Carlisle v. Normand, et al

Filing 442

ORDER AND REASONS denying 418 , 423 MOTIONS for APPEAL OF MAGISTRATE JUDGE DECISION to District Court; granting 428 Motion to Strike an exhibit that Plaintiffs attached to their Motion appealing Judge van Meerveld's order; and denying as MOOT 429 Motion to Expedite & 430 Request/Statement of Oral Argument on the Motion to Strike. Signed by Judge Jane Triche Milazzo on 12/13/2018. (ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TAYLOR CARLISLE, ET AL.

CIVIL ACTION

VERSUS

NO: 16-3767

NEWELL NORMAND, ET AL.

SECTION: “H”

ORDER AND REASONS
Before the Court are Cross-Motions (Docs. 418,423) appealing a ruling
by Magistrate Judge van Meerveld that ordered Defendant Joe Marino to make
himself available for a discovery deposition before December 31, 2018. Also
before the Court is a Motion by Defendant Marino to strike an exhibit that
Plaintiffs attached to their Motion appealing Judge van Meerveld’s order (Doc.
428), and accompanying Motions to Expedite (Doc. 429) the Motion to Strike
and a Request for Oral Argument on the Motion to Strike (Doc. 430).
For the following reasons, the Motions appealing Judge van Meerveld’s
ruling are DENIED, and Defendant’s Motion to Strike is GRANTED. Because
this Court grants Defendant’s Motion to Strike, the Motion to Expedite and
Request for Oral Argument are DENIED as moot.

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BACKGROUND
This lawsuit arises out of the participation by Plaintiffs Taylor Carlisle
and Emile Heron in Jefferson Parish’s Drug Court. Much of the background of
this litigation has been reproduced in Orders and Reasons previously issued
by this Court. The Court will nevertheless briefly discuss the context in which
the instant Motions arose.
On October 29, 2018, Plaintiffs filed a Motion seeking a perpetuation
deposition of Defendant Joe Marino under Federal Rule of Civil Procedure 27. 1
Plaintiffs argue such a deposition is necessary because Marino has been
diagnosed with Amyotrophic Lateral Sclerosis, commonly known as ALS and
Lou Gehrig’s Disease, a debilitating disease that may make Marino
incompetent to serve as a witness during trial.
On November 28, 2018, Magistrate Judge van Meerveld granted
Plaintiffs’ Motion in part. 2 Judge van Meerveld ruled that Marino must appear
for a deposition before December 31, 2018. 3 She also ruled that the deposition
should be a discovery deposition pursuant to Rule 30, not a perpetuation
deposition pursuant to Rule 27. 4 In her ruling, Judge van Meerveld informed
Plaintiffs that if they believed a perpetuation deposition was necessary
following the discovery deposition, and if Marino would not consent to such a
deposition, they could seek relief from the court for a perpetuation deposition. 5
On December 4, 2018, Marino appealed the ruling, arguing that the court
should not allow discovery to proceed because Defendants plan to move to
dismiss this action for lack of jurisdiction. 6 Plaintiffs oppose and make an

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2
3
4
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See Doc. 392.
See Doc. 417.
Id.
Id.
Id.
See Doc. 418.

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appeal themselves, arguing that Judge van Meerveld should have granted
them a Rule 27 perpetuation deposition. In their Motion appealing Judge van
Meerveld’s ruling, Plaintiffs attached as an exhibit screenshots of web pages
containing information about ALS. 7 Marino moved to strike the exhibit from
the Record as inadmissible hearsay. 8
This Court heard oral argument on the appeals on December 12, 2018.
LEGAL STANDARD
A district judge may refer any non-dispositive pretrial matter to a United
States Magistrate Judge. 9 District judges must consider timely objections to
rulings by magistrates on such matters, and they must “modify or set aside
any part of the order that is clearly erroneous or contrary to law.” 10 “A finding
is clearly erroneous only if it is implausible in the light of the record considered
as a whole.” 11
LAW AND ANALYSIS
Under Federal Rule of Civil Procedure 26(b)(1), “[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s
claim or defense and proportional to the needs of the case.” 12 Rule 30 provides
that parties may conduct discovery by deposition. 13 Rule 27 provides that
under limited circumstances parties also may conduct depositions to

See Doc. 423-3.
See Doc. 428-1.
9 28 U.S.C. § 636(b)(1)(A). See Castillo v. Frank, 70 F.3d 382, 385 (5th Cir. 1995).
10 See FED. R. CIV. P. 72(a).
11 Moore v. Ford Motor Co., 755 F.3d 802, 808 n.11 (5th Cir. 2014) (quoting St. Aubin v.
Quarterman, 470 F.3d 1096, 1101 (5th Cir. 2006)).
12 FED. R. CIV. P. 26(b)(1).
13 FED. R. CIV. P. 30.
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perpetuate the testimony of certain witnesses who may be unavailable for
trial. 14
Plaintiffs in this case seek to depose Defendant Joe Marino, who
represented Plaintiffs in Drug Court in Jefferson Parish. Plaintiffs allege that
Marino committed professional malpractice in his capacity as their attorney in
Drug Court. The parties do not dispute that Marino has knowledge of
discoverable information relevant to Plaintiffs’ claims. The parties also do not
dispute that Marino suffers from ALS.
This lawsuit was filed more than two and a half years ago. Although
many of Plaintiffs’ initial claims have been dismissed, state law claims against
Marino remain. Federal claims against Defendant Sheriff Joe Lopinto also
remain. Marino argues that Judge van Meerveld was clearly erroneous when
she ordered his deposition to be taken. This Court disagrees.
Because claims remain pending against Marino, and at this time this
Court possesses jurisdiction over this lawsuit, this Court finds that Judge van
Meerveld was not clearly erroneous when she ordered a discovery deposition
of Marino to be taken before December 31, 2018. The timeliness of the
deposition is particularly important considering Marino’s ALS diagnosis.
This Court also finds that Judge van Meerveld was not clearly erroneous
when she denied Plaintiffs’ request for a Rule 27 perpetuation deposition.
Plaintiffs asked Judge van Meerveld to order Marino to submit to a deposition.
She granted Plaintiffs’ request. They are entitled to a Rule 30 deposition of
Marino because they have shown he likely possesses knowledge of information
relevant to their claims against him.
When asked how they were harmed by Judge van Meerveld’s ruling,
Plaintiffs’ expressed concern that the scope of their questioning would be more
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FED. R. CIV. P. 27.

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limited in a Rule 30 deposition than in a Rule 27 perpetuation deposition. They
argued that a Rule 27 deposition would allow them to question Marino about
information relevant to claims against previously named defendants that this
Court dismissed but that are pending on appeal, whereas a Rule 30 deposition
would not.
Judge van Meerveld’s ruling left open the possibility that Plaintiffs’
could seek a perpetuation deposition—or some type of additional deposition—
of Marino if necessary after Plaintiffs’ conduct their initial discovery
deposition. In other words, the ruling expressly noted that if Plaintiffs
determine during their discovery deposition of Marino that they need to
perpetuate his testimony for any reason, they can seek such relief from the
Court. If the parties cannot agree on the scope of questioning Marino may face
in his discovery deposition, they can seek relief from Judge van Meerveld.
Finally, this Court finds that the web pages containing information
about ALS that are attached to Plaintiffs’ Motion appealing Judge van
Meerveld’s ruling are unreliable and unhelpful. They are unreliable because
the documents are unauthenticated screen shots of Internet web pages. They
are unhelpful because it is undisputed that ALS is a progressive degenerative
disease. Therefore, Defendants’ Motion to Strike Record Document 423-3 is
granted.
CONCLUSION
In conclusion, the parties’ Cross-Motions appealing Magistrate Judge
van Meerveld’s ruling that ordered Defendant Marino to submit to a deposition
are DENIED, and Defendant Marino’s Motion to Strike is GRANTED.
Defendant’s Motion to Expedite the Motion to Strike and Request for Oral
Argument on the Motion to Strike are DENIED as moot.

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New Orleans, Louisiana this 13th day of December, 2018.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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