United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiffs' Motion to Vacate and Reconsider
Ruling Granting The City/Parish's Motion for a Protective
Order. (R. Doc. 212). The motion is opposed. (R. Doc. 214).
Plaintiffs filed a Reply. (R. Doc. 217).
March 7, 2018, Plaintiff served a request pursuant to Rule
34(a)(2) of the Federal Rules of Civil Procedure on the City
of Baton Rouge/Parish of East Baton Rouge
(“City-Parish”) to allow Plaintiff's counsel
and experts, Jeffrey Schwartz and Kathryn A. Burns, to
inspect certain locations within the East Baton Rouge Parish
Prison (“EBRPP”). (R. Doc. 200-3). This
inspection occurred on April 28, 2018. (R. Doc. 200 at 2).
deadline to complete non-expert discovery expired on March
29, 2019. (R. Doc. 198). Plaintiff did not timely seek an
extension of this deadline for the purpose of conducting any
additional site inspections.
3, 2019, Plaintiff served a second request pursuant to Rule
34(a)(2) to allow Plaintiff's counsel and a new expert,
Homer Venters, to inspect the same locations within the EBRPP
on June 7, 2019. (R. Doc. 200-4). The City-Parish objected to
the inspection, and filed a Motion for Protective Order to
prevent the inspection on May 29, 2019. (R. Doc. 200). The
City-Parish argued that the second site inspection would be
cumulative, Dr. Venters has already submitted an expert
report after reviewing the notes, photographs, and other
documentation obtained during the first site inspection, and
the burden and expenses of a second site inspection outweigh
any benefit. (R. Doc. 200-2 at 3-5). In opposition, Plaintiff
argued that Plaintiff's counsel should be allowed to
conduct a second site inspection with the presence of Dr.
Venters because Dr. Venters was timely disclosed as an expert
on April 5, 2019, Dr. Venters should be allowed to evaluate
the EBRPP locations first-hand because that is required for
expert qualification, and the City-Parish is not burdened
because Dr. Venters is inspecting the EBRPP in another action
also involving a suicide. (R. Doc. 202).
17, 2019, after considering the arguments of the parties, the
Court granted the City-Parish's motion for protective
order on the basis that the discovery sought is untimely and
cumulative. (R. Doc. 209). In so ruling, the Court stated
that it appeared that the June 7, 2019 inspection by Dr.
Venters in this action “did not go forward as
scheduled” in light of the City-Parish's objections
and the pending motion for protective order. (R. Doc. 209 at
1). The Court further observed that it appeared that
“Dr. Venters has had the opportunity to inspect at
least certain portions of the EBRPP in another action.”
(R. Doc. 209 at 5).
19, 2019, the Court held a telephone conference in which
Plaintiff's counsel represented that Dr. Schwartz and Dr.
Burns will not present any expert opinions in support of
Plaintiff's claims. (R. Doc. 211).
now argues that the Court should vacate its June 17, 2019
order because a second site inspection in fact occurred
in this action over the City-Parish's objection.
(R. Doc. 212-1 at 2). In support of this assertion, Plaintiff
relies on an email from defense counsel dated June 7, 2019,
which clearly states that “the City/Parish does not
withdraw its objection and motion by attending [the site
inspection] today, which it is doing for the purpose of
the Zavala case only.” (R. Doc. 212-3) (emphasis
is no dispute that Dr. Venters conducted a site inspection in
the Zavala action on June 7, 2019. Dr. Venters appears to
have relied on his observations during that site inspection
in submitting an addendum to his expert report in this
action. (R. Doc. 212-4). The Court's June 17, 2019 order
pertains to whether a second site inspection for the purposes
of this action may occur in light of Rule 26(c) and
expiration of the non-expert discovery deadline, not whether
information collected in a site inspection conducted in
another action may support a supplemental expert report in
this action under Rule 26(e). To be clear, the Court's
previous order did not preclude or limit any site inspection
in the Zavala action, or otherwise address the use
of any observations by an expert in that action with respect
to the supplementation of expert reports in this action. That
may be a dispute for another day. Accordingly, the Court
finds no basis for vacating its June 7, 2019 order, which
precluded a second site inspection from being conducted for
the purposes of this action.
foregoing reasons, IT IS ORDERED that
Plaintiffs' Motion to Vacate and Reconsider Ruling
Granting the City/Parish's Motion for a Protective Order
(R. Doc. 212) is DENIED.
See Maria Olga Zavala v. City of
Baton Rouge/Parish of East Baton Rouge, et al., Civil
Action No. ...