IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

J.B., a minor child, by and through his )

next friend, ADDIE WARD, on behalf of )

himself and all others similarly situated, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 2:06cv755-MHT

)

WALTER WOOD, in his individual )

capacity, )

)

Defendant. )

____________________________________

J.B., a minor child, by and through his )

next friend, ADDIE WARD, on behalf of )

himself and all others similarly situated, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 2:06cv908-MHT

)

WALTER WOOD, in his individual )

capacity, )

)

Defendant. )

ORDER

On July 25, 2007, the defendant filed a motion for protective order (doc. # 46)

pursuant to FED.R.CIV.P. 37 requesting the court quash the deposition subpoenas served

on three employees of the Alabama Department of Youth Services (DYS). On July 27,

2007, the defendant filed a motion to amend (doc. # 48) motion for protective order by

adding a fourth employee whose deposition subpoena he sought to quash. The court

Case 2:06-cv-00755-MHT-CSC Document 55 Filed 07/31/2007 Page 1 of 4
2

heard argument on these motions on July 30, 2007. For the reasons which follow, the

court concludes that the motion to amend is due to be granted and the motion for

protective order is due to be denied.

The gravamen of the motion for protective order is that there is presently pending

before the court a motion for summary judgment which inter alia asserts that the

defendant is entitled to qualified immunity and that pending resolution of that issue the

court should not allow any discovery. The defendant is the Director of DYS and is sued

solely in his individual capacity and only for damages for the allegedly “unreasonable

delay in placement, treatment and services subsequent to Plaintiff’s commitment” to

DYS. The complaint alleges violations of the plaintiff’s constitutional rights and

violations of state law.

Under the scheduling order entered by the court on November 1, 2006, this case is

set for a final pretrial conference on August 27, 2007 and non-jury trial on October 1,

2007. The discovery deadline is August 1, 2007. The court understands from the oral

argument that since the entry of the scheduling order the parties have engaged in some

discovery. The defendant’s motion for summary judgment was filed on May 29, 2007. 

However, the defendant did not request a stay of discovery until the plaintiff sought to

take the depositions of four employees of DYS on the last day allowed for discovery.

The question before the court is discussed at length in Crawford-El v. Britton, 523

U.S. 574 (1998). In Britton, the court approached the issue by looking at the various

stages of litigation. Citing Harlow v. Fitzgerald, 457 U.S. 800 (1982), the court stated

Case 2:06-cv-00755-MHT-CSC Document 55 Filed 07/31/2007 Page 2 of 4
3

that “if the defendant does plead the immunity defense, the district court should resolve

that threshold question before permitting discovery.” But this admonition applies only to

the initial pleading stage of a lawsuit. That is made plain by the court’s next observation.

If the plaintiff's action survives these initial hurdles and is otherwise viable,

the plaintiff ordinarily will be entitled to some discovery. Rule 26 vests the

trial judge with broad discretion to tailor discovery narrowly and to dictate

the sequence of discovery. On its own motion, the trial court

"may alter the limits in [the Federal Rules] on the number of

depositions and interrogatories and may also limit the length

of depositions under Rule 30 and the number of requests

under Rule 36. The frequency or extent of use of the

discovery methods otherwise permitted under these rules ...

shall be limited by the court if it determines that ... (iii) the

burden or expense of the proposed discovery outweighs its

likely benefit, taking into account the needs of the case, the

amount in controversy, the parties' resources, the importance

of the issues at stake in the litigation, and the importance of

the proposed discovery in resolving the issues." Rule

26(b)(2).

Additionally, upon motion the court may limit the time, place, and manner

of discovery, or even bar discovery altogether on certain subjects, as

required "to protect a party or person from annoyance, embarrassment,

oppression, or undue burden or expense." Rule 26(c). And the court may

also set the timing and sequence of discovery. Rule 26(d).

Crawford-El, 523 U.S. at 598-99.

The instant case is beyond the initial pleading stage, and the parties have engaged

in some discovery. Indeed, the case is nearing the time for a final pretrial conference and

the discovery deadline is tomorrow, August 1, 2007. Given that the defendant has not

earlier sought protection from discovery and in light of the present posture of the case, the

court concludes that the plaintiff should be allowed to take the depositions of the four

Case 2:06-cv-00755-MHT-CSC Document 55 Filed 07/31/2007 Page 3 of 4
4

DYS employees. At argument, the plaintiff indicated that the depositions should not last

more than one hour each. Accordingly, the court will limit the depositions to no longer

than one hour for each deposition. Accordingly, it is

ORDERED as follows:

1. That the defendant’s motion to amend (doc. # 48) the motion for protective

order be and is hereby GRANTED.

2. That the defendant’s motion for protective order to quash the taking of

depositions (doc. # 46) be and is hereby DENIED.

3. That the deposition of the four DYS employees be limited to no more than one

hour each.

Done this 31st day of July, 2007.

 /s/Charles S. Coody 

CHARLES S. COODY

CHIEF UNITED STATES MAGISTRATE JUDGE

Case 2:06-cv-00755-MHT-CSC Document 55 Filed 07/31/2007 Page 4 of 4