United States District Court, D. New Mexico
DENNIS MURPHY, Guardian Ad Litem for N.E.D., an incapacitated minor; JACOB DOTSON; DOMINIQUE BILLY, individually, and as next friend of I.C. and S.D., minors, Plaintiffs,
THE UNITED STATES OF AMERICA, Defendant.
MEMORANDUM OPINION AND ORDER
HONORABLE JERRY H. RITTER UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on the Emergency Motion by
Non-Party City of Gallup for Injunctive Relief to Stop
Plaintiffs' Attorneys from Prohibiting Attendance at
Depositions Taken in this Matter and Request for Show Cause
Hearing (Doc. 36), filed November 9, 2017. As
requested in the Motion, the Court ordered expedited briefing
on the issues raised. Doc. 27. Having reviewed
Plaintiffs' Response (Doc. 41) and the
City's Reply (Doc. 46), the Court will grant the
Motion in part.
Complaint alleges that N.E.D. was injured while playing on
playground equipment at the Indian Hills Playground in
Gallup, New Mexico, on February 28, 2016. Doc. 1 at
4. Thereafter, Plaintiffs allege that she was treated by
Defendant's employees at the Gallup Indian Medical
Center, “negligently resulting in a (sic) severe anoxic
brain damage.” Id. Plaintiffs bring two claims
against Defendant arising from N.E.D.'s treatment:
medical negligence (Count I) and loss of consortium (Count
II). Id. at 6-8.
Plaintiffs allege that N.E.D.'s “anoxic brain
damage was separate and distinct from the injuries sustained
in the playground fall.” Id. at 5; see
Doc. 41 at 2. As such, at one point, Plaintiffs filed a
state court action against the City of Gallup,
“claiming that her brain injury was caused by improper
maintenance of the Park by the City.” Doc. 36
at 1. This Complaint has been withdrawn, as it was filed in
the incorrect venue. Id. However, “Plaintiffs
[continue to] claim that N.E.D. sustained a physical injury
caused by improper maintenance of a playground in Gallup, New
Mexico.” Doc. 41 at 2.
result, counsel for the City, Mr. James Lyle, “decided
it would be in his clients (sic) best interests to attend as
many of the depositions taken in this case as
possible.” Doc. 36 at 2. To this end, Mr. Lyle
observed the deposition of Ms. Begay, one of the nurses who
treated N.E.D., without incident on November 7, 2017, in
Gallup, New Mexico. Id. The deposition of Ms. Begay
was taken by one of Plaintiff's attorneys, Mr. Theodore
Barudin. Id. “The deposition proceeded
smoothly, and the City's counsel, as promised, did not
interject any comments or say anything on the record.”
Id. However, on November 9, 2017, Mr. Lyle was
prevented from listening in by telephone to the deposition of
Dr. Waite, the physician who treated N.E.D., by
Plaintiffs' co-counsel, Mr. William Carpenter.
Id. at 2-3. According to Mr. Lyle, Mr. Carpenter
hung up after Mr. Lyle refused to appear on the record and be
“bound” by the deposition. Id. at 3. Mr.
Carpenter, on the other hand, explains that he terminated the
call with Mr. Lyle in order to proceed with the deposition as
scheduled, as Dr. Waite needed to catch a plane. Doc.
41 at 2.
Mr. Lyle requests that he be permitted to be present at any
future depositions, asserting that “[t]his is the same
right as any member of the public has with regard to any
litigation proceedings which have not been sealed or placed
under protective order.” Doc. 36 at 3. In the
response, Mr. Carpenter takes two positions: (1) that
Plaintiffs have no objection to the City purchasing a copy of
any relevant deposition transcript; and (2) that “[h]ad
Mr. Lyle requested permission to attend the deposition . . .
this instant motion would have been avoided.” Doc.
41 at 2-3. In reply, Mr. Lyle asserts that Mr. Carpenter
has not demonstrated why he “should be excluded from
listening to deposition testimony any more than he or any
other person should be limited from attending portions of a
trial held in this matter.” Doc. 46 at 3.
However, he asks “at the very least” that the
“Court instruct the attorneys on both sides of
litigation not to impede their counsel's ability to
obtain copies of transcripts of all depositions taken in this
case in the absence of a court order to the contrary.”
the City nor Plaintiffs cite binding authority addressing
whether nonparties, or their attorneys, may attend civil
depositions. Both parties refer the Court to the Federal
Rules of Civil Procedure, but the Rules are silent on the
issue. See Fed. R. Civ. P. 30, Advisory Committee
Notes to the 1993 Amendment (“The revision addresses
only the matter of attendance by potential deponents, and
does not attempt to resolve issues concerning attendance by
others, such as members of the public or press.”).
30(d)(3)(B) provides that the Court may limit a
deposition's scope and manner as provided in Rule 26(c),
which governs protective orders. See Fed. R. Civ. P.
30(d)(3)(B). Under Rule 26(c)(1)(E) the Court may designate
the persons who may be present while a deposition is
conducted. Fed. R. Civ. P 26(c)(1)(E). Protective orders may
be entered for “good cause, ” Fed.R.Civ.P.
26(c)(1), and this Court's decision on whether to enter a
protective order is reviewed for abuse of discretion. See
S.E.C. v. Merrill Scott & Associates, Ltd., 600 F.3d
1262, 1271 (10th Cir. 2010) (“The district court has
broad discretion over the control of discovery, and we will
not set aside discovery rulings absent an abuse of that
discretion.”). “The ‘good cause'
standard of Rule 26(c) is highly flexible, having been
designed to accommodate all relevant interests as they
arise.” Rohrbough v. Harris, 549 F.3d 1313,
1321 (10th Cir. 2008) (quoted authority omitted).
Plaintiffs correctly recognize, the Supreme Court has noted
that “pretrial depositions and interrogatories are not
public components of a civil trial.” Seattle Times
Co. v. Rhinehart, 467 U.S. 20, 33 (1984). In fact, that
Court made explicit that “[d]iscovery rarely
takes place in public.” Id. n. 19 (emphasis
added). That said, the City is correct that Seattle
Times is not directly on point, as the question in that
case was “whether a litigant's freedom [of speech]
comprehends the right to disseminate information that he has
obtained pursuant to a court order that both granted him
access to that information and placed restraints on the way
in which the information might be used.” Id.
at 32. Still, the Court recognized that “[i]t is clear
from experience that pretrial discovery by depositions and
interrogatories has a significant potential for abuse. This
abuse is not limited to matters of delay and expense;
discovery also may seriously implicate privacy interests of
litigants and third parties.” Id. at 34-35;
see Id. at n. 21 (“Although the Rule contains
no specific reference to privacy or to other rights or
interests that may be implicated, such matters are implicit
in the broad purpose and language of the Rule.”). As
such, this Court begins with the proposition that the
depositions in this case are not simply matters of public
record. Rather, they are protected to a certain degree by the
privacy interests implicated by Rule 26(c).
sources are generally in accord with this notion. One
provides that “[m]embers of the public generally have
no right to attend depositions.” Attendance at
depositions, 1 Discovery Proceedings in Federal Court §
9:6 (3d ed. 2017.). Another states “it has been held
that neither the public nor representatives of the press have
a right to be present at the taking of a deposition.”
Limitation of Persons Present at Discovery, 8A Fed. Prac.
& Proc. Civ. § 2041 (3d ed. 2017). Likewise, the
Federal Civil Rules Handbook states that “[t]he Court
may exclude the public, the press, other witnesses, or other
nonparties from a deposition or access to documents produced
in discovery under Rule 26(c)(1)(E).” Federal Civil
Rules Handbook, 786 (2017).
there is little case law directly on point, and most of it is
merely persuasive. Nonetheless, the Court finds certain cases
useful in resolving the issue of whether Mr. Lyle, as the