT

CURTIS E. BLACKWELL, II,

Plaintiff, Case No. 1:18-cv-1261

PLAINTIFF BLACKWELL’S MOTION TO COMPEL THE TAKING OF DEPOSITION

PLAINTIFF, CURTIS E. BLACKWELL (“Plaintiff” or “Plaintiff Blackwell”), by and

(“Motion to Compel”), states the following:

statement pursuant to Local Rule 7.1(d)).

On August 11, 2019, Plaintiff served “Plaintiff’s Notice of Taking Depositions of

we can go from there.” (Ex. 3, 8/11/2019 Email to Defendants’ counsel).

for Plaintiff’s deposition testimony was approximately 6 ½ hours. Relevant portions of

Defendants’ deposition examination of Plaintiff. (Ex. 4, Excerpts from Plaintiff’s Deposition).

Defendants’ Counsel finished Plaintiff’s deposition, but reserved additional time to

8/12/2019 Email from Defendant Dantonio’s Counsel).

stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours.”

as long as we adhere to concepts of relevance.” (Ex. 14, 8/19/2019).

to limit the scope of Defendant Dantonio’s deposition.

II. LAW AND LEGAL ANALYSIS

a. Defendant Dantonio Shall be Compelled To Take A 7-Hour Deposition In Accordance

Fed.R.Civ.P. 26(b) governs discovery. Rule 26(b)(1) states the following:

(b) Discovery Scope and Limits.

Fed.R.Civ.P. 26(d) further provides:

(d) TIMING AND SEQUENCE OF DISCOVERY.

initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by

Fed.R.Civ.P. 30(a) governs the taking of depositions. Fed.R.Civ.P. 30(a) provides:

(a) WHEN A DEPOSITION MAY BE TAKEN.

information were introduced at trial, it would be `speculative' at best.”).

information pertaining to Plaintiff’s claims against Defendants, as well as first-hand knowledge

from Plaintiff’s deposition attached). Accordingly, Defendants’ counsel’s attempts to limit

claims Plaintiff has properly pled and alleged in his complaint.

are just, consistent with Fed. R Civ. P. 37.

Dated: September 19, 2019 Respectfully submitted,

/s/ Thomas R. Warnicke

/s/ ANDREW A. PATERSON

LOCAL RULE 10 and 7.3(b) CERTIFICATION

/s/ Thomas R. Warnicke

knowledge, and belief.

/s/ Thomas R. Warnicke

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