Grogan v. Beale Aero Club et al

Filing 70

ORDER signed by Magistrate Judge Kendall J. Newman on 3/2/17. The Clerk of Court shall file copies of the 2/23/17 supplemental declaration of Dr. Rosenberg, Defendant's statement, and Plaintiff's response as attachments to this order. (Attachments: # 1 Declaration of James E. Rosenberg, M.D., # 2 Statement Regarding Audio Recording of IME, # 3 Response to Defendant's Audio Recording)(Mena-Sanchez, L)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES M. GROGAN, 12 13 14 No. 2:15-cv-0562-JAM-KJN Plaintiff, v. ORDER UNITED STATES OF AMERICA, 15 16 Defendant. 17 18 On February 17, 2017, after an informal telephonic discovery conference conducted on 19 February 16, 2017, the court denied without prejudice defendant’s request to permit defendant’s 20 expert, Dr. James Rosenberg, to make an audio recording of plaintiff’s mental examination. 21 (ECF No. 69.) However, defendant was given leave to submit to the court and plaintiff’s counsel 22 a supplemental declaration from Dr. Rosenberg outlining his clinical and/or diagnostic reasons for 23 having the mental examination audio recorded, along with a statement indicating whether 24 defendant objects to having such audio recording provided to plaintiff’s expert(s). (Id.) Plaintiff 25 was also given an opportunity to respond to defendant’s supplemental filings. (Id.) 26 Since the issuance of the court’s order, defendant has provided the court and plaintiff’s 27 counsel with a February 23, 2017 supplemental declaration from Dr. Rosenberg, along with a 28 statement indicating that defendant does not object to having an audio recording of Dr. 1 1 Rosenberg’s examination of plaintiff provided to plaintiff’s expert(s). 2 Subsequently, plaintiff filed a response indicating that he does not believe that Dr. 3 Rosenberg’s supplemental declaration establishes that audio recording is necessary, but that if the 4 court disagrees, the recording should be made available only to plaintiff’s psychological expert(s) 5 and not shared with defendant’s counsel or reduced to a written transcript. The court has carefully considered Dr. Rosenberg’s supplemental declaration, and is 6 7 ultimately persuaded, based on the present record in this case, that an audio recording would be 8 helpful to Dr. Rosenberg in preparing his assessment. Nevertheless, the court imposes the 9 restrictions discussed at the informal telephonic conference, and requested by plaintiff in his 10 written response, to ensure that the recording is appropriately used only as a tool for purposes of 11 forming clinical and/or diagnostic impressions, and not for litigation purposes. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. Defendant’s expert, Dr. Rosenberg, is authorized to make an audio recording of his 14 mental examination of plaintiff along the terms specified in his February 23, 2017 15 supplemental declaration. 16 2. The audio recording shall not be played for or otherwise shared with plaintiff’s 17 counsel or defendant’s counsel, and shall not be reduced to a written transcript. 18 3. The audio recording shall not be subject to disclosure or production in discovery, and 19 the parties shall not directly or indirectly request a copy of the audio recording by 20 virtue of a subpoena or other discovery request. 21 4. In addition to Dr. Rosenberg, a copy of the audio recording shall be made available 22 only directly to plaintiff’s psychological or psychiatric expert(s) for use in forming 23 their own clinical and/or diagnostic impressions, provided that they are willing to 24 abide by the same restrictions outlined in this order. 25 5. Any objections to this order shall be filed within seven (7) days. 26 //// 27 //// 28 //// 2 1 6. The Clerk of Court shall file copies of the February 23, 2017 supplemental declaration 2 of Dr. Rosenberg, defendant’s statement, and plaintiff’s response as attachments to 3 this order. 4 5 IT IS SO ORDERED. Dated: March 2, 2017 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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