G.H. et al., Plaintiffs, v. TAMAYO (2021)

ORDER ALLOWING INSPECTIONS AND MODIFYING THE SCHEDULE

In this proposed class action, the plaintiffs challenge the Florida Department of Juvenile Justice's practice of placing offenders in solitary confinement. The defendants are the Department and its Secretary. For convenience, this order sometimes refers to the defendants collectively as the Department.

The plaintiffs have inspected three of the Department's juvenile detention facilities and have moved to compel the Department to allow them to inspect up to five more. The Department objects and asserts that if inspections are allowed at all, they should be restricted. The plaintiffs have also moved to delay the schedule, in part because of the delays that have attended discovery to date. The Department opposes the motion.

Under Federal Rule of Civil Procedure 26(b)(1), the scope of discovery, unless further limited by court order, is this:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Under Federal Rule of Civil Procedure 34, a party may request entry onto land or other property, including to inspect the property “or operation on it.” This squarely covers the plaintiffs' proposed entry into the defendant's juvenile detention facilities. The proposed inspections will be relevant to the plaintiffs' claims. And up to three more inspections will be proportional to the needs of the case. This order compels the Department to allow the inspections.

A long line of cases has similarly allowed Rule 34 entry into facilities housing adults or juveniles. See, e.g., N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 706 F.2d 956, 960 (2d Cir. 1983) (Friendly, J.); Morales v. Turman, 59 F.R.D. 157 (E.D. Tex. 1972); Madrid v. Gomez, 889 F. Supp. 1146, 1160-61 (N.D. Cal. 1995); Alvarez v. LaRose, No. 3:20-cv-00782, 2020 WL 5594908, at *7-8 (S.D. Cal. Sep. 18, 2020). The Department has picked at factual differences in some of these cases, but there is scant authority on the other side.

The plaintiffs say that in the prior inspections, the Department did not allow the plaintiffs to observe the normal operation of the facilities, including the activities of juveniles. This order changes that. The plaintiffs must conduct the inspections in a manner that does not disrupt operations or pose a security risk, but the Department must allow the plaintiffs to observe the facilities' normal operation. This includes the activities of juveniles.

The Department says the plaintiffs' attorneys and experts should not be allowed to speak to an offender unless the offender's parent consents. The Department says this is so because any communication with an offender is, in effect, a mental-health examination. This is nonsense. Talking with an offender, without more, is not a mental-health examination. A juvenile offender can choose to speak with the plaintiffs or not, just as, on the outside, a juvenile can choose to speak to a teacher, librarian, or police officer on the beat, all without parental consent.

The Department says the plaintiffs should not be allowed to speak to an offender unless the Department's representatives are present and the interaction is videotaped. Otherwise, the Department says, the plaintiffs' experts could lie about what the offender said. This again is nonsense. Attorneys routinely interview witnesses and potential witnesses. The interviews need not be and usually are not videotaped, and the other side need not be and ordinarily is not present. Attorneys sometimes have investigators or experts conduct or attend interviews so they can provide any admissible testimony about what was said. Testimony about what was said is often inadmissible hearsay—but testimony about what was said is never inadmissible solely on the ground that the testimony may be untrue.

The Department says interviews should be precluded because the rules provide the more formal process of depositions. This has it exactly backwards. Interviews are less burdensome, less expensive, and more likely to be proportional to the needs of a case. When an interview will work as well as a deposition, an interview is preferred. The Department can operate its facilities, but it cannot properly instruct any potential witness—including offenders in the facilities—not to talk to the plaintiffs' attorneys.

None of this means, however, that the plaintiffs should be able to conduct interviews within the facilities during the inspections. Rule 34 does not explicitly require the Department to allow this, and even if the rule could be read this broadly, the better exercise of discretion here is not to allow it. Attempting to conduct interviews within the facilities would risk unnecessary disruption and might pose a security risk.

If a class is certified, a form of notice and procedures may be implemented that would allow offenders to contact the plaintiffs' attorneys. This would eliminate or at least reduce the risk of disruption and would provide substantial assurance that any contact was voluntary. This is a better alternative than allowing unscheduled interviews of potential class members within the facilities during an inspection.

Under Federal Rule of Civil Procedure 37(a)(5)(A) and (B), the court “must” order the party that loses a discovery motion or the party's attorney or both to pay the opposing party's reasonable expenses, including attorney's fees, with three exceptions. First, a moving party cannot recover expenses if the party filed the motion before attempting in good faith to obtain the discovery without court action. Second, an award is improper if the losing party's position was “substantially justified.” And third, an award is improper if “other circumstances make an award of expenses unjust.” Unless one of these conditions is met, an award of expenses is “mandatory.” Devaney v. Cont'l Am. Ins. Co., 989 F.2d 1154, 1162 (11th Cir. 1993) (citing Merritt v. Int'l Bhd. of Boilermakers, 649 F.2d 1013, 1019 (5th Cir. 1981)). A position is “substantially justified” if it results from a “genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action.” Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (citations, quotation marks, and brackets omitted); Devaney, 989 F.2d at 1163.

Here each side's position was, for the most part, substantially justified. Neither side won across the board. And an award of expenses would be unjust. This order does not award expenses.

Finally, the plaintiffs are correct that there have been delays in the discovery process. I have been slower than I would have liked in ruling on the class-certification motion. And covid-19 cases are again rising. This order extends the schedule, but not by as much as the plaintiffs have requested.

IT IS ORDERED:

1. The plaintiffs' motion to compel entry onto land, ECF No. 136, is granted in part. The defendants must allow the plaintiffs to enter and inspect up to three more facilities of the plaintiffs' choice and to observe normal operations, including activities of offenders. The inspections must occur under conditions that are consistent with this order and acceptable to officials of the facilities. The parties must confer in good faith to reach agreement on inspection dates.

2. The plaintiffs' motion, ECF No. 140, for leave to file a reply memorandum in support of the motion to compel is denied.

3. The plaintiffs' motion to modify the schedule, ECF No. 138, is granted in part.

4. The deadline for the plaintiffs' Federal Rule of Civil Procedure 26(a)(2) disclosures is extended to November 24, 2021.

5. The deadline for the defendants' 26(a)(2) disclosures is extended to January 7, 2022.

6. The deadline for the plaintiffs' rebuttal 26(a)(2) disclosures is 30 days after the defendants' disclosures.

7. The discovery deadline is extended to March 17, 2022.

8. The deadline to move for summary judgment is May 2, 2022.

9. The trial is rescheduled for September 19, 2022.

SO ORDERED on August 4, 2021.

Robert L. Hinkle, United States District Judge