Opinion
NO: 1:18-cv-167-M-P
2021-01-22
Rachel HARRIS, Guardian of Steven Jessie Harris on Behalf of Steven Jessie Harris, Plaintiff v. CLAY COUNTY, MISSISSIPPI ; et al., Defendants
Carlos Eugene Moore, Moore Law Group, PC, Jasmine Teylor Bogard, Cochran Firm, Grenada, MS, for Plaintiff. Katherine S. Kerby, Kerby Law Firm, LLS, Columbus, MS, for Defendants Mississippi Clay County, Laddie Huffman, Eddie Scott. Mary Jo Woods, Mississippi Attorney General's Office, Jackson, MS, for Defendant Forrest Allgood. William Robert Allen, Jessica S. Malone, Allen, Allen Breeland & Allen, Brookhaven, MS, for Defendant Tanya West, RN. Robert Mark Hodges, Charles E. Cowan, Wise Carter Child & Caraway, P.A., Jackson, MS, for Defendant Pearson Lidell, Jr. John G. Wheeler, Michael D. Chase, Mitchell, Mcnutt & Sams, Tupelo, MS, for Defendant Dr. Edmund Miller.
Carlos Eugene Moore, Moore Law Group, PC, Jasmine Teylor Bogard, Cochran Firm, Grenada, MS, for Plaintiff.
Katherine S. Kerby, Kerby Law Firm, LLS, Columbus, MS, for Defendants Mississippi Clay County, Laddie Huffman, Eddie Scott.
Mary Jo Woods, Mississippi Attorney General's Office, Jackson, MS, for Defendant Forrest Allgood.
William Robert Allen, Jessica S. Malone, Allen, Allen Breeland & Allen, Brookhaven, MS, for Defendant Tanya West, RN.
Robert Mark Hodges, Charles E. Cowan, Wise Carter Child & Caraway, P.A., Jackson, MS, for Defendant Pearson Lidell, Jr.
John G. Wheeler, Michael D. Chase, Mitchell, Mcnutt & Sams, Tupelo, MS, for Defendant Dr. Edmund Miller.
ORDER
Michael P. Mills, UNITED STATES DISTRICT JUDGE
Plaintiff Rachel Harris has filed an objection to Magistrate Judge Percy's order denying her motion for a protective order, in which she sought to have her son Steven excused from testifying at his scheduled deposition on grounds of mental incompetency. For the reasons discussed below, this objection will be overruled.
This case is, as this court has previously noted, an exceedingly difficult one which raises significant issues about the interaction between the constitutional rights enjoyed by mentally ill criminal defendants and concerns about public safety and justice. This court will rule upon these issues in due course, and it would prefer to have all relevant information at its disposal when it does so. This court generally regards a plaintiff's deposition as being a crucial source of information in any civil lawsuit, and, in his ruling, Judge Percy correctly noted that plaintiff (through his mother) faces a heavy legal burden in seeking to prevent his own deposition. A party seeking a protective order must show good cause and a specific need for protection. Landry v. Air Line Pilots Association , 901 F.2d 404, 435 (5th Cir.), cert. denied, 498 U.S. 895, 111 S. Ct. 244, 112 L.Ed.2d 203 (1990). "Good cause" exists when justice requires the protection of "a party or person from annoyance, embarrassment, oppression, or undue burden or expense." FED. R. CIV. P. 26(c)(1). Rule 26(c) ’s "good cause" requirement for the issuance of a protective order means that "[t]he burden is upon the movant to show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements." In re Terra Intern, Inc. , 134 F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garrett , 571 F.2d 1323, 1326 n.3 (5th Cir. 1978) ).
A movant seeking a protective order prohibiting a deposition bears a heavy burden. "It is very unusual for a court to prohibit the taking of a deposition altogether and absent extraordinary circumstances, such an order would likely be in error." Salter v. Upjohn Co. , 593 F.2d 649, 651 (5th Cir. 1979) ; see also CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2037 (3d ed. 1998) ("It is even more difficult to show grounds for ordering discovery not to be had when it is a deposition that is sought, and most requests of this kind are denied."). "An order prohibiting the taking of a deposition is both ‘unusual and unfavorable.’ " Bedford v. American Honda Motor Co., Inc. , No. 1:18-CV-175, 2019 WL 7040620, at *2 (N.D. Miss. Dec. 20, 2019) (quoting Investment Properties, International, Ltd. v. IOS, Ltd. , 459 F.2d 705, 708 (2nd Cir. 1972) ).
While it is thus clear that any movant faces a difficult burden in seeking to prevent a deposition, that burden is even higher when, as in this case, a party to the lawsuit seeks to do so. "The standard for prohibiting a witness's deposition is high, but to prohibit the deposition of a party, the showing must be even more extraordinary." Bedford , 2019 WL 7040620, at *2. The higher burden imposed on a party seeking a protective order, as opposed to a witness seeking one, "stems from the non-movant's legitimate interest in trial preparation and the discernable importance of the witness whose deposition is at issue." Campos v. Webb County Texas , 288 F.R.D. 134, 138 (S.D. Tex. 2012).
In denying plaintiff's motion for a protective order, Judge Percy wrote that:
This court notes that although the report of that evaluation states the opinion that Mr. Harris remains severely mentally ill and incompetent to stand trial, the report also states, "Clinical staff at the group home report that he appears to be adjusting relatively well to the treatment environment there. They report that he tends to ‘stay to himself,’ and that he has not exhibited any aggressive behavior at their facility." Ms. Harris has provided no evidence bearing upon Mr. Harris’ mental condition subsequent to the circuit court's July 25, 2017 order dismissing the criminal charges against him.
The court concludes that Ms. Harris has failed to meet her heavy burden of showing such extraordinary circumstances as might warrant a prohibition of the deposition of Mr. Harris, the party-plaintiff in interest in this case. Mr. Liddell and the other defendants certainly have a legitimate interest in deposing Mr. Harris in preparation of their defenses against his claims, and Ms. Harris has made no particularized showing that Mr. Harris will be harmed by the deposition. See Bucher v. Richardson Hospital Authority , 160 F.R.D. 88, 92 (N.D. Tex. 1994) (allowing deposition where "objective medical evidence does not establish that [the deponent] will be irreparably harmed by the deposition process"); Hostetler v. Dillard , No. 3:13-CV-351, 2014 WL 12708703, at *2 (S.D. Miss. Nov. 14, 2014) (denying protective order where "there has been no showing that the taking of his deposition would negatively impact [the defendant's] health or treatment").
In fact, Ms. Harris does not argue that Mr. Harris will be harmed by being deposed. She argues only that because he was previously found to be mentally incompetent to stand trial on criminal charges, he is incompetent to testify in this case.
However, a plaintiff is not entitled to avoid being deposed "merely because [he] may be incompetent to testify at trial. The right to depose a witness and the right to use that testimony in court
are separate and distinct." Bucher , 160 F.R.D. at 93. The admissibility of Mr. Harris’ testimony may be evaluated by the trial judge at the appropriate time, and the deposition may prove useful in that evaluation. See Bedford v. American Honda Motor Co., Inc. , No. 1:18-CV-175, 2019 WL 7040620, at *2 (N.D. Miss. Dec. 20, 2019).
[Percy order at 4-5].
After reviewing Judge Percy's order, this court finds itself in agreement with it, and it certainly does not regard it as being "clearly erroneous or contrary to law" within the meaning of Fed. R. Civ. P. 72(a). Indeed, this court notes that, in her objection, plaintiff essentially repeats the arguments which she made before Judge Percy, and she makes no real attempt to demonstrate that his ruling is either clearly erroneous or contrary to law. In her objection, plaintiff writes that:
Thus, good cause exists to enter an order of protection concerning the 30(b) deposition of Steven Jessie Harris. The extraordinary circumstance is Mr. Harris specific detachment from reality and inability to effectively understand or communicate. Other courts have held: A witness is incompetent to testify if the Court determines the witness is (1) unable to communicate to the Court; (2) unable to understand the duty to tell the truth; or (3) unable to perceive and remember the events. See Rutherford v. Moore ; 774 So. 2d. 637, 646 (Fla. 2000) citing §§ 90.603 Fla. Stat. Competency to testify is established when a witness has sufficient understanding to comprehend the obligations of the oath and is capable of giving a correct account of the matters which the witness has seen or heard relative to the question at issue. See Kaelin v. State , 410 So. 2d 1355 (Fla. 4th DCA 1982). Based upon the aforementioned, Mr. Harris should have protection from being deposed by any defendants in discovery.
[Plaintiff's motion at 4].
In making these arguments, plaintiff does not even attempt to distinguish the Bucher decision relied upon by Judge Percy, which specifically held that "a plaintiff is not entitled to avoid being deposed merely because [he] may be incompetent to testify at trial." Bucher , 160 F.R.D. at 93. Plaintiff instead relies upon two Florida state court decisions, cited above, which involved the issue of a party's competence to testify at trial , not in a deposition. See Rutherford , 774 So. 2d. at 646, Kaelin , 410 So. 2d at 1356. This court regards this inapplicable authority as being clearly insufficient to demonstrate "clear error" in Judge Percy's ruling, and plaintiff's objection to that ruling will therefore be overruled.
While this court therefore regards plaintiff's objections to Judge Percy's ruling as not being well taken, it does note that, in Bucher , the Magistrate Judge concluded, in denying the motion to quash the plaintiff's deposition, that her fragile mental state did warrant appropriate limitations in the manner in which it was conducted. Bucher , 160 F.R.D. at 95. While this court believes that defendants have the right to take plaintiff's deposition, it trusts that, like the Magistrate Judge in Bucher , Judge Percy stands ready to address any issues which may arise regarding the manner in which that deposition is conducted. With this caveat, plaintiff's objection to Judge Percy's order will be overruled.
It is therefore ordered that plaintiff's objection [246] to the Magistrate Judge's order denying a protective order [247] is OVERRULED .