Jordan et al v. Fisher et al

Filing 205

ORDER (ABBREVIATED) Signed by District Judge Henry T. Wingate on 5/1/2020 (nd)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
RICHARD JORDAN, RICKY CHASE,
ROBERT SIMON, and ERIC THORSON
VS.

PLAINTIFFS
CIVIL ACTION NO.: 3:15CV295—HTW-LRA

TOMMY TAYLOR, Interim
Commissioner, Mississippi Department
of Corrections; MARSHAL TURNER,
Superintendent, Mississippi State
Penitentiary; THE MISSISSIPPI STATE
EXECUTIONER; and UNKNOWN
EXECUTIONERS

DEFENDANTS

ORDER (ABBREVIATED)
On April 17, 2020, this Court entered a written Order (Doc. #197), which addressed several
discovery issues raised by the parties, but reserved its ruling on various other discovery issues until
after oral arguments from the parties at a forthcoming hearing. On April 27, 2020, this Court held
that telephonic hearing. During that occasion, the Court heard arguments on some outstanding
issues. This Court at this time still cannot resolve all of these outstanding matters. The Court will
now provide directions for that endeavor.
MOTION FOR RECONSIDERATION
As an initial matter, Plaintiffs filed a Motion for Reconsideration (Doc. #202) of the
Court’s earlier ruling denying their request to withdraw their designation of Dr. Mark Heath as an
expert and to substitute Dr. Gail Van Norman. Plaintiffs filed this Motion one working day before
the April 27, 2020 hearing; so, the Defendants have not had an opportunity to respond. Defendants
asked at the hearing that they be able to file their response within the time frame provided by
L.U.Civ.R 7(4). This Court, thus, hereby grants Defendants leave to respond within the allotted

time frame. Should they choose, the Plaintiffs may file their reply to Defendants’ response in a
rule-timely fashion.
DEPOSITION PROTOCOL
During the hearing, the parties championed their variant requests for the deposition
protocol (Doc. #180). The Plaintiffs moved for in-person depositions, with steps to be taken to
preserve the deponents’ identities, for instance depositions utilizing impenetrable shields
separating the deponent from the attorneys and the parties. Voice alteration was mentioned.
Alternatively, Plaintiffs asked that the depositions be handled by telephone.
The Defendants prefer written depositions/interrogatories. The Defendants also suggested
that telephonic depositions may be appropriate.
This Court has studied the submitted protocols for depositions of witnesses, mindful
throughout that any court-ordered protocol must scrupulously protect the identity of the deponents
and the identity of any drug supplier. This Court, therefore, is persuaded that the best protocol
answering these security questions, along with ensuring Plaintiffs’ opportunity to conduct
meaningful examinations, is that of telephonic depositions. Some logistics need to be finalized;
for instance: an appropriate secure location for the depositions; appropriate protocol for the court
reporters; the presence of a third-party technician in the deposition room; and pitch modulation.
The parties then addressed the issue of voice alteration. Although they differed on whether
the software should be used for every confidential witness, the parties agreed that they were close
to an agreement on this issue. The Plaintiffs suggested a vendor for the software and the Plaintiffs
agreed to test that vendor’s software or provide a reasonable alternative. When asked how long it
would take to come to an agreement on the use of software, both parties expressed uncertainty
based on the current COVID-19 pandemic. Additionally, the software will have to be tested by

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the parties and evaluated by the Court. The parties believed, however, that this issue can be
resolved within thirty days. The Court agrees to set a thirty-day deadline, but instructed the parties
to submit a written status report within fourteen days.
This Court agrees with the parties that the aforementioned issues must be resolved before
a reasonable assessment on the trial schedule can be made. Moreover, the Defendants have
recently informed the Court and counsel opposite that a potential new provider for the injection
drugs may have been identified, and their earlier discovery responses will require supplementation.
This Court is mindful of the Defendants’ wish to move this case forward expeditiously, but
recognizes that a new trial date cannot be set at this juncture. That being said, the Court commends
counsel on their willingness to work jointly towards completing the discovery process and
preparing this case for trial.
IT IS, THEREFORE, ORDERED, as follows:
1. The Defendants may respond to the Plaintiffs’ Motion for Reconsideration (Doc.
#202) within the time provided by the Local Rules of this Court, and the Plaintiffs
may file their reply within the provided time.
2. The depositions of the confidential parties will be held telephonically. This Court
shall outline the specific issues raised by the telephonic depositions in a separate
Order. The parties have agreed to work together to identify a provider for voice
alteration software and to test that software and demonstrate it to the Court prior to
the depositions being scheduled. This process is to be completed within thirty days
from the entry of this Order, with a status report provided, by separate letters, to the
Court within fourteen days of the entry of this Order.

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3. The Joint Motion for Modification of Revised Scheduling Order (Doc. #196) is held
in abeyance at this time, and it will be decided after completion of the steps outlined
above.
IT IS SO ORDERED, this the 1st day of May, 2020.
/s/HENRY T. WINGATE
UNITED STATES DISTRICT JUDGE

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