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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION CHANDA HUGHES, as guardian and on behalf of J.B., a minor; BRENDA SHEFFIELD, as guardian and on behalf of J.D., a minor; VIOLENE JEAN-PIERRE, as guardian and on behalf of F.J.P., a minor; MICHELLE MINOR, as guardian and on behalf of J.P., a minor; LISA JOBE, as guardian and on behalf of K.J., a minor; AMY GAGE, as guardian and on behalf of B.G., a minor; CRYSTAL CUYLER, as guardian and on behalf of D.M., a minor; NIKEYTA MATTHEWS, as guardian and on behalf of K.G., a minor; and ANITA NAVA, as guardian and on behalf of A.H., a minor; on behalf of themselves and all others similarly situated, Plaintiffs, v. GRADY JUDD, Polk County Sheriff, in his official capacity, and CORIZON HEALTH, INC., Defendants. _____________________________________/ DEFENDANT, GRADY JUDDS, RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION TO COMPEL THE DEPOSITION OF SHERIFF GRADY JUDD Defendant, GRADY JUDD, by and through the undersigned attorneys and pursuant 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 Courts direction at the June 28, 2012, Status Conference, Case No. 8:12-cv-00568-SDM-MAP

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

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JUDD is a constitutional officer pursuant to Article VIII, Section (1)(d), Constitution of the State 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, the enforcement and execution of the laws of the State of Florida (see generally Section 30.15 and 30.30, Florida Statutes (2011)). 2. Plaintiffs cite Abusaid v. Hillsborough County Board of County

Commissioners, 405 F.3d 1298 (11th Cir. 2005), for their novel position. In fact, Abusaid stands 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 (11th Cir. 1990), remained viable, and must be considered on a case by case, function by function approach to determine whether a sheriff in any particular case is acting as an arm of the state, or on behalf of the county he or she serves. Clearly, a Florida sheriff 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 (11th 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 in charge of one of the larger sheriffs agencies in one of the largest counties in Florida.

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His complete attention is and should be focused on ensuring that his agency provides for the safety and security of the citizens of Polk County. However, in defending dozens of claims and lawsuits at any particular time of a wide variety of factual and legal scenarios, were GRADY JUDD subjected to being deposed where he has no firsthand knowledge as the underlying facts, he would not be able to timely attend to his important responsibilities. Obviously, while GRADY JUDD is familiar with the big picture of the operations of his agency and, as its head, is ultimately responsible for it, he must delegate to other supervisors and administrators the day to day operations of the agency, 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 Countys jails, have a much better knowledge of both the applicable policies and the facts underlying this cause of action as they relate to Plaintiffs claims. 4. Plaintiffs have just begun deposing those supervisors and administrators.

In fact, Plaintiffs have scheduled the depositions of ten (10) supervisors, administrators and Detention Deputies this month. The first deposition was taken on Friday, July 20, 2012. Furthermore, while Plaintiffs have not exercised the option, they are obviously entitled to notice the deposition of the agency without naming specific persons to be deposed pursuant to Rule 30(b)(6), Federal Rules of Civil Procedure. Given the

availability of supervisors, administrators and Detention Deputies with personal knowledge of the facts underlying Plaintiffs claims and given other discovery options available to Plaintiffs, including a Rule 30(b)(6), GRADY JUDD should not be subjected to a deposition. Pursuant to Rule 26(c)(1)(A), Federal Rules of Civil Procedure, and for

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good cause shown, this Court has broad discretion to manage pretrial discovery, and to protect a party from annoyance, embarrassment, oppression or undue burden or expense, including among other options determining that certain discovery not take place, or that the scope of discovery be limited. Deposing GRADY JUDD, particularly at this stage of the litigation, would be burdensome, inconvenient, duplicative and violative of the apex doctrine. Salter v. Upjohn Company, 593 F.2d 649 (5th Cir. 1979). As held by 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 is appropriate 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 day operations of a business most courts have fashioned a test that requires the 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); Carnival Corporation v. Rolls-Royce PLC, 2010 WL 16449595 (S.D. Florida 2010); Little League Baseball, 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. Carey International, Inc., 2003 WL 25589029 (S.D. Florida 2003). See also In re United States of America, 985 F.2d 510 (11th Cir. 1993); and Thomas v. International Business Machines, 48 F.3d 478 (10th 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
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the litigation, the party must first demonstrate that the would-be deponent has unique personal knowledge of the matter in issue. Moreover, the court held that the unique personal knowledge must be truly unique the deposition would not be allowed where the information could be had through interrogatories, depositions of a designated spokesperson, or deposition testimony of other personsthe court directed that subordinates with equal or greater knowledge first be deposed and held that the president could not be deposed if he could contribute nothing new to the information provided by the alternative deponents. Id. at 334. 6. Plaintiffs assert that GRADY JUDD should be deposed because he was

heavily involved in the decision to move children into the Polk Central County Jail (PCJ) and has unique knowledge of the relevant events surrounding the childrens incarceration. Plaintiffs Motion to Compel at page 5. Specifically, Plaintiffs state that Sheriff Judd advocated for the legislationand agreed to open a new detention facility for juveniles. Plaintiffs Motion to Compel at page 7. While the true import of this lawsuit is again evident, neither position attributed to GRADY JUDD should open the door to his deposition, given the facts underlying Plaintiffs specific claims as to the purported violation of their constitutional rights. 7. Plaintiffs more specific assertions, citing to press releases and You Tube,

have to do with the fact that Sheriff Judd was quoted as saying (w)e are now operating a better, safer, cleaner, and more modern facility with better trained personnel at a much lower cost. Furthermore, prior to any of the facts underlying this case, Plaintiffs point out reports that Sheriff Judd talked about taxpayers savings with regard to changing the menu in 2008, and further discussed the removal of basketball hoops in

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2010. He also specifically commented, according to Plaintiffs and certain referenced press reports, that his detention deputies have substantially more training than those of the Department of Juvenile Justice, and that every fight cannot be prevented in either a jail or a juvenile facility. 8. It is clear that the above cited reasons for deposing GRADY JUDD fall far

short, and there is no justifiable reason at this point for permitting the deposing of GRADY JUDD, as there has been and can be no showing that he possesses any unique knowledge regarding the underlying facts of this action. As such, Plaintiffs Motion to Compel the Deposition of Sheriff Grady Judd should be denied.

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on 23rd day of July, 2012, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a

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notice of electronic filing to TANIA GALLONI, ESQ. and MIRIAM HASKELL, ESQ., Southern Poverty Law Center, P.O. Box 370037, Miami, FL 33137; SHEILA A. BEDI, ESQ., Southern Poverty Law Center, 4431 Canal St., New Orleans, LA 70119;

DONALD J. HAYDEN, ESQ., ANGELA VIGIL, ESQ., JOSE A. AVILA, ESQ. and JOSEPH A. MAMOUNAS, ESQ., Baker & McKenzie, P.A., Sabadell Financial Center, 1111 Brickell Ave., Ste. 1700, Miami, FL 33131; JOSEPH P. RINDONE, ESQ., Baker & McKenzie, LLP, 1111 Avenue of the Americas, New York, NY 10036 and STEVEN M. CHASIN, ESQ., Baker & McKenzie, LLP, 815 Connecticut Ave., N.W., Washington, DC 20006 (Attorneys for Plaintiffs) and PATRICK H. TELAN, ESQ.; JEANELLE G. BRONSON, ESQ. and RAMON VAZQUEZ, ESQ., Grower, Ketcham, Rutherford, Bronson, Edie & Telan, P.A., P.O. Box 538065, Orlando, FL 32853-8065 (Attorneys for Defendant, CORIZON).

s/Hank B. Campbell HANK B. CAMPBELL Florida Bar No. 434515 h.campbell@vcttalawyers.com JONATHAN B. TROHN Florida Bar No. 880558 j.trohn@vcttalawyers.com ROBERT J. ARANDA Florida Bar No. 988324 r.aranda@vcttalawyers.com WILLIAM T. McKINLEY Florida Bar No. 51115 b.mckinley@vcttalawyers.com

VALENTI CAMPBELL TROHN TAMAYO & ARANDA, P.A.

Post Office Box 2369 Lakeland, Florida 33806-2369 (863) 686-0043 (863) 616-1445 Fax Attorneys for Defendants
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