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Shelton v. Bledsoe

United States District Court, M.D. Pennsylvania

March 21, 2017

NORMAN SHELTON, Plaintiff
v.
WARDEN BLEDSOE, et al ., Defendants

          MEMORANDUM

          MALACHY E. MANNION United States District Judge. [1]

         Presently before the court is Plaintiff's motion for protective order, filed pursuant to Fed.R.Civ.P. 26(c)(1)(E), in which Plaintiff requests that: (1) the only individuals allowed to attend each Defendant's or witness's[2] deposition are the deponent, court reporter, and counsel; (2) Defendants' and witnesses' common counsel may not inform Defendants or witnesses, orally or through provision of a transcript, of the substance of another Defendant's or witness's deposition testimony; (3) Defendants and witnesses are barred from discussing their deposition testimony with each other until after the completion of all depositions in the case; and (4) a Defendant or witness may not obtain a copy of his or her own or another Defendant's or witness's deposition transcript until after the completion of all depositions in this case. (Doc. 221).

         For the reasons set forth below, Plaintiff's motion for protective order will be DENIED.

         I. PROCEDURAL HISTORY

         On February 25, 2011, Plaintiff, Norman Shelton, an inmate formerly confined in the United States Penitentiary, Lewisburg, Pennsylvania (“USP-Lewisburg”), filed the above captioned Bivens[3] action. (Doc. 1).

         By Memorandum and Order dated February 12, 2012, the Court granted summary judgment in favor of all Defendants and closed the above captioned action. (See Docs. 136, 137).

         Shelton filed an appeal to the United States Court of Appeals for the Third Circuit, and on March 13, 2013, the Court of Appeals affirmed in part and reversed as to Plaintiff's claim that Defendants allegedly used excessive force against him on August 30, 2009. (See Doc. 147). Thereafter, the case was re-opened and the parties were permitted to conduct additional discovery. To date, the depositions of Benfer, Galletta, Whitaker, Heath, Murray, and Lesho have been completed. Four additional depositions are scheduled for future dates.

         On February 23, 2017, Plaintiff filed the instant motion for a protective order. (Doc. 220). In support of his motion for a protective order, Plaintiff relies upon the following three cases: Dade v. Willis, No. Civ. A. 95-6869, 1998 WL 260270 at *1 (Apr. 20, 1998); McKenna v. City of Phila., Nos. Civ. A 98-5835, 99-1163, 2000 WL 1781916 (E.D. Pa. Nov. 9, 2000); and Smith v. Ramsey, 2:13-cv-00326, 2016 WL 3059375, (E.D. May 31, 2015). All three cases involve the same type of Defendant, Philadelphia police officers.

         In Dade v. Willis, No. Civ. A. 95-6869, 1998 WL 260270, at *1 (Apr. 20, 2998), the plaintiff alleged that he was arrested by two Philadelphia police officers. During the arrest one of the officers allegedly tripped the plaintiff causing his pants to fall down, and then the other allegedly pushed him to the curb, thereby causing his genitals to be cut. The court noted under previous Rule 26(c)(5) of the Federal Rules of Civil Procedure, “a court may, on good cause shown, issue a protective order requiring that a deposition be conducted ‘with no one present except persons designated by the court.'” Id., at *1 (citing Fed.R.Civ.P. 26(c)(5)). The plaintiff sought to limit the depositions to just the party to be deposed, counsel, and the court reporter, and prevent counsel for the defendants from informing the other party about the testimony. See id.

         The Dade court noted a judge will only exclude a party from a deposition if there are “extraordinary circumstances.” Id. (quoting 8 Wright and Miller, Federal Practice And Procedure, §2041, at 536 (1994). To come to this conclusion, courts must rigorously analyze the parties and issues involved and require a specific showing by the movant. Id. (citing Galella v. Onassis, 487 F.2d 986, 997 (2d Cir.1973) (holding excluding parties should be ordered rarely); BCI Commun. Sys., Inc. v. Bell Atlanticom Sys., Inc., 112 F.R.D. 154, 160 (N.D. Ala.1986) (holding plaintiff must show more than “ordinary garden variety or boilerplate ‘good cause' facts which will exist in most civil litigation”); Kerschbaumer v. Bell, 112 F.R.D. 426, 426-427 (D.D.C.1986) (noting that courts should only bar parties from attending depositions in very limited circumstances).

         That court found extraordinary circumstances because the civil rights claims were matters solely within the knowledge of the Philadelphia police officers, and credibility is at issue. The defendant officers were also partners on the police force and there was a risk that the testimony of one would consciously or subconsciously influence the testimony of the other. The court found that one officer may bolster or eliminate inconsistencies. The court made note that these were police officers and they had an unfair advantage over someone in jail. Id., at *2-3. Thus, the court granted the protective order requested by the plaintiff.

         In McKenna v. City of Phila., Nos. Civ. A 98-5835, 99-1163, 2000 WL 1781916 (E.D. Pa. Nov. 9, 2000), the defendants in an employment discrimination matter filed a motion to prevent the plaintiffs from attending their depositions, discussing their testimony, reading each other's transcript, and preventing counsel from informing each plaintiff about the substance of the other's testimony. The court issued the order because the plaintiffs had prior relationships, working at the Philadelphia Police Department and many of the retaliatory acts happened at the police station. Id., at 1.

         In Smith v. Ramsey, 2:13-cv-00326, 2016 WL 3059375, (E.D. May 31, 2015), the plaintiff alleged that he encountered three police officers on the streets of Southwest Philadelphia. One officer allegedly struck the left side of the plaintiff's face with a hard object before throwing him to the ground and placing him in handcuffs. Five other officers arrived on the scene and the plaintiff claims that, while he was faced down on the ground with handcuffs behind his back, these five began to kick him in his rib area. Another officer also allegedly stomped on the plaintiff's face, and two other officers pulled and twisted his fingers. Id., at *1.

         The plaintiff sought “the entry of a protective order that would restrict who may be present at the depositions of each of the Defendant police officers and prevent the Defendants from learning of each other's testimony until they have all been deposed.” Id. The court asked the plaintiff to provide his reasoning in a letter to the court. Id. ...


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