Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Robert Dow, Jr. than Assigned Judge
For the reasons stated below, Respondent's request for discovery  is granted in part and denied in part.
O [ For further details see text below.] Notices mailed by Judicial staff.
On September 21, 2010, this Court granted Petitioner's request for an evidentiary hearing, which is set to begin on November 22, 2010 at 1:00 p.m. Before the Court is Respondent's request for discovery  in advance of the hearing. (The Court previously granted [see 34] Petitioner's request to issue certain subpoenas in an effort to gather additional pertinent written materials in advance of the hearing.)
Respondent requests permission to subpoena (1) petitioner's juvenile court records, (2) any records related to Petitioner's application and admission to the Lincoln Challenge program, and (3) records related to Petitioner's incarceration at the Audy Home. Petitioner does not object to these requests. Respondent's request is granted.
Next, Respondent requests permission to have Petitioner examined by a state expert in order to obtain an opinion on Petitioner's mental state and prior fitness to stand trial. Petitioner does not object to this request. Respondent's request is granted. Respondent is ordered to provide the examiner's curriculum vitae and contact information to Petitioner within a reasonable time before the examination and to comply with Fed. R. Civ. P. 35.
Last, Respondent requests permission to depose the Petitioner along with the eight other non-party witnesses listed in paragraph 1 of the joint status report filed by the parties . The parties have agreed that each may depose Petitioner's trial counsel, Michael Johnson, prior to the hearing. Given the centrality of Attorney Johnson's alleged actions and inactions to the matters at issue in this case and that will be explored at the evidentiary hearing -- including, most particularly, Petitioner's claim of ineffective assistance of counsel -- there is good cause to depose Attorney Johnson in advance of the hearing. However, Petitioner opposes Respondent's request to depose Petitioner and the seven other non-party witnesses listed on the status report [see 32, at 1].
The Supreme Court has made clear that, in contrast to ordinary civil litigation, discovery in all forms, including the taking of depositions, is not available "as a matter of ordinary course" in habeas proceedings. Bracy v. Gramley, 520 U.S. 899, 904 (1997). Nevertheless, in carrying out its obligation to "dispose of habeas petitions 'as law and justice require,'" a district court has discretion to grant discovery in a habeas case upon a fact specific showing of good cause under Rule 6 of the Rules Governing Section 2254 Cases. Id. (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)). Rule 6(a) provides: "A party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise." In a habeas case, good cause is shown "where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is * * * entitled to relief[.]" Bracy, 520 U.S. at 908-09 (quoting Harris, 394 U.S.at 300). In order to obtain discovery preceding an evidentiary hearing in a habeas case under Rule 6(a), the party seeking the discovery must indicate with specificity precisely what information he hopes to obtain through discovery. See, e.g. Teti v. Bender, 507 F.3d 50, 60 (1st Cir. 2007). "The burden of demonstrating the materiality of information requested is on the moving party." Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001) (citing Murphy v. Johnson, 205 F.3d 809, 813-15 (5th Cir. 2000)). While such discovery requests more frequently come from those seeking habeas relief, the Court has not identified any authority suggesting that a different standard applies if discovery is sought by the respondent rather than the petitioner. Accordingly, the Court will apply the same "good cause" standard to Respondent's deposition requests in this case.
Respondent requests the depositions for several reasons. To begin with, Respondent contends that the depositions will streamline the hearing by enabling both counsel to assess in advance the extent to which the proposed witnesses may (or may not) be able to recall the pertinent events, all of which occurred many years ago. In Respondent's view, "[i]t is better that any lack of memory or reluctance be established during depositions than during the hearing, which would unnecessarily waste the Court's and the witness's time." In addition, Respondent seeks to depose Petitioner himself to probe Petitioner's alleged mental deficiencies and evaluate Petitioner's ability to testify at the hearing. And, finally, Respondent requests permission to depose three witnesses -- Dr. Kavanaugh, Ms. Whittington, and Ms. Randall -- who presumably will testify regarding Petitioner's mental abilities on the basis of their experiences in psychology and education. In deposing those three witnesses, Respondent seeks to probe the bases for any opinions that may be offered with an eye toward determining whether expert and/or rebuttal witnesses for Respondent will be necessary.
In opposing Respondent's requests for pre-hearing depositions (apart from the agreed deposition of Attorney Johnson), Petitioner first contends that Respondent has not made the requisite showing of specificity in regard to either the facts or theories that Respondent wishes to develop by taking the depositions. Petitioner also points to the extensive documentation that already is part of the underlying state court record in this case, and thus is available to both parties in preparing for the hearing. Of particular significance, Petitioner notes the eighteen-page report submitted by Dr. Kavanaugh and the affidavits provided by Ms. Whittington and Ms. Randall, who were Petitioner's special education teachers. ...