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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES M. GROGAN,

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No. 2:15-cv-0562-JAM-KJN

Plaintiff,
v.

ORDER

UNITED STATES OF AMERICA,

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Defendant.

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On February 17, 2017, after an informal telephonic discovery conference conducted on

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February 16, 2017, the court denied without prejudice defendant’s request to permit defendant’s

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expert, Dr. James Rosenberg, to make an audio recording of plaintiff’s mental examination.

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(ECF No. 69.) However, defendant was given leave to submit to the court and plaintiff’s counsel

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a supplemental declaration from Dr. Rosenberg outlining his clinical and/or diagnostic reasons for

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having the mental examination audio recorded, along with a statement indicating whether

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defendant objects to having such audio recording provided to plaintiff’s expert(s). (Id.) Plaintiff

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was also given an opportunity to respond to defendant’s supplemental filings. (Id.)

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Since the issuance of the court’s order, defendant has provided the court and plaintiff’s

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counsel with a February 23, 2017 supplemental declaration from Dr. Rosenberg, along with a

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statement indicating that defendant does not object to having an audio recording of Dr.
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Rosenberg’s examination of plaintiff provided to plaintiff’s expert(s).

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Subsequently, plaintiff filed a response indicating that he does not believe that Dr.

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Rosenberg’s supplemental declaration establishes that audio recording is necessary, but that if the

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court disagrees, the recording should be made available only to plaintiff’s psychological expert(s)

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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

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ultimately persuaded, based on the present record in this case, that an audio recording would be

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helpful to Dr. Rosenberg in preparing his assessment. Nevertheless, the court imposes the

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restrictions discussed at the informal telephonic conference, and requested by plaintiff in his

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written response, to ensure that the recording is appropriately used only as a tool for purposes of

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forming clinical and/or diagnostic impressions, and not for litigation purposes.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendant’s expert, Dr. Rosenberg, is authorized to make an audio recording of his

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mental examination of plaintiff along the terms specified in his February 23, 2017

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supplemental declaration.

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2. The audio recording shall not be played for or otherwise shared with plaintiff’s

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counsel or defendant’s counsel, and shall not be reduced to a written transcript.

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3. The audio recording shall not be subject to disclosure or production in discovery, and

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the parties shall not directly or indirectly request a copy of the audio recording by

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virtue of a subpoena or other discovery request.

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4. In addition to Dr. Rosenberg, a copy of the audio recording shall be made available

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only directly to plaintiff’s psychological or psychiatric expert(s) for use in forming

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their own clinical and/or diagnostic impressions, provided that they are willing to

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abide by the same restrictions outlined in this order.

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5. Any objections to this order shall be filed within seven (7) days.

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6. The Clerk of Court shall file copies of the February 23, 2017 supplemental declaration

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of Dr. Rosenberg, defendant’s statement, and plaintiff’s response as attachments to

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this order.

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IT IS SO ORDERED.
Dated: March 2, 2017

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