Opinion
No. CV 04-2873 PHX-DGC.
April 14, 2006
ORDER
On April 12, 2006, the Court held a discovery conference call with the parties. Several issues were addressed. On the basis of the conference call, the Court enters the following orders:
1. On or before April 28, 2006, Plaintiff Terry Wilson shall appear for the completion of his Rule 35 psychological examination by Dr. Hammer. Completion of the examination shall be limited to two hours. Dr. Hammer will be permitted to videotape and audio tape the completion of the examination. The Court will not limit the scope of Dr. Hammer's examination.
On or before April 28, 2006, Plaintiff Pearl Wilson shall appear for a Rule 35 psychological examination by Dr. Hammer not to exceed seven hours, excluding breaks. The examination may be audio taped and videotaped by Dr. Hammer. The Court will not limit the scope of Dr. Hammer's examination.
Within 48 hours of the completion of each examination, Defendants shall provide Plaintiffs' counsel with complete copies of the audio and video recordings of the examinations. The Court has not ruled that the recordings will be admissible at trial. The parties retain all available objections to the admissibility of such recordings.
The Court has reviewed relevant case law. There is no uniform rule in the federal courts on whether the recording of Rule 35 examinations is permitted or prohibited. Sidari v. Orleans County, 174 F.R.D. 275, 291 (W.D.N.Y. 1996). The decision is case-specific. The need for flexibility is illustrated by the fact that the examined party in this case opposes recording, whereas the examined party in other cases often demands recording. The Court concludes that recording the examinations in this case will not interfere with the examination, will create a complete record of the questions asked and answered, and will not be admissible in evidence without the parties first having a complete opportunity to address admissibility issues.
2. Because of the delay in completing the examinations of Plaintiffs, Defendants seek an extension of time to file Dr. Hammer's expert report. During the telephone conference, Defendants' expert requested until June 5, 2006, to complete her report. The Court will not grant such a lengthy extension. The order setting an expert disclosure date of April 14, 2006, was entered by the Court on November 9, 2005. Doc. #62. Defendants had ample notice of the need to schedule examinations of Plaintiffs in order to prepare their expert report. Despite this fact, Defendants did not schedule the examinations until late March 2006, and did not issue the notice for the examinations until March 22, 2006. Although Defendants stated during the conference call that they attempted to discuss scheduling with Plaintiffs before the notice was issued, it is evident that Defendants waited more than four months to begin the process of scheduling the examinations. Defendants have had ample time to schedule the examinations, and the Court will not grant an extension of the expert disclosure dates that will alter the ultimate deadline in this case for filing dispositive motions.
Thus, with respect to Dr. Hammer's report only, Defendants will have until May 22, 2006, to file an expert report. Plaintiffs shall have until June 16, 2006 to file a rebuttal report. The expert deposition of Dr. Hammer shall be completed no later than June 30, 2006, and dispositive motions shall be filed on July 14, 2006. All other deadlines in this case shall remain in place for all other experts and all other matters.
Although this is less time than Plaintiffs had under the Court's original schedule, the Court concludes that Plaintiffs unnecessarily delayed resolution of the examination issue by unilaterally terminating the examination of Terry Wilson.
3. The Court will permit Plaintiffs to take a total of 19 fact depositions. The Court concludes that this number is needed to reasonably complete discovery, and notes that Defendants did not object to exceeding the 10-deposition limit either in the stipulation filed by the parties on November 3, 2005 (Doc. #61) nor when the number of depositions actually exceeded 10. Fourteen depositions have been completed to date.
4. The Court ordered that the privilege and work product issues regarding a letter written by Mr. Crowley to Sheriff Arpaio be addressed in the briefing to be filed by the parties pursuant to the Court's order dated March 29, 2006 (Doc. #102). To permit the parties to address this issue, the initial memoranda shall be extended from five pages to seven and the reply memorandum shall be extended from three pages to five. Defendants shall submit a copy of the letter to the Court with their briefing.
5. The Court declined to hear argument concerning the number of requests for production served by Plaintiffs in this case because Defendants did not raise that issue with Plaintiffs' counsel before the conference call.