Allen-Pieroni et al v. Southwestern Correctional LLC et al
Filing
98
Memorandum Opinion and Order granting in part and denying in part 89 Motion for for Leave to Take Depositions, filed by Steve Gibbs, Mark Gibbs, Brian Allen, Bonnie Allen-Pieroni. (Ordered by Magistrate Judge David L Horan on 8/23/2016) (mem)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
BONNIE ALLEN-PIERONI, BRIAN
ALLEN, STEVE GIBBS, and MARK
GIBBS, individually and as heirs at law
to the Estate of IVAN EARL ALLEN,
DECEASED,
Plaintiffs,
V.
SOUTHWESTERN CORRECTIONAL,
LLC, d/b/a LASALLE SOUTHWEST
CORRECTIONS; LASALLE
MANAGEMENT COMPANY, LLC;
JOHNSON COUNTY, TEXAS; BOB
ALFORD; JOHN DOES 1-5; and JANE
DOES 1-5,
Defendants.
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No. 3:13-cv-4089-M
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION OF PLAINTIFFS
FOR LEAVE TO TAKE DEPOSITIONS
Plaintiffs Bonnie Allen-Pieroni, Brian Allen, Steve Gibbs, and Mark Gibbs,
individually and as heirs at law to the Estate of Ivan Earl Allen, Deceased
(“Plaintiffs”), have filed a Motion for Leave to Take Depositions [Dkt. No. 89] (the
“Motion for Leave”), seeking leave pursuant to Federal Rule of Civil Procedure 30(a)(2)
to take the deposition of Eddie Williams, Kris Wusterhausen, D.O., Johnson County,
Texas, Southwestern Correctional, LLC, LaSalle Management, LLC, Bob Alford, and
Vernon Farthing, M.D. and an additional five depositions.
Chief Judge Barbara M. G. Lynn referred the Motion for Leave to the
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undersigned United States magistrate judge for determination. See Dkt. No. 91.
Defendants Southwestern Correctional, LLC, LaSalle Management Company,
LLC, Johnson County, Texas, and Sheriff Bob Alford (“Defendants”) filed a response
in opposition, see Dkt. No. 95, and Plaintiffs filed a reply, see Dkt. No. 97.
For the reasons and to the extent explained below, the Court GRANTS in part
and DENIES in part the Motion of Plaintiffs for Leave to Take Depositions [Dkt. No.
89].
Background
Plaintiffs are the adult children of Ivan Allen, Deceased. Ivan Allen was a
pretrial detainee at the Johnson County Law Enforcement Center for a probation
violation from the date of his arrest on October 9, 2011 until October 26, 2011 when he
was taken to the Walls Regional Hospital. Mr. Allen was later transported to the Texas
Health Harris Methodist Hospital in Fort Worth, Texas, where he died on October 30,
2011.
According to Defendants, Mr. Allen had been in and out of this jail on 34
separate occasions spanning back to 1974, but the facts and circumstances of this
lawsuit relate to his most recent period of detainment for the 17-day period during the
month of October 2011.
Plaintiffs’ Second Amended Complaint alleges (i) violations of the Eighth and
Fourteenth Amendments of the United States’ Constitution, (ii) state law claims of
wrongful death, and (iii) claims under the Texas Torts Claims Act. Plaintiffs allege that
Defendants adopted and implemented in the jail policies and procedures that resulted
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in inadequate medical care provided to the detainees. Defendants include (1)
Southwestern Correctional LLC, a Texas limited liability company which operates the
jail under contract with Johnson County, Texas; (2) Johnson County, Texas; (3)
Johnson County Sheriff Bob Alford; and (4) LaSalle Management Company, LLC, a
Louisiana limited liability company that provides support services to Southwestern
Correctional, LLC. The Johnson County Correctional Center is the county jail for
Johnson County, Texas and consists of 872 beds ranging from minimum to maximum
security levels.
Legal Standards
Federal Rule of Civil Procedure 30(a)(2) limits Plaintiffs to taking 10 depositions
unless the parties stipulate to additional depositions or the Court grants Plaintiffs
leave to exceed 10 depositions. Rule 30(a)(2) provides that “[a] party must obtain leave
of court, and the court must grant leave to the extent consistent with [Federal Rule of
Civil Procedure] 26(b)(1) and (2): (A) if the parties have not stipulated to the deposition
and: (i) the deposition would result in more than 10 depositions being taken under this
rule or Rule 31 by the plaintiffs, or by the defendants, or by the third-party
defendants.” FED. R. CIV. P. 30(a)(2)(A). And Federal Rule of Civil Procedure 26(b)(2)(A)
provides that, “[b]y order, the court may alter the limits in these rules on the number
of depositions.” FED. R. CIV. P. 26(b)(2)(A).
“When a party seeks leave to take more than ten depositions, the court’s decision
whether to grant such leave is governed by the principles set out in” Federal Rules of
Civil Procedure 26(b)(1) and 26(b)(2). Barrow v. Greenville Indep. Sch. Dist., 202 F.R.D.
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480, 482 (N.D. Tex. 2001). Federal Rule of Civil Procedure 26(b)(2)(C), as amended
effective December 1, 2015, provides that, “[o]n motion or on its own, the court must
limit the frequency or extent of discovery otherwise allowed by these rules or by local
rule if it determines that: (i) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that is more convenient, less
burdensome, or less expensive; (ii) the party seeking discovery has had ample
opportunity to obtain the information by discovery in the action; or (iii) the proposed
discovery is outside the scope permitted by Rule 26(b)(1).” FED. R. CIV. P. 26(b)(2)(C).
Rule 26(b)(1), as amended, effective December 1, 2015, now provides that, “[u]nless
otherwise limited by court order, the scope of discovery is as follows: Parties 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, considering the importance
of the issues at stake in the action, the amount in controversy, the parties’ relative
access to relevant information, the parties’ resources, the importance of the discovery
in resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope of discovery need not be
admissible in evidence to be discoverable.” FED. R. CIV. P. 26(b)(1).
The amendments to Rules 26 and 30 govern in all proceedings in civil cases
thereafter commenced and, insofar as just and practicable, in all proceedings then
pending. The Court finds that applying the standards of Rules 26 and 30, as amended,
to Plaintiffs’ Motion for Leave is both just and practicable. Just as was the case before
the December 1, 2015 amendments, under Rules 26(b)(1) and 26(b)(2)(C)(iii), a court
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can – and must – limit proposed discovery that it determines is not proportional to the
needs of the case, considering the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit – and the court
must do so even in the absence of a motion. See Crosby v. La. Health Serv. & Indem.
Co., 647 F.3d 258, 264 (5th Cir. 2011); accord Hightower v. Grp. 1 Auto., Inc., No. CV
15-1284, 2016 WL 3511720, at *1 (E.D. La. Apr. 27, 2016), reconsideration denied, 2016
WL 3430569 (E.D. La. June 22, 2016) (“Permissible discovery extends only to that
which is non-privileged, relevant to claims and defenses in the case and within the
applicable Rule's proportionality limits, regardless whether those limits arise from the
indistinguishable standards of Fed. R. Civ. P. 26(b)(1) and (b)(2)(C) as they existed at
the time this case was filed or in those same Rules as presently configured.”).
The party seeking leave under Rule 30(a)(2)(A) to take more than ten
depositions must “show the necessity of all the depositions she took in reaching the
prescribed limit,” that is, “the necessity for each deposition she took without leave of
court pursuant to the presumptive limit of Rule 30(a)(2)(A).” Barrow, 202 F.R.D. at
482-83. “In other words, [the party seeking leave] must establish not only the necessity
of each deposition identified in his motion (i.e., witnesses 11 through 20), but also the
necessity of all the depositions he has taken or will take in reaching the prescribed
limit (i.e., witnesses 1 through 10).” MacKenzie v. Castro, No. 3:15-cv-752-D, 2016 WL
3906084, at *5 (N.D. Tex. July 19, 2016). “And [t]he mere fact that more than ten
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individuals may have discoverable information in a case does not mean that taking
more than ten depositions makes sense.” Byers v. Navarro Cty., No. 3:09-cv-1792-D,
2011 WL 4367773, at *2 (N.D. Tex. Sept. 19, 2011) (internal quotation marks omitted).
“The rationale for such a standard is” that [h]ad [the party seeking leave] opted
not to take other depositions, she could have taken the ones in question without first
obtaining leave of court.” Barrow, 202 F.R.D. at 482 (footnote omitted). The party
seeking leave “should not be allowed to conduct ten” (or more) “depositions that were
not subject to judicial review under the Rule [26(b)(1) and Rule] 26(b)(2) standards and
then only be required to” provide specific reasons for seeking “leave to take the
additional ones at issue.” Id. at 482-83. “If this approach were condoned, a party could
indirectly circumvent the cap on depositions by exhausting the maximum allotted
number to take those that she could not justify under the Rule [26(b)(1) and Rule]
26(b)(2) standards, and then seeking leave to exceed the limit in order to take
depositions that she could substantiate. Rule 30(a)(2)(A) is intended to control
discovery, with its attendant costs and potential for delay, by establishing a default
limit on the number of depositions.” Id. at 483. “This salutary purpose would be
subverted unless a party who takes the maximum number of depositions allowed, and
then seeks leave to conduct more, is required to show the necessity of all the
depositions she took in reaching the prescribed limit in order to demonstrate” her
entitlement to leave under Rule 30(a)(2)(A). Id.
Analysis
In the Motion for Leave and reply in support thereof, Plaintiffs explain that they
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“have previously taken depositions of [ten] witnesses, with no objections from
Defendants” – specifically, of (1) Walter William Forson, (2) Angela Hudson, (3)
Cynthia Lewis, (4) Richard Journeay, (5) Judith Bennett, (6) Eustolia Pena, (7) Neal
Patrick Gormley, (8) Lillain Delayne Hinojosa, (9) Jesus Rubio, and (10) David
Blankenship – and that “[t]hese depositions have included several present and former
employees of Defendants, including nurses who provided treatment to Ivan Allen
during his incarceration at the Johnson County Jail that resulted in his untimely
death, and former inmates who witnessed the lack of proper treatment for Ivan Allen
and the general attitude of Defendants toward the life and safety of the inmates.” Dkt.
No. 89 at 1-2; see also Dkt. No. 95 at 2 n.1; Dkt. No. 97 at 6-7.
Plaintiffs contend that “[t]he necessity for more than ten depositions in this case
arises from the fact that there are three primary defendants, and that there are
numerous present and former employees of Southwestern Correctional, LLC d/b/a
LaSalle Southwest Corrections [] who have pertinent knowledge concerning the policies
and practices of both Southwestern Correctional and of the other Defendants.” Dkt. No.
89 at 2. Plaintiffs assert that, “[f]urthermore, testimony from former employees is
particularly enlightening, because they are no longer in fear of losing their jobs by
disclosing the shabby treatment of inmates and their medical needs.” Id.
Plaintiffs explain that they “have sought testimony from several former inmates
of the jail who witnessed the mistreatment of Ivan Allen” but “have not yet [] been able
to take the depositions of designated corporate representatives of Johnson County and
the corporate defendants, nor that of Sheriff Alford, or the depositions of the doctor
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who was under contract to furnish medical services for inmates, or the designated
expert witness of Defendants.” Id.
Plaintiffs seek leave to take the following seven depositions (with notices
attached to the Motion for Leave) as well as an additional five depositions: (1) Eddie
Williams, the “Warden of the Jail; responsible for overall treatment of inmates”; (2)
Kris Wusterhausen, D.O., the “[d]octor contracted to provide medical services for
inmates”; (3) Johnson County, Texas, a Defendant; (4) Southwest Correctional, LLC,
a Defendant; (5) LaSalle Management Company, LLC, a Defendant; (6) Bob Alford,
Defendant; and (7) Vernon Farthing, M.D., an “[o]utside retained expert witness.” Id.
at 2-3.
In the Motion for Leave, Plaintiffs further explain that they “are seeking leave
to take up to an additional five (5) depositions, because there are numerous former
inmates whom Plaintiffs are attempting to locate and interview, and who are believed
to have important information.” Id. at 3. According to Plaintiffs, “[d]ue to the passage
of time, and the fact that few former inmates are going to be freely available for
interviews, this process is taking substantial time,” but “[e]ach such deposition will be
short, but the information to be obtained therefrom is of great significance.” Id.
Plaintiffs also report that they “were unaware of any objections that Defendants
had to the ongoing taking of depositions, because they have been attempting, for over
six (6) weeks, the taking of these depositions, and at no time during the
communications between counsel was any objection made.” Id. Plaintiffs explain that
“Defendants’ counsel was aware, due to telephone conversations and the letter dated
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July 20, 2016, that Plaintiffs’ counsel would be on vacation from August 1-14, 2016”
and that “[i]t was not until after 6:30 p.m., on Friday, August 12, 2016, that
Defendants’ counsel first raised any objection to the depositions beginning Monday,
August 15, 2016.” Id. at 4. Plaintiffs criticize “[t]he manner in which Defendants have
strung along the attempted depositions of the organizational Defendants, and of Sheriff
Alford, whereby telephone calls are not answered, no dates are proposed,
representations of ‘unavailability’ are made, and then, at a time and in a manner
obviously designed to delay critical depositions even further, objections as to allowable
number of depositions are made, knowing that Plaintiffs’ counsel was out of town and
unable to file any motions with this Court.” Id. Plaintiffs contend that, despite their
“diligence in attempting to obtain dates for depositions, and multiple attempts to reach
agreement as to timing of depositions, Plaintiffs have been confronted with one delay
after another, and now this last-minute desperate ploy to delay discovery still further.”
Id.
Plaintiffs assert that “the depositions taken by Plaintiffs to date have been
necessary to develop the critical facts of this case, in a particularly difficult situation
where the most knowledgeable witnesses are the most difficult to locate” and that
“[t]he requested depositions are absolutely critical, in the interests of justice, to enable
Plaintiffs to prepare and present their case, and Plaintiffs will be denied a fair
opportunity to present their case if such depositions are not permitted.” Id.
Defendants, Relying on the case law and standards laid out above, respond that,
where “Plaintiffs have completed ten depositions as allowed by [Rule] 30(a)(2)(A) and
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are now seeking leave from the Court to take an additional twelve depositions at the
end of the discovery period,” and where, “[t]o obtain leave from the Court for additional
depositions, Plaintiffs must show good cause and necessity for every deposition they
have already taken and those they wish to take in this case,” Plaintiffs “have not and
cannot meet that burden.” Dkt. No. 95 at 1-2.
Defendants explain that, “[t]o date, Plaintiffs have noticed and completed ten
depositions in this case” and that “[t]he Parties have not agreed to expand the number
of depositions above the limit of 10 allowed by Rule 30(a)(2)(A), and Plaintiffs did not
seek permission or leave from the Court for an expansion of the limit until the present
Motion filed approximately two weeks before the close of discovery.” Id. at 2 (footnote
omitted).
Defendants contend that, “despite the brief discovery extension allowed by the
Court, the ongoing search for witnesses, and ever-growing number of future depositions
that Plaintiffs claimed to be ‘absolutely critical,’ Plaintiffs’ counsel took a two-week
vacation from August 1st to 15th” and that, “[a]fter business hours on Thursday, July
28, 2016, just prior to beginning vacation, Plaintiffs’ counsel served seven deposition
notices purporting to set all of seven of the depositions for a nine day period from
August 15th to August 233rd.” Id. at 3. According to Defendants, “[t]he deponents
noticed were Defendant Sheriff Alford, corporate representatives of Johnson County
and the two company Defendants, the Jail’s current warden who did not work at the
Johnson County Jail during Ivan Allen’s incarceration, a medical doctor who contracts
to provide inmate medical care at the facility, and Defendants’ expert witness.” Id. at
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3 (footnote omitted). Defendants report that, “[o]n August 12, 2016, Defendants advised
Plaintiffs that Defendants would not proceed with the seven depositions as noticed
since the depositions are not authorized under the rules, and, out of caution, would be
filing a Motion for Protective Order from the Court and attempted to confer on the
Motion for Protective Order” but that “Plaintiffs then filed their Motion For Leave
requesting not only the additional seven deposition identified witnesses, but also five
more witnesses which apparently are still unidentified.” Id.
Defendants more specifically contend that “Warden Eddie Williams would have
no direct knowledge related to this case, but may have information useful to Plaintiff
Bonnie Allen Thomas in another lawsuit that she is threatening to file”; that “Warden
Williams was the Warden of the Johnson County Jail during the period when Plaintiff
Bonnie Allen Thomas was detained for carrying a fully loaded weapon into the Johnson
County Courthouse in violation of court orders in her custody case, in addition to other
laws against carrying a weapon into the courthouse and for evading arrest”; and that
“Bonnie Allen Thomas has sent Tort Claims Notices related to these events to all of the
Defendants in this case and to others.” Id. at 3 n.2.
Defendants argue that “Plaintiffs have not and can not carry their burden to
demonstrate that the depositions taken to date were necessary and have not
established the need for each of the twelve additional depositions they are requesting,”
where, “[a]s an example, one of the depositions taken by Plaintiffs was of a Sheriff’s
office employee who did not work at the jail until approximately two years after Ivan
Allen’s death, and a second deposition was of a staff member who did not start work
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at the jail until approximately two years after Ivan Allen’s death.” Id. at 5. Defendants
assert that “[t]he fact that past or future deponents are named Defendants or
representatives of Defendants does not establish the necessity of their depositions.” Id.
(footnote omitted).
Defendants also argue that “Plaintiffs cannot demonstrate necessity or purpose
for the five additional depositions requested for witnesses that Plaintiffs themselves
still have not identified” and that “Plaintiffs clearly did not have a mutually
cost-effective or efficient plan for discovery” but rather “have used much of their
discovery, particularly depositions, as a fishing-expedition by which to develop a theory
of liability for their claims.” Id. Defendants contend that,
[o]ver the three years that this case has been on file, Plaintiffs have had
the ability to request discovery of documents, seek information through
Interrogatories, and use other discovery devices to obtain the information
that they now seek through unauthorized depositions and improper duces
tecums. Despite having the burden to plan their discovery responsibly to
prove their claims, Plaintiffs are seeking twelve more depositions along
with extensive lists of documents that they are improperly attempting to
obtain from Defendants pursuant to duces tecums. With less than two
weeks left in the discovery period, Plaintiffs have not met their burden
to demonstrate good cause justifying additional depositions in this case.
Now, Plaintiffs not only want the Court to expand their depositions
allotment for depositions of party representatives they have long known
about, but they also want an allowance of five more for still unidentified
fact witnesses.
Id. at 6.
Defendants further contend that, “in an improper attempt to circumvent the
Rule 34 procedure for obtaining documents from parties, Plaintiffs have also attached
duces tecums requesting extensive document production from six of the deponents
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currently noticed for deposition.” Dkt. No. 95 at 2. According to Defendants, these
duces tecums seek “numerous categories of documents not included in previous
document requests in this case,” such as “an undefined number of employee personnel
files for employees of all Defendants, and protected communications with Defendants’
expert witness.” Id. at 3 & n.3. Defendants contend that the duces tecums are an
“attempt to circumvent proper procedure and obtain discovery that Plaintiffs failed to
request in a timely fashion under the Rules,” where “Rule 30(b)(2) requires that a
deposition notice to a party-deponent seeking documents include a request for
documents under Rule 34 – which provides a 30 day response by the party deponent”
– and that “[n]one of the current depositions noticed by Plaintiffs provide an adequate
time for production of documents.” Id. at 6.
Defendants request that the Court deny Plaintiffs’ Motion for Leave and grant
Defendants a protective order from – or quashal of – the duces tecums.
Plaintiffs reply first that Defendants’ response to the Motion for Leave “recites
that it is in support of ‘Defendants’ Motion for Protective Order from Depositions,’
which motion has not been filed,” and that “Plaintiffs reserve the right to respond to
such motion if and when the same is filed.” Dkt. No. 97 at 1 n.1.
Plaintiffs also reply that “Defendants’ counsel has engaged in ongoing stalling
and delay tactics that have resulted in the present difficulties, and is now seeking to
benefit from his obstructionist tactics,” including delays in complying with the Court’s
May 2, 2016 Memorandum Opinion and Order [Dkt. No. 82] on Plaintiffs’ Motion to
Compel. Id. at 2-4. Plaintiffs explain that, “[r]ather than filing a motion to compel or
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for sanctions, and mindful of the policies of the Northern District urging compliance
with the Lawyers’ Creed and the Dondi decision, a joint motion for continuance was
filed,” and Plaintiffs contend that “[f]or Defendants’ counsel now to treat the filing of
such motion as a dilatory tactic by Plaintiffs’ counsel is both insulting and absolutely
groundless.” Id. at 4.
Plaintiffs also assert that, “[a]gain, being mindful of the policies of the Northern
District urging compliance with the Lawyers’ Creed and the Dondi decision, Plaintiffs’
counsel attempted on numerous occasions to schedule depositions by agreement” and
that “[t]he depositions sought to be taken at this time were attempted to be scheduled
in June-July, and the only reason why they have not already been taken is due to
delays by Defendants’ counsel in compliance with this Court’s May 2, 2016, Order,
refusal to return telephone calls, and alleged ‘unavailability’ of witnesses or
Defendants’ counsel.” Id. at 4, 6. Plaintiffs contend that, “[i]f counsel for Defendants
was unwilling to agree to the taking of more than ten depositions, he should have
raised such objection back in June, 2016, and the urgent necessity of the present
motion and its expedited consideration would not have been the same”; that “[w]aiting
to raise the objection until the close of business on the last business day prior to the
first scheduled deposition, without an advance telephone call and while Plaintiffs’
counsel was on a family vacation, was obviously intentional and calculated to cause the
maximum possible delay”; and that “[s]uch gamesmanship must not be rewarded.” Id.
at 6.
Plaintiffs’ reply also provides an explanation of the reasons for which Plaintiffs
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have taken 10 depositions to date – which they “respectfully submit ... have all been
essential to the development of their case” – and a more detailed explanation of the
reasons for the necessity of the seven additional depositions that they seek leave to
take. See id. at 6-9. As to the requested deposition of Eddie Williams in particular,
Plaintiffs contend that “[t]his proposed deposition has nothing to do with the matters
mentioned in Defendant’s Response” and that “[t]here were no outstanding court
orders allegedly violated by Bonnie Allen-Pieroni (now Thomas), and the potential
lawsuit arising from Ms. Thomas’ incarceration for two weeks, including solitary
confinement, while the Johnson County Judge refused to set bail in violation of
statutory and constitutional provisions, is irrelevant to this lawsuit, and will not be
raised by Plaintiffs’ counsel herein during any discovery in this case.” Id. at 8 n.18.
Plaintiffs’ reply also addresses their request for “leave to take up to an
additional five (5) more depositions,” which “may include, depending upon scheduling
and time, Lisa Miller and Alfred Janicek, former Jailers in charge of overall jail
conditions.” Id. at 9. Plaintiffs explain that “[n]o other specific persons have yet been
identified for these depositions, because Plaintiffs’ investigator is continuing to attempt
to contact former employees of the jail and former cellmates of Ivan Allen, and has
encountered great difficulties in locating them” and that “[t]hese will only be scheduled
if genuinely necessary and if believed to be helpful to development of Plaintiffs’ case.”
Id. at 9-10.
Finally, Plaintiffs contend that they are entitled to production of the documents
sought in the notices duce tecum where Defendants’ objection that they “are being
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asked to produced documents upon less than thirty days’ notice” “rings hollow because
the prior notices served on June 20, June 28, July 25, and July 28, 2016 [] contained
the same document production lists” and where, “on July 14, 2016, Plaintiffs served
their Fifth Request for Production of Documents, calling for the same groups of
documents as the notices duces tecum. Id. at 10. According to Plaintiffs, “[n]one of
these notices have been withdrawn; instead, Plaintiffs’ counsel has only stated that he
will agree to new dates for the depositions.” Id. Plaintiffs therefore contend that
“Defendants have already had more than thirty days to produce the documents in
question, and have failed to do so.” Id. And Plaintiffs assert that “[t]he documents in
question are absolutely necessary, because they will demonstrate the institutional
inadequacies of procedures for medical care for inmates”; that, “during the course of
depositions of former employees, Defendants’ counsel has asked numerous questions
purportedly based upon that person’s personnel file”; and that, “[s]o that counsel for
all parties may operate on equal ground, Plaintiffs’ counsel must have access to these
files to determine whether the attempted grounds for impeachment of witnesses is
founded or unfounded.” Id.
After carefully reviewing the parties’ arguments and filings, the Court
determines that Plaintiffs have shown the show the necessity of the depositions that
they took in reaching the prescribed 10-deposition limit without leave of court and the
necessity of taking the proposed depositions of (1) Kris Wusterhausen, D.O., (2)
Johnson County, Texas, (3) Southwestern Correctional, LLC, (4) LaSalle Management,
LLC, (5) Bob Alford, and (6) Vernon Farthing, M.D. Providing more detailed
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information for the first time in reply on the necessity of the depositions taken and to
be taken is to be discouraged, but the Court determines that it appropriate to consider
that information under the present circumstances. Under Rules 26(b)(1) and 26(b)(2),
the Court determines that these six additional depositions are proportional to the
needs of the case, considering the importance of the issues that Plaintiffs seek to
address through the testimony sought through these deponents – four of which are
named defendants and two of which are Defendants’ retained or designated expert
witnesses – and the importance of the testimony sought to resolving important issues
in the case, particularly where these depositions are critical to Plaintiffs’ preparation
for trial in light of their lack of access to relevant information from these deponents
without this testimony. And Defendants have not shown that any burden or expense
of the proposed depositions outweighs their likely benefit.
This case highlights the importance of the parties’ discussing early in the case
the deposition testimony that each will seek and attempting to reach agreement on the
number of depositions to be taken – or, failing that, at least an understanding of the
depositions that each party will seek to take. But the Court does not find, on this
record, that any alleged delay by Plaintiffs’ counsel justifies denying Plaintiffs’ request
for leave.
At the same time, at this late stage of discovery, the Court determines that leave
should not be granted under Rule 30(a)(2)(A) for taking the deposition of Eddie
Williams and of any additional depositions of persons yet unknown and unidentified.
Plaintiffs have not, as to their request for leave to take the deposition of Eddie
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Williams and up to an additional five more depositions, adequately established the
necessity of these depositions in light of the Rule 26(b)(1) and Rule 26(b)(2)
considerations, including the Rule 26(b)(1) proportionality factors.
Finally, as to the duces tecum, Defendants seek a protective order only because
they are given less than 30 days to respond. But Defendants have not shown that these
document requests were served with less than 30 days to respond, as Plaintiffs have
demonstrated that the document requests were previously served with deposition
notices as well as, at least in part, Plaintiffs’ timely-served Fifth Request for
Production of Documents. Accordingly, the Court denies Defendants’ request for a
protective order as to – or quashal of – the duces tecum attached to the six deposition
notices for which the Court is granting leave.
Conclusion
For the reasons and to the extent explained above, the Court GRANTS in part
and DENIES in part the Motion of Plaintiffs for Leave to Take Depositions [Dkt. No.
89].
SO ORDERED.
DATED: August 23, 2016
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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