Opinion
Civil No. 99-1421 (JRT/FLN)
March 1, 2004
Theresa A. Freeman and Fred L. Neff, NEFF LAW FIRM, Bloomington, MN, for plaintiffs
Aaron J. Schindel and Lloyd B. Chinn, PROSKAUER ROSE LLP, New York, New York and Thomas C. Kayser and Charles O. Lentz, ROBINS KAPLAN MILLER CIRESI, Minneapolis, MN, for defendant
ORDER AFFIRMING THE AUGUST 28, 2002 ORDER OF MAGISTRATE JUDGE
This lawsuit involves allegations that defendant Prudential Insurance Company of America ("Prudential") discriminated against plaintiff in his employment. Several plaintiffs are involved in this dispute, although the instant appeal is raised by only plaintiff Cardenas. United States Magistrate Judge Franklin L. Noel issued a short Order dated August 28, 2002. Paragraph 1 of the Order denied plaintiffs' motion (brought on behalf of plaintiffs Cardenas to Muldoon) to compel production of complete and unredacted time sheets, billing records and billing statements. Paragraph 2 addressed plaintiff Cardenas' motion for an Order setting limits on Rule 35 examination. This motion was granted insofar as it requested a time limit on the exam, and denied insofar as it sought to preclude the audio-taping of the Rule 35 examination.
Federal Rule of Civil Procedure 35 provides that
When the mental or physical condition (including the blood group) of a party or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party's custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
Plaintiffs appealed Paragraph 1 of the Order and supplied a 10-page memorandum in support of their appeal. The Court affirmed Paragraph 1 in an Order dated May 16, 2003. Plaintiff Cardenas also appealed Paragraph 2, and supplied an additional 10-page appeal. For the reasons discussed below, the Order is affirmed.
For some reason, although the appeal was docketed, it was not forwarded to the Court's attention in a timely fashion. The Court was notified of the appeal by a letter from defendant's counsel, inquiring about the status of the appeal.
ANALYSIS
"The standard of review applicable to an appeal of a magistrate judge's order on a nondispositive issue is extremely deferential." Reko v. Creative Promotions, Inc., 70 F. Supp.2d 1005, 1007 (D. Minn. 1999). This Court will reverse such an order only if it is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); D. Minn. LR 72.1(b)(2). The Court has reviewed the parties' submissions and the files, records, and proceedings, with respect to the Magistrate Judge's Order. Based on this review, the Court finds nothing in the record that suggests the Order is clearly erroneous or contrary to law.
Plaintiff argues that defendant did not establish "good cause" for audio taping the Rule 35 hearing and that fairness mandates that the Court preclude any audio taping of the examination. Plaintiff argues that the presence of an audio tape undermines the "level playing field" that Rule 35 examinations are supposed to foster. Plaintiff also argues that defendant is encouraging the independent medical examiner to take an adversarial role in this lawsuit.
Defendant counters that Federal Rule of Civil Procedure 26(c) requires plaintiff to show "good cause" for precluding the taping of the exam. See Fed.R.Civ.P. 26(c); see also Hertenstein v. Kimberly Home Health Care, Inc., 189 F.R.D. 620, 624 (D. Kan. 1999). Defendant suggests that plaintiff has not offered any persuasive rationale for precluding the tape. Further, defendant suggests that taping the exam is standard practice for Dr. Phillips, and that given the history of plaintiff to challenge the veracity of any individual associated with Prudential, the audio taping is especially justified in this instance.
"There does not appear to be any well-settled law either requiring or prohibiting the recording of [Rule 35] examinations." Gavenda v. Orleans County, 174 F.R.D. 272, 274 (W.D.N.Y. 1996). There is no clearly established law in this Circuit, or District, prohibiting audio recording of Rule 35 examinations in appropriate circumstances. See Tomlin v. Holecek, 150 F.R.D. 628, 633-34 (D. Minn. 1993) (denying plaintiff-examinee's motion to record the Rule 35 exam because, among other reasons, the examining expert averred that the recording would be detrimental, and the presence of the recording device would undermine the one-on-one exchange between doctor and patient). Indeed, the decisions of other courts do not follow a hard and fast rule, but are decided on the particular factual circumstances of each case. See, e.g., Gavenda, 174 F.R.D. at 274 (Title VII sex discrimination plaintiff was entitled to have mental examination of plaintiff by defendant's psychiatrist recorded by audio tape); Stoner v. New York City Ballet Co., 2002 WL 31875404 (S.D.N.Y. 2002) (not permitting defense expert to videotape plaintiff during defense psychiatric examination, as videotape was more intrusive than required and session could be adequately documented by audiotape).
In this case, the unique facts of the litigation, including the notably contentious relationship between the parties and counsel, likely contributed to the Magistrate Judge's decision. This case has also been unusually protracted, and has involved an inordinate number of accusations of misconduct, made by both sides, and directed at both sides. While this Court might have decided the issue differently, it cannot be said that the decision of the Magistrate Judge was clearly erroneous or contrary to law. The Order denying plaintiff Cardenas' motion to preclude the audio tape of the Rule 35 exam is therefore affirmed.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, IT IS HEREBY ORDERED that:1. Plaintiff's appeal [Docket. No. 173] of paragraph 2(b) of the Magistrate Judge's Order of August 28, 2003 [Docket No. 171] is DENIED.
2. The Magistrate's Order dated August 28, 2002 denying plaintiff's motion to preclude the audio-tape recording of plaintiff Cardenas' Rule 35 Examination [Docket No. 171] is AFFIRMED.