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Carlisle v. Normand

United States District Court, E.D. Louisiana

December 13, 2018

TAYLOR CARLISLE, ET AL.
v.
NEWELL NORMAND, ET AL.

         SECTION: “H”

          ORDER AND REASONS

          JANE TRICHE MILAZZO UNITED STATES DISTRICT JUDGE.

         Before the Court are Cross-Motions (Docs. 418, 423) appealing a ruling by Magistrate Judge van Meerveld that ordered Defendant Joe Marino to make himself available for a discovery deposition before December 31, 2018. Also before the Court is a Motion by Defendant Marino to strike an exhibit that Plaintiffs attached to their Motion appealing Judge van Meerveld's order (Doc. 428), and accompanying Motions to Expedite (Doc. 429) the Motion to Strike and a Request for Oral Argument on the Motion to Strike (Doc. 430).

         For the following reasons, the Motions appealing Judge van Meerveld's ruling are DENIED, and Defendant's Motion to Strike is GRANTED. Because this Court grants Defendant's Motion to Strike, the Motion to Expedite and Request for Oral Argument are DENIED as moot.

         BACKGROUND

         This lawsuit arises out of the participation by Plaintiffs Taylor Carlisle and Emile Heron in Jefferson Parish's Drug Court. Much of the background of this litigation has been reproduced in Orders and Reasons previously issued by this Court. The Court will nevertheless briefly discuss the context in which the instant Motions arose.

         On October 29, 2018, Plaintiffs filed a Motion seeking a perpetuation deposition of Defendant Joe Marino under Federal Rule of Civil Procedure 27.[1]Plaintiffs argue such a deposition is necessary because Marino has been diagnosed with Amyotrophic Lateral Sclerosis, commonly known as ALS and Lou Gehrig's Disease, a debilitating disease that may make Marino incompetent to serve as a witness during trial.

         On November 28, 2018, Magistrate Judge van Meerveld granted Plaintiffs' Motion in part.[2] Judge van Meerveld ruled that Marino must appear for a deposition before December 31, 2018.[3] She also ruled that the deposition should be a discovery deposition pursuant to Rule 30, not a perpetuation deposition pursuant to Rule 27.[4] In her ruling, Judge van Meerveld informed Plaintiffs that if they believed a perpetuation deposition was necessary following the discovery deposition, and if Marino would not consent to such a deposition, they could seek relief from the court for a perpetuation deposition.[5]

         On December 4, 2018, Marino appealed the ruling, arguing that the court should not allow discovery to proceed because Defendants plan to move to dismiss this action for lack of jurisdiction.[6] Plaintiffs oppose and make an appeal themselves, arguing that Judge van Meerveld should have granted them a Rule 27 perpetuation deposition. In their Motion appealing Judge van Meerveld's ruling, Plaintiffs attached as an exhibit screenshots of web pages containing information about ALS.[7] Marino moved to strike the exhibit from the Record as inadmissible hearsay.[8]

         This Court heard oral argument on the appeals on December 12, 2018.

         LEGAL STANDARD

         A district judge may refer any non-dispositive pretrial matter to a United States Magistrate Judge.[9] District judges must consider timely objections to rulings by magistrates on such matters, and they must “modify or set aside any part of the order that is clearly erroneous or contrary to law.”[10] “A finding is clearly erroneous only if it is implausible in the light of the record considered as a whole.”[11]

         LAW AND ANALYSIS

         Under Federal Rule of Civil Procedure 26(b)(1), “[p]arties 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.”[12] Rule 30 provides that parties may conduct discovery by deposition.[13] Rule 27 provides that under limited circumstances parties also may ...


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