UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

EDWARD PRYOR,

Plaintiff,

Case Number 09-13185

v. Honorable David M. Lawson

WAYNE COUNTY, JEROME PANACKIA,

MAUREEN MCMILLAN, DWIGHT

FULLILOVE, LUCIOUS JACKSON,

ANTHONY MILO, MAURICE THOMAS,

and DARON WEATHERSPOON,

Defendants.

_____________________________________/

ORDER DENYING DEFENDANTS’ MOTION FOR PROTECTIVE ORDER

Presently before the Court is a motion for a protective order filed by the defendants seeking

to prevent the plaintiff from continuing his deposition of witness Greg Hattaway or calling him at

trial. The plaintiff filed an untimely response to the defendants’ motion along with a motion for

leave to file out of time. The Court denied the plaintiff’s motion for leave to file out of time, but will

consider the plaintiff’s response because the plaintiff’s input will benefit the Court’s resolution of

the issues.

Federal Rule of Civil Procedure 26 allows broad discovery in civil litigation, including “any

nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1);

Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998). The scope of discovery under this

Rule is “broader than that permitted at trial. The test is whether the line of interrogation is

reasonably calculated to lead to the discovery of admissible evidence.” Mellon v. Cooper-Jarrett,

Inc., 424 F.2d 499, 501 (6th Cir. 1970). Even though all material obtained through discovery may

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not be offered or admitted at trial, “[m]utual knowledge of all the relevant facts . . . is essential to

proper litigation.” Hickman v. Taylor, 329 U.S. 495, 507-08 (1947). Discovery may be informal

— by means of private investigation, witness interviews, and so forth — or it may follow the formal

methods prescribed by the Federal Rules. See Dorsey v. City of Detroit, 858 F.2d 338, 341-42 (6th

Cir. 1988). However, Rule 26’s “desire to allow broad discovery is not without limits and the trial

court is given wide discretion in balancing the needs and rights of both plaintiff and defendant.”

Scales v. J.C. Bradford & Co., 925 F.2d 901, 906 (6th Cir. 1991).

Upon good cause shown, Federal Rule of Civil Procedure 26(c)(1) authorizes the entry of

protective orders “to protect a party or person from annoyance, embarrassment, oppression, or undue

burden or expense.” A court may fashion a protective order to limit discovery in a number of ways,

including “forbidding the disclosure or discovery”; “specifying terms . . . for the disclosure or

discovery”; “prescribing a discovery method other than the one selected by the party seeking

discovery”; and “forbidding inquiry into certain matters, or limiting the scope of disclosure or

discovery to certain matters.” Fed. R. Civ. P. 26(c)(1)(A)-(D). District courts must use their sound

discretion in deciding whether (and in what fashion) to issue protective orders. See Surles ex rel.

Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 306 (6th Cir. 2007).

The defendants note that the plaintiff failed to name Mr. Hattaway on any witness list and

sought only to depose the “Union Representative present when Maureen McMillan was interviewed

in connection with the Internal Affairs investigation.” Mot. for Protective Order at 3 (quoting

Stipulated Order Compelling Discovery & Adjourning Dates (Apr. 19, 2011)). When the plaintiff

began asking questions that went beyond this investigation, the defendants assert that they were

surprised and unprepared. They seek to prevent the plaintiff from asking about Mr. Hattaway’s

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conversations with other union members concerning staffing issues, arguing that these conversations

are irrelevant, constitute inadmissible hearsay, and lack foundation. The defendants request a

protective order based on the “apex doctrine,”which they believe precludes the deposition of an

individual at the top of an organizational hierarchy when that individual lacks personal knowledge

or the information could be obtained elsewhere, in order to avoid harassment or abuse inherent in

discovery efforts. They assert that the plaintiff could obtain information about the investigation

from an Internal Affairs tape of the session or from Clara Carter-Steele, the investigator responsible

for defendant McMillan’s hearing.

The plaintiff argues that the information provided by Mr. Hattaway concerning his

conversations about staffing issues are relevant and go directly to the core issue of whether the

defendant County had actual or constructive knowledge of — and therefore whether it was

deliberately indifferent to — the problems created by low numbers of staff. The plaintiff’s failure

to include Mr. Hattaway on earlier witness lists was “unintentional,” but he argues that the defendant

should have known Mr. Hattaway fell within the general category of “any and all witness[es] and/or

potential witnesses as named in the Defendant’s Original and Supplemental Rule 26 Disclosures”

because the defendants included the internal affairs tape in their disclosures. Pl.’s Resp. at 10. In

any event, the plaintiff argues that the defendants were aware of his interest in deposing Mr.

Hattaway at least as of April 19, 2011, he did not exclude Mr. Hattaway in order to gain a tactical

advantage, and the defendants would not suffer any prejudice. The plaintiff’s questions about other

communications concerning short-staffing were proper because Mr. Hattaway made a similar

statement on the tape and were not seeking information that was privileged under Federal Rule of

Civil Procedure 26(b)(2)(C). Instead, the plaintiff asserts that Mr. Hattaway is the only individual

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with personal knowledge of these conversations. The plaintiff also notes that he cannot use the tape

at trial because he did not have an opportunity to authenticate it during the deposition.

As the Court indicated above, the plaintiff is entitled to take discovery from a broad range

of sources, including individuals not listed on his witness list, as long as that discovery is calculated

to lead to evidence that may aid the plaintiff in proving his claims at trial. Fed. R. Civ. P. 26(b)(1);

Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998); Mellon v. Cooper–Jarrett, Inc.,

424 F.2d 499, 501 (6th Cir. 1970). The fact that the plaintiff’s chosen deponent was not on his

witness list is not grounds to bar the deposition. In addition, the plaintiff has explained that the

questions he posed, concerning Mr. Hattaway’s conversations with his supervisors about the

problems of short-staffing, were targeted to obtain evidence about the defendant County’s actual or

constructive knowledge of these problems. This evidence is directly relevant to the plaintiff’s

deliberate indifference claim, and Rule 26 does not prevent the plaintiff from asking the deponent

questions about these issues. The fact that such evidence may be harmful to the defendants’ case

does not provide grounds for issuing a protective order. Finally, the defendants assert the “apex

doctrine” as a reason for discontinuing the deposition to prevent inconvenience and harassment to

higher-ranking officials. However, this rationale for preventing a deposition is dispelled once the

deposition has started and the deponent has been subjected to the inconvenience. The defendants

have failed to demonstrate that Mr. Hattaway lacked personal knowledge about his own

conversations with his superiors or that this information could be obtained from other less

burdensome sources in order to invoke the apex doctrine. The information the plaintiff seeks is

relevant to his claims and the plaintiff is entitled to complete the deposition of Mr. Hattaway.

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The plaintiff’s ability to present Mr. Hattaway at trial presents a different analytical issue.

Federal Rule of Civil Procedure 26(a)(3) governs pretrial disclosures — information that must be

shared before it may be used at trial — and requires parties to provide the names and contact

information for their witnesses at least 30 days before trial, “[u]nless the court orders otherwise.”

Fed. R. Civ. P. 26(a)(3)(A)(i) & (B). This rule also permits the defendants to file objections to any

witnesses. Fed. R. Civ. P. 26(a)(3)(B). The local rules provide a format for presenting pretrial

disclosures and objections through a joint final pretrial order, which must be provided to the Court

“at, or if the judge requires, before the final pretrial conference.” E.D. Mich. LR 16.2(a). This

Court’s scheduling order requires the parties to submit these orders to Chambers one week before

the final pretrial conference. Am. Scheduling Order [dkt. #36] at 5-6. With respect to disclosure

of witnesses in the joint final pretrial order, the local rule indicates that “[e]xcept as permitted by

the Court for good cause a party may not list a witness unless the witness was included on a witness

list submitted under a prior order or has been deposed.” E.D. Mich. LR 16.2(b)(8). The local rule

also provides that “[o]nly listed witnesses will be permitted to testify at trial,” and points litigants

to Federal Rule of Civil Procedure for remedies for a party’s failure to list a witness. Ibid. 

The defendants agreed to the deposition of Mr. Hattaway, the “Union Representative present

when Maureen McMillan was interviewed in connection with the Internal Affairs investigation,”

as part of the Court’s April 19, 2011 stipulated order, and the parties began his deposition on June

14, 2011. As a result, notwithstanding the fact that he never appeared on a witness list supplied by

the plaintiff, Mr. Hattaway meets the requirements in the local rules for appearing on the witness

list for trial and testifying at trial. The joint final pretrial order in this matter is not due until

September 28, 2011, and the plaintiff has not missed the deadline for adding Mr. Hattaway to this

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document. The Court will deny the defendants’ request for an order excluding Mr. Hattaway from

trial. 

However, the Court is sympathetic to the fact that the plaintiff’s failure to list Mr. Hattaway

on a witness list left the defendants unprepared for the scope of questions the plaintiff might ask, and

now may incur additional expenses to prepare for the continuation of this deposition. The Court will

order the plaintiff to bear the costs of the continued deposition and will order the parties to complete

this deposition by August 5, 2011.

Accordingly, it is ORDERED that the defendants’ motion for protective order [dkt. #82] is

DENIED.

It is further ORDERED that the parties must complete the deposition of Greg Hattaway on

or before August 3, 2011. The plaintiff will bear the costs of the continued deposition session.

s/David M. Lawson 

DAVID M. LAWSON

United States District Judge

Dated: July 27, 2011

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 July 27, 2011.

s/Deborah R. Tofil 

DEBORAH R. TOFIL

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