ORDER

KENDALL J. NEWMAN, Magistrate Judge.

On February 17, 2017, after an informal telephonic discovery conference conducted on February 16, 2017, the court denied without prejudice defendant's request to permit defendant's expert, Dr. James Rosenberg, to make an audio recording of plaintiff's mental examination. (ECF No. 69.) However, defendant was given leave to submit to the court and plaintiff's counsel a supplemental declaration from Dr. Rosenberg outlining his clinical and/or diagnostic reasons for having the mental examination audio recorded, along with a statement indicating whether defendant objects to having such audio recording provided to plaintiff's expert(s). (Id.) Plaintiff was also given an opportunity to respond to defendant's supplemental filings. (Id.)

Since the issuance of the court's order, defendant has provided the court and plaintiff's counsel with a February 23, 2017 supplemental declaration from Dr. Rosenberg, along with a statement indicating that defendant does not object to having an audio recording of Dr. Rosenberg's examination of plaintiff provided to plaintiff's expert(s).

Subsequently, plaintiff filed a response indicating that he does not believe that Dr. Rosenberg's supplemental declaration establishes that audio recording is necessary, but that if the court disagrees, the recording should be made available only to plaintiff's psychological expert(s) and not shared with defendant's counsel or reduced to a written transcript.

The court has carefully considered Dr. Rosenberg's supplemental declaration, and is ultimately persuaded, based on the present record in this case, that an audio recording would be helpful to Dr. Rosenberg in preparing his assessment. Nevertheless, the court imposes the restrictions discussed at the informal telephonic conference, and requested by plaintiff in his written response, to ensure that the recording is appropriately used only as a tool for purposes of forming clinical and/or diagnostic impressions, and not for litigation purposes.

Accordingly, IT IS HEREBY ORDERED that:

IT IS SO ORDERED.

James E. Rosenberg deposes and says under penalty of perjury:

1. I am James E. Rosenberg, M.D., a physician licensed to practice medicine in the State of California. I have been retained by Defendant United States of American in the above-captioned matter to provide expert psychiatric evaluation services, conduct a psychiatric independent medical examination (IME) of Plaintiff James M. Grogan, and write a report on my findings concerning his complaints of psychological injuries relating to his January 19, 2013, aircraft accident, including post-traumatic stress disorder (PTSD), depression, and anxiety. A true and accurate copy of the most recent iteration of my curriculum vitae is attached hereto as Exhibit A.

2. The IME of Plaintiff, which will involve a detailed interview and the completion of various standardized psychological tests, will require 6 to 7 hours, exclusive of breaks, to conduct. In accordance with my standard practice and generally accepted guidelines in my professional field, I have used the same or very similar examination procedures in hundreds of cases over a span of more than 20 years.

3. My detailed psychiatric interview of Plaintiff will elicit information regarding his relevant background areas and psychiatric history, the circumstances and emotional impact of Plaintiff's January 19, 2013, aircraft accident, and the chronology of his emotional injuries and how they may or may not have changed over time to the present. A true and accurate copy of a more comprehensive description of the IME process, including the interview portion, is attached hereto as Exhibit B, of which I am the author.

4. The IME also includes the MMP1-2 (Minnesota Multiphasic Personality Inventory-2) or MMPI-2 RF (Minnesota Multiphasic Personality Inventory-2 Restructured Form), Personality Assessment Inventory (PAI), Mini-Mental State Examination (MMSE), and the Trauma Symptom Inventory-2 (TSI-2), which are generally accepted and widely used standardized psychological tests and cognitive screening assessments. These are also addressed in Exhibit B.

5. It is my usual and customary practice to record the examination with a non-intrusive, compact and noiseless digital audio-recording device, measuring approximately 5 inches long, 1 inch wide, and inch thick, which I place on the conference table between myself and the examinee. I have used this recording device in over 1,000 examinations, and have never been informed that it has intruded on the examination process or made the examination uncomfortable for the examinee.

6. From a psychiatric standpoint, audio-recording the examination is advantageous because it provides an independent, objective record of how I asked questions, Plaintiff's verbal responses, the opportunities for breaks that were given during the examination, and the tone and comfort-level of the examination,

7. Additionally, audio-recording is helpful to me in my practice as a psychiatric expert because I must prepare a detailed and comprehensive IME report of my findings and conclusions based to a significant degree on the examinee's verbal responses to my questions. While I strive to take detailed notes during the course of an examination, it is impossible for me to record all of the examinee's responses verbatim while listening to him or her speak during the examination. Audio-recording provides an invaluable supplement to my notes, which becomes particularly important where, for example, the examinee is talking fast, whether due to anxiety or some other factor; engages in psychotic ramblings; or is sharing an especially emotional moment, such as a traumatic event, when I should be giving him or her my full attention, rather than typing. The audio-recording also has the advantage over written interview notes alone of conveying hesitancy, anger, tearfulness or other emotional expressions in speech that are directly relevant to my psychiatric assessment.

Made under penalty of perjury pursuant to 28 U.S.C. § 1746.

EXHIBIT A

FORENSIC NEUROPSYCHIATRY MEDICAL GROUP, INC.

JAMES E. ROSENBERG, M.D.

CURRICULUM VITAE

Summary of Qualifications

Doctor of Medicine UCLA School of Medicine

Postgraduate Residency Training in Psychiatry UCLA Neuropsychiatric Institute

Fellowship in Forensic Psychiatry — Dr. Philip Resnick Case Western Reserve University School of Medicine

Board-Certified in Psychiatry (lifetime) by American Board of Psychiatry & Neurology, Inc.

Added Qualifications in Forensic Psychiatry by the American Board of Psychiatry & Neurology, Inc. (1996-2016)

Formerly, Assistant Clinical Professor of Psychiatry (1992-2008) David Geffen School of Medicine at UCLA

Formerly, Chief of Psychiatric Intensive Care and Assistant Director of Mental Health West Los Angeles VA Medical Center

Consulting expert in psychiatry to multiple agencies and organizations

Pro bona expert to Public Counsel in matters of public mental health

Formerly, consulting expert in psychiatry (2000-2007) TV show Law Order: Special Victims Unit

Multiple areas of specialized expertise, including employment litigation, posttraumatic stress disorder, detection of malingered mental illness, neuropsychiatry and psychopharmacelogy

Experience in Over 1,000 forensic cases: consulting expert to both plaintiff an defense in civil litigation; provides clinical patient care and teaching on a regular basis

CLINICAL AND FORENSIC PSYCHIATRY—NEUROPSYCHIATRY—PSYCHOPHARMACOLOGY

21900 BURBANK BLVD., THIRD FLOOR, WOODLAND HILLS, CA 91367

TEL (818) 865-2978 FAX (818) 698-6400 JROSENBERGMD@GMAIL.COM

Publications

Organizational Memberships and Affiliations

Areas of Special Interest and Expertise

Highlights of Qualifications and Practice

EXHIBIT B

FORENSIC NEUROPSYCHIATRY MEDICAL GROUP, INC.

JAMES E. ROSENSMG, M.D.

Description of Psychiatric Examination

CLINICAL AND FORENSIC PSYCHIATRY — NEUROPSYCHIATRY — PSYCHOPHARMACOLOGY 21900 BURBANK BLVD., THIRD FLOOR, WOODLAND HILLS, CA 91367 TEL (818) 865-2978 FAX (818) 698-6400 JROSENBERGMD@GMAIL.COM

Pursuant to the Court's February 17, 2017, minute order signed by Magistrate Judge Kendall J. Newman, Defendant United States of America states that it has no objection to providing the audio-recording of Dr. James E. Rosenberg's Fed. R. Civ. P. 35 examination of Plaintiff James M. Grogan to Plaintiff's expert(s).

Pursuant to the Court's February 17, 2017 minute order, Plaintiff responds to Defendant's submissions regarding Dr. Rosenberg's request to record the FRCP 35 psychological exam of Mr. Grogan.

Plaintiff does not believe that Dr. Rosenberg's declaration satisfies the Defendant's burden of establishing the recording is necessary for clinical and/or diagnostic reasons and not for litigation purposes. However, should the Court be persuaded that Dr. Rosenberg's declaration is satisfactory; Plaintiff requests that a copy of the recording be made available only to Plaintiff's psychological expert(s). It is Plaintiff's position that the recording is akin to raw test data and should only be used for the purposes of forming clinical and/or diagnostic impressions, and not shared with defense counsel or reduced to a written transcript. Defendant previously stated that it does not object to Dr. Rosenberg providing a copy of the recording to Plaintiff's expert(s). See Defendant's Statement Regarding Audio Recording of IME.