PRAKEL et al v. STATE OF INDIANA et al
Filing
57
ENTRY ON DEFENDANTS' MOTION FOR PROTECTIVE ORDER - 40 Motion for Protective Order Regarding Depositions is DENIED as it pertains to the Division and Judge Humphrey. It is GRANTED as it pertains to former Chief Justice Shepard and Magistrate Judge Schmaltz. It is GRANTED as it pertains to Judge Cleary so long as Defendants claim that the Dearborn Courts are a unified court system. 56 Joint Motion for Extension of Time to File is also GRANTED. Dispositive Motions deadline extended to 9/1/2013. The case shall proceed in a manner consistent with this entry. See Entry for details. Signed by Magistrate Judge William G. Hussmann, Jr on 6/28/2013. (LBT)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
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STEVEN PRAKEL,
CAROLYN PRAKEL,
Plaintiffs,
vs.
THE STATE OF INDIANA,
BRENT E. DICKSON, Acting Chief
Justice,
INDIANA SUPREME COURT, Division
of State Court Administration,
KIMBERLY A. SCHMALTZ, Magistrate
Judge,
JAMES D. HUMPHREY, Judge,
JONATHAN N. CLEARY, Judge,
Defendants.
4:12-cv-45-SEB-WGH
ENTRY ON DEFENDANTS’ MOTION FOR PROTECTIVE ORDER
Plaintiffs, Steven and Carolyn Prakel, accuse Defendants, State of
Indiana, Acting Chief Justice Brent E. Dickson, Indiana Supreme Court
Division of State Court Administration (“the Division”) (collectively, “State
Defendants”), Magistrate Judge Kimberly A. Schmaltz, and Judges James D.
Humphrey and Jonathan N. Cleary, of violating Subchapter II of the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq. (“Title II”), and section
504 of the Rehabilitation Act, 29 U.S.C. § 794 (“section 504”), by failing to
provide interpreter services for Mr. Prakel—an interested spectator—during
hearings for Ms. Prakel’s criminal case in the Dearborn County Superior and
Circuit Courts (collectively, “Dearborn Courts”). Plaintiffs now seek to depose
1
the Dearborn Courts judges and former Chief Justice Randall Shepard,1 and
have sent a wide-ranging deposition notice under Federal Rule of Civil
Procedure 30(b)(6). (Defendants’ Brief 2-3). Defendants now seek a protective
order to bar Plaintiffs from taking the depositions. (Docket No. 40). For the
reasons set forth below, Defendants’ motion is GRANTED in part and DENIED
in part.
I.
Factual Background
These facts are considered as true for purposes of this motion. In April
2010, Mr. Prakel, who is hearing-impaired, contacted Dearborn County
Superior Court #1 (“Superior 1”) to request sign language interpreter services
for hearings in which Ms. Prakel, his mother, was a party. (Complaint ¶¶ 1920). Mr. Prakel attended Ms. Prakel’s hearing in Superior 1 before Judge
Cleary in April 2010, but there was no sign language interpreter provided. (Id.
¶¶ 21-22). In May 2010, Mr. Prakel again requested interpreter services for
Ms. Prakel’s upcoming hearing before Judge Cleary. A hearing was set for
June 23, 2010, to determine whether Superior 1 would provide interpreter
services. However, no interpreter was present at that June 2010 hearing. (Id.
¶¶ 23, 25-27). The clerk’s office for Superior 1 refused to communicate with
Mr. Prakel in writing. (Id. ¶ 28). In April 2011, Mr. Prakel again asked for
interpreter services for Ms. Prakel’s hearing in Superior 1. Superior 1 refused
1
Defendants claim that the deposition notice requested depositions of “all four of the
judicial Defendants” (Defendants’ Brief 2), which would presumably include Chief
Justice Dickson and exclude former Chief Justice Shepard. Since Plaintiffs are the
non-moving party, and the parties agree that the former Chief Justice received notice
of Plaintiffs’ reimbursement request, the court analyzes Defendants’ motion as though
Plaintiffs seek to depose former Chief Justice Shepard.
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to accept Mr. Prakel’s relay call and did not provide an interpreter for the April
2011 hearing. (Id. ¶¶ 32-34).
In May 2010, in advance of Ms. Prakel’s hearings in Dearborn County
Circuit Court, Mr. Prakel called the chambers of Magistrate Judge Schmaltz,
who informed Mr. Prakel that Circuit Court did not provide interpreters for
spectators. (Id. ¶ 36-37). Ms. Prakel paid for interpreter services for her May
2010 hearing before Magistrate Judge Schmaltz and her July 2010 Circuit
Court hearings before Judge Humphrey. (Id. ¶¶ 40-42).
The National Association of the Deaf (“NAD”) sent a letter to Judge
Humphrey requesting reimbursement for the interpreter services paid for by
Ms. Prakel. Judge Humphrey and the Circuit Court did not respond. (Id. ¶¶
43-46). The NAD sent a similar request to then-Chief Justice of the Indiana
Supreme Court Randall T. Shepard, who also did not respond. (Id. ¶ 47-48).
Plaintiffs subsequently filed this suit, alleging that Defendants had deprived
Mr. Prakel of equal opportunity to participate in the programs and activities of
the Dearborn Circuit Court and Superior 1, which are public entities under
both Title II and section 504. Plaintiffs sought reimbursement for Ms. Prakel’s
expenditures on interpreter services, compensatory damages, and attorney
fees.
On April 26, 2013, Plaintiffs filed a motion to compel discovery (Docket
No. 46), to which Defendants did not timely respond. On May 21, 2013, the
court granted Plaintiffs’ motion in part, ordering Defendants to produce a
privilege log and documents relating to their affirmative defense of fundamental
3
alteration and the receipt of any funds by the Dearborn Courts. In the
alternative, they could designate a representative for a Rule 30(b)(6) deposition.
(Docket No. 49).
In a later-filed response, Defendants represented that they had not
withheld any privileged materials and stipulated that Dearborn Courts received
federal funds. They also conceded that no written determination of
“fundamental alteration” had been made, a prerequisite to raising the defense
under 28 C.F.R. § 35.164. (Docket No. 53). Defendants also agreed to make
Judge Humphrey available “to testify, limited to the issue of fundamental
alteration and trial court procedure, or as otherwise required by the Court and
subject to the restrictions imposed on him by the Code of Judicial Conduct.”
(Docket No. 53 Ex. B. at 1).
Finally, Defendants were prepared to concede in their Proposed Joint
Stipulations that Plaintiffs requested interpreter services for Carolyn Prakel’s
hearings, and that the Dearborn Courts paid for an interpreter only when
Stephen Prakel was a witness in her case, since Dearborn Courts provide
interpreters for litigants, witnesses, and jurors, but generally not for
spectators. (Docket No. 53 Ex. E at 1, 3). They also proposed to stipulate that
Judge Humphrey and then-Chief Justice Shepard received Plaintiffs’ separate
requests for reimbursement and failed to respond. (Id. at 4, 7). The court
ruled that the Defendants had complied with the court order and, because they
had conceded that no written determination was made, the court ordered the
fundamental alteration defense stricken. (Docket No. 55).
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II.
Legal Standards
A. General
Federal Rule of Civil Procedure 26 dictates that parties engage in broad,
liberal discovery encompassing “any matter that bears on, or that reasonably
could lead to other matter that could bear on, any issue that is or may be in
the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct.
2380, 57 L. Ed. 2d 253 (1978); FED. R. CIV. P. 26. However, Rule 26 also
authorizes protective orders to limit or preclude discovery when there are less
burdensome, inconvenient, or expensive sources, or when the burden and
expense for the movant outweigh the likely benefit for the non-movant. FED. R.
CIV. P. 26(b)(2)(C)(i),(iii), (c)(1)(A). Among the factors considered is the nature
and amount of the controversy. Id. at (b)(2)(C)(iii).
Depositions of opposing parties are part of this broad discovery and do
not typically require leave of the court, unless the opposing party does not
stipulate to the deposition and the deposition would run afoul of another Rule
or the party has already been deposed. FED. R. CIV. P. 30(a). A party seeking
to depose an organization, such as the Division, “must describe with
reasonable particularity the matters for examination.” FED. R. CIV. P. 30(b)(6).
The court has jurisdiction over this case because it arises under federal
laws. 28 U.S.C. § 1331. Thus, federal privilege law applies in the case, but
principles of comity “[impel] federal courts to recognize state privileges where
this can be accomplished at no substantial cost to federal substantive and
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procedural policy.” Mem. Hosp. for McHenry County v. Shadur, 664 F.2d 1058,
1061 (7th Cir. 1981) (quoting U.S. v. King, 73 F.R.D. 103, 105 (E.D.N.Y. 1976)).
B.
Particular
1.
Deposition of Court Officers
While generally the burden of persuasion is on the party seeking to
prevent discovery, see, e.g., Mullins v. Dep’t of Labor of Puerto Rico, 269 F.R.D.
172, 175-76 (D. P.R. 2010), there is no standard by which to evaluate the
propriety of requests to depose sitting judges and justices. The court finds it
prudent to use the standard for deposing opposing attorneys as a starting
point. Thus, Plaintiffs must show that: “(1) no other means exist[s] to obtain
the information than to depose [the judge or justice], . . .; (2) the information
sought is relevant and nonprivileged; and (3) the information is crucial to the
preparation of the case.” Sherman v. Am. Motors Corp., 805 F.2d 1323, 1327
(8th Cir. 1986). However, the court views Defendants’ request to depose sitting
judges and a former Chief Justice with an even more “jaundiced eye” than the
court normally does for requests to depose opposing counsel. See M&R
Amusements Corp. v. Blair, 142 F.R.D. 304, 305 (N.D. Ill. 1992).
2.
Deliberative Process Privilege
The internal deliberations of governmental agencies and actors in
arriving at decisions are shielded from discovery. This includes judges, who
generally may not be compelled to testify about their mental impressions. See
U.S. v. Morgan, 313 U.S. 409, 422 61 S. Ct. 999, 85 L. Ed. 1429 (1941);
Fayerweather v. Ritch, 195 U.S. 276, 307, 25 S. Ct. 58, 49 L. Ed. 193 (1904).
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The privilege exists, in part, to further the principle that courts speak through
their records. Matter of Cook, 49 F.3d 263, 265 (7th Cir. 1995). The burden is
on the party seeking to prevent disclosure to show the deliberative process
privilege applies. K.L. v. Edgar, 964 F. Supp. 1206, 1209 (N.D. Ill. 1997).
III.
Discussion
A.
Propriety of the Depositions
As stated supra, Plaintiffs must make a prima facie showing that the
information sought is: (1) unavailable from any other source; (2) is relevant
and essential to the case; and (3) is unprivileged.
1.
Unavailability From Other Sources
Plaintiffs argue that the Defendants’ intransigence in responding to
discovery requests have left the judges as the only source of information.
Defendants’ only responses to Plaintiffs’ discovery on policies and procedures
for interpreter services was to say that Judges Humphrey and Cleary make
such decisions for their courts; they did not provide the name of any
responsible person from the Division. (Plaintiffs’ Ex. 2 at 2). Defendants’
other responses to written interrogatories have represented that the “Indiana
State Courts are not a unified court system but consist of ninety-two (92)
individual counties.” (Plaintiffs’ Ex. 3 at 1). Defendants do not direct Plaintiffs
or the court to any administrative rules or other materials that provide county
judges with guidance on how to respond to requests from hearing impaired
spectators for interpreter services. Defendants’ response further states that
“[p]rovision of sign language interpretation services cannot be provided to
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incidental spectators at relatively perfunctory proceedings . . . for both
budgetary and practical reasons.” (Id. at 2). Finally, Defendants stated “[t]here
were no internal discussions” on Plaintiffs’ request for interpreters, and the
decisions were made solely by the applicable judges. (Id.).
Given these discovery responses, the court can reasonably infer that in
Indiana, county-level courts have almost complete autonomy in making
decisions about accommodations for hearing impaired spectators, and that
Dearborn County courts do not provide official guidelines for judges on how to
evaluate such requests. There has been no showing that the Dearborn Courts
employ an “administrator” or other person to promulgate or enforce policies for
the court that apply to the claim at issue. It therefore follows that Magistrate
Judge Schmaltz and Judges Humphrey and Cleary are the only available
sources of information on whether the Dearborn Courts complied with Title II
and section 504 in their refusal to provide Mr. Prakel with an interpreter.
Defendants, when asked to identify the parties who “participated in
determining whether to provide interpreters for Steven Prakel,” listed the
Division, although they did not list a specific officer within the Division.
(Plaintiffs’ Ex. 2 at 2). This response suggests that the Division would be
responsible for evaluating Plaintiffs’ reimbursement requests. Therefore,
information on any state-level policies and procedures for Title II and section
504 compliance—and whether the State Defendants complied with them in not
reimbursing Plaintiffs for interpreter services—could presumptively come from
the Division rather than former Chief Justice Shepard.
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2.
Necessity and Relevance of Information Sought
Plaintiffs must prove intentional discrimination to recover compensatory
damages. Love v. Westville Correctional Ctr., 103 F.3d 558, 561 (7th Cir. 1996)
(citation omitted). To prove intentional discrimination, Plaintiffs must show
that the Dearborn Court Judges: knew the Title II and section 504
requirements and that they applied to their courts; were on notice of Plaintiffs’
requests; and intentionally provided lesser accommodation than the law
requires. See Proctor v. Prince George’s Hosp. Ctr., 32 F. Supp. 2d 820, 829 (D.
Md. 1998).
Plaintiffs claim they need to question Judges Cleary, Schmaltz, and
Humphrey about the Dearborn Courts’ procedures, whether they were on
notice of Plaintiffs’ requests, and whether they attempted to obtain interpreters.
They also allege it is necessary to depose former Chief Justice Shepard as to
whether he was on notice of Plaintiffs’ reimbursement requests and what
actions he took, if any, in response to the requests. (Plaintiffs’ Response 6, 78). Defendants aver that county judges conduct Title II and section 504
training for their courts and determine whether to provide interpreters (id. 9;
Plaintiffs’ Exs. 2 at 2, 3 at 2), so Plaintiffs opine that the necessary information
to prove their claims can only be obtained by deposing the Dearborn Court
judges. Plaintiffs argue that since there is no outright bar against judicial
testimony on factual matters pertinent to the case, rather than mental
processes, U.S. v. Frankenthal, 582 F.2d 1102, 1108 (7th Cir. 1978), they
should be allowed to depose the individual Defendants. (Plaintiff’s Response 9
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(citing Neiman v. Keane, 1999 WL 117694, at *2-*3 (N.D. Ill. Mar. 1, 1999))).
The court agrees with Plaintiffs that the subject matter on which they seek to
depose Defendants is essential to proving their claims of intentional
discrimination.
Defendants concede that Plaintiffs requested interpreter services for the
Dearborn Court hearings, no services were ever provided, and that Judge
Humphrey and then-Chief Justice Shepard received Plaintiffs’ separate
requests for reimbursement and failed to respond. The court is satisfied that
no depositions would be necessary to establish that Defendants were on notice
of Plaintiffs’ request and that they took no action in response. However, the
issues of the Dearborn Courts’ and the State Defendants’ respective Title II and
section 504 policies and procedures were left unaddressed. This information
sought cannot be obtained through another, less burdensome means of
discovery. They have therefore shown the relevance and necessity of the
information sought.
However, before reaching the final element—whether the information
sought is privileged—the court concludes that deposing former Chief Justice
Shepard imposes too great a burden on him for the relevant information sought
by Plaintiffs. As Defendants point out, Indiana does not have a unified court
system; rather, each county operates its court system with no direct
supervision by the Indiana Supreme Court or the Division of State Court
Administration. (See, e.g., Plaintiffs’ Ex. 3 at 1). There are no statewide
standards for ensuring compliance with Title II or section 504, and ensuring
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that Dearborn Courts complied with their Title II and section 504 procedures is
not within the Chief Justice’s purview. Plaintiffs have demonstrated no
evidence as to why the former Chief Justice, rather than a representative of the
Division, would be better equipped to testify as to the State of Indiana’s policies
and procedures regarding Title II and section 504 accommodation and
reimbursement requests. Despite the fundamental importance of the
underlying issue—access to courts for a hearing-impaired individual—the court
is also mindful that this suit is not a class-action, and Plaintiffs seek less than
$1,000 in damages and no injunctive relief. (Defendants’ Reply 1); FED. R. CIV.
P. 26(b)(2)(C)(iii). Finally, former Chief Justice Shepard is not and has never
been a party in this case. The court concludes that any additional probative
evidence Plaintiffs could obtain from the former Chief Justice is so minimal as
to be greatly outweighed by the burden imposed by his deposition, and
therefore GRANTS Defendants’ motion for a protective order as it pertains to
former Chief Justice Shepard.
3.
Deliberative Process Privilege
Defendants claim that the decisions, if any, by the Dearborn Court
judges and the Division not to provide interpreter services or reimburse
Plaintiffs for their expense in hiring interpreters are protected by the
deliberative process privilege. According to Defendants, allowing judges or a
Division official to testify would not only improperly force them to divulge their
mental impressions, thoughts, and reasoning in deciding how they ruled, it
would violate the longstanding principle that courts speak only through their
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decisions and published records. Fayerweather, 195 U.S. at 307; Clary v. Lite
Machs. Corp., 850 N.E.2d 423, 435-36 (Ind. Ct. App. 2006); see also O’Malia v.
State, 192 N.E. 435, 436 (Ind. 1934); State v. Isaacs, 757 N.E.2d 166, 167 n.1
(Ind. Ct. App. 2001). This protection also applies to the deliberative processes
of administrative bodies or board members, such as the Division, in making
decisions, on the principle that administrative bodies speak only through their
rules, decisions, and records. Morgan, 313 U.S. at 422; see also Med. Licensing
Bd. of Ind. v. Provisor, 669 N.E.2d 406, 409-10 (Ind. 1996). Therefore, the
court may not force judges or administrative decision makers to testify to their
thought processes for Plaintiffs’ requests.
Moreover, Defendants argue, Plaintiffs’ requests show that they intend to
go beyond purely factual matters and to probe Defendants’ mental processes in
making decisions. Defendants already concede that Judges Humphrey and
Cleary were on notice of Plaintiffs’ requests for interpreter services and
reimbursement and either denied them or declined to respond. Any more
information—such as whether the judges determined that providing
interpreters would disrupt court proceedings—is not discoverable absent
special circumstances, Ciarlone v. City of Reading, 263 F.R.D. 198, 202 (E.D.
Pa. 2009) (citations omitted); Fayerweather, 195 U.S. at 306-07; Grant v.
Shalala, 989 F.2d 1332, 1344-45 (3d Cir. 1993), and Plaintiffs have not shown
any such circumstances.
Plaintiffs counter that the privilege does not apply for two reasons. First,
as stated supra, the subject matter of the depositions pertain to purely factual
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matters—the Dearborn Courts’ policies and training for Title II and section 504;
what notice, if any, each Defendant had of requests for an interpreter and
reimbursement; and what action, if any, Defendants took. Plaintiffs also seek
to ascertain whether the Division plays a role in providing sign language
interpreters to Dearborn Courts analogous to its support in providing foreign
language interpreters for county courts. (Plaintiffs’ Ex. 4 at 2). Those facts—
and any communications made after the agency decision—are not protected by
the deliberative process privilege, even though any thoughts and discussions
leading up to the decisions would be. U.S. v. Farley, 11 F.3d 1385, 1389 (7th
Cir. 1993); Dean v. F.D.I.C., 389 F. Supp. 2d 780, 794 (E.D. Ky. 2005). Since
Defendants did not engage in any internal discussions about Plaintiffs’
requests (Plaintiffs’ Ex. 3 at 2), Plaintiffs argue that Defendants cannot invoke
the privilege. Becker v. IRS, 34 F.3d 398, 403 (7th Cir. 1994).
Secondly, Plaintiffs argue that even if the processes underlying the
decisions were subject to the deliberative-process privilege, the privilege is not
absolute. Rather, courts consider the relevance and availability of the
information being sought, the government entities’ roles in the litigation, and
whether disclosure would inhibit frank policy discussion. See FTC v. Warner
Comm., Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). Courts also view the
deliberative process privilege with particular concern and skepticism in civil
rights cases. See Kodish v. Oakbrook Terrace Fire Protection Dist., 235 F.R.D.
447, 451-52 (N.D. Ill. 2006). Plaintiffs contend that Defendants have not
produced information about their Title II and section 504 policies and training,
13
or whether they complied with these policies when they did not respond to
Plaintiffs’ requests. Therefore, according to Plaintiffs, the depositions are the
only means by which they can obtain this information, which is essential for
Plaintiffs to prove their allegations of intentional discrimination. Plaintiffs
argue that public policy concerns dictate that this material should be divulged,
and the deliberative process privilege should not apply. Hinsdale v. City of
Liberal, 961 F. Supp. 1490, 1495 (D. Kan. 1997); Grossman v. Schwarz, 125
F.R.D. 376, 381 (S.D.N.Y. 1989).
The court agrees with Plaintiffs that the information being sought is
purely factual and does not invade Defendants’ thought processes. Defendants
have claimed that the Dearborn Court judges were responsible for
implementing Title II and section 504 policies, procedures, and training.
Specific knowledge of these policies and procedures is required to determine
whether the judges followed those policies and procedures in denying Plaintiffs’
requests. Plaintiffs do not appear to be asking for Judges Humphrey and
Cleary’s motivations or thought processes that led to their decisions to deny
Plaintiffs’ requests for interpreter services and reimbursement.
Similarly, Plaintiffs are only seeking information on the Division’s Title II
and section 504 policies and procedures, whether the Division was on notice of
Plaintiffs’ request for reimbursement, and if any action was taken in response
to the reimbursement request besides former Chief Justice Shepard’s failure to
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respond.2 This is essential in determining whether the Division complied with
its policies as to Plaintiffs’ request and does not probe the deliberations or
discussions, if any, that the Division undertook in response to their request.
Since this information does not pertain to decisions the Dearborn Courts made,
and no formal decision was made by the Division, Defendants cannot rest on
the argument that its records speak for themselves. The court, satisfied that
the information sought is purely factual, finds that the deliberative process
privilege does not apply.
The court, however, wishes to clarify that its holding is narrow. The
court is not holding that any of the Defendants’ motivations or internal
deliberations would not be protected by deliberative process, and does not
reach the issue of whether public policy concerns compel the production of
otherwise privileged information. The court is only holding that the abovementioned factual information is not shielded and may be discovered via
deposition.
B.
Additional Issues
1.
Other Assertions of Privilege
a.
Court Administrative Rule 9(G)(2)(b)
Defendants argue briefly that information that any work product or interagency or intra-agency advisory or deliberative materials that were created in
response or otherwise relate to Plaintiffs’ requests are shielded by Indiana
Administrative Court Rule 9(G)(2)(b). IND. ADMIN. COURT R. 9(G)(2)(b)(i), (iv)
The court also finds this subject matter sufficiently well-defined to satisfy the
particularity requirement for a Rule 30(b)(6) deposition. FED. R. CIV. P. 30(b)(6).
2
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(“Court Rule 9(G)”). Since the court has ruled that only those factual matters
discussed supra are subject to deposition, it need not reach the issue of
whether deliberative or advisory materials are shielded by Court Rule 9(G).
b.
Attorney-Client and Work-Product Privileges
Defendants further argue that any communications between Indiana
Supreme Court officials and Division staff are also protected under traditional
attorney-client and work-product privilege doctrines. They claim that
communications between the parties are “confidential and properly thought of
as attorney-client or mental impressions.” (Defendants’ Brief 10). The court
has already granted the motion for protective order as it pertains to former
Chief Justice Shepard and limited the Rule 30(b)(6) deposition to the Division’s
policies and procedures, along with any notice that the Division itself had and
any specific actions it took in response to Plaintiffs’ reimbursement request
independent of former Chief Justice Shepard’s failure to respond. Any
communications between the Indiana Supreme Court and the Division staff are
not relevant and therefore not discoverable, regardless of privilege.
2.
Challenge to Rules and Effect on Public Policy
Defendants finally claim that Indiana court rules, policies, and practices,
like statutes, are presumptively constitutional, speak by their plain text, and
must be challenged facially rather than by exploring the deliberative processes
used to determine the rules and policies. (Defendants’ Brief 11-12 (citing
Wayne Co. Prop. Tax Assessment Bd. of Appeals v. Utd. Ancient Order of DruidsGrove #29, 847 N.E.2d 924, 928 (Ind. 2006); Garrod v. Garrod, 590 N.E.2d 163,
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170-71 (Ind. Ct. App. 1992) (citing Miller v. State, 517 N.E.2d 64, 71 (Ind.
1987), superseded on other grounds by statute, IND. CODE 35-37-4-6, as
recognized in Howard v. State, 853 N.E.2d 461, 466 (Ind. 2006)). Furthermore,
they argue, public policy would be injured by the discovery of any deliberations
that led to their decisions on Plaintiffs’ requests. No Indiana trial court rules
are expressly mentioned in the briefing, and if Plaintiffs are in fact challenging
Indiana Trial Court Rule 43(c), which empowers courts to appoint interpreters
in compliance with the ADA (see Docket No. 53 Ex E at 1-2), it is a facial
challenge—whether, in fact, the Dearborn Court judges complied with the ADA.
Moreover, the court has limited the depositions to purely factual matters. The
court therefore declines to bar depositions on these grounds.
3.
Designation of Judge Humphrey as Rule 30(b)(6) Witness
In the aftermath of this court’s order on Plaintiffs’ motion to compel,
Defendants informed Plaintiffs that if they believed “that a [Rule 30(b)(6)]
witness would be helpful, then we would designate Judge Humphrey to testify.”
(Docket No. 53 Ex. D at 1). In the interests of conserving scarce judicial
resources, Judge Humphrey may fairly represent the Circuit Court as to the
Circuit Court’s Title II and section 504 policies and procedures, and whether
and how those policies were applied to Plaintiffs’ requests to the Dearborn
Courts. The court therefore GRANTS Defendants’ motion for protective order
for Magistrate Judge Schmaltz and DENIES their motion for Judge Humphrey.
Judge Humphrey may also fairly represent the Superior Court if Defendants
take the position that the Dearborn Courts are a unified court system. If,
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however, the Superior Court and Circuit Court are independent courts, then
Judge Cleary must testify on those matters for the Superior Court. The court
conditionally GRANTS Defendants’ motion for Judge Cleary.
Judge Humphrey may not, however, speak for the State Defendants.
Plaintiffs’ request to the State Defendants was distinct from those made to the
Dearborn Courts, and Defendants simply cannot have it both ways. They
cannot state that Indiana does not have a unified court system and each
county’s court system operates independently, and then ask a county court
judge to testify to the State Defendants’ policies and procedures. The court
therefore DENIES Defendants’ motion for the Division. The Division must
designate an official for a Rule 30(b)(6) deposition to answer questions on the
State Defendants’ Title II and section 504 policies and procedures, and
whether and how those policies were applied to Plaintiffs’ request to then-Chief
Justice Shepard.3
4.
Dispositive Motion Deadline
Defendants have filed a joint motion to extend the deadline to file
summary judgment motions, currently scheduled for July 1, 2013, to
September 1, 2013. (Docket No. 56). The court, mindful that additional time
must be allotted for these depositions, GRANTS Defendants’ motion.
3
Defendants maintain that Plaintiffs lack standing to pursue claims and intend to file
a motion to dismiss on those grounds. (Defendants’ Brief 2; Docket No. 53 at 2). Rule
26(d) allows Plaintiffs to conduct discovery at this time in the absence of Defendants
filing a motion showing that the interests of justice require a stay of discovery pending
resolution of a particular issue. No such motion has been filed.
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IV.
Conclusion
For the foregoing reasons, Defendants’ Motion for Protective Order
Regarding Depositions (Docket No. 40) is DENIED as it pertains to the Division
and Judge Humphrey. It is GRANTED as it pertains to former Chief Justice
Shepard and Magistrate Judge Schmaltz. It is GRANTED as it pertains to
Judge Cleary so long as Defendants claim that the Dearborn Courts are a
unified court system. The Joint Motion for Extension of Time (Docket No. 56)
is also GRANTED. The case shall proceed in a manner consistent with this
entry.4
SO ORDERED the 28th day of June, 2013.
__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana
Served electronically on ECF-registered counsel of record.
4
In allowing depositions of a judge to proceed, the Neiman court cautioned plaintiff’s
attorney “not to read this opinion as a carte blanche invitation . . . [t]he depositions of
[the judges] should proceed in conformity with our analysis above. Nothing more and
nothing less.” 1999 WL 117694, at *3. The court similarly cautions Plaintiffs in this
case.
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