UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) VICTORIA MANNINA ) ) Plaintiff, ) ) v. ) Civil Action No. 15-931 (KBJ/RMM) ) DISTRICT OF COLUMBIA, ) ) Defendant. ) )

MEMORANDUM OPINION

Although the Federal Rules of Civil Procedure permit discovery of a broad range of

matters, the Rules also require courts to manage discovery to avoid undue cost or burden. Thus,

discovery may be limited where a party has access to more convenient sources of the same

information. Defendant the District of Columbia (“Defendant” or “the District”) sought a

protective order preventing the depositions of two witnesses—the former General Counsel of one

of the Defendant’s agencies (Maria Amato), 1 and a litigation paralegal who has worked on this

case (Dede Pearson). See Def.’s 2d Mot. Protective Order (“Def.’s Mot.”) at 1, ECF No. 97.

Plaintiff Victoria Mannina (“Plaintiff” or “Ms. Mannina”), opposed that motion, contending that

she should be permitted to depose both witnesses, and has identified sixteen proposed topics to

address in those depositions. See Pl.’s Mem. Opp’n Def.’s Mot. Protective Order (“Pl.’s

Mem.”), ECF No. 98; Pl.’s Notice Proposed Topics Deps. Maria Amato and Dede Pearson

(“Deps. Topics”), ECF No. 92. After considering the parties’ submissions and attachments

1 Ms. Amato was the General Counsel of the Department while the pending motion was being briefed but does not currently hold that position. thereto,2 the Court granted-in-part and denied-in-part Defendant’s Second Motion for Protective

Order in a Memorandum Order issued September 30, 2019. Mem. Order, ECF No. 130. This

Memorandum Opinion sets forth the reasoning for that ruling in more detail.

BACKGROUND

This case arises from the suicide of Paul Mannina (“Mr. Mannina”), and Ms. Mannina

brings this action as widow and representative of Mr. Mannina’s estate. 2d Am. Compl., ECF

No. 33. Ms. Mannina alleges that, in June 2013, Mr. Mannina died while in the custody of the

District’s Department of Corrections (“DOC”) at its Central Detention Facility (“D.C. Jail”). Id.

at ¶¶ 1, 35. Ms. Mannina brings civil rights claims under

and the Due Process

Clause of the Fifth Amendment, and also brings tort claims including negligence and wrongful

death. See

at ¶¶ 36–54. During discovery, Ms. Mannina noticed the depositions of Ms.

Amato and Ms. Pearson. See Def.’s Mot., Ex. 4 (“Dep. Notices”), ECF No. 97-6. The District

moved for a protective order to prevent the deposition of Ms. Amato and Ms. Pearson. See

Def.’s Mot. at 1.

I. Factual Background

When the District’s Motion was filed, Ms. Amato had been the General Counsel for the

District’s Department of Corrections (“DOC”) since 2006. Def.’s Mot., Ex. 1 (“Amato Decl.”)

at ¶ 1, ECF No. 97-3. As General Counsel, Ms. Amato provided legal advice and legal

sufficiency reviews on a range of issues affecting DOC, including inquiries from outside parties,

Memoranda of Understanding, and Freedom of Information Act requests. See

. In this

litigation, Ms. Amato helped manage DOC’s preservation duties, including forwarding

instructions from the Office of the Attorney General (“OAG”) and reviewing the Complaint to

2 Def.’s Mot.; Pl.’s Mem.; Def.’s Reply Mem. Supp. Mot. Protective Order (“Def.’s Reply”), ECF No. 104.

2 identify relevant information.

. Ms. Amato also supervised DOC’s preparation of

written discovery responses, identified appropriate Rule 30(b)(6) witnesses, and provided “legal

advice and comments on draft motions, oppositions and other filings.”

at ¶¶ 8–9. Ms. Amato

did not have operational authority to manage inmates’ mental health services.

.

She also lacks personal knowledge of Mr. Mannina.

. Ms. Amato did not create the

“Court Alerts Program,”

, a program established in 2005 to improve communications

between the D.C. courts and D.C. Jail. See Pl.’s Mem. at 10. Ms. Amato did, however, send a

letter on behalf of DOC to the District of Columbia Bench and Bar, explaining expansions to that

program in December 2013. Amato Decl. at ¶¶ 14–19; see also Amato Decl., Ex. 3 (copy of

letter to District of Columbia Bench and Bar), ECF No. 97-3.

Ms. Pearson has been a paralegal in DOC’s Office of the General Counsel since 2012.

Def.’s Mot., Ex. 2 (“Pearson Decl.”) at ¶ 1, ECF No. 97-4. Ms. Pearson, under the direction and

supervision of the General Counsel, prepares responses to discovery requests, identifies Rule

30(b)(6) witnesses, and executes litigation holds.

. In this litigation, Ms. Pearson

requested copies of documents related to Mr. Mannina, arranged fact witness and Rule 30(b)(6)

witness depositions, and assisted OAG by responding to document requests and other inquiries.

. Ms. Pearson has no personal knowledge of Mr. Mannina’s death and has no

involvement in the operations of the D.C. Jail.

at ¶¶ 5–6.

II. Procedural Background

On October 27, 2017, Judge Ketanji Brown Jackson referred this matter to the

undersigned Magistrate Judge for management of discovery. See 10/27/2017 Min. Order;

10/27/2017 Random Case Referral. On November 17, 2017, Ms. Mannina noticed the

depositions of Ms. Amato, Ms. Pearson, two other DOC employees, and the District under Rule

3 30(b)(6). Dep. Notices at 1.3 On January 29, 2018, the District moved for a protective order to

prevent the proposed depositions of Ms. Amato and Ms. Pearson. Mot. Protective Order, ECF

No. 54.

On September 29, 2018, upon review of the parties’ submissions and the arguments

presented at a motions hearing, the Court denied the District’s motion without prejudice. Mem.

Order, ECF No. 90. The Court found that the District had not provided evidence to either meet

its burden to show the depositions would be unduly burdensome, or to shift the burden to Ms.

Mannina by showing that Ms. Amato was trial counsel.

. The Court also found that Ms.

Mannina had not clearly defined the topics on which she sought to depose Ms. Amato and Ms.

Pearson.

On October 5, 2018, Ms. Mannina filed a Notice with proposed deposition topics for Ms.

Amato and Ms. Perason. Deps. Topics. The District subsequently filed its Renewed Motion for

Protective Order. Def.’s Mot. Ms. Mannina filed an Opposition to the Motion, and the District

filed a Reply. See Pl.’s Mem.; Def.’s Reply. The Court granted-in-part and denied-in-part the

Motion in a Memorandum Order issued on September 30, 2019. Mem. Order, ECF No. 130.

This Memorandum Opinion sets forth the reasoning for that Order in greater detail.

LEGAL STANDARD

I. Fed. R. Civ. P. 26

Under Rule 26(b)(2), “the court must limit the frequency or extent of discovery . . . [if]

the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some

other source that is more convenient, less burdensome, or less expensive.” Fed. R. Civ. P.

3 In their brief, Defendants assert that Ms. Mannina noticed the depositions on November 11, 2017. Def.’s Mem. at 2. Ms. Mannina does not address this discrepancy in her brief, and the timing is immaterial to the undersigned’s analysis.

4 26(b)(2)(C)(i). The court also must limit discovery that is “outside the scope permitted by Rule

26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C)(iii). Rule 26(b)(1) limits discovery to “any nonprivileged

matter that is relevant to any party’s claim or defense and proportional to the needs of the case.”

Fed. R. Civ. P. 26(b)(1).4

The court may also “for good cause, issue an order to protect a party or person from

annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1).

Ordinarily, the party requesting the protective order bears the burden of showing good cause “by

demonstrating specific evidence of the harm that would result.” Jennings v. Family Mgmt.,

(D.D.C. 2001); see also Alexander v. FBI,

(D.D.C. 1998)

(“The party requesting a protective order must make a specific demonstration of facts in support

of the request as opposed to conclusory or speculative statements about the need for a protective

order and the harm which will be suffered without one.”). Courts reviewing such motions

generally employ a balancing test “weighing the movant’s proffer of harm against the

adversary’s ‘significant interest’ in preparing for trial.” Jennings,

; see also

Alexander,

.

II. Shelton v. American Motors Corporation

When evaluating requests to depose opposing trial counsel, some courts in this Circuit

have applied a standard articulated by the Eighth Circuit in Shelton v. American Motors Corp.,

(8th Cir. 1986). Under Shelton, a party seeking to depose trial counsel may only

4 While proportionality has always been pertinent to the review of the scope of discovery, the 2015 amendments highlighted its significance. See Oxbow Carbon & Minerals LLC v. Union Pac. R.R. Co.,

, 6 n.3 (D.D.C. 2017) (“The 2015 amendments have brought to the forefront of Rule 26 the concept of proportionality.”); Prasad v. George Washington Univ.,

, 91 (D.D.C. 2017) (noting that Rule 26 was amended “to emphasize the need for proportionality in discovery and to ‘encourage judges to be more aggressive in identifying and discouraging discovery overuse’”) (citing Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment).

5 do so by meeting three factors: “(1) no other means exist to obtain the information than to depose

opposing counsel; (2) the information sought is relevant and non-privileged; and (3) that the

information is crucial to the preparation of the case.” Guantanamera Cigar Co. v. Corporacion

Habanos, S.A.,

(D.D.C. 2009) (citing Jennings,

). Thus,

Shelton shifts the burden to the party seeking discovery, as opposed to the party seeking a

protective order, “when the potential deponent is opposing counsel.” Guantanamera Cigar Co.,

; see also Coleman v. District of Columbia,

(D.D.C. 2012)

(“When a party seeks to depose opposing counsel, the normally permissive discovery rules

become substantially less so.”). The Shelton standard deems depositions of litigation counsel

presumptively burdensome because they may “undermine attorney-client communications,

present unique opportunities for harassment, disrupt opposing counsel’s preparation, may lead to

opposing counsel’s disqualification, and may spawn collateral litigation on issues of privilege,

scope, and relevancy.” Coleman,

(citing Sterne Kessler Goldstein & Fox,

PLLC v. Eastman Kodak Co.,

, 380–82 (D.D.C. 2011)).

DISCUSSION

I. The Court Reviews the Motion for Protective Order under the Framework of Rule 26 instead of Shelton.

The D.C. Circuit has not addressed whether to adopt the Shelton test, but some courts in

this Circuit have applied Shelton when reviewing requests to depose attorneys. See United States

v. All Assets Held in Account Number XXXXXXXX, 13-cv-1832 (JDB),

at *4

(D.D.C. Jan. 3, 2019) (discussing authority within the Circuit); Guantanamera Cigar Co.,

(applying Shelton); Coleman,

(applying Shelton). Given that

Shelton appears more restrictive than the rules that otherwise govern discovery, other courts have

expressed reluctance to follow Shelton. See United States v. Philip Morris Inc.,

,

6 19 (D.D.C. 2002) (“Defendants’ broadbrush view of Shelton would allow parties to avoid

discovery on subject matter that would otherwise be discoverable under the Federal Rules.”); see

also In re Subpoena Issued to Dennis Friedman,

(2d Cir. 2003) (Sotomayor, J.)

(“[T]he standards set forth in Rule 26 require a flexible approach to lawyer depositions whereby

the judicial officer supervising discovery takes into consideration all of the relevant facts and

circumstances to determine whether the proposed deposition would entail an inappropriate

burden or hardship.”). Although the Court requested supplemental briefing regarding the

potential applicability of the Shelton framework, see Mem. Order, ECF No. 90, the information

the parties have provided demonstrates that the nature and scope of the proposed depositions of

Ms. Amato and Ms. Pearson exceed the permissible bounds of discovery under Rule 26.

Consequently, the Court need not determine whether to adopt the more restrictive Shelton test, or

whether Ms. Amato and Ms. Pearson should be deemed trial counsel under Shelton, and instead

will resolve this Motion under Rule 26. Accord All Assets Held in Account Number XXXXXXXX,

, at *4 (declining to decide whether to follow Shelton and applying Rule 26).

II. The Proposed Depositions of Ms. Amato and Ms. Pearson are Not Proportional to the Needs of the Case and Would Cause Undue Burden

Permitting Ms. Mannina to depose Ms. Amato and Ms. Pearson on all the proposed

topics would be disproportional to the needs of the case, although some of the proposed areas of

inquiry are relevant and non-privileged. First, much of the proposed deposition testimony is

likely to be redundant, because Ms. Mannina has already deposed at least sixteen other

individuals. Second, the proposed depositions would burden the District by risking the

inadvertent disclosure of privileged information and interfering with Ms. Pearson’s ability to

assist in the Defendant’s case. As explained below, narrowing the proposed discovery to permit

Ms. Mannina to depose Ms. Amato by written question regarding a narrowed list of topics best

7 balances Ms. Mannina’s interest in building her case with the District’s interest in avoiding

undue burden.

A. The Proposed Depositions Would Add Little Value to Ms. Mannina’s Case

Ms. Mannina proposes deposing Ms. Amato and Ms. Pearson on at least sixteen specific

topics. See Deps. Topics at 2–4. The District asserts that it has already provided the information

sought through other witnesses and documentary evidence. Def.’s Mem. P. & A. Supp.

Renewed Mot. Protective Order (“Def.’s Mem.”) at 6–14, ECF No. 97-1. Ms. Mannina responds

that Ms. Pearson and Ms. Amato have information other witnesses lack. Pl.’s Mem. at 15–16.

Because Rule 26 requires a fact-specific inquiry, the Court addresses the added benefit of

deposing Ms. Amato and Ms. Pearson on each topic in turn. See, e.g., Oxbow Carbon &

Minerals,

(“[A]ll proportionality determinations must be made on a case-by-case

basis.”); Alexander,

(request for a protective order must be supported by “a

specific demonstration of facts”).

1. The DOC’s suicide prevention policies, including their effectiveness in compliance with these policies, as well as both witnesses’ nonprivileged actions in proposing, formulating, and enforcing these policies5

Although the DOC’s suicide prevention policies are relevant to Ms. Mannina’s claims,

Ms. Mannina has already obtained, or could obtain, testimony on this topic from other witnesses,

including Dr. Beth Mynett and Dr. Diana Lapp. Dr. Mynett, the DOC’s Medical Director and

Health Services Administrator, testified as both a fact and 30(b)(6) witness about DOC’s suicide

prevention policy and training. Def.’s Mem., Ex. 3 (“Summary Chart”) at 2, ECF No. 97-5. Dr.

5 This topic is distinct from the Suicide Prevention Task Force, addressed in Discussion II.A.9, infra.

8 Lapp, Unity Healthcare’s deputy chief medical officer, testified about Unity’s and DOC’s suicide

prevention policies, training, and compliance. 6 See

Ms. Amato and Ms. Pearson are unlikely to provide non-duplicative, relevant testimony

regarding this topic. Ms. Amato lacks “operational authority,” and as general counsel did not

“propose,” “formulate,” or “enforce” suicide prevention policies, except to review their legal

sufficiency. Amato Decl. at ¶ 4. Ms. Pearson similarly does not “propose,” “formulate,” or

“enforce” suicide prevention policies. Pearson Decl. at ¶ 3. Even if Ms. Amato and Ms. Pearson

have some non-privileged knowledge of DOC’s compliance with its suicide prevention policies,

medical officers, like Dr. Mynett and Dr. Lapp, are more likely to offer meaningful testimony.

2. The deaths of four DOC inmates by suicide, including Plaintiff’s decedent Paul Mannina, in a single year from 2013 to 2014

Although the four suicide deaths between 2013 to 2014, including Mr. Mannina’s, are

relevant to this case, Ms. Mannina has already obtained, or could obtain, testimony on this topic

from several witnesses, including Katherine Grosso, Ben Collins, and Wanda Patten. For

example, Ms. Grosso, a forensic investigator for the District’s Office of the Chief Medical

Examiner, testified about her investigation of Mr. Mannina’s death in preparation of the autopsy

report. Summary Chart at 3. Mr. Collins, Director of DOC’s Office of Investigative Services,

testified about his preparation of DOC’s investigative report on Mr. Mannina’s suicide. Id. at 2.

Ms. Patten, DOC’s Interim Deputy Director of Operations, who supervised Mr. Collins’

preparation of the investigative report, testified about DOC’s investigations of Mr. Mannina’s

suicide and communications about the investigative report. Id. at 3; Def.’s Mem. at 8. The

6 Unity Healthcare provides all healthcare to individuals incarcerated at D.C. Jail. See Def.’s Mem. at 8.

9 District also has produced the investigative report into Mr. Mannina’s death, as well as the

investigative reports for the other three suicides. Def.’s Mem. at 8.

Ms. Amato and Ms. Pearson are unlikely to provide non-duplicative, relevant testimony

regarding this topic. Neither Ms. Amato nor Ms. Pearson has personal knowledge of Mr.

Mannina or his suicide. Id. at 7. Further, even if Ms. Amato’s or Ms. Pearson’s factual

knowledge is non-privileged, their testimony is likely to overlap with the reports and testimony

of investigators like Mr. Collins. See Def.’s Reply at 4. Thus, neither proposed witness is likely

to share any “unique” information. See Jennings,

(allowing deposition where

plaintiff’s counsel was “in a unique position to testify as to the information defendants

[sought]”).

3. DOC’s internal unprivileged communications and actions regarding suicidal inmates

This topic appears to significantly overlap with Topic 2, which seeks information

regarding four suicides in 2013 and 2014. See supra, Discussion II.A.2. To the extent this topic

encompasses potential testimony that is distinct from Topic 2, Ms. Mannina has already

obtained, or could obtain, testimony on communications and actions regarding suicidal inmates

from other witnesses, including Dr. Beth Mynett and Wanda Patten. Def.’s Mem. at 7–8. Dr.

Mynett testified about mental health care at D.C. Jail and DOC’s records regarding any mental

health care that DOC provided or should have provided Mr. Mannina. Summary Chart at 2. Mr.

Patten testified about internal communications regarding the investigative report on Mr.

Mannina’s suicide and DOC communications with Unity Healthcare. Summary Chart at 3. The

District has also produced nine years of emails reporting DOC actions taken when inmates

threaten or attempt suicide, and the relevant policies. See Def.’s Mem. at 8–9.

10 Ms. Mannina has not demonstrated that Ms. Amato or Ms. Pearson would add any non-

duplicative testimony on this topic. There is no reason to believe that Ms. Pearson has personal

knowledge of this subject area, given her responsibilities as a litigation paralegal. See Pearson

Decl. at ¶ 3. To the extent that Ms. Amato may have had nonprivileged communications about

suicidal inmates with other parties, those other parties are more appropriate deponents. See

generally Guantanamera Cigar Co.,

(deposition of litigation counsel is

duplicative where “information regarding meetings and a relationship between two people are in

fact known to both people.”); Coleman,

(parties should first seek testimony

from non-attorney witnesses before “jumping straight” to litigation counsel). Further, given that

Dr. Mynett testified as both an individual and 30(b)(6) witness, Ms. Mannina had an opportunity

to obtain testimony on this topic that reflects the full scope of DOC’s knowledge, even if Dr.

Mynett’s or other witnesses’ personal knowledge is more limited.

4. DOC’s understanding that it was failing to gather information on inmate suicidality from outside DOC and the effect thereof

Although information concerning DOC’s knowledge of the scope and effects of its

alleged failure to gather information from outside sources regarding inmate suicidality is relevant

to Ms. Mannina’s claims, she has already obtained, or could obtain, testimony on this topic from

several witnesses including Wanda Patten, Shellie Chisholm, and Dr. Beth Mynett. Ms. Patten

testified about the manner in which DOC shared information with Pretrial Services. Summary

Chart at 3. Dr. Mynett testified about the Court Alerts Program, a D.C. Superior Court system

for communicating medical information from the Superior Court to the D.C. Jail Medical Office.

Id. at 2. Ms. Chisholm, a program officer in the Records Department at DOC, testified about the

District’s access to the files of Unity Healthcare, the U.S. Attorney’s Office, Pretrial Services,

D.C. Superior Court, and the Court Alert system. Id. at 4; Def.’s Mem. at 10.

11 Witnesses from non-DOC entities have also testified regarding their exchange of

information with DOC. Alexander MacBean, an investigator with the Metropolitan Police

Department (“MPD”), testified about information sharing between Pretrial Services and MPD.

Summary Chart at 2. Dr. Fidelis Doh, Director of Intakes for Unity Healthcare, testified about

the Court Alerts Program as it relates to medical staff at Unity Healthcare. Id. Also, Sheena

Baynes-Bagley, a Pretrial Services officer, testified about information sharing between Pretrial

Services and the D.C. Department of Behavioral Health (“DBH”), MPD, and DOC. Id. at 3.

Ms. Mannina has not demonstrated that Ms. Amato or Ms. Pearson would be likely to

have relevant, non-duplicative, testimony regarding this topic. Ms. Chisholm testified as a

30(b)(6) witness regarding DOC’s access to information possessed by outside entities including

MPD, Pretrial Services, and the Superior Court, and in that capacity should have

comprehensively addressed this topic. Although Ms. Amato acknowledged that she played a

role in coordinating communications across agencies, that is insufficient to demonstrate that she

is likely to have information beyond that presented in the 30(b)(6) depositions and other

witnesses’ testimony. See Amato Decl. at ¶ 4(s).

5. The history of the “Court Alert” program

The history of Court Alert program has some potential relevance to this case to the extent

that details regarding the program’s origin may identify known deficiencies in the transmission

of information about a defendant’s suicide risks or other mental health concerns to DOC.

However, as the program was developed in 2005, approximately eight years before Mr.

Mannina’s death, its history is less relevant than most of the other topics at issue in the Motion.

Amato Decl., Ex. 2. In any event, Ms. Mannina has already obtained, or could obtain, testimony

regarding this topic from other witnesses, including Shellie Chisholm, Dr. Beth Mynett, Wanda

Patten, and Dr. Fidelis Doh. Ms. Chisholm, Dr. Mynett, Ms. Patten, and Dr. Doh all testified

12 about the Court Alert program, and Ms. Mannina could have explored the history of that

program during their depositions. Summary Chart at 2–3. Further, to the extent Ms. Mannina

bases her request for Ms. Amato’s testimony on Ms. Amato’s alleged role in “originating” the

Court Alerts program, see Deps. Topics at 3, Ms. Mannina is mistaken; Ms. Amato did not create

the Court Alerts program, as it was established before she became DOC’s General Counsel.

Def.’s Mem. at 9–10; Amato Decl. at ¶ 13.

6. Ms. Amato’s coordination with other agencies, such as MPD, DBH, or other courts, regarding the Court Alert program or any proposed system to share information on inmate suicidality

Ms. Mannina has already obtained, or had an opportunity to obtain, testimony about

DOC’s coordination with other agencies regarding systems to share information on inmates’

suicide risks through her depositions of other witnesses, including Shellie Chisholm, Dr. Beth

Mynett, Wanda Patten, and Dr. Fidelis Doh. As noted above, Ms. Chisholm, Dr. Mynett, Ms.

Patten, and Dr. Doh all testified about the Court Alerts program. Summary Chart at 2–3. In

addition, Sheena Baynes-Bagley testified about information sharing between Pretrial Services

and other agencies, including DOC, DBH, and MPD. Id.

However, Ms. Mannina has demonstrated that deposing Ms. Amato might yield further

information that she could not obtain through other witnesses. Ms. Amato did not create the

Court Alerts program. See Amato Decl. at ¶ 13. After Mr. Mannina’s death, Ms. Amato signed

a letter (on behalf of DOC Director Thomas Faust) asking members of the District of Columbia

Bench and Bar to include a notice to DOC if a defendant receives information in court that may

increase the risk for suicide, and explained the procedures DOC would take upon receiving such

a notice. See id. at ¶¶ 13–19 & Ex. 3. Although Ms. Amato did not designate herself as the

point of contact for such alerts when she sent the letter, Dr. Mynett testified that she believed

“there were numerous conversations. . . with DOC leadership and our legal counsel, Maria

13 Amato, to judges” regarding DOC’s need for information about medical or mental health

concerns about inmates. Pl.’s Mem., Ex. 2 (“Mynett Dep.”) at 74:22–75:2. Further, when asked

how courts may notify DOC “of concerns they have about suicidality,” Dr. Mynett answered

“You’ll have to ask Ms. Amato.” Id. at 75:19–76:2. Ms. Amato also acknowledges that she has

received emails from attorneys and others regarding increased suicide risks of individuals

incarcerated at D.C. Jail, although she forwards those requests to the appropriate DOC and Unity

Healthcare employees. Amato Decl. at ¶ 20. Thus, deposing Ms. Amato would give Ms.

Mannina an opportunity to discover additional information given Ms. Amato’s unique role in the

Court Alerts program.

The parties dispute the relevance of any information Ms. Amato may possess regarding

the Court Alerts program. The District asserts that no Court Alert was issued for Mr. Mannina,

and thus the Court Alert program is not proximately related to Mr. Mannina’s death. See Def.’s

Mem. at 10 n.3; Def.’s Reply at 5. Ms. Mannina counters that testimony about Court Alert

would shed light on whether DOC actively participated in Court Alerts or otherwise reached out

to outside entities to gather information about its inmates’ suicide risks. Pl.’s Mem. at 13. Ms.

Mannina has demonstrated a sufficient connection between this area of inquiry and her claims to

clear the relatively low bar of establishing relevance during discovery. See generally Food Lion,

Inc. v. United Food and Comm. Workers Intern. Union, AFL-CIO-CLC,

(D.C. Cir. 1997). Thus, Ms. Amato’s role in drafting the letter to the District of Columbia Bench

and Bar and her role in coordinating information between DOC and other entities are relevant

topics for which there is no available alternative source. These topics do not include the history

of the Court Alert program before Ms. Amato’s involvement, other individuals’ roles in the

14 Court Alert program, or hypothetical actions Ms. Amato may have taken under different

circumstances.

7. Ms. Amato’s actions as DOC’s “point person” on the Court Alerts Program

This topic significantly overlaps with Topic 6, and Ms. Amato may provide relevant non-

duplicative testimony regarding the Court Alerts program for the reasons discussed regarding

Topic 6. It is unnecessary for the Court to decide whether Ms. Amato was a “point person.” See

Def.’s Mem. at 10; Pl.’s Mem. at 10. Ms. Amato clearly coordinated with other agencies on

behalf of DOC and received emails regarding medical alerts, even if she was not responsible for

running or overseeing DOC’s involvement with the Court Alerts program.

8. Ms. Amato’s unprivileged communications and directions to other District employees and contractors with regard to the Court Alert program, and more generally, the management of mental health services at the DC Jail

Communications regarding the Court Alert program and mental health services at D.C.

Jail are relevant for the reasons noted above. See supra, Discussion II.A.5. While relevant, Ms.

Mannina, has already obtained, or could obtain, testimony about this topic from other witnesses,

including Shellie Chisholm, Dr. Beth Mynett, Wanda Patten, and Dr. Fidelis Doh. As previously

described, Ms. Chisholm, Dr. Mynett, Ms. Patten, and Dr. Doh all testified about the Court

Alerts program. Summary Chart at 2–3. Ms. Chisholm was the District’s designated 30(b)(6)

witness regarding Court Alerts, and in that capacity provided testimony reflecting the full scope

of the District’s knowledge of the Court Alerts program. Pl.’s Mem. at 10. Dr. Mynett also

testified about mental health care at the D.C. Jail. Id. at 2. Dr. Doh also testified about Mr.

Mannina’s medical intake evaluation. Id.

It is unlikely that Ms. Amato, a lawyer with no oversight over mental health services, has

additional information on the “management of mental health services at the DC Jail,” beyond

15 what Dr. Mynett and Dr. Doh, who are both medical officers, have already provided. Ms. Amato

neither conducted clinical evaluations, nor provided or managed mental health services for D.C.

Jail inmates. Amato Decl. at ¶¶ 17, 21. Ms. Amato also was not responsible for reviewing and

processing Court Alerts, and when she received information about an individual’s suicide risk

she forwarded it to the appropriate DOC and Unity Healthcare employees. Id. at ¶¶ 19–20;

Def.’s Mem. at 10. Accordingly, Ms. Amato is unlikely to have any nonduplicative relevant

information to add to other witnesses’ testimony on these topics.

To the extent Ms. Mannina seeks testimony about District employees’ and contractors’

communications or statements to Ms. Amato regarding those subject areas, Ms. Mannina can

explore that topic by deposing the non-counsel parties to those communications or statements.

See supra, Discussion II.A.3. (citing Guantanamera Cigar Co.,

).

9. Ms. Amato’s and Ms. Pearson’s actions with regard to and knowledge of the inter-agency Suicide Prevention Task Force (“SPTF”) and the Suicide Prevention and Intervention Improvement Team (“SPIIT”)

The SPTF and SPIIT are potentially relevant to Ms. Mannina’s claims to the extent that

information about those groups reveals steps that the District could or should have taken to

prevent Mr. Mannina’s suicide. While relevant, Ms. Mannina has already obtained, or could

obtain, testimony about the SPTF and SPIIT from other witnesses, including Dr. Beth Mynett,

Dr. Diana Lapp, and Wanda Patten. Dr. Mynett testified about the SPTF’s recommendations and

their implementation, as well as DOC’s work with SPIIT. Summary Chart at 2. Dr. Lapp and

Dr. Mynett were both directly involved in formulating and implementing the Task Force’s

recommendations. Def.’s Mem. at 11. Ms. Patten testified about SPIIT. Summary Chart at 3.

In addition, to the extent Ms. Mannina seeks testimony about communications or statements that

Ms. Amato and Ms. Pearson made to others regarding these topics, Ms. Mannina can depose the

16 non-counsel parties to those communications or statements. See supra, Discussion II.A.3. (citing

Guantanamera Cigar Co.,

).

Ms. Amato and Ms. Pearson are unlikely to provide non-duplicative, relevant testimony

regarding the SPTF or SPIIT. Ms. Amato reviewed the Task Force’s recommendations for legal

sufficiency, but her responsibilities as General Counsel did not include setting DOC suicide

prevention policy. Def.’s Mem. at 10; Def.’s Reply at 3; Amato Decl. at ¶ 11; Amato Decl. at ¶

4 (listing responsibilities as General Counsel). Ms. Pearson’s description of her responsibilities

as a litigation paralegal shares “no nexus” with the task forces. Def.’s Mem. at 10; Pearson Decl.

at ¶¶ 3–4.

10. The DOC’s razor control policies

The DOC’s razor control policies are potentially relevant to Ms. Mannina’s claims

because Mr. Mannina used a razor to commit suicide. See Pl.’s Mem. at 12. While relevant, Ms.

Mannina has already obtained, or could obtain, testimony about the DOC’s razor control policies

from other witnesses, including Ben Collins, Sharon Cain Smith, and Wanda Patten. Mr. Collins

testified about DOC’s razor control policies. Summary Chart at 2. Ms. Cain Smith, a major of

operations at DOC, testified about razor and contraband policies, including the distribution and

collection of razors.

. Ms. Patten also testified about razor policy.

Ms. Mannina has not shown that Ms. Amato or Ms. Pearson are likely to have non-

duplicative, relevant testimony about DOC’s razor control policies. Both witnesses deny having

any operational authority or independent knowledge of this topic. Def.’s Mem. at 11. Ms.

Amato knows only what she learned from reviewing the razor control policies for legal

sufficiency. Amato Decl. at ¶ 22. Ms. Pearson has no knowledge of the operations of DC Jail

and her job duties do not encompass setting policy. Pearson Decl. at ¶¶ 3, 6.

17 11. The DOC’s daily practice of destroying records regarding razor distribution to prisoners

This proposed topic appears to concern whether the District destroyed hypothetical

records. As noted in the Memorandum Order resolving Ms. Mannina’s Motion Regarding

Spoliation, the Court will not permit further discovery regarding the District’s alleged spoliation

of relevant records. See Mem. Order, ECF No. 129. Consequently, despite Ms. Amato and Ms.

Pearson’s role in reviewing and preparing the District’s discovery responses, Ms. Mannina

cannot depose them regarding this topic.

12. DOC noncompliance (and DOC contractor noncompliance) with mandatory suicide training requirements

Ms. Mannina’s request for records regarding alleged noncompliance with mandatory

suicide training requirements appears to significantly overlap with Topic 1, as both relate to

“DOC’s suicide prevention policies.” There is no basis to subject Ms. Amato or Ms. Pearson to

a deposition regarding Topic 1, despite the potential relevance of the subject area. See supra,

Discussion II.A.1. To the extent the topics do not fully overlap, Ms. Mannina has already

obtained, or could obtain, testimony on this topic from other witnesses, including Dr. Beth

Mynett and Dr. Diana Lapp. Dr. Mynett testified about suicide prevention training, including

compliance with training requirements. Summary Chart at 2. Dr. Lapp also testified about

suicide prevention training and compliance with training requirements. Id. There is no reason to

believe that Ms. Amato or Ms. Pearson would have non-duplicative, relevant testimony, given

the nature of their responsibilities. See Amato Decl. at ¶¶ 4, 11; Pearson Decl. at ¶ 3.

13. DOC communications and information regarding treatment of suicidal inmates

This topic appears to significantly overlap with Topic 3, as both relate to DOC’s

“communications . . . regarding suicidal inmates.” There is no basis to subject Ms. Amato or

18 Ms. Pearson to a deposition regarding Topic 3, despite the potential relevance of the subject area.

See supra, Discussion II.A.3. To the extent that this proposed topic encompasses areas beyond

the scope of Topic 3, Ms. Mannina has already obtained, or could obtain, testimony on this topic

from other witnesses, including Dr. Beth Mynett and Ms. Wanda Patten. Def.’s Mem. at 7–8.

Dr. Mynett testified about mental health care at D.C. Jail and DOC’s records regarding mental

health care that was or should have been given to Mr. Mannina. Summary Chart at 2. Ms.

Patten testified about communications about the investigative report on Mr. Mannina’s suicide

and communications with Unity Healthcare. Id. at 3. Ms. Mannina also has received nine years

of emails reporting DOC actions taken when inmates threaten or attempt suicide, and the

relevant policies have been produced. See Def.’s Mem. at 8–9.

Ms. Amato and Ms. Pearson are unlikely to offer non-duplicative, relevant testimony on

this topic. Ms. Mannina does not identify what communications or information she still lacks

after deposing other witnesses. Ms. Amato has “no operational role in providing or managing

mental health services for inmates at the D.C. Jail.” Amato Decl. at ¶ 21. Thus, Ms. Amato

cannot be expected to have substantive information about the treatment of suicidal inmates

beyond any communications that were forwarded or sent to her in her role as DOC’s legal

representative. Assuming that there are nonprivileged communications to which Ms. Amato was

privy, Ms. Mannina can depose the non-counsel parties to those communications or statements.

See supra, Discussion II.A.3. (citing Guantanamera Cigar Co.,

). There is no

reason to believe that Ms. Pearson would provide any relevant testimony because her duties as a

litigation paralegal do not encompass the treatment of inmates at D.C. Jail. See Pearson Decl. at

¶ 6. Thus, her only likely exposure to relevant communications would have occurred through

her preparation of discovery responses on behalf of other witnesses. See id. at ¶ 4.

19 14. DOC’s work on suicidality with non-DOC entities, including Unity Healthcare and Lindsey Hayes

Ms. Mannina also seeks records regarding DOC’s coordination with other entities

regarding inmates’ tendency to commit suicide. Although this topic is potentially relevant to Ms.

Mannina’s claims, she already has obtained, or could obtain, testimony on this topic from other

witnesses, including Dr. Diana Lapp and Lindsey Hayes. Dr. Lapp, the deputy chief medical

officer for Unity Healthcare, testified about Unity’s and DOC’s policies for suicide prevention.

Summary Chart at 2. Mr. Hayes has been noticed as an expert witness and is the proper party to

examine regarding information his work on suicidality. See Def.’s Mem. at 11. Although Ms.

Mannina asserts that Ms. Amato “may well have the only knowledge of what Mr. Hayes

received and what happened to that information,” see Pl.’s Mem. at 14, Ms. Mannina has not

shown why she cannot obtain the same testimony from Mr. Hayes himself. Further, as noted

above, neither Ms. Amato nor Ms. Pearson had operational involvement in addressing the mental

health needs of suicidal D.C. inmates. See supra, Discussion, II.A.13.

15. Communications, written or oral, with the DOC’s Director related to agency policy that could have impacted detainees like Mr. Mannina

Ms. Mannina also seeks to depose Ms. Amato about communications with DOC’s

Director, Mr. Thomas Faust, regarding agency policies that may have impacted detainees like

Mr. Mannina. As noted above, Ms. Mannina has already obtained, or could obtain, testimony

about relevant agency suicide prevention policies from other witnesses, including Dr. Beth

Mynett and Dr. Diana Lapp. See supra, Discussion II.A.1 (addressing “DOC’s suicide

prevention policies”).

However, Ms. Mannina has demonstrated that she should be allowed to explore this topic

with Ms. Amato. Ms. Mannina asserts that Ms. Amato, as General Counsel, was a “confidant of

the Director” and thus, seems to seek communications shared exclusively between Ms. Amato

20 and Director Faust.7 Pl.’s Mem. at 17. Further, unlike other parties to the communications that

Ms. Mannina seeks, Director Faust has retired and resides in California, making him an

inconvenient witness. Id. Thus, Ms. Amato’s communications with Director Faust related to

agency policy that could have impacted detainees like Mr. Mannina is a relevant topic for which

there is no alternative source.

16. Ms. Amato’s and Ms. Pearson’s actions to distribute litigation hold directions to DOC employees, and their actions and the actions of DOC employees to preserve documents in this litigation

This proposed topic appears to concern whether the District adequately preserved

potentially relevant records. As noted in the Memorandum Order resolving Ms. Mannina’s

Motion Regarding Spoliation, the Court will not permit further discovery regarding the District’s

alleged spoliation of evidence. See Mem. Order, ECF No. 129. Consequently, despite Ms.

Amato and Ms. Pearson’s role in reviewing and preparing the District’s discovery responses, Ms.

Mannina cannot depose them regarding this topic.

Further, Ms. Mannina has already obtained testimony on this topic from other witnesses,

including Jennifer Postell. Ms. Postell, a DOC employee, testified about the District’s

interrogatories and her role in collecting and producing responsive documents in response to a

litigation hold issued in this case. Summary Chart at 3; Def.’s Mem. at 12–13.

B. Deposing Ms. Amato and Ms. Pearson Would Significantly Burden the District

The fact that Ms. Amato is a former General Counsel and Ms. Pearson is a litigation

paralegal informs the assessment of the burden that the proposed discovery would impose. The

7 To the extent that Ms. Mannina also seeks to explore this topic with Ms. Pearson, she has not demonstrated that she should be permitted to do so. There is no reason to believe that Ms. Pearson, as a paralegal, would have any nonprivileged relevant information to add to the discovery that has been obtained or would be available from other witnesses.

21 parties dispute the extent to which those roles warrant limiting discovery. The District asserts

that deposing DOC’s General Counsel and a litigation paralegal would burden the District by

“chill[ing] attorney-client communications.” Def.’s Mem. at 4. Ms. Mannina responds that,

while “some of [Ms. Amato’s] activities have attorney client privilege,” the District should not

be allowed to block non-privileged testimony regarding “policy and operational activities she

performed.” Pl.’s Mem. at 6–7.

Attorney depositions may chill attorney-client communications, even if limited to

relevant, non-privileged topics, because of the risk of inadvertently disclosing privileged

information. See, e.g., Sterne Kessler, 276 F.R.D. at 380–81 (“Allowing depositions of opposing

counsel, even if these depositions were limited to relevant and non-privileged information, may

disrupt the effective operation of the adversarial system by chilling the free and truthful

exchange of information between attorneys and their clients.”). Attorney depositions also risk

revealing “mental impressions, which are protected work product.” Coleman,

;

see also All Assets Held in Account Number XXXXXXXX,

, at *4 (deposition of

non-privileged matters “may lead to the revelation of privileged work product, including

[counsel’s] legal theories of the case”).

Here, the deposition topics at issue heighten the risk of inadvertent disclosure. For

example, Ms. Mannina seeks communications between Ms. Amato and Director Faust in light of

Ms. Amato’s role as “a confidant of the Director.” See supra, Discussion II.A.15. Many of

these confidential communications between General Counsel and Director are likely to be

privileged. Ms. Mannina also seeks deposition testimony on suicide prevention policies that Ms.

Amato is only familiar with through her review of the legal sufficiency of DOC policies and

recommendations. See supra, Discussion II.A.1.; Def’s Mem. at 7. Inquiring into Ms. Amato’s

22 legal work also risks disclosing privileged information. Further, Ms. Mannina seeks testimony

regarding Ms. Amato and Ms. Pearson’s work with investigators involved in this case. See

supra, Discussion II.A.2. Inquiring into Ms. Amato or Ms. Pearson’s work with investigators

may reveal their theories of the case, and thus disclose protected work-product.

Further, the proposed deposition of Ms. Pearson, even if limited to relevant, non-

privileged topics, would detract from Ms. Pearson’s ability to aid in the District’s defense. 8 See,

e.g., All Assets Held in Account Number XXXXXXXX,

, at *5 (“The deposition of

trial counsel also strains the adversarial process itself.”). Ms. Pearson has been closely involved

in the District’s defense. Ms. Pearson provides litigation support for the filing of motions and

assists in coordinating representation between OAG and DOC staff. Pearson Decl. at ¶¶ 3(f), (g).

Thus, the proposed depositions would significantly burden the District, even if some of

the information that Ms. Mannina seeks is not privileged. See, e.g., Gilmore v. Palestinian

Interim Self-Government Auth.,

(D.C. Cir. 2016) (motion to compel was

properly denied because, even if materials were not privileged, discovery would impose on

“important interests” and cause undue burden).

III. Ms. Mannina Shall Be Permitted to Depose Ms. Amato Only, through Written Questions Only

As discussed above, although the District has identified more convenient and less

burdensome sources for most of the proposed deposition topics, Ms. Amato is the most

convenient—and possibly the only—source for two of the proposed topics. First, Ms. Amato is

the most convenient source on her role in the “Court Alerts” program, including her role in

drafting the letter to the District of Columbia Bench and Bar. Although Ms. Mannina has

deposed other witnesses on this topic, those witnesses have indicated that only Ms. Amato is

8 The same would be true for Ms. Amato if she were the current General Counsel.

23 capable of answering the questions posed. Second, Ms. Amato is the most convenient source on

her communications with Director Faust. Although Director Faust is also capable of testifying to

these communications, he is less accessible as a witness.

The lack of alternative sources does not, however, diminish the burden imposed on the

District. Even a limited oral deposition on these topics risks inadvertent disclosure of privileged

material or work product. The Court must therefore fashion discovery in a way to balance the

parties’ competing interests.

“Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly and to

dictate the sequence of discovery.” Crawford-El v. Britton,

(1998); see also

United States v. Microsoft,

(D.C. Cir. 1999) (describing Rule 26(c) as “highly

flexible”). Protective orders may “deny discovery completely, limit the conditions, time, place,

or topics of discovery, or limit the manner in which the confidential information is to be

revealed.” Univ. of Mass. v. Roslin Inst.,

(D.D.C. 2006).

Rule 31 allows for deposition by written questions. Fed. R. Civ. P. 31. A written

deposition will allow Ms. Mannina to seek the information she desires, while balancing the

District’s concerns of inadvertent disclosure and interference with its defense. Written

deposition will allow the District to review the questions posed, carefully determine whether Ms.

Mannina inquires into privileged materials, and object accordingly. The Court may then review

the objection, if necessary. Fashioning discovery in this limited manner allows Ms. Mannina

some of the discovery she seeks, without causing an undue burden to the District. See Coleman,

(plaintiff not entitled to attorney deposition, but permitted written

24 interrogatories); All Assets Held in Account Number XXXXXXXX,

, at *9

(denying attorney deposition but granting “limited additional interrogatories”).

There is no reason to believe that Ms. Pearson can offer testimony on these two topics

that Ms. Amato cannot offer. In fact, it is unclear whether Ms. Pearson would be able to testify

to these topics at all. For example, Dr. Mynett did not indicate that Ms. Pearson could answer

questions regarding the Court Alerts program, although Dr. Mynett did identify Ms. Amato in

her answers. Ms. Mannina’s need to depose Ms. Amato on her communications with Director

Faust stems from their unique relationship—which, by definition, cannot be shared by Ms.

Pearson.

Thus, the Court will permit Ms. Mannina to depose Ms. Amato by written question on (1)

her personal involvement in the Court Alerts program (including her role in sending the letter to

the District of Columbia Bench and Bar); and (2) her communications with Director Faust

related to agency policies that could have impacted detainees like Mr. Mannina. The District

remains free to assert privilege or work-product defenses in response to the written deposition

questions.

2020.02.04 February 4, 2020 15:56:26 -05'00' DATE: ________________ Signed: __________________________________ Magistrate Judge Robin M. Meriweather

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