The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge
This is an action in tort arising from the so-called "Wendy's
Massacre." Criminals entered a Wendy's food store and attempted
to kill all of the employees by shooting each of them in the back
of the head at point-blank range; five of the seven victims died.
Harmed by the event, plaintiffs sue the distributor and retailer
of the handgun, claiming that it fell into the hands of the
criminals because of defendants' negligence.
At issue at the discovery stage is whether defendants are
entitled to take depositions of three law enforcement employees.
Pursuant to Rule 72(a) of the Federal Rules of Civil Procedure,
defendant Atlantic Gun & Tackle Distribution Co., Inc.
("Atlantic"), appeals from the Magistrate Judge's March 8, 2005 Order, granting the Bureau of
Alcohol, Tobacco, Firearms and Explosives' ("ATF") motion to
quash the deposition subpoenas served by Atlantic on ATF Special
Agent Cameron Conklin, ATF Special Agent John Kilnapp and ATF
Compliance Inspector Erika Whelan. Defendant AcuSport
cross-appeals, adopting all the arguments propounded by Atlantic.
Essentially the issue is whether defendants need the information
from these individuals in light of what they have or will have.
Since the Magistrate Judge has been closely supervising discovery
and has a good grasp of what the parties' needs and positions
are, this court sustains her decision granting the motion to
Plaintiffs allege that the gun used in the shootings was
manufactured at a Bryco Arms plant. It was sold by B.L. Jennings,
Inc. to AcuSport Corporation, a wholesale distributor. AcuSport
sold the gun to Atlantic Gun & Tackle Distribution Co., Inc.
("Atlantic"), a retailer in Bedford Heights, Ohio. The gun was
then allegedly sold by Atlantic to Angela Freeman. Plaintiffs
allege she never intended to keep or use the gun herself. Their
claim is that Ms. Freeman purchased the gun for her then husband,
Bernard Gardier. Defendants have emphasized that "ATF and law
enforcement reports indicate," to the contrary, that subsequent
to the sale, "Mr. Gardier stole the subject pistol from Ms.
Freeman and traveled with it to New York," where he and Jamal
Gales allegedly sold it to a private individual.
21 C.F.R. § 16.22(c) Summary (Jan. 12, 2005) (emphasis added). Both
plaintiffs and defendants agree that the gun was then sold at
least twice more in the illegal underground handgun market until
it was purchased by John Taylor, who along with his accomplice,
shot seven people.
Defendants contend that two of the law enforcement officers
whom they seek to depose, Special Agents Conklin and Kilnapp, were involved in the
investigation of: (1) the sale of the subject gun; (2) the
subsequent theft, possession, and illegal transportation to New
York of the gun by Bernard Gardier and Jamal Gales; (3) the
subsequent sales of the gun in New York; (4) the ultimate
involvement of the gun in the criminal shooting at Wendy's
restaurant; and (5) the prosecutions of Bernard Gardier and Jamal
More spefically, according to defendants, Special Agent Conklin
interviewed Freeman, Gardier, and Gales, and ultimately arrested
Gardier and Gales for stealing the gun and illegally transporting
it to New York and selling it. Special Agent Kilnapp investigated
the purchase of the gun by Ms. Freeman and interviewed her. Ms.
Freeman provided Special Agent Kilnapp with a second pistol she
purchased from Atlantic after the subject pistol was stolen.
Inspector Whelan allegedly conducted various compliance
inspections of Atlantic over a period of years. These compliance
inspections are the subject of a series of compliance inspection
documents which ATF produced to plaintiffs pursuant to Joan
Truman Smith's May 14, 2004 subpoena.
Defendants' position is that the testimony of these witnesses
is critical to their defense of plaintiffs' claims that the
subject gun was knowingly or negligently sold to a straw
purchaser by the dealer. In January 2005, Atlantic served
subpoenas on ATF and on the three ATF employees, seeking
documents and testimony from Special Agents Cameron Conklin and
John Kilnapp of the Cleveland Office of ATF, as well as from ATF
Compliance Inspector Erika Whelan.
ATF declined to produce the three witnesses for deposition, "in
large part because of the burden that such depositions would
cause to ATF." Mar. 8, 2005 Order of Mag. Judge at 2 (citation
omitted). ATF contended before the Magistrate Judge that the
depositions sought would divert the officers from their law enforcement responsibilities.
ATF also argued that permitting depositions in the instant case
would increase the likelihood that ATF would be burdened with
similar requests in the future. See id. It contended that much
of the information sought by Atlantic was protected by the
Consolidated Appropriations Act of 2005, because significant
portions were derived from trace data and records maintained by
the federal firearms licenses pursuant to law. See id. But cf.
City of New York v. Beretta U.S.A. Corp., 00-CV-3641 (E.D.N.Y.
Apr. 1, 2005) (holding that the Consolidated Appropriations Act
of 2005 does not bar discovery in this case).
ATF also claims that the three witnesses have no
specific recollection of the underlying
investigation. Specifically, neither Agent Conklin or
Agent Kilnapp investigated the actual shootings at
issue; rather, they investigated only the chain of
custody of the weapon. Similarly, Inspector Whelan's
knowledge is limited to her annual inspections of
Atlantic. Finally, ATF contends that it has already
disclosed over 650 pages of documents in this case,
and these documents should provide all the relevant
information that defendant needs.
Mar. 8, 2005 Order of Mag. Judge at 2.
The Magistrate Judge rejected defendant's submission,
Although defendant argues that ATF's burden in
producing witnesses is "easily outweighed by the
extreme importance of their testimony in this case,"
it is unclear exactly what information defendant is
seeking to elicit from these witnesses that is not
contained in the documents and files already produced
by ATF. Given the limited nature of the witnesses'
involvement in this case, their asserted lack of
independent recollection and the absence of an
explanation from defendant regarding its compelling
need for the requested depositions, this Court finds
that the ...