HRDC Wins Motion to Compel North Carolina Prison Officials to Answer for Censorship Policy
On April 7, 2023, the federal court for the Eastern District of North Carolina granted a motion by PLN’s publisher, theHuman Rights Defense Center (HRDC), to compel the state Department of Public Safety (DPS) “to produce an adequately prepared designee for a second deposition” in the nonprofit’s suit accusing the prison system of unconstitutionally censoring its publications in all 53 state prisons holding some 30,000 people.
As the Court recalled, “HRDC sought to depose [DPS] to learn more about its policies, procedures, and litigation position.” However, DPS sent Deputy Secretary for Internal Affairs and Intelligence Operations Loris Sutton, who was “unprepared to address many issues HRDC wanted to ask about.”
Moreover, HRDC maintained, DPS attorney Shelby Boykin “made inappropriate objections and improperly instructed [Sutton] not to answer,” the Court continued. So HRDC asked the Court to overrule those objections and also force DPS to pick up the nonprofit’s tab for the effort.
“DPS did not respond to HRDC’s motion,” the Court said, so it “waived any objection it may have to the relief sought.” However, even if it had responded, the Court found that “the record demonstrates that HRDC is entitled to the relief it seeks” because Sutton “did not adequately prepare for the deposition,” and Boykin’s “objections and instructions not to answer were improper.”
In October 2022, Ari S. Meltzer, an attorney representing HRDC from Wiley Rein LLP in Washington, DC, asked to schedule a deposition for the following month. After some foot-dragging by DPS, HRDC served notice under Federal Rule of Civil Procedure 30(b)(6) for a deposition that was eventually scheduled for December 13, 2022. DPS sent Sutton, who said her preparation consisted of exchanging “a number” of emails, as well as the prison system’s policy for written materials disseminated to prisoners. But “[s]he reviewed no other documents to prepare for the deposition,” the Court noted.
That left her “largely unable to explain why [DPS] denied various allegations” in HRDC’s complaint, the Court continued. Despite notice that she would be asked to testify about DPS responses to the nonprofit’s questions, “Sutton had not reviewed those responses.” When asked to point to portions of HRDC publications that had prompted their rejection, she couldn’t do it.
“This lack of preparation left her unable to testify about [DPS’s] decisions,” the Court concluded. But that was “not the only roadblock preventing a fruitful deposition.” Boykin, the attorney DPS sent along with Sutton, insisted that no explanation was needed for the rejection of any HRDC materials. Why? Because the rejection letters themselves were sufficient evidence of their own justification – in other words, DPS couldn’t have sent them unless someone, somewhere, had found a proper reason. Or, the Court recalled, the attorney said that DPS “may have forgotten why.”
After that trip through the looking glass, HRDC moved the Court on January 9, 2023, to compel DPS to produce someone adequately prepared for deposition and overrule Boykin’s objections to its questions and instructions not to answer them. DPS had until January 23, 2023, to respond, according to the Court’s Local Civil Rule 7.1(f)(2), a deadline eventually extended to March 3, 2023. But “[t]hat deadline, too, came and went without a filing,” the Court observed.
So, it took up HRDC’s motion and agreed that Sutton’s performance “fell below the standards required by the Federal Rules.” It ordered DPS to send someone qualified to a second deposition and overruled the agency’s objections. Moreover, “because the production of an unprepared designee amounts to failure to appear,” the Court imposed sanctions.
“The North Carolina Department of Justice’s failure to respond on its client’s behalf, while unfortunate, is unsurprising,” the Court noted. “This is the latest of many occasions when [its attorneys] have been unwilling or unable to meet requirements placed on them by this court and the Federal Rules.”
The Court then ordered the parties to prepare a new case management schedule, including a hearing to determine HRDC’s costs and fees in prosecuting the motion to compel, for which DPS – now the Department of Adult Corrections – will pick up the tab.
HRDC is a nonprofit that has published PLN since 1990 and a sister publication, Criminal Legal News, since 2017. In addition to Meltzer, it is represented in the case by its Litigation Director, E.J. Hurst, and Emancipate NC attorney Elizabeth G. Simpson. See: Human Rights Def. Ctr. v. Ishee, USDC (E.D.N.C.), Case No. 5:21-cv-00469.
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Related legal case
Human Rights Def. Ctr. v. Ishee
| Year | 2023 |
|---|---|
| Cite | USDC (E.D.N.C.), Case No. 5:21-cv-00469 |
| Level | District Court |