Picard v. City of Woonsocket et al
Filing
66
OPINION AND ORDER re: 54 Appeal of Magistrate Judge Decision to District Court filed by Pamala Jalette, Patrick T. McGourty, Matthew Richardson, David Antaya, Christopher Brooks, Justin A. Glode, Scott Strickland vacating 52 Order on Motion for Protective Order, and granting in part and denying in part 37 MOTION for Protective Order filed by Charlene Picard,. So Ordered by Judge William E. Smith on 09-318. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
___________________________________
)
CHARLENE PICARD, Individually and )
as Administratrix of the Estate of )
TIMOTHY R. PICARD, SR.,
)
)
Plaintiff,
)
)
v.
)
)
CITY OF WOONSOCKET, et al.,
)
)
Defendants.
)
___________________________________)
C.A. No. 09-318 S
OPINION AND ORDER
WILLIAM E. SMITH, United States District Judge.
Before
the
Court
is
Defendants’
appeal
from
Magistrate
Judge David L. Martin’s Memorandum and Order dated April 13,
2011 (ECF No. 52 (hereinafter “Order”)), granting Plaintiff’s
motion for a protective order imposing certain restrictions on
the
depositions
of
Individual
Defendants
David
Antaya,
Christopher Brooks, Justin A. Glode, Pamela Jallette, Patrick T.
McGourty,
Matthew
(“Defendants”).
Richardson,
and
Scott
Strickland
For the reasons set forth below, the Order is
vacated, and Plaintiff’s motion is granted in part and denied in
part.
I.
Background
The summary of facts underlying this § 1983 suit set forth
in the Order provides helpful context:
Around 3:00 a.m. on August 20, 2006, Plaintiff
[Charlene Picard] called 911 for emergency medical
assistance at the home in Woonsocket, Rhode Island,
which she shared with her husband, Timothy Picard, Sr.
(“Mr. Picard”).
See Memorandum in Support of
Plaintiff’s Motion for Protective Order (“Plaintiff’s
Mem.”) at 2. At approximately 3:15 a.m., as a result
of the 911 call, Woonsocket police officers were
dispatched
to
Plaintiff’s
home.
Id.
at
2-3.
Emergency rescue personnel from the Woonsocket Fire
Department were never dispatched to that location.
Id. at 3.
Around 3:20 a.m. police officers David
Antaya (“Antaya”) and Justin A. Glode (“Glode”)
arrived at the Picard home.
Id.
Mrs. Picard was
outside her home and Mr. Picard was inside his home
dressed in boxer shorts. Id. According to Plaintiff,
Glode and Antaya were asked to leave the premises, but
refused to do so and instead proceeded to arrest Mr.
Picard without a warrant and without probable cause.
Id.
Plaintiff alleges that in the course of the
arrest Glode and Antaya used pepper spray on Mr.
Picard in amounts that exceeded the proper recommended
use and created an immediate need for decontamination
and medical assistance.
Id.
Plaintiff further
alleges that instead of being provided medical
assistance, Mr. Picard was taken to the Woonsocket
police station. Id.
At the police station, Plaintiff claims that Mr.
Picard was tasered three separate times while his
hands were handcuffed behind his back. Id. The first
instance allegedly occurred while Mr. Picard was
standing at the booking window surrounded by three
police officers.
Id.
The next two instances
allegedly occurred while Mr. Picard was lying face
down of the floor with his hands still cuffed behind
his back and surrounded by five police officers one of
whom had his knee in the middle of Mr. Picard’s back.
Id. According to Plaintiff, after the third tasering,
Mr. Picard started to turn blue and developed heavy
breathing.
Id.
He was taken by rescue to Landmark
Medical Center where he was pronounced dead after
unsuccessful attempts to revive him.
Id. at 3-4.
Plaintiff claims that during the approximately nine
minutes from the point at which Mr. Picard began to
2
exhibit life-threatening signs until the arrival of
emergency personnel none of the five police officers
administered CPR or made any attempt to place Mr.
Picard in a non-life-threatening situation. Id. at 4.
(Order 2-5 (footnotes omitted).)
On
July
20,
2009,
Plaintiff
filed
suit
in
this
Court
alleging violations of the decedent’s rights under the federal
and Rhode Island constitutions, as well as various state-law
claims.
The parties are now in the midst of discovery, and the
instant motion arises from a dispute over who may be present at
the parties’ depositions.
More specifically, Plaintiff moved
for an order excluding Defendants from each other’s depositions;
precluding Defendants from reading the transcripts or discussing
each
other’s
concluded;
depositions
and
until
precluding
all
of
Defendants
the
depositions
have
from
discussing
each
other’s depositions with counsel until the conclusion of the
depositions.
(Plaintiff’s Mem. 2.)
Moreover, Plaintiff moved
for an order precluding Defendants from attending Plaintiff’s
deposition
in
person,
but
allowing
deposition by videoconference.
In
his
Order,
the
them
to
“access”
the
(Id. at 9.)
Magistrate
Judge
granted
Plaintiff’s
motion, placing the following restrictions on the Defendants’
depositions:
(1) “The depositions shall be conducted with no
person present other than the party to be deposed, counsel, and
the court reporter”; (2) “Defendants’ counsel may not inform any
3
other Defendant, orally or through provision of a transcript,
about
what
the
other
Defendants
testified
to
at
their
depositions;” (3) “Defendants shall be barred from discussing
their
deposition
testimony
with
each
other
until
after
the
completion of all of the depositions of Defendants;” and (4) “No
Defendant shall be allowed to obtain a copy of his own or any
other deposition transcript until after the completion of all of
the depositions of Defendants.”
Defendants timely appealed the
Order.1
II.
Analysis
A. Standard of Review
On review of an appeal from a magistrate judge’s order on a
non-dispositive
aside
the
matter,
order
only
“contrary to law.”
a
district
where
it
court
is
will
“clearly
modify
or
erroneous”
set
or
Fed. R. Civ. P. 72(a); see also 28 U.S.C §
636(b)(1)(A).
B. Legal Discussion
Plaintiff’s argument in support of the protective order is
as follows:
At the hearing [on Plaintiff’s motion], the
[Magistrate Judge] asked Plaintiff’s counsel which of
the grounds identified in Rule 26(c)(1) (“annoyance,
1
The Order also precludes Defendants from being in the same
room as Plaintiff during her deposition but requires that they
be able to see and hear her deposition via video conferencing in
a nearby room.
(Order 15.)
Defendants do not appeal this
aspect of the Order. (See Defs.’ Obj. to Order 2 n.1.)
4
embarrassment,
oppression,
or
undue
burden
or
expense”)
Plaintiff
relied
upon
in
seeking
a
protective order.
Plaintiff’s counsel responded, in
essence, that the order was needed to protect
Plaintiff from an “undue burden” in attempting to
obtain information from the individual Defendants
regarding what happened to her husband after he was
taken into custody.
In support of her Motion,
Plaintiff notes that “virtually all of the fact
witnesses are the Defendants themselves,” Plaintiff’s
Mem. at 5, that Mr. Picard is deceased and cannot
provide any evidence of what happened, see id., and
that Mrs. Picard was not present when the pepper spray
or taser was used against her husband, see id.
Plaintiff posits that in the closeknit world of a
police department, it is reasonable to assume that
each of the police officers will be mindful of the
others’ testimony and would be reluctant to testify to
a conflicting version of events.
See id. at 5-6.
Plaintiff also suggests that a Defendant’s testimony
may be inadvertently affected simply by hearing what
another Defendant perceived and experienced.
See id.
at 6.
Plaintiff contends that her interest in
obtaining “unfiltered, unobstructed[,] and uninfluenced
testimony regarding the events of August 20, 2006,
outweighs the Defendants’ interests in attending the
other Defendants’ depositions.” Id. at 6-7.
(Order
7-8.)
repeats
these
Plaintiff’s
arguments,
opposition
further
to
Defendants’
emphasizing
the
appeal
“clearly
erroneous” standard of review of magistrate judges’ orders on
non-dispositive matters.
In their filings, Defendants counter that the weight of
authority does not construe Rule 26(c) of the Federal Rules of
Civil
Procedure
to
allow
for
the
exclusion
depositions in circumstances like these.
of
parties
from
They also emphasize
facts they believe undercut the Magistrate Judge’s reasoning:
Defendants already have given written statements concerning the
5
events at issue; the personnel dynamics of the police department
have changed so as to reduce the likelihood of perjury; and
zealous
advocacy,
through
vigorous
cross-examination,
is
the
appropriate safeguard here.
Rule 26(c)(1)(E) provides that “[t]he court may, for good
cause,
issue
annoyance,
an
order
to
embarrassment,
protect
a
oppression,
party
or
or
person
undue
from
burden
or
expense, including . . . designating the persons who may be
present while the discovery is conducted . . . .”
The First
Circuit has described Rule 26(c) as “highly flexible, having
been
designed
to
arise . . . .
accommodate
all
relevant
interests
as
they
[T]he ‘good cause’ standard in the Rule is a
flexible one that requires an individualized balancing of the
many interests that may be present in a particular case.”
Gill
v. Gulfstream Park Racing Ass’n., Inc., 399 F.3d 391, 402 (1st
Cir. 2005) (quoting United States v. Microsoft Corp., 165 F.3d
952, 959-60 (D.C. Cir. 1999)).
Absent a court order to the contrary, parties may attend
depositions, and “due to the heightened interests of parties in
the proceedings, ‘factors that might justify exclusion of nonparties from a deposition might not be sufficient to exclude
parties because of the parties’ more substantial interests in
being present.’”
260270,
at
*1
Dade v. Willis, No. Civ.A. 95-6869, 1998 WL
(E.D.
Pa.
Apr.
6
20,
1998)
(quoting
Hines
v.
Wilkinson, 163 F.R.D. 262, 266 (S.D. Ohio 1995)).
reason,
courts
depositions
generally
in
the
circumstances.”
are
loath
absence
of
to
exclude
“compelling
For this
parties
or
from
exceptional
BCI Commc’n Sys., Inc. v. Bell Atlanticom Sys.,
Inc., 112 F.R.D. 154, 160 (N.D. Ala. 1986); see also Galella v.
Onassis, 487 F.2d 986, 997 (2d Cir. 1973) (stating that “such an
exclusion
Bell,
should
112
granted
be
F.R.D.
ordered
426,
protective
rarely
426
indeed”);
(D.D.C.
orders
to
1986)
bar
Kerschbaumer
(“Most
parties
courts
from
v.
have
attending
depositions only in very limited circumstances.”).
The lynchpin of Plaintiff’s argument is that there is good
cause
in
these
depositions
unduly
of
burdens
testimony.
circumstances
their
to
exclude
co-Defendants,
Plaintiff’s
ability
Defendants
because
to
their
solicit
from
the
presence
truthful
The Order adopts this reasoning and emphasizes what
the Magistrate Judge understands to be the unique nature of this
case: namely that, Mr. Picard is deceased; Defendants are the
only witnesses to some of the events most pertinent to this
suit; and Defendants work (or used to work) for the same police
department in a relatively small city.
The
plain
reading
of
Rule
(See Order 13.)
26(c)(1)
makes
pellucid
that
“undue burden and expense” refers to the logistics of conducting
discovery,
not
the
prosecution
7
of
a
party’s
case.
Even
if
“undue burden” could be read in the manner Plaintiff suggests,
Plaintiff has not made a showing of good cause.
The weight of the authority holds that parties should not
be excluded from depositions “because of some inchoate fear that
perjury would otherwise result.”
(JBA)(JGM),
2000
WL
87160,
at
Laws v. Cleaver, No. 3:96CV92
*1
(D.
Conn.
Jan.
6,
2000)
(quoting Kerschbaumer, 112 F.R.D. at 427); see also Baylis v.
Pirelli Armstrong Tire Corp., No. 3:97 CV 729 PCD,
1052016,
at
considerations
*2
(D.
such
as
Conn.
a
Oct.
desire
to
31,
secure
1997 WL
1997)
(“Tactical
the
independent
recollection of witnesses or avoid the tailoring of testimony
are per se not compelling and will not justify exclusion [of
parties].
We will not restructure the adjudicative process to
manufacture opportunities for counsel to ‘catch’ witnesses in
inconsistent statements. . . . For such we must rely on the
competence and skill of counsel in cross-examination.” (quoting
Visor
v.
Sprint/United
Management
Co.,
No.
CIV.A.
96-K-1730,
1997 WL 567923, at *3 (D. Colo. Aug. 18, 1997))).
But see
McKenna v. City of Philadelphia, Nos. Civ.A. 98-5835, Civ.A. 991163, 2000 WL 1781916, at *2 (E.D. Pa. Nov. 9, 2000); Dade, 1998
WL 260270, at *4.
case,
and
Simply put, credibility is an issue in every
without
a
specific,
particularized
reason
for
believing that these Defendants are any more likely than the
average defendants to provide perjurious testimony, the Court is
8
not free to exclude Defendants from proceedings in a suit they
have been called upon to defend.
See Kerschbaumer, 112 F.R.D.
at 426 (“Nor can the Court discover any principle to support
granting plaintiffs’ motion here but denying similar motions in
the
numberless
other
cases
where
credibility
looms
large.”).
Testimony of one defendant closely mirroring that of another is
grist
for
the
adversarial-system
mill,
which
serves
as
the
traditional and well-tested safeguard for perjury.
The Court concludes that, in these circumstances, such a
protective order cannot be supported by the plain language of
Rule 26(c) or the precedent construing it.
Therefore, the Court
must set aside the Order as “clearly erroneous.”
III. Conclusion
For the reasons set forth above, the Order is VACATED,
Plaintiff’s motion for a protective order is GRANTED insofar as
Defendants
are
precluded
from
being
in
the
same
room
as
Plaintiff during her deposition, but Defendants must be able to
see and hear the deposition via video conferencing in a nearby
room.
Plaintiff’s motion is DENIED in all other respects.
IT IS SO ORDERED.
/s/ William E. Smith
William E. Smith
United States District Judge
Date: August 23, 2011
9
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