Mitchell v. Felker et al

Filing 131

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/17/12 DENYING 124 Plaintiffs request that their counsel accompany Defendants experts during any prison visits. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT MITCHELL, et al.,

Case No. 2:08-CV-01196 JAM EFB

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--------Plaintiffs, [PROPOSED] ORDER RE DISCOVERY
DISPUTE

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v.
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MATTHEW CATE, et al.,

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Defendants.

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This case was before the undersigned on October 10, 2012, for a hearing on Plaintiffs’

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discovery motion concerning site inspections. Attorney Rebekah Evenson appeared at the

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hearing on behalf of Plaintiffs, and attorneys Damon McClain and Christopher Becker appeared

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on behalf of Defendants. For the reasons set forth herein and stated on the record at the hearing,

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Plaintiffs’ motion is denied.

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Plaintiffs’ motion sought an order permitting their experts to informally question prison

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staff during site inspections at three prisons, and an order requiring that Defendants allow

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Plaintiffs’ counsel to accompany Defendants’ experts on any prison visits.

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Plaintiffs’ proposed informal questioning of prison staff would amount to a roving

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deposition taken without notice, and could lead to Plaintiffs’ experts relying on inaccurate or

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unreliable information. Additionally, such informal questioning would deprive Defendants of the
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Order Re Discovery Dispute (2:08-CV-01196 JAM EFB)

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protections and safeguards prescribed by Rule 30 of the Federal Rules of Civil Procedure for oral

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depositions, such as advance notice to the deponent, a formal record of the deposition to ensure

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accuracy, and an oath or affirmation to ensure the veracity and reliability of the testimony. Fed.

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R. Civ. P. 30(b). Accordingly, Plaintiffs’ request to informally question staff at the prisons (Dckt.

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No. 124) is denied.

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Plaintiffs’ request to accompany Defendants’ experts on prison visits would constitute an

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impermissible invasion into privileged communications between Defendants, their counsel, and

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their expert consultants as they work together to evaluate Plaintiffs’ claims and prepare a defense,

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and would also violate the work-product privilege. See Fed. R. Civ. P. 26(b)(4)(C). Accordingly,

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Plaintiffs’ request that their counsel accompany Defendants’ experts during any prison visits

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(Dckt. No. 124) is denied.

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Dated: October 17, 2012.

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Order Re Discovery Dispute (2:08-CV-01196 JAM EFB)