United States of America v. Territory of The Virgin Islands

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
UNITED STATES OF AMERICA, )
)
)
v. )
)
) Civil Action No. 1986-265
TERRITORY OF THE VIRGIN ISLANDS, )
et al., )
)
)
Defendants. )
__________________________________________)
Attorneys:
Jonathan M. Smith, Esq.,
Laura L. Coon, Esq.,
Alyssa C. Lareau, Esq.,
Emily A. Gunston, Esq.,
Washington, D.C.
For the United States
Richard S. Walinski, Esq.,
Toledo, OH.
For the Defendants
Nathan T. Oswald, Esq.,
Pemberville, OH.
For the Defendants
Aquannette Y. Chinnery, Esq.,
St. Thomas, U.S.V.I.
For the Defendants
MEMORANDUM OPINION
Lewis, District Judge
THIS MATTER comes before the Court on Plaintiff’s Motion to Compel Entry
Upon Land, which was filed on February 23, 2012. (Dkt. No. 638). Per an agreement
reached at a status conference held on that same day, Defendants filed their Response to
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the Motion on March 1, 2012. (Dkt. No. 646). For the reasons that follow, the Court will
deny Plaintiff’s Motion.
I. BACKGROUND
Plaintiff’s Motion to Compel Entry asks the Court to resolve a dispute between
the parties relating to the permissible scope of Plaintiff’s on-site inspection of the Golden
Grove Adult Correctional Facility (“Golden Grove”), which will take place on March 6-
9, 2012. The inspection is part of the discovery being conducted in preparation for an
upcoming evidentiary hearing on the conditions at Golden Grove pursuant to §
3626(b)(3) of the Prison Litigation Reform Act (“PLRA”). 18 U.S.C. § 3626(b)(3)
(1996). This evidentiary hearing was precipitated by Defendants’ July 28, 2011, filing of
a Motion to Terminate Prospective Relief (Dkt. No. 565), on which this Court heard oral
argument on December 6, 2011, and rendered an opinion on February 8, 2012. (Dkt. No.
630).1
Plaintiff represents that in January 2012, the parties initiated discussions on
Plaintiff’s intention to conduct an on-site inspection of Golden Grove. On February 6,
2012, Plaintiff served Defendants with a Request for Entry and Inspection. Pl.’s Mot. at
2. Defendants served Plaintiff with their Response on February 15, 2012, providing their
objections to the Inspection. Despite negotiations, the parties were unable to resolve their
disagreement regarding Plaintiff’s interviews of Defendants’ staff during the Inspection.2
Plaintiff’s Motion and Defendants’ Response followed.
1 As reflected in the Court’s February 8, 2012, Memorandum Opinion, the evidentiary hearing will be the
vehicle through which the Court will determine whether there is a “current and ongoing violation of a
Federal right” at Golden Grove, and if so, the scope of the relief to be afforded. See § 3626(b)(3).
2 Specifically, pursuant to Local Rule 37.2, the parties signed a “Stipulation Regarding Unresolved
Discovery Disputes and Compliance with LRCi 37.1,” in which the parties represent that they met and
conferred to resolve the dispute in a good faith effort, but that they were unable to resolve the issue of
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II. DISCUSSION
1. The Parties’ Arguments
In its Motion, Plaintiff seeks permission for its consultants to interview Golden
Grove staff members 3 regarding the “operations, premises, processes and procedures
viewed during the facility inspection” at Golden Grove. For this proposition, Plaintiff
relies on Rule 34(a)(2) of the Federal Rules of Civil Procedure, which allows a party to
enter land to conduct discovery. Fed. R. Civ. P. 34(a)(2). Plaintiff further relies on four
cases in which courts permitted a party to conduct interviews on the opposing party’s
land pursuant to Rule 34.4
Plaintiff explains that Defendants would permit Plaintiff’s consultants to question
Golden Grove staff in the manner requested by Plaintiff, but only under the condition that
Plaintiff’s consultants would not rely upon statements made during the tour as a basis for
a testifying expert’s opinion. Instead, Defendants would require that Plaintiff’s experts
form the basis of their opinions on statements made during a formal deposition of Golden
Grove staff members. Plaintiff argues that “it should not be required to enter into an
“[w]hether the United States consultants should be permitted to ask questions of Golden Grove staff
regarding the operations, premises, processes and procedures viewed during the facility inspection.” LRCi
37.1 Joint Stip. (Dkt. No. 638-1).
3 Defendants describe the “staff” in their Response as Defendants’ “employees and agents.” See Defs.’
Resp. at 1.
4 Plaintiff cites to Morales v. Tubman, 59 F.R.D. 157 (E.D. Tex. 1972); New York State Ass’n for Retarded
Children v. Carey, 706 F.2d 956 (2d Cir. 1983); Coleman v. Schwarzenegger, 2007 WL 3231706 (E.D.
Cal. 2007); and United States v Eerie, 2010 WL 986505 (W.D.N.Y. 2010). In Morales, a district court
interpreted Rule 34 to permit “the broadest sweep of access,” Wright and Miller, Federal Practice and
Procedure § 2206, at 607 (1970), and permitted experts to live with, and speak freely to, inmates and staff
at a Texas youth institution. 59 F.R.D. at 158. In Carey, the Second Circuit held that a district court did not
abuse its discretion when permitting plaintiff’s counsel to interview staff members under Rule 34 at an
institution for the mentally retarded. 706 F.2d 956. Similarly, in Schwarzenegger, 2007 WL 3231706, and
Eerie, 2010 WL 986505, the respective trial courts permitted plaintiff’s experts to interview prison staff
pursuant to Rule 34.
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agreement that its experts will not rely on any statements made” during the tour. Pl.’s
Mot. at 3.
Defendants emphasize that Rule 34(a)(2) does not vest Plaintiff with any
authority to conduct interviews because the rule pertains instead to the discovery of
tangible items found on the land or property. Nonetheless, Defendants stress that they
have offered to permit Plaintiff’s consultants to conduct broad-sweeping interviews of
Golden Grove staff during their four-day tour of Golden Grove. However, out of concern
for the reliability of the evidence upon which the experts’ testimony is based, Defendants
would require that Plaintiff’s experts rely only upon the statements of the declarants
made during a subsequent deposition. Defs.’ Resp. at 2.5
Defendants argue that Plaintiff seeks to informally interview Golden Grove staff
through Rule 34 to circumvent the formal deposition procedures outlined in Rule 30 of
the Federal Rules of Civil Procedure, which require notice to the deponent, the recording
of the deposition, and an oath or affirmation that the deponent’s testimony be truthful.
Fed. R. Civ. P. 30(b)(1), (b)(5)(A), (b)(3). The Rule 30 deposition procedures also permit
counsel to make objections on the record and to appropriately assert privileges, and allow
a deponent to review the testimony to ensure accuracy. Fed. R. Civ. P. 30(c)(1), (c)(2),
5 In Defendants’ own words:
The Defendants have proposed to allow Plaintiff’s consulting experts—despite the absence
of any authorization in Rule 34—to interrogate Golden Grove employees informally. They
have offered to allow the Plaintiff’s experts to ask such questions of the Defendants’
employees and agents as are needed for the experts to understand what they might
observe. In exchange for that assistance, however, Defendants have asked Plaintiff to
agree that those statements of the Defendants’ employees and agents be inadmissible.
Rather, Defendants have suggested that, if Plaintiff wishes to prove any of those
statements either as relevant evidence in their own right or as a basis for a testifying
expert’s opinion under Rule 702, it take the deposition of the declarants. As Defendants
see it, Plaintiff would be free to follow its inspection with depositions. This way,
statements of the Defendants’ employees and agents will be made under oath and recorded
so that they can be retrieved accurately—rather than from the memory of the expert and
others within earshot.
Defs.’ Resp. at 1-2.
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(c)(3)(e). Defendants argue that any comments or information gleaned outside the Rule
30 process would constitute a highly unreliable basis for expert testimony. Defs.’ Resp. at
8-9.
Defendants additionally contend that Plaintiff seeks to informally question
Golden Grove staff members about an impermissibly broad scope of information. To
support this proposition, Defendants cite Belcher v. Bassett Furniture Industries, Inc., in
which the Fourth Circuit found that a district court abused its discretion in granting an
order that permitted plaintiffs to interview anyone at defendants’ facility, without
providing any limitation of the subject-matter or containing a reason for the inspection of
the premises. 588 F.2d 904 (4th Cir. 1978). Defendants thus argue that interviews
pursuant to Rule 34 are permissible only when the discovering party is seeking essential
and limited information. Defs.’ Resp. at 5-7. Defendants contend that the cases offered by
Plaintiff—Morales, Carey, Coleman and Eerie—all involved permissible Rule 34
interviews precisely because the scope of the information to be discovered in each case
was narrow and essential to the plaintiff. Defs.’ Resp. at 6-7.
2. Guiding Principles
Several principles inform the Court’s analysis of the dispute. First, the relevant
portions of Rule 34 of the Federal Rules of Civil Procedure, which govern the procedures
for property inspections, provide as follows:
(a) IN GENERAL. A party may serve on any other party a request within the
scope of Rule 26(b):
(2) to permit entry onto designated land or other property possessed or
controlled by the responding party, so that the requesting party may
inspect, measure, survey, photograph, test, or sample the property or any
designated object or operation on it.
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Fed. R. Civ. P. 34(a)(2). “The touchstone for analysis of a Rule 34 inspection is
reasonableness. The inspection demand must describe the place to be examined with
reasonable particularity, and must specify a reasonable time, place and manner for the
examination.” McConnell v. Canadian Pacific Realty, 2011 WL 5520322, at *3 (M.D.
Pa. 2011). Because Rule 34(b)(1)(A) states that the contents of the request “must describe
with reasonable particularity each item or category of items to be inspected,” Fed. R. Civ.
P. 34(b)(1)(A), Rule 34 requests “must not include ‘boiler-plate language’ and [must] set
forth ‘the items to be inspected . . . with reasonably particularity.’” Johnson v. Mundy
Indus. Contractors, Inc., 2002 WL 31464984, at *3 (E.D.N.C. 2002). “In short, ‘all-
encompassing demands’ do not suffice to satisfy this reasonableness standard . . . .”
McConnell, 2011 WL 5520322, at *3 (quoting In re Asbestos Prods. Liab. Litig. (No.
VI), 256 F.R.D. 151, 157 (E.D. Pa. 2009)); see also Walsh v. Krantz, 2008 WL 5189138,
at *4 (M.D. Pa. 2008).
Second, the scope of the discovery that may be compelled under Rule 34 is
further defined by Rule 26(b)(1) of the Federal Rules of Civil Procedure, which provides:
Unless otherwise limited by court order, the scope of discovery is as
follows: Parties may obtain discovery regarding any nonprivileged matter
that is relevant to any party's claim or defense . . . Relevant information
need not be admissible at trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.
Fed. R. Civ. P. 26(b)(1). Because the otherwise expansive definition of Rule 26 reaches
only “nonprivileged matter that is relevant to any party’s claim or defense,” id., “valid
claims of relevance and privilege still cabin and restrict the court’s discretion in ruling on
discovery issues,” McConnell, 2011 WL 5520322, at*4. Importantly, however, Rule 26
defines the concept of “relevant information” broadly, to include evidence that would not
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in itself be admissible at trial, so long as it is “reasonably calculated to lead to the
discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1).
Third, informal interviews conducted under Rule 34 do not provide for the formal
protections afforded by Rule 30, including the designations afforded by Rule 30(b)(6) of
the Federal Rules of Civil Procedure. Rule 30(b)(6) permits an organization to “designate
one or more officers, directors, or managing agents, or designate other persons who
consent to testify on its behalf . . . .” Fed. R. Civ. P. 30(b)(6). Rule 30(b)(6) therefore
provides Defendants with a measure of control over who may speak on behalf of
Defendants. See Bailey v. Viacom, 435 Fed. Appx. 85, 91 (3d Cir. 2011) (explaining that
the testimony of a witness who was not designated to testify pursuant to Rule 30(b)(6)
“does not establish a company-wide practice.”). An interview pursuant to Rule 34 does
not provide for such a designation.
Fourth, an evaluation of a discovery dispute should consider the issues presented
by the litigation. See McConnell, 2011 WL 5520322, at *5. Here, the Court is called upon
to consider “[w]hether the United States consultants should be permitted to ask questions
of Golden Grove staff regarding the operations, premises, processes and procedures
viewed” during an inspection of Golden Grove. LRCi 37.1 Joint Stip. (Dkt. No. 638-1).
The discovery is in preparation for a § 3626(b)(3) hearing to consider if there is a current
and ongoing violation of a federal right at Golden Grove, and if so, if the previously
issued relief is tailored in the manner required by the PLRA. This inquiry requires the
Court to harness a quantum of information in a precise and reliable form, so as to conduct
analyses and engage in decision-making that are consistent with the letter and spirit of the
PLRA.
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Finally, rulings relating to the appropriate scope of discovery, and orders
compelling such discovery, are within the district court’s discretion. Decisions to compel
discovery are “committed to the sound discretion of the district court.” DiGregorio v.
First Rediscount Corp., 506 F.2d 781, 788 (3d Cir. 1974); In re Fine Paper Antitrust Lit.,
685 F.2d 810, 817-18 (3d Cir. 1982) (“[M]atters of docket control and conduct of
discovery are committed to the sound discretion of the district court.”). Accordingly,
“[g]ranting or denying a request under Rule 34 is a matter within the trial court’s
discretion . . . .” Belcher, 588 F.2d at 907 (quoting Tiedman v. Am. Pigment Corp., 253
F.2d 803, 808 (4th Cir. 1958)).
Mindful of these legal and practical guideposts, the Court considers Plaintiff’s
Motion.
3. Analysis of Plaintiff’s Motion to Compel Entry
The issue presented by Plaintiff’s Motion to Compel Entry Upon Land, and upon
which this Court will render a ruling at this time, is whether this Court should enter an
Order requiring Defendants to permit Plaintiff’s consultants “to ask questions of Golden
Grove staff regarding the operations, premises, processes and procedures” during their
four-day tour of the Golden Grove facility. Pl.’s Mot. at 2.6 The Court agrees with
Defendants that they are not required to permit Plaintiff to conduct such questioning of
their staff, particularly in light of the potential lack of reliability resulting from Plaintiff’s
proposed informal and broad-sweeping questioning.
6 The Court recognizes that the parties have alluded to questions regarding the admissibility or
inadmissibility of evidence, and the proper interpretation of Rules 702 and 703 of the Federal Rules of
Evidence. See, e.g., Pl.’s Mot. at 2-3; Defs.’ Resp. at 1-2. Without greater specificity, context and adequate
briefing of those issues, such matters are not ripe for review at this time and the Court will not address
them.
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As a threshold matter, Rule 34(a)(2) of the Federal Rules of Civil Procedure—the
authority upon which Plaintiff predicates its request—does not entitle Plaintiff to
interview Defendants’ staff during an inspection. Instead, the rule states that a party may
serve on another party a request to enter land or property to “inspect, measure, survey,
photograph, test, or sample the property or any designated object or operation on it.” Fed.
R. Civ. P. 34(a)(2). While Defendants are not at liberty to refuse the on-site visit pursuant
to Rule 34(a), nothing in the rule requires Defendants to provide Plaintiff with access to
interview its staff. See Curry v. Goodman, 2003 U.S. Dist. LEXIS 17861, *2 (D. Conn.
2003) (“Consistent with Rule 34(a), defendant is not at liberty to refuse plaintiff’s request
for an on-site visit . . . This does not permit plaintiff’s expert ‘basic access to managerial
personnel to understand the operations of the [premise].’”).
Moreover, while the rules of discovery are to be construed liberally,
Schwarzenegger, 2007 WL 3231706, at *1, Plaintiff is not entitled to conduct limitless
discovery. Instead, “the search for the truth must be balanced against the burdens and
dangers created by the inspection.” Belcher, 588 F.2d at 908. The dangers described in
Belcher are mirrored in this case, including that “interrogation of the employees,
conducted informally” could lead to “a roving deposition, taken without notice,
throughout the [facility], of persons who were not sworn and whose testimony was not
recorded, and without any right by the defendant to make any objection to the questions
asked.” Id. at 907. The Fourth Circuit found that this danger, coupled with the burden
placed on the defendant in accommodating the “roving depositions,” was not outweighed
by “the degree to which the proposed inspection will aid in the search for the truth.” Id. at
908-909. In evaluating whether an inspection would “aid in the search for the truth,” the
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Fourth Circuit considered that “small utility” could be derived from interviews that were
conducted informally and directed with little specification. Id. (given plaintiff’s failure to
specify, “with the particularity demanded by rule 34,” it is “difficult to see how the
proposed inspection can have any meaningful direction.”).
Here, even if one were to put aside the lack of authority for Plaintiff’s request in
the plain language of Rule 34, Plaintiff’s proposed line of questioning—“regarding the
operations, premises, processes and procedures viewed during the facility inspection”—
lacks the particularity required by Rule 34. Further, the request is so broad and all-
encompassing that its utility is outweighed the dangers posed by the breadth of the
questioning and the abandonment of the Rule 30 procedural safeguards.
The Court appreciates the depth of the technical complexity and the breadth of
factual discovery posed by prison-conditions litigation. However, the elaborate nature of
the inquiry does not give Plaintiff carte blanche to conduct an untailored survey of the
staff at Golden Grove, especially without the protections afforded by procedures provided
in Rule 30 depositions designed to help promote accuracy and reliability. Plaintiff’s
proposed scope of questioning is expansive enough to evade any meaningful boundary
and so nebulous as to permit Plaintiff virtually unlimited latitude in the scope of its
questioning. Plaintiff could recast any number of far-reaching inquiries as falling within
the “operations, premises, processes and procedures viewed during the facility
inspection,” creating the same danger of unlimited and “roving depositions” described by
the Fourth Circuit in Belcher.
Nor do the cases cited by Plaintiff support such an expansive inquiry under Rule
34. In Carey, the Second Circuit distinguished the facts from those in Belcher, stating
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“[a] different balance must be struck . . . Here plaintiff counsel’s claims of
noncompliance were quite specific.” 706 F.2d at 961. In Erie, the district court permitted
plaintiff’s experts to informally interview the County’s employees “on the issues of
suicide prevention and mental health processes and procedures.” 2010 WL 986505, at *3.
Similarly, in Schwarzenegger, the request focused on “access to medical and mental
health care” and “issues of housing, programming, exercise and activities for class
members.” 2007 WL 3231706, at *1.7
If the Court were to require Defendants to submit to unconstrained informal
questioning under Rule 34, one could ask—as Defendants do—why a litigant would ever
conduct the critical but burdensome procedures mandated under Rule 30. Defs.’ Resp. at
6 n.4. The Fourth Circuit echoed this concern, explaining that “[a]lthough the Federal
Rules do not prescribe an order of preference for discovery techniques, one method
cannot arbitrarily be demanded over another simply because it is less burdensome to the
moving party. . . The requirements and safeguards prescribed by the Federal Rules for
deposing witnesses cannot be so easily circumvented.” Belcher, 588 F.2d at 910.
Considering that Rule 34 does not vest Plaintiff with an entitlement to informally
interview Defendants’ staff members, and given the dual concerns of overbreadth and
unreliability, the Court rejects Plaintiff’s Motion.
7 The case of Morales v. Thurman is an exception to this general approach to considering the permissibility
of interviews. 59 F.R.D. 157. In Morales, the Court permitted plaintiff’s experts to spend one month
interacting with, and interviewing, inmates at a Texas Youth Council institution. The district court
acknowledged that “[t]his request for discovery is perhaps extraordinary, yet this is an extraordinary case.”
59 F.R.D. at 159. The Court noted its discretion “must be guided by ‘considerations of policy and of
necessity, propriety and expediency in the particular case at hand.’” Id. (quoting United States v. Kohler, 9
F.R.D. 289, 291 (D. Pa. 1949)). In this case, similar considerations lead to a different conclusion.
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III. CONCLUSION
For the foregoing reasons, the Court denies Plaintiff’s Motion to Compel Entry
Upon Land.
Date: March 5, 2012 _______/s/_______
WILMA A. LEWIS
District Judge
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