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April 1, 2005.

BRYCO ARMS, et al., Defendants. JOAN TRUMAN SMITH, Plaintiff, v. BRYCO ARMS, et al., Defendants.

The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge


I. Introduction

  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 quash.

  II. Facts

  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. ยง 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 Gales.

  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, concluding:
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 ...

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