UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

IN RE NAVY C HAP LAINCY : Misce llaneous Case 07-269 ( GK )

MEMORAN DUM OP INION Plaintiffs have filed a Motion to Take Depositions to Preser ve Testimony

. The Gover nment has filed a Response, which is essentially a partial Opposition, and Plaintiffs have filed a l en gt hy Reply

. Upon consider ation of the pa rties’ brie fs, the applica

ble Fe dera l Rules of Civil Procedur e, and the entire rec ord in this case , the Court conclude s that the Motion shall be granted in part and denied in part

. Plaintiffs have moved for an Orde r allowing them to take depositions of 10 individuals, five of whom are named Plaintiffs and five of whom are fac t witnesses, for the pu rp o s e o f p re s erving their evidence. I n response , Def endants have indicated that the Gover nment does not oppose Plaintiffs’ reque st as to the five named Plaintiffs, subject to two conditions: that the depositions be taken in the District of Co l u mbia, since that is the Plaintiffs’ forum of choice , and in order to minimi ze the cost of such depositions to the taxpay ers; and that the partie s fo l l ow the same 1 proce dure they have used in the past, namely , that the Gover nment be allowed to take discovery depositions first, so that it would be in a position to prepa re for an eff

ective cross-e x aminatio n . Those two re quests will be g rante d. The Gover

nment does, howeve r, oppose Plaintiffs reque st to take depositions of the five fac t witnesses t hey have identified. This consolidated litiga tion has been ong oing since 1999. Parties have eng ag ed in extensive discovery during that period of time. Plaintiffs have taken more than 30

Plaintiffs have not indicate d that such conditions would pose any undue har dship. 1depositions in the con s o l i d at ed litigation, including multipl e depositions of sever al high ranking

Chaplain Corps Offic ers. I n additi o n , Defendants have produce d more than 9,000 pag es of documents and have res p o n d ed t o 25 interrog atories and 91 reque sts for admission. I nitially , the

case s were assig ned to J udg e Ricar do M. Urbina. I n J uly 2009, J udg e Ur

bina enter ed an inf

ormal stay of di scover

y pending resolution of m ultiple dispositi ve cross-motions. Upon J udg e Urbina’s retire ment in ear ly 2012, the litigation was rea ssigne d to this Court, which formally extended J udg e Urbina’ s stay

of discover

y . Case Mana g ement Or der #1 [Dkt. No. 124]. Even though Plaintiffs conce de that “no specific Rule cover s this ca s e, ” they sug g est that Fe d. R. Civ. P. 27 (“Rule 27") , which allows tes t imony to be taken befor e litigation is initiated, provides useful crit er i a for evalua ting Plaintiffs’ reque st. Plaintiffs summarize their position by concluding that the rele vant fac tors under both Rule 27 and Fe d. R. Crim. P. 15 are “the materia lity of the testimony and the nece ssity for prese rving testimony in order to ensure the interests of justice,” citing United States v. Kelley , 36 F.3d 1118, 1124-25 (D.C. Cir. 1994), acc ord Penn. M ut. L ife I nsuranc e Co. v. United States, 68 F.3d 1371, 1374 ( D.C. Cir. 1995). The Gover

nment has two rea sons for opposi n g P l ai ntiffs’ reque st to take depositions to prese rve the testimony of t he five fac t witnesses. First, P laintiffs have failed to mee t their burden of demonstrating a valid need to prese rve such testimony , and, second, Plaintiffs’ reque st is basica lly

an eff ort to expand the scope of the depositions they seek beyond mere ly prese rvation of testimony and into full blown fac t discovery

. I n addition, the Gover nment points out that since 1999, Plaintiffs have had ample opportunity to take the depositions of the potential fac t witnesses, have elec ted not to, and have g iven no re ason for their fa ilure to do so.

-2-The crux of the dispute betwee n the parties has come down to whether Rule 27, which

specific ally cover s prese rvation of testimony befor e an a ction is filed, also applies t o prese rvation of testimony soug ht under Fe d. R. Civ. P. 26 (“Rule 26") , which perta ins to the scope and limit s on dis co v er y af

ter litigation has been filed. Plaintiffs arg ue that Rule 27 applies only to pre- filing litigation and, there fore , g ives parties all the broad rig hts they have to discovery under Rule 26. The Gover nment, on the other hand, ag ree ing with Plaintiffs’ sug g estion that the fac tors set forth in Rule 27 provide a useful g uide in assessing the pending Motion, arg ues that under Rule 27, a party must show (1) the likely future unavailability of the proposed deponent and (2) “a need for [t he proposed deponents’] testimony that cannot easily be acc essed by other potential witnesses.” Penn. Mut. L ife I nsuranc e Co., 68 F.3d a t 1374-75. Whil e the parties have cre ated an interesting aca demic dispute over the scope of Rule 27, and its rela tionship to Rule 26, they have basica lly lost sight of the woo d s for the tree s. When Case Manag ement Or der #1 was issued, discovery was stay ed. There fore , parties are not in a discove ry mode at this time. For that rea son, Rule 26 has no applicability at this time. Moreove r, depositions authorized for the purpose of prese rvation of testimony are not to be used as a substitut e for Rule 26 discovery

. See Petition of Kunimoto, 1996 WL 622094, *3 (D.D.C. Oct. 16, 1996). See also Penn. Mut. L ife I nsuranc e, 68 F .3d at 1376. As to the five individual fac t witnesses, at least two o f them, Captain J ack Stafford and Captain J ames W

. Ander son, Plaintiffs have no informatio n reve aling their l ocation, activities, or

even whether they are still alive. As to Gene ral Charles C. Krulak, Plaintiffs have not shown “a need for [hi s] testimony that cannot easily b e ac ce s s ed by other potential witnesses.” Penn. Mut. L ife I nsuranc e, 68 F.3d at 1374-75. As Plaintiffs descr ibe the information they hope to elicit from

-3-Gene ral Krulak, it is clea r that they are seeking mere ly his persona l views about wanting to establish

a separ ate United States Marine Corps Chaplain Corps, rather than har d fac ts. Pl aintiffs also see k testimony from him about the events at Quantico that led to the alleg ed CHC reta liation ag ainst three Plaintiffs. But Plaintiffs alre ady have substantial information from other witness es ab o u t that incident and there is nothing to show that failure to depose Gener al Krulak would be “a failure or delay of justice.” Rule 27(a) (3). Finally , as noted ear lier, Plaintiffs have had many y ear s to take this deposition and have offe red no e x cuse a s to why they have not de posed him. As to Captain L arr

y Ell i s , h e h as alre ady submitt ed a decla ration that was filed as an attachme nt to the very first complaint filed in this litigation on November 5, 1999. Ag ain, Plaintiffs offe r no explanation for their f ailure to de pose him during the many y ear s since 1999. As to Commander J ohn L y le, P laintiffs ca ndidly admit that they

want his testimony

to use

as corr oborating opinion testimony in support of Plaintiffs’ g ener al alleg ation about the state of the Chaplain Corps. There is no showing of his likely unavailability

in the future to justify taking his deposition in order to prese rve testimony

. Plaintiffs’ extremely vag ue statements that another Plaintiff made indicating that L y le was hospitaliz ed beca use of “a serious immune sy stem problem” which “may be such that is capa ble of rec urring ” hardly constitute an adequate, or even believable , justification for his unava ilability

.

-4-Parti es m u s t re member that discovery has been stay ed only , and no cut-off date for its

completion has been set. I f and when discovery is reope ned, P laintiffs will have their full opportunity

to proce ed under

Rule 26. For the re asons states, Plaintiffs’ Motion is granted in part and d enied in p art

. /s/ November

29, 2012 Glady s Kessler United States District J udg e Copies via ECF t o all couns el of recor d

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