UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

LEWIS LOWDEN, ROBERT

LOWDEN, personal representative

of the estate of Jean Lowden,

Plaintiffs,

Case Number 09-11209-BC

v. Honorable Thomas L. Ludington

COUNTY OF CLARE, LAWRENCE

KAHSIN, CALVIN WOODSTOCK,

Defendants.

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ORDER GRANTING EMERGENCY MOTION TO TAKE DEPOSITION FROM LEWIS

LOWDEN DUE TO HIS DETERIORATING HEALTH AND GRANTING PLAINTIFFS

LEAVE TO TAKE THE DEPOSITION OF PLAINTIFF LEWIS LOWDEN

On April 1, 2009, Plaintiffs Lewis Lowden and Robert Lowden, as the personal

representative of the estate of Jean Lowden, filed a complaint [Dkt. # 1], alleging that Defendants

violated various of their constitutional rights. Defendants are Clare County, and Clare County

Sheriff’s Deputies Lawrence Kashin and Calvin Woodcock. In addition to compensatory damages,

Plaintiffs seek a declaration that Mich. Comp. Laws § 750.167d, which generally prohibits funeral

protests, is unconstitutional on its face and as applied. Plaintiffs’ claims generally arise from the

circumstances surrounding Lewis and Jean Lowden’s arrest during their participation in a funeral

procession for “a close family friend,” with political signs inside the windows of their vehicle.

Now before the Court is Plaintiffs’ emergency motion to take deposition from Lewis Lowden

due to his deteriorating health [Dkt. # 10], filed May 15, 2009. Plaintiffs represent that they were

unable to procure a stipulation from Defendants to take the deposition, but that Defendants have

stated that they will not oppose Plaintiffs’ motion. Additionally, the parties have identified June 18,

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2009, as a convenient date for Plaintiff Lewis Lowden’s deposition to take place if the Court grants

Plaintiffs’ motion. In support of their motion, Plaintiffs contend that there is a substantial risk that

Plaintiff Lewis Lowden will be unavailable to testify at trial and unavailable for a deposition noticed

in the normal course of proceedings, because he suffers from a terminal illness and his health is

seriously and rapidly deteriorating. In addition, Jean Lowden, the only other witness to the events

central to this case, other than the individually-named Defendants, is already deceased.

Under Rule 30(a)(2)(A)(iii) of the Federal Rules of Civil Procedure, a party must obtain

leave of the court to take a deposition if “the party seeks to take the deposition before the time

specified in Rule 26(d).” The parties in this case have not yet scheduled a Rule 26(f) conference

pursuant to Rule 26(d), thus, Plaintiff must obtain leave of the Court to take Plaintiff Lewis

Lowden’s deposition. Under Rule 30(a)(2)(A)(iii), the Court “must grant leave” to take the

deposition to the extent that leave is “consistent with Rule 26(b)(2).” Particularly considering that

Plaintiffs will be severely prejudiced if Plaintiff Lewis Lowden becomes unavailable to testify, and

that Plaintiffs seek leave to take only a single deposition, granting leave to take Plaintiff Lewis

Lowden’s deposition before the Rule 26(f) conference, on the date that defense counsel has stated

that he is available, is consistent with Rule 26(b)(2).

Accordingly, it is ORDERED that Plaintiffs’ emergency motion to take deposition from

Lewis Lowden due to his deteriorating health [Dkt. # 10] is GRANTED.

It is further ORDERED that Plaintiffs are GRANTED LEAVE to take the deposition of

Lewis Lowden on June 18, 2009.

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

United States District Judge

Dated: May19, 2009

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PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on May 19, 2009.

s/Tracy A. Jacobs 

TRACY A. JACOBS

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