M.D.Fla._8-12-cv-00568_91.pdf

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From lawsuit against grady judd.
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    00162910-1 UNITED STATES DISTRICT COURTMIDDLE DISTRICT OF FLORIDATAMPA DIVISION CHANDA HUGHES, as guardian and onbehalf of J.B., a minor; BRENDASHEFFIELD, as guardian and on behalf of J.D., a minor; VIOLENE JEAN-PIERRE, asguardian and on behalf of F.J.P., a minor;MICHELLE MINOR, as guardian and onbehalf of J.P., a minor; LISA JOBE, asguardian and on behalf of K.J., a minor; AMY GAGE, as guardian and on behalf of B.G., a minor; CRYSTAL CUYLER, asguardian and on behalf of D.M., a minor;NIKEYTA MATTHEWS, as guardian and onbehalf of K.G., a minor; and ANITA NAVA,as guardian and on behalf of A.H., a minor;on behalf of themselves and all otherssimilarly situated,Plaintiffs,v. Case No. 8:12-cv-00568-SDM-MAPGRADY JUDD, Polk County Sheriff, in hisofficial capacity, and CORIZON HEALTH,INC.,Defendants. _____________________________________/ DEFENDANT, GRADY JUDD’S, RESPONSE IN OPPOSITION TO PLAINTIFFS’  MOTION TO COMPEL THE DEPOSITION OF SHERIFF GRADY JUDD Defendant, GRADY JUDD, by and through the undersigned attorneys andpursuant to Rule 3.01(b), Local Rules of the Middle District of Florida, responds in opposition to Plaintiffs’ Motion to Compel the Deposition of Sheriff Grady Judd. 1. Despite this Court’s direction at the June 28, 2012, Status Conference,and the clear applicability of Local Rule 4.08(a), Local Rules of the Middle District of Florida, Plaintiffs argue that GRADY JUDD is not an elected state official. GRADY Case 8:12-cv-00568-SDM-MAP Document 91 Filed 07/23/12 Page 1 of 7 PageID 1037    00162910-1 2JUDD is a constitutional officer pursuant to Article VIII, Section (1)(d), Constitution of theState of Florida, and is the duly elected Sheriff of Polk County. Thus, Chapter 30,Florida Statutes (2011), governs his duties which include, in substantial part, theenforcement and execution of the laws of the State of Florida (see generally Section30.15 and 30.30, Florida Statutes (2011)).2. Plaintiffs cite Abusaid v. Hillsborough County Board of CountyCommissioners, 405 F.3d 1298 (11 th Cir. 2005), for their novel position. In fact, Abusaidstands for the proposition that Sheriffs such as GRADY JUDD at times act as arms of the state, and at times act as arms of the county in which they are elected. Thus, for Eleventh Amendment Immunity purposes, the court in Abusaid clarified a number of prior decisions with regard to Eleventh Amendment Immunity, recognizing that there is no longer an “across the board” determination that sheriffs are or are not arms of the state. The court then held that the four-factor test in Hufford v. Rodgers, 912 F.2d 1338(11 th Cir. 1990), remained viable, and must be considered on a case by case, functionby function approach to determine whether a sheriff in any particular case is acting asan arm of the state, or on behalf of the county he or she serves. Clearly, a Floridasheriff is an elected state official, and is often times acting on behalf of the state,particularly in his or her law enforcement and detention duties. See McMillian v.Johnson, 88 F.3d 1573 (11 th Cir. 1996), and McMillian v. Monroe County, 520 U.S. 1781(1997).3. Regardless, the deposition of GRADY JUDD should not be permitted,particularly at this stage of the lawsuit. As Sheriff of Polk County, GRADY JUDD is incharge of one of the larger sheriff  ’s agencies in one of the largest counties in Florida. Case 8:12-cv-00568-SDM-MAP Document 91 Filed 07/23/12 Page 2 of 7 PageID 1038    00162910-1 3His complete attention is and should be focused on ensuring that his agency providesfor the safety and security of the citizens of Polk County. However, in defending dozensof claims and lawsuits at any particular time of a wide variety of factual and legalscenarios, were GRADY JUDD subjected to being deposed where he has no firsthandknowledge as the underlying facts, he would not be able to timely attend to hisimportant responsibilities. Obviously, while GRADY JUDD is familiar with the big pictureof the operations of his agency and, as its head, is ultimately responsible for it, he mustdelegate to other supervisors and administrators the day to day operations of theagency, and the supervisors and administrators have personal knowledge of the facts of any particular case. Thus, his supervisors and administrators, including those whose  job it is to oversee Polk County’s  jails, have a much better knowledge of both theapplicable policies and the facts underlying this cause of action as they relate to Plaintiffs’ cl aims.4. Plaintiffs have just begun deposing those supervisors and administrators.In fact, Plaintiffs have scheduled the depositions of ten (10) supervisors, administratorsand Detention Deputies this month. The first deposition was taken on Friday, July 20,2012. Furthermore, while Plaintiffs have not exercised the option, they are obviouslyentitled to notice the deposition of the agency without naming specific persons to bedeposed pursuant to Rule 30(b)(6), Federal Rules of Civil Procedure. Given theavailability of supervisors, administrators and Detention Deputies with personal knowledge of the facts underlying Plaintiffs’ claims and giv en other discovery optionsavailable to Plaintiffs, including a Rule 30(b)(6), GRADY JUDD should not be subjectedto a deposition. Pursuant to Rule 26(c)(1)(A), Federal Rules of Civil Procedure, and for  Case 8:12-cv-00568-SDM-MAP Document 91 Filed 07/23/12 Page 3 of 7 PageID 1039    00162910-1 4good cause shown, this Court has broad discretion to manage pretrial discovery, and toprotect a party from annoyance, embarrassment, oppression or undue burden or expense, including among other options determining that certain discovery not takeplace, or that the scope of discovery be limited. Deposing GRADY JUDD, particularly atthis stage of the litigation, would be burdensome, inconvenient, duplicative and violativeof the apex doctrine. Salter v. Upjohn Company, 593 F.2d 649 (5 th Cir. 1979). As heldby this Court in Chik-Fil-A, Inc. v. CFT Development, LLC, 2009 WL 928226 (M.D.Florida 2009),(r)equests to depose high level corporate officers, as here, are commonly referred to as “ apex ” depositions and there is a considerable body of   jurisprudence addressing the circumstances, concerning when it isappropriate to depose the top executive in a company. Generally,because the CEO of a large corporation is familiar with the big picture of the operations of a company  – and is not familiar with the day to dayoperations of a business  – most courts have fashioned a test that requiresthe party seeking the deposition of a CEO to show that the executive has “unique or superior knowledge of discoverable information.” Id.See also Balfour Beatty Rail, Inc. v. Vaccarello, 2007 WL 842765 (M.D. Florida 2007);McMahon v. Presidential Airways, Inc., 2006 WL 5359797 (M.D. Florida 2006); CarnivalCorporation v. Rolls-Royce PLC, 2010 WL 16449595 (S.D. Florida 2010); Little LeagueBaseball, Inc. v. Kaplan, 2009 WL 426277 (S.D. Florida 2009); Stelor Productions, Inc.v. Google, Inc., 2008 WL 4218107 (S.D. Florida 2008); and Gutescu v. CareyInternational, Inc., 2003 WL 25589029 (S.D. Florida 2003). See also In re United Statesof America, 985 F.2d 510 (11 th Cir. 1993); and Thomas v. International BusinessMachines, 48 F.3d 478 (10 th Cir. 1995).5. As stated by the Court in Baine v. General Motors Corporation, 141 F.R.D.332 (M.D. Alabama 1991), citing approval several District Court cases, “when a party seeks to depose high-level decision makers who are removed from the daily subjects of  Case 8:12-cv-00568-SDM-MAP Document 91 Filed 07/23/12 Page 4 of 7 PageID 1040
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