Thank you for sharing!

Your article was successfully shared with the contacts you provided.
In a pair of race discrimination suits brought by six Philadelphia police officers, a federal magistrate judge has ruled that the plaintiffs cannot attend each other’s depositions and cannot read each other’s transcripts or discuss the testimony of any other plaintiff — either among themselves or with their lawyer. Plaintiffs’ attorney Daniel Conner of Philadelphia’s Abramson & Denenberg had agreed to have his six plaintiffs sequestered — meaning that they would not attend any of their co-plaintiffs’ depositions — but refused to go along with the other requests. The city’s lawyers, Mark J. Foley, Elizabeth A. Malloy and Jill Garfinkle Weitz of Philadelphia’s Klett Rooney Lieber & Schorling, responded by filing a motion for a protective order. In their brief in Moore et al. v. City of Philadelphia, the Klett Rooney team argued that the additional restrictions were required because the six plaintiffs have “overwhelmingly close” relationships, having worked together as police officers in the 25th District for several years. “The threat that plaintiffs will discuss the substance of their deposition testimony and will influence each other’s deposition testimony is real, and not theoretical,” they wrote. In the two suits, the six officers — Myrna Moore, Sheila Young, Raymond Carnation, William McKenna, Richard Safford and Michael McKenna — allege they were subjected to a racially hostile work environment and that they were retaliated against for complaining. (Michael McKenna filed a separate suit from the other five, but the two suits have been consolidated for discovery purposes.) The defense team noted that two of the plaintiffs — William and Michael McKenna — are twin brothers. William McKenna and Carnation were partners, they noted, and Moore and Young were also frequently paired as partners. Since suits are based on reports of racial epithets — which the city denies and says no one else heard — the defense team argued that it was “imperative to obtain each plaintiff’s independent recollection of the racial comments he or she allegedly heard.” To achieve that, they argued, the court should not only order sequestration but prohibit each of the plaintiffs from reading the transcript of any other plaintiff’s deposition, from discussing their testimony with any plaintiff who has not yet testified and from discussing any other plaintiff’s testimony with their lawyer. Such an order, the defense said, would “ensure the independent recollection of each witness and � prevent any influence on their deposition testimony, whether consciously or otherwise.” U.S. Magistrate Judge Jacob P. Hart of the Eastern District of Pennsylvania agreed with all of the defense requests. “These requests merely prohibit the indirect communication of information that they have agreed not to get directly by attending the depositions,” Hart wrote in a five-page memorandum. Hart found that it is “well settled” that a court may issue a protective order to sequester witnesses from a deposition. But excluding parties from a deposition under Federal Rule of Civil Procedure 26(c)(5) must be done only upon a showing of “extraordinary circumstances,” Hart wrote. As one Eastern District judge put it in Dade v. Willis, “sequestration will deny to the dishonest witness the advantage of observing the experience of other witnesses as they give their testimony on direct examination and are confronted with contradictions or evasions under cross-examination. At the least, it will make available the raw reactions and the individual recollection of each witness unaided by the stimulation of the evidence of any other witness.” But Hart said he did not intend to imply “any dishonesty on the part of the plaintiffs.” Instead, he said, such an order addresses the “risk that the deponents’ testimony may be influenced, even unintentionally, if they were allowed to attend the other witness’ deposition.” The decision, Hart said, turned on the specific facts of the plaintiffs’ relationships with each other. “Considering that many of the alleged discriminatory/ retaliatory incidents occurred in the stationhouse, with the only witnesses being parties to these two cases, we believe that good cause exists for limiting the people permitted to attend each deposition,” Hart wrote. Hart said he agreed to the defense team’s additional requests because “the purpose underlying the limitation of witnesses at a deposition would be frustrated if the parties could circumvent the order by such discussions.” Plaintiffs’ attorney Conner could not be reached for comment and did not file a brief on the issue. The case is assigned to U.S. District Judge Mary A. McLaughlin for trial.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.