Opinion
Case No. 3:03-cv-127.
May 25, 2006
ORDER
Petitioner, a prisoner sentenced to death by the State of Ohio, has pending before this Court a habeas corpus action under 28 U.S.C. § 2254. This order results from a telephonic discussion conducted on May 22, 2006.
The facts relevant to the instant discovery dispute are as follows. Donald Merriman testified during Petitioner Kinley's capital murder trial that he (Mr. Merriman) had a conversation with Petitioner in January 1989 during which Petitioner asked Mr. Merriman whether he had ever killed anyone and during which Petitioner admitted that he had killed his girlfriend and her son. Several years later, Mr. Merriman signed two affidavits stating that no such conversation ever took place, that petitioner never confessed to any murders, and that the first time he (Mr. Merriman) had seen Petitioner in years was in March 1989 while they were both in jail. Subsequently, Mr. Merriman was interviewed by members of the Clark County Prosecutor's Office and allegedly stated that his trial testimony was true, that the two affidavits he had signed were false, and that he had signed those affidavits only because Petitioner's attorneys had "played on his conscience."
On March 29, 2006, the Court issued an order granting Petitioner's motion for leave to depose Donald Merriman. (Doc. # 40.) Petitioner has now objected to Assistant Clark County Prosecutor Stephen Collins's being present at the deposition. For the following reasons, Petitioner's objection is overruled.
Rule 26(c) of the Federal Rules of Civil Procedure permits district courts, upon a showing of good cause by the moving party, to issue protective orders in connection with discovery restricting, among other things, who may attend a deposition and what matters may be inquired into. Petitioner, in the instant case, has not demonstrated good cause to restrict Mr. Collins from attending the deposition of Mr. Merriman. Petitioner suggested that Mr. Collins, who worked on prosecution of this case at the state level and was present at an interview during which Mr. Merriman allegedly disavowed affidavits he had signed at the behest of petitioner's attorneys during state postconviction proceedings, might be called as a witness in this habeas corpus proceeding, should an evidentiary hearing be conducted. However, Fed.R.Civ.P. 30(c), governing depositions generally, explicitly states that Fed.R.Evid. 615, providing for the separation of witnesses at trial, does not apply to depositions. Mr. Collins could just as easily learn what Mr. Merriman has to say by reading the transcript of the deposition, so his presence is not prejudicial on those grounds.
Petitioner also suggested that the presence of Mr. Collins during the deposition might "intimidate" Mr. Merriman into disavowing his affidavits and standing behind his trial testimony, both because Mr. Collins was present at an interview during which Mr. Merriman allegedly recanted those affidavits and because Mr. Collins, directly or indirectly, could threaten perjury charges against Mr. Merriman. That argument also falls short. The presence or absence of Mr. Collins would not create the possibility of perjury charges. Mr. Merriman already has made two inconsistent statements, under oath, about whether he had a conversation with petitioner in January 1989. Thus, assuming the statute of limitations has not run, Mr. Merriman already is susceptible to perjury charges, and Mr. Collins's presence adds nothing to that possibility.
Petitioner also requested a protective order prohibiting Respondent or Mr. Collins from questioning Mr. Merriman about the possibility of facing perjury charges. Counsel for Respondent has represented that Mr. Collins will not ask any questions, or otherwise speak directly to Mr. Merriman, during the deposition. Respondent further states that he does not plan to ask Mr. Merriman about the possibility of facing perjury charges. According to Respondent, Mr. Collins will serve only as a resource for Respondent, due to Mr. Collins' knowledge of the practices of the Clark County Prosecutor's Office and specific knowledge about Petitioner's case and the facts surrounding Mr. Merriman's various inconsistent statements.
For the foregoing reasons, Petitioner's request for a protective order prohibiting Stephen Collins from attending the deposition of Donald Merriman or restricting Respondent from cross-examining Mr. Merriman about the possibility of facing perjury charges is denied. Petitioner has simply failed to show good cause for a protective order, and Respondent has offered legitimate reasons for Mr. Collins' presence at the deposition.