UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION LUIS A. GARCIA SAZ and Wife, MARIA DEL ROCIO BURGOS GARCIA, Plaintiffs, vs. CASE NO. 8:13-CV-220-T27 TBM CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION, INC.; CHURCH OF SCIENTOLOGY FLAG SHIP SERVICE ORGANIZATION, INC., d/b/a MAJESTIC CRUISE LINES, Defendants.
/ PLAINTIFFS
’
MEMORANDUM IN OPPOSITION TO THE SCIENTOLOGY DEFENDANTS
’
MOTION FOR PROTECTIVE ORDER INVOKING RULE OF SEQUESTRATION IN DEPOSITIONS
Plaintiffs Luis A. Garcia Saz and Maria Del Rocio Burgos Garcia, in accordance with Rule 3.01(b) of the Local Rules for the Middle District of Florida, submit their memorandum in opposition to the Motion for Protective Order Invoking Rule of Sequestration (the
“
Motion
”
) jointly filed by Defendants Church of Scientology Flag Service Organization, Inc. and Church of Scientology Flag Ship Service Organization, Inc., d/b/a Majestic Cruise Lines (collectively referred to herein as the
“
Scientology Defendants
”
). The Motion should be denied.
I. ARGUMENT
The Scientology Defendants are not entitled
as a matter of right
to sequester witnesses at the oral depositions relating to the Scientology Defendants
’
Motion to Compel Arbitration
.
BCI
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2
Commc'n Sys., Inc. v. Bell Atlanticom Sys., Inc.,
112 F.R.D. 154, 156-57 (N.D. Ala. 1986). Rather, pretrial discovery must take place in public unless compelling reasons exist for denying the public access to the proceedings. Fed. R.Civ. P. 26(c). No such predicate provides the requisite basis in this case.
First
, while Rule 615 of the Federal Rules of Evidence has been applied to oral testimony in trial and depositions,
Williams v. Electronic Control Systems, Inc
., 68 F.R.D. 703 (E.D. Tenn. 1975);
Naismith v. Professional Golfers Association
, 85 F.R.D. 552, 567-68 (N.D. Ga. 1979); Fed.R.Civ.P. 30(c) (depositions
“
under the provisions of the Federal Rules of Evidence
”
), the Federal Rules of Civil Procedure allow exclusion of persons from discovery only in exceptional circumstances, and then only upon motion and order of the court. The party seeking to exclude persons from depositions must show good cause, and the protection is limited to circumstances where justice requires such exclusion to protect a party from annoyance, embarrassment, oppression or undue burden or expense.
See
Fed. R. Civ. P. 26(c)(5). The Scientology Defendants do not meet that burden.
See
Skidmore v. Nw. Eng'g Co.,
90 F.R.D. 75, 75-76 (S.D. Fla. 1981). The issues on the Motion to Compel Arbitration do not depend on the weight of the evidence; they depend on ascertainable
facts
.
Second
, the Scientology Defendants
’
argument that Rule 615
should
be applied in connection with their Motion to Compel Arbitration derives from the desire to sequester former Scientologist Michael Rinder during the deposition of Michael Ellis, a Scientologist who submitted a declaration for the Scientology Defendants on the Motion to Compel Arbitration. Yet Rinder
’
s deposition (on January 6) is set
before
Ellis
’
s deposition (on January 7). Sequestration to prevent Rinder from learning before his deposition what Ellis testifies in his deposition
–
even if it were justified (and it is
not
)
–
does not serve the stated purpose for
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3 applying Federal Rule of Evidence 615 to oral depositions on the Scientology Defendants
’
Motion to Compel Arbitration.
Third
, sequestration of witnesses in oral depositions is unnecessary inasmuch Plaintiffs
’
consultant is permitted at trial and nothing prevents Michael Rinder from reading Ellis
’
s deposition before the evidentiary hearing on the Motion to Compel Arbitration. Contrary to their assertion,
Lumpkin v. Bi-Lo, Inc.,
117 F.R.D. 451, 453 (M.D. Ga. 1987), supports Plaintiffs
’
position.
Lumpkin
held that, while Rule 615 can be invoked at depositions, the Rule does not apply
between
deposition and trial. Thus, Rule 615 cannot be used to prohibit witnesses from reading depositions and communicating with other witnesses between the time a deposition is taken and the time trial is set to begin.
Id.
In light of the fact that Rinder can read the deposition testimony of any witness before the evidentiary hearing on the Motion to Compel Arbitration, sequestration during the deposition is unnecessary.
II.
CONCLUSION
For all of the foregoing reasons, there is no reasonable basis to apply the trial sequestration rule to the oral depositions relating to the Scientology Defendants
’
Motion to Compel Arbitration. The Scientology Defendants
’
Motion should be denied accordingly. Dated: December 19, 2014 Respectfully submitted, s/ Amanda M. McGovern Amanda M. McGovern Florida Bar No.: 964263
W
EIL
Q
UARANTA
M
C
G
OVERN
,
P.A.
Southeast Financial Center, Suite 900 200 South Biscayne Boulevard Miami, FL 33131 T: 305.372.5352 | F: 305.372.5355 amcgovern@wqmlaw.net
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