Morgan v. Wesley Medical Center, LLC et al

Filing 552

ORDER OF APPOINTMENT. Signed by District Judge Kathryn H. Vratil on 1/19/2021. (heo)

Case 2:18-cv-02158-KHV Document 552 Filed 01/19/21 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
D.M., a minor by and through his next friend
and natural guardian, KELLI MORGAN,
Plaintiff,
v.
WESLEY MEDICAL CENTER, LLC d/b/a
WESLEY MEDICAL
CENTER-WOODLAWN, et al.,
Defendants.

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CIVIL ACTION
No. 18-2158-KHV

ORDER OF APPOINTMENT
On January 6, 2021, in light of the necessary COVID-19 precautions, the Court ordered
that the trial set for February 16, 2021 be held by Zoom or a hybrid combination of live and remote
participation by counsel, parties and witnesses. Order And Order To Show Cause (Doc. #531).
On January 7, 2020, the Court entered an Order To Show Cause (Doc. #532) noting the complex
and technical nature of trials by Zoom or a hybrid combination of live and remote participation.
Accordingly, the Court proposed the appointment of a Special Master to perform technical
responsibilities attendant to the use of the Zoom platform before and throughout trial and post-trial
proceedings. The Court directed the parties to show cause why the Court should not appoint a
Special Master to work with the Court to manage, administer and oversee the trial’s Zoom account
and other technological aspects of the trial related to Zoom. The Court also requested that the
parties provide suggestions regarding person(s) to be named as a Special Master and any proposed
allocation of compensation of the Special Master.
In response, plaintiff and defendants did not object to the appointment of a Special Master.

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See Doc. # 542; Doc. #543. Plaintiff suggested the Court appoint Christian Tiedemann, Founding
Partner of Prolumina, as Special Master given (1) his experience in trial management via Zoom
since the emergence of the COVID-19 pandemic and (2) the security measures Prolumina uses to
ensure a secure trial. Plaintiff’s Response To Order To Show Cause (Doc. #542).
On January 12, 2021, the Court ordered that the parties show cause in writing why Christian
Tiedemann and/or Prolumina should not be appointed Special Master. Order To Show Cause
(Doc. #545). The Court also ordered that (1) the parties confirm the availability of Mr. Tiedemann
and any conflicts that may preclude him from serving in this role and (2) the cost of the Special
Master be split in equal parts among the parties that by February 1, 2021 fail to notify the Court
that they have settled. Id.
On January 14, 2021, the parties filed a joint response stating that no party objected to the
Court’s appointment of Mr. Tiedemann of Prolumina as Special Master to perform technical
responsibilities attendant to the use of the Zoom platform before and throughout trial and post-trial
proceedings. All Parties’ Response To Court’s Show Cause Order Regarding Appointment Of
Christian Tiedemann And/Or Prolumina As Special Master (Doc. #548). The parties also attached
Mr. Tiedemann’s fee schedule. Prolumina Remote Testimony Services (Doc. #548-3).
I.

Appointment Of Special Master
The Court now appoints as Special Master Christian Tiedemann, of the company

Prolumina:
Christian Tiedemann
Prolumina
2200 Sixth Avenue, Suite 425
Seattle, WA 98121
206-826-9943 tel
E-Mail: [e-mail]
This appointment is made pursuant to Fed. R. Civ. P. 53 and the inherent authority of the
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Court. As Rule 53 requires, the Court sets out below the duties and terms of the Special Master
and reasons for appointment, and orders the Special Master to “proceed with all reasonable
diligence.” Rule 53(b)(2).
II.

Rule 53(b)(2)
Rule 53 requires an order of appointment to include certain contents. See Fed. R. Civ. P.

53(b)(2). The following discussion sets forth the matters required.
A.

Special Master’s Duties

Rule 53(a)(1)(A) states that the Court may appoint a Special Master to “perform duties
consented to by the parties.” As indicated in the Order To Show Cause (Doc. #542), the Special
Master’s duties shall be as follows:1
•

Manage, administer and oversee the trial’s Zoom account and other technological aspects
of the trial related to Zoom.

•

Constant monitoring of the Zoom platform throughout its utilization during trial.

•

Coordinate with judicial personnel who shall maintain technical and administrative control
over the Court’s Zoom account.
B.

Communications With The Parties And The Court

Rule 53(b)(2)(B) directs the Court to set forth “the circumstances, if any, in which the
[Special Master] may communicate ex parte with the court or a party.” The Special Master may
communicate ex parte with the Court at the Special Master’s discretion, without providing notice
to the parties, regarding logistics, the nature of his activities, and other appropriate matters
associated with managing, administering and overseeing the trial’s Zoom account and other
technological aspects of the trial related to Zoom. The Special Master may communicate ex parte

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This list is meant to be illustrative, not comprehensive. The Court may amend this
Order to add additional duties related to Zoom and other technological aspects of the trial.
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with any party or their counsel, as the Special Master deems appropriate, for the purposes of
ensuring the efficient administration, management and oversight of the trial’s Zoom account and
other technological aspects of the trial related to Zoom. The Special Master shall not communicate
to the Court any substantive matter the Special Master learned during an ex parte communication
between the Special Master and any party.
C.

Special Master’s Record

Rule 53(b)(2)(C) states that the Court must define “the nature of the materials to be
preserved and filed as a record of the [Special Master’s] activities.” The Special Master shall
maintain normal billing records of his time spent on this matter, in order to calculate the
appropriate compensation based on his hourly rate.
D.

Compensation

Rule 53(b)(2)(E) states that the Court must set forth “the basis, terms, and procedure for
fixing the [Special Master’s] compensation.” See also Rule 53(g) (addressing compensation). The
Special Master shall be compensated at his current rate of $175 per hour, with this cost split in
equal parts among the parties that by February 1, 2021 fail to notify the Court that they have settled.
See Order to Show Cause (Doc. #545); Prolumina Remote Testimony Services (Doc. #548-3). At
the conclusion of this trial, the Special Master shall file a statement, which shall list the total
amount billed and shall contain a signature line for the Court, accompanied by the statement
“approved for disbursement.” If the Court determines the statement is regular and reasonable, the
Court will sign it and transmit it to the parties. The parties shall then remit to the Special Master
their proportionate share of any Court-approved amount, within 20 calendar days of Court
approval.

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E.

Other Matters
1.

Affidavit

Rule 53(b)(3)(A) notes that the Court may enter an order of appointment “only after the
[Special Master] files an affidavit disclosing whether there is any ground for disqualification under
28 U.S.C. § 455.” See also Rule 53(a)(2) (discussing grounds for disqualification). The required
affidavit has been filed. See Affidavit Of Christian Tiedemann (Doc. #551-1).
2.

Cooperation

The parties and their counsel, including their successors in office, agents and employees,
shall provide full cooperation to the Special Master, and any staff or consultant employed by the
Special Master. Pursuant to Rule 53(c)(2), the Special Master may, if appropriate, “impose on a
party any noncontempt sanction provided by Rule 37 or 45, and may recommend a contempt
sanction against a party and sanctions against a nonparty.” As an agent and officer of the Court,
the Special Master (and those working at his direction) shall enjoy the same protections from being
compelled to give testimony and from liability for damages as those enjoyed by other federal
judicial adjuncts performing similar functions.
3.

Access To Information And Technology

The parties will make readily available to the Special Master any and all individuals,
information and technology under their control necessary to fulfill the Special Master’s functions
under this Order.
IT IS SO ORDERED.
Dated this 19th day of January, 2021 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge

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