United States District Court, E.D. Louisiana
TAYLOR CARLISLE, ET AL.
NEWELL NORMAND, ET AL.
JANE TRICHE MILAZZO
ORDER AND REASONS
VAN MEERVELD UNITED STATES MAGISTRATE JUDGE.
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.
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,  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.
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.
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.
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.
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.
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.
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.
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.”