Planned Parenthood Minnesota, North Dakota, South Dakota et al v. Daugaard et al

Filing 96

ORDER re: Discovery Docs. 85 Proposed Schedule, filed by Dennis Daugaard, Marty Jackley, Robert Ferrell, Doneen Hollingsworth, and 54 Order on Motion to Intervene. Signed by US Magistrate Judge John E. Simko on 8/29/12. (CMS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

FILED
AUG 29 2012

SOUTHERN DIVISION

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PLANNED PARENTHOOD
MINNESOTA, NORTH DAKOTA,
SOUTH DAKOTA, and
CAROL E. BALL, M.D.,
Plaintiffs,

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CIV. 11-4071-KES

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vs.
DENNIS DAUGAARD, Governor,
MARTY JACKLEY, Attorney General;
DONEEN HOLLINGSWORTH,
Secretary of Health, Department of Health,
and ROBERT FERRELL, President,
Board of Medical and Osteopathic
Examiners, in their official capacities,
Defendants.
ALPHA CENTER and
BLACK HILLS PREGNANCY CENTER
d/b/a Care Net Pregnancy Resource Center,
Intervenors.

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ORDER RE: DISCOVERY
Docs. 54 & 85

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Pending is that part ofJudge Schreier's Order allowing intervention which directed all parties
to confer with the magistrate judge to establish guidelines for participation by the intervenors. l The

IDoc. 54, p. 21.

parties have conferred with each other and have reached agreement about discovery on all but two
issues. 2 Those two issues are addressed in this decision.

BACKGROUND
Plaintiffs assert "a constitutional challenge under 42 U.S.C. § 1983 to South Dakota H.B.
1217,2011 Leg. Reg. Sess. (S.D. 2011), to be codified in South Dakota Codified Laws Chapter
34-23A."3 Plaintiffs allege, among other matters, "the Act seeks to restrict women's access to
abortion services in South Dakota."4 Defendants are state government officials and the President
of the Board of Medical and Osteopathic Examiners. 5 Intervenors "are two of the three pregnancy
help centers who have registered with the State to obtain referrals under the Act.,,6
Judge Schreier granted the motion to intervene filed by the two pregnancy help centers. 7 In
granting the motion to intervene, Judge Schreier
finds that reasonable restrictions on applicants' involvement in this action are
warranted. The restrictions will address both the scope of applicants' involvement,
as well as the form in which applicants are to participate. First, applicants' interests
are only invoked when there is a challenge to the pregnancy help center mandate. The
State can adequately represent applicants' interest in any other area that does not
relate to the pregnancy help center mandate. Applicants' participation in this action
is, therefore, restricted to challenges to Sections 3, 5, and 6 of the Act. s

2Doc.85.

5Doc. 25 and captions of pleadings generally.

6Doc. 54, p. 4.

7Doc. 54, p. 21.

8Doc. 54, p. 19.

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Judge Schreier ordered "that the parties will schedule a discovery conference with the magistrate
judge to establish guidelines for applicants' participation.,,9
The parties conferred and filed their "Joint Partial Proposal ... For Intervenors' Participation
In Discovery."lo This document describes the process for discovery upon which there was agreement
and identifies the two issues about which there was not agreement. There was not agreement about
(l) the number of fact witness depositions; and (2) the subject matter of discovery in which

intervenors may participate. I I

DISCUSSION
Number Of Fact Witness Depositions.
The Scheduling Order provides "[t]here will be a maximum of five depositions for each
party," not counting expert depositions. 12 Plaintiffs argue that the State and intervenors are allowed
five fact witness depositions collectively, not five each. 13 To support their argument plaintiffs note
the intervention order prevents intervenors "from initiating unilateral, independent discovery and
must obtain permission from the magistrate judge or the district court before engaging in
independent discovery.,,14 The next sentence of Judge Schreier's Order, however, provides: "Prior

9Doc. 54, p. 21.
IODoc.85.
IIDoc. 85, pp. 4-5.
12Doc. 70, ~ 6; Doc. 94, ~ 2.
J3Doc. 87, p. 5.
14Doc. 54, p. 20.

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to the commencement of discovery, the parties will participate in a conference with the magistrate
judge to establish more precise boundaries ofapplicants' participation. ,,15 The State and intervenors
argue the Scheduling Order says what it means and means what it says----that each party may take
five fact witness depositions. 16 Plaintiffs collectively are a party. Defendants collectively are a party.
Intervenors collectively are a party. The Scheduling Order provides that "each party" may take five
depositions.
The parties have implicitly agreed in their submissions what is NOT meant by "each party"
in the Scheduling Order, i.e. that each ofthe ten individual parties is entitled to five fact depositions­
--- in other words the Scheduling Order does not mean that the four plaintiffs may take a total of
twenty depositions or that the four State defendants may take a total of20 depositions or that the two
intervenors may take a total often depositions. It means that plaintiffs collectively are one party for
purposes ofthe Scheduling Order and plaintiffs may take five fact witness depositions. It means that
defendants collectively are a party and may take five fact witness depositions. The Order granting
intervention made the two intervenors collectively a party and the Scheduling Order means
collectively the intervenors may take five fact witness depositions.
Commonly in litigation there are multiple parties named as plaintiffs and defendants or third
party defendants. There are interests which often overlap. There is no Federal Rule Of Civil
Procedure about discovery which provides that each side can take only the same number of

15Id.
16Doc. 88, p. 10 (intervenors should be able to notice their own depositions) and Doc. 89, p.
5; Doc. 90, pp. 1-3.
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depositions as the other side. Equality in numbers l7 can happen during a trial when it comes to
peremptory challenges of jurors, but not necessarily during discovery when it comes to taking
depositions. There is hardly a trial lawyer who hasn't sat in a conference room and agonized while
ten lawyers representing ten different parties beat up on her lonely client ten different ways about
the same issue. That's the principle here. This case will be decided upon the merits, not by counting
which side takes more fact witness depositions. Each party is entitled to try to establish the facts
each needs to prevail by taking discovery depositions from five fact witnesses. There may be some
overlap. There may not be. It makes no difference for purposes ofthis decision.

Subjects Of Discovery.
Judge Schreier's intervention order states
applicants' interests are only invoked when there is a challenge to the pregnancy
help center mandate. . .. Applicants' participation in this action is, therefore,
restricted to challenges to Sections 3,5, and 6 ofthe Act. 18

Both the State and the intervenors argue the 72 hour delay is related to the pregnancy health center
mandate. 19 Plaintiffs argue intervenors may not take discovery on the 72 hour requirement
notwithstanding Judge Schreier's mention of Sections 3, 5, and 6 because "the Court has heard, and
rejected, all of this before" and

17Equality in numbers, it can be reasonably argued, is exactly what the Scheduling Order
provides, i.e. five fact witness depositions for each party. Plaintiffs argue, however, that the State
and the intervenors are on the same side, so their side has ten fact depositions compared to plaintiffs'
five.
18Doc. 54, p. 19. (italics and bold added).
19Doc. 89; Doc. 90, pp. 4-5. (bold and italics added).

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the fact that the Court referenced Sections 3,5, and 6 of the Act was simply because
the Pregnancy Help Center Requirements are found in these Sections. In no way can
that referencing be read to obliterate the subject matter restrictions the Court
expressly established in the same discussion. Conceptually, Intervenors' position is
therefore conclusively foreclosed by the Intervention Order. Intervenors are not
allowed to question witnesses, offer expert testimony, or take written discovery as
to the 72-Hour Requirement. 2o
Plaintiffs overstate what Judge Schreier's Order states. Judge Schreier herself repeated that
intervenors could only participate "when there was a challenge to the pregnancy help center

mandate or to sections 3,5, and 6 ofthe challenged statute.,,21 In fact, Judge Schreier states just the
opposite offoreclosing intervenors from participating with regard to the 72 hour requirement. Judge
Schreier's Orders both on intervention and on the motion to reconsider specifically permit
intervenors to participate when there is a challenge to section 3. And, of course, it is in section 3
where reference to the 72 hour delay appears in the Act.
Whether the 72 hour requirement is relevant to the pregnancy help center mandate is a hotly
contested issue which Judge Schreier could perhaps address in the future. Intervenors argue the 72
hour delay goes to the heart of their case. 22 Plaintiffs argue Judge Schreier has already heard and
rejected all of this before. The State agrees with the intervenorsY So does the undersigned.
First, it is noted the 72 hour delay provision is included within Section 3 of the Act. 24 Judge

2°Doc. 87, pp. 3-4.

2lDoc. 69, p.3.

22Doc. 88, p.3.

23Doc. 90, p. 4.

24Doc. 25-1, p. 2.

Section 3 provides in part: "

Only after the physician completes the consultation and

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Schreier's intervention order specifically allowed intervenors to conduct discovery regarding Section

Next, efficiency of litigation and the demands of justice compel the conclusion that
intervenors be allowed to discover facts relating to the 72 hour delay. That a theory of recovery or
defense might later be rejected by the court is not a reason to prevent that party from discovering
facts to support the theory during the discovery process. That sort of thing happens every day in
litigation. Judge Schreier might accept intervenors' argument that the 72 hour delay is interwoven
with the pregnancy center mandate, or she might reject the argument. Because intervenors need to
develop the facts during discovery to support their theory they must be allowed to do so. It does not
appear from Judge Schreier's intervention order that she has already heard and rejected this
argument. It appears from Judge Schreier's intervention order that intervenors were restricted to
discovery about the pregnancy help center mandate, and to sections 3,5, and 6 ofthe Act, but it does
not appear that she has yet addressed intervenors' argument that the 72 hour delay is central to the
requirement for counseling with a pregnancy help center. At the very most, there is disagreement
among the parties about this hotly contested issue. Within the restriction Judge Schreier imposed
on the intervenors' participation, this decision attempts to carry forward what Judge Scheier
described in her Order Denying Defendants' Motion To Amend Or Correct:

assessment complying with the provisions of this Act, may the physician schedule a surgical or
medical abortion, but in no instance may the physician schedule such surgical or medical abortion
to take place in less than seventy-two hours from the completion of such consultation and
assessment except in a medical emergency as set forth in § 34-23A-lO.l and subdivision
34-23A-1(5).... (bold and italics added).
25Doc. 54, p. 19. ".... Applicants' participation in this action is, therefore, restricted to
challenges to Sections 3, 5, and 6 ofthe Act."
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Placing conditions upon intervention is an individualized assessment
that the court must make based on that specific litigation and the parties
involved, with the aim of moving the proceedings forward efficiently. See
Wi/dearth Guardians v. Salazar, 272 F.R.D. 4, 20 (D.D.C. 2010) ("The inquiry is

necessarily context-specific, and the conditions should be tailored to fit the
needs ofthe particular litigation, the parties, and the district court.") (citations
omitted). These restrictions were the best option through which to include
intervenors without bogging down the litigation. The terms ofthe restrictions
were based on the previous litigation, the need for "efficient conduct of the
proceedings," the prior relationship of the State and intervenors, and for
housekeeping reasons. 26

Final Observation.
As a final observation, it is noted that plaintiffs asserted
In depositions, should Intervenors inquire on a topic that Plaintiffs' believe is not
reasonably calculated to lead to discovery of admissible evidence relating to the
Pregnancy Help Center Requirements, Plaintiffs will object and Intervenors will
have the opportunity to articulate why they believe the question is proper. 27
The parties are reminded that Federal Rule of Civil Procedure 30(c)(2) governs objections at
depositions.
Based on the above discussion, it is hereby
ORDERED that:
1.

Plaintiffs collectively are allowed five fact witness depositions; that
defendants collectively are allowed five fact witness depositions; and that
intervenors collectively are allowed five fact witness depositions.

2.

Judge Schreier's intervention Order restricts the intervenors' participation
to the pregnancy help center mandate and to Sections 3,5, and 6 of the Act.
Intervenors are not restricted further from engaging in any subject of
discovery which is or claimed to be relevant to the pregnancy help center
mandate or to Sections 3, 5, and 6 of the Act. Intervenors are allowed to

26Doc. 69, p. 6. (italics and bold added).
27Doc. 87, p. 4. (italics and bold added).
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discover facts about any subject addressed in sections 3,5, and 6, specifically
including the 72 hour delay issue.
Dated this ~ day of August, 2012.
BY THE COURT:

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