Estate of James Franklin Perry v. Wenzel et al

Filing 59

ORDER signed by Judge Rudolph T Randa on 8/5/2013 GRANTING 25 MOTION for Protective Order regarding deposition of Sheriff Clarke; GRANTING 40 MOTION for Protective Order Regarding Location of Depositions; DENYING AS MOOT 32 MOTION for Protective Order postponing depositions; GRANTING 23 MOTION to Seal/Unseal Portions of the Amended Complaint, Clerk of Court DIRECTED to detach and file [24-1] as of 3/25/2013. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
THE ESTATE OF JAMES FRANKLIN PERRY,
by BETTIE A. RODGERS, Special Administrator,
and JAMES FRANKLIN PERRY JR. (a minor),
Plaintiffs,
Case No. 12-C-664

-vsCHERYL WENZEL, R.N., et al.,
Defendants.

DECISION AND ORDER

This matter relates to the death of James Franklin Perry in the Milwaukee
County Jail.

Perry’s estate is suing various county and city officials, including

members of the City of Milwaukee Police Department and the Milwaukee County
Sheriff’s Department. The City and County Defendants move for protective orders on
a variety of issues.
First, both groups of defendants move for protective orders regarding the
location of their depositions. Plaintiffs’ counsel insists that all of the depositions
should take place at his offices in Pewaukee. This is both an annoyance and an undue
burden for the numerous government officials involved in this case who would be
forced to disrupt their work days for additional travel, all at government expense. Fed.
R. Civ. P. 26(c) (for “good cause” the court may “issue an order to protect a party from
annoyance, embarrassment, oppression, or undue burden or expense . . .”). There is no

compelling reason to depart from the usual practice, and the traditional common
courtesy, that “a party seeking discovery must go where the desired witnesses are
normally located.” Yaskawa Elec. Corp. v. Koomorgen Corp., 201 F.R.D. 443, 444
(N.D. Ill. 2001). The convenience of plaintiffs’ counsel cannot trump the convenience
of the witnesses he seeks to depose. Id. at 445. The plaintiffs’ position on this issue is
not substantially justified, so the defendants are entitled to an award of reasonable
expenses in making this award, including attorney’s fees.

Fed. R. Civ. P.

37(a)(5)(A)(ii).
Second, Milwaukee County Sheriff David Clarke moves for a protective order
precluding his deposition. Sheriff Clarke is a defendant in this case, but the plaintiffs
do not allege that he had any personal involvement in Perry’s death, and the Court
already ruled, at least with respect to the original complaint, that the plaintiffs did not
state a claim against Sheriff Clarke in his official capacity. ECF No. 22. The plaintiffs
later amended their complaint, and it is unclear whether their amendments successfully
cure those allegations (no motion has raised that issue). In any event, the Court will
grant the motion for a protective order because the plaintiffs completely failed to
explain why they need to depose Sheriff Clarke. Warzon v. Drew, 155 F.R.D. 183,
185 (E.D. Wis. 1994) (“Before the involuntary depositions of high ranking government
officials will be permitted, the party seeking the depositions must demonstrate that the
particular official’s testimony will likely lead to the discovery of admissible evidence
and is essential to that party’s case. In addition, the evidence must not be available
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through an alternative source or via less burdensome means”) (internal citations
omitted).
Third, the County defendants move for a protective order postponing the
depositions of certain defendants until a newly-added defendant, Aurora Sinai Medical
Center, makes an appearance in this case. Aurora Sinai has since appeared, so it
appears that this motion is moot.
Fourth and finally, the plaintiffs move for leave to publicly file their amended
complaint. The Court agrees that filing a redacted version of the amended complaint
was unnecessary.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
1.

The County Defendants’ motion for a protective order regarding the

deposition of Sheriff Clarke and the location of certain depositions [ECF No. 25] is
GRANTED;
2.

The City Defendants’ motion for a protective order regarding the

location of certain depositions [ECF No. 40] is GRANTED;
3.

The County Defendants’ motion to postpone certain depositions until

the appearance of Aurora Sinai Medical Center [ECF No. 32] is DENIED as moot;
and
4.

The plaintiffs’ motion to publicly file an unredacted version of their

amended complaint [ECF No. 23] is GRANTED. The Clerk of Court is directed to
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detach and file ECF No. 24-1 as of March 25, 2013.
Dated at Milwaukee, Wisconsin, this 5th day of August, 2013.
BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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