By Christopher Cole

Law360 (April 8, 2021, 9:15 PM EDT ) A group of detainees suing U.S. Immigration and Customs Enforcement over its response to COVID-19 in detention centers should be allowed to depose the agency about any vaccination plan it has rolled out, a Florida federal magistrate said.

Even though the discovery cutoff in the case — which is scheduled for trial starting April 27 — passed in November, a change in circumstances calls for allowing the deposition, U.S. Magistrate Judge Jonathan Goodman said. That's because the detainees say they recently learned ICE has a written plan, he said.

"The issues of whether ICE has a vaccination plan in place, whether it has started administering vaccines, and what steps it took to obtain a vaccine supply are all directly relevant to [the] core allegation that defendants are, and have been, deliberately indifferent to plaintiffs' medical and health risks from the COVID-19 virus," the judge wrote in a Wednesday report.

"Obtaining [this] testimony would help inform the court's analysis on these basic and overarching issues," he said in the recommendation.

The report came out almost two weeks after U.S. District Judge Marcia G. Cooke backed special master Matthew Dates' call to further review ICE's social distancing measures at three detention centers. Judge Cooke ordered the agency to brief the court on how it has cohorted detainees and enforced social distancing.

The suit began early in the pandemic, in April 2020, when the detainees accused the federal government of failing to comply with its own guidelines for preventing the spread of COVID-19 and asked for the release of a proposed class of vulnerable prisoners.

The litigation centers on conditions at the Krome Service Processing Center, Glades County Detention Center and the Broward Transitional Center.

Wednesday's report from Judge Goodman notes that he lacks the unilateral authority to alter the trial schedule but recommended the presiding judge allow the deposition first. He said the plaintiffs "did not explain why they scheduled this issue for a discovery hearing rather than directly filing a motion with Judge Cooke, requesting the same relief."

ICE opposed the motion, saying the vaccination protocol had not been implemented yet at the three facilities, supplies had not arrived and the plan was fluid.

The magistrate judge said that in favoring letting the deposition proceed, he was relying on the plaintiffs' representation that the requested discovery would not lead to a postponement or rescheduling of the bench trial.

He noted that the detainees have already taken a deposition of ICE, whose designees testified that the agency had no plan in place to vaccinate any of the detainees at the three centers. "But that is no longer true," he said. "According to plaintiffs' counsel (and defense counsel did not in any way contest the representation), ICE has now received a formal, written vaccination plan — and it is effective January 25, 2021."

In a Feb. 2 response to ICE's motion for summary judgment, the detainees argued that the lack of a vaccine program constituted deliberate indifference. But they did not know of the vaccine plan at that time, and ICE did not produce the written plan to them then, he said.

ICE later revised its plan twice, but the plaintiffs didn't know of its existence until March 9, after which they sought a new deposition, Judge Goodman said.

An ICE spokesperson told Law360 in an email Thursday, "As there is pending litigation on this subject we are not able to speak specifically to the lawsuit as ICE does not comment on pending litigation."

Representatives for the detainees did not immediately respond to a request for comment Thursday.

The detainees are represented by Gregory P. Copeland and Sarah T. Gillman of Rapid Defense Network; Scott M. Edson, Kathryn S. Lehman and Chad A. Peterson of King & Spalding LLP; Rebecca Sharpless and Romy Lerner of the University of Miami School of Law Immigration Clinic; Paul R. Chavez of the Southern Poverty Law Center; Mark Andrew Prada and Anthony Richard Dominguez of Prada Urizar PLLC; Lisa Lehner of Americans for Immigrant Justice and Andrea Montavon-McKillip of the Legal Aid Service of Broward County Inc.

ICE is represented by Dexter A. Lee and Natalie Diaz of the U.S. Attorney's Office for the Southern District of Florida.

The case is Gayle et al. v. Meade et al., case number 1:20-cv-21553, in the U.S. District Court for the Southern District of Florida.

--Additional reporting by Alyssa Aquino and Nathan Hale. Editing by Emily Kokoll.

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