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Carlisle v. Normand

United States District Court, E.D. Louisiana

February 4, 2019


         SECTION: “H” (1)




         Before the Court is the Motion for Relief Respecting Objections and Deposition of Mr. Marino. (Rec. Doc. 457). For the following reasons, the Motion is GRANTED in part and DENIED in part.


         Plaintiffs Taylor Carlisle and Emile Heron were convicted of possession of various controlled substances and, as a part of their sentences, enrolled in the Drug Court Program of the 24th Judicial District Court (“Drug Court Program”). They filed this lawsuit on April 27, 2016, challenging the manner in which the Drug Court Program is conducted. After several rulings by the District Court, the remaining claims in this lawsuit are plaintiffs' putative class action claims against Joseph Lopinto, [1] in his capacity as Sheriff of Jefferson Parish (the “Sheriff”), challenging the imposition of jail time for alleged probation violations by Drug Court Program participants to the extent that imprisonment or refusal to consider good time by the Sheriff was not pursuant to an order from the Drug Court; plaintiffs' state law claim for legal malpractice pending against Joseph Marino; and plaintiff Carlisle's therapist malpractice claim against Joe McNair and McNair & McNair, LLC, for actions taken after April 27, 2015.

         Pertinent to the present motion, plaintiffs' malpractice claims against Marino consist of the following allegations. Marino began acting as counsel for Carlisle in connection with the Drug Court program on August 20, 2013, at the latest. Carlisle complains that Marino failed to object or take appropriate measures to defend Carlisle (including requesting appellate review) when Carlisle was sanctioned on April 28, 2015 to 90 days jail time for curfew violations and associating with a felon and on August 25, 2015 to six months jail time for a suspected “curfew violation” and “bad paperwork.” He points out that the sanctions imposed on April 28, 2015, were issued in a closed courtroom without the benefit of a court reporter. He says that Marino failed to adduce evidence in mitigation of the sanctions, despite the sanctions being “in obvious violation of Louisiana law.” He says that Marino failed to object to the imposition of “flat time, ” which plaintiffs insist was imposed without lawful authority and in violation of state law. Heron alleges that when he was sanctioned to 30 days flat time on November 12, 2013 for associating with a convicted felon, he was not given a hearing or an opportunity to defend himself. Heron alleges that Marino did not object or advise him to his right to hearing and defense.

         Although plaintiffs' federal claims against Marino alleging that he was acting as part of the Drug Court “team” have been dismissed, these allegations may also bear on the matter before the Court at this time. Plaintiffs allege that Marino, together with the administrators of the Drug Court, recommended that Carlisle should receive 90 days jail time for associating with a felon on April 28, 2015; that Carlisle should be sent to live in the Oxford house in July 2015; and that Carlisle be given six months jail time for a suspected “curfew violation” and “bad paperwork” on August 18, 2015. They say that Marino knew that the purported “felon” that Carlisle associated with was not actually a convicted felon because she had been acquitted under the drug court statute.

         Unable to obtain an agreement to depose defendant at all, Plaintiffs first filed a motion to compel the perpetuation deposition of Marino on October 12, 2018. The court denied the motion as premature and ordered the parties to meet and confer to attempt to resolve the dispute. After those efforts were unsuccessful, the motion was re-filed on October 29, 2018. Among other reasons, Marino opposed the deposition arguing that the court's jurisdiction over plaintiffs' claims against him was uncertain because, he argues, the plaintiffs were incarcerated pursuant to court orders and are therefore not even members of the class they purport to represent. If Plaintiffs § 1983 claim against the Sheriff falls, Marino insists that this court should not exercise supplemental jurisdiction over the state law against him. Oral argument was held on November 28, 2018, and the undersigned ordered Marino to appear for a discovery deposition, but not a perpetuation deposition, before December 31, 2018. Marino sought review of that order, and on December 13, 2018, the district court denied the appeal.

         On December 18, 2018, Marino filed a motion for protective order seeking to limit the scope of questioning at this deposition, which was scheduled to begin on December 20, 2018. The undersigned held a telephone conference with the parties on December 19, 2018, and denied the motion for protective order. The deposition proceeded on December 20, 2018, for about five hours and twenty minutes of questioning, and was set to continue on January 9, 2019.

         On January 7, 2019, plaintiffs filed a motion for a status conference, arguing that Marino's counsel's objections during the December 20, 2018, deposition had interfered with plaintiffs' questioning and requesting the undersigned's assistance in ensuring that the remaining deposition time was not burdened in the same manner. A telephone conference was held on January 8, 2019, and the parties decided to delay the deposition so that further briefing on the matter could be had.

         Plaintiffs have now filed the present motion seeking an order that Marino pay for the cost of the December 20, 2018, transcript and video because they say Marino's objections render them practically useless. They also request an order allowing them to retake the Marino deposition for the same reason.

         Marino argues that his counsel's objections do not warrant the imposition of sanctions. He submits that, with the exception of one privilege objection, all objections were to the form of the question and that after every objection to form, the question was answered. He points out that none of the objections were “speaking objections.”

         Law ...

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