United States District Court, M.D. Pennsylvania
MALACHY E. MANNION United States District Judge.
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 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.
reasons set forth below, Plaintiff's motion for
protective order will be DENIED.
February 25, 2011, Plaintiff, Norman Shelton, an inmate
formerly confined in the United States Penitentiary,
Lewisburg, Pennsylvania (“USP-Lewisburg”), filed
the above captioned Bivens action. (Doc. 1).
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,
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
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.
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.
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
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.
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.
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.
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.