IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
December 19, 2008
BRIGIT BARNES, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR MINOR CHILDREN R.X. AND M.X., JERRY BARNES, PLAINTIFFS,
COUNTY OF PLACER, ET AL., DEFENDANTS.
Defendants' motion to compel independent mental examinations and motion to compel attendance at depositions for Selah Counseling Services, and to compel production of counseling records came on regularly for hearing December 18, 2008. Robert R. Powell and Andrea M. Miller appeared for plaintiffs. David K. Huskey appeared for defendants. R. Mac Prout appeared for SELAH counselor Kathy Pieper. Upon review of the motion and the documents in support and in non-opposition, upon hearing the arguments of counsel and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
On December 2, 2008, plaintiffs filed statements of non-opposition to these pending motions. At the hearing, however, counsel for SELAH counselors expressed concern as to who would have access to the confidential counseling records. With the consent of all counsel, the court met with SELAH counsel in chambers, outside the presence of counsel for the parties.
Upon return to open court, counsel for the parties confirmed there was no dispute as to the request for mental examinations. Plaintiffs have placed the mental state and emotional distress suffered by the minors at issue in this case; thus, good cause exists to order mental examinations. Fed. R. Civ. P. 35(a).
In light of counselors' objections, the court will order production of all counseling records of counselors Kathy Pieper, Margy Staurseth-Grebe and Ryan Walsh that relates to counseling of RX and MX, including notes, billing records, and transcripts of any depositions, and testimony regarding Jerry Barnes, to be restricted to attorney's eyes and retained experts' eyes only absent further order of court.
Plaintiff's request to review the documents first will be granted. The documents shall be produced to plaintiff's counsel on or before close of business January 5, 2009. The documents shall then be provided to defendants' counsel by close of business January 12, 2009. The depositions of the SELAH counselors shall take place on January 20 and January 23, 2009.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendants' November 20, 2008 motion to compel independent mental examinations (docket no. 33) is granted. Plaintiffs shall produce M.X. and R.X. for independent mental examinations on January 9, 2009, and January 23, 2009, respectively, at 9:00 a.m., and be accompanied by both guardians. The exams will be performed by Dr. Charles Scott, M.D., a Child Psychiatrist at the University of California, at the U.C. Davis Department of Psychiatry and Behavioral Sciences, 2230 Stockton Blvd., Sacramento, California.
2. Defendants' November 14, 2008 motion to compel attendance at depositions and to produce previously-subpoenaed mental health records (docket no. 28) is granted, subject to protective order; SELAH counselors Kathy Pieper, Margy Staurseth-Grebe and Ryan Walsh shall appear and participate in depositions at locations and times as agreed by counsel for plaintiffs and defendants, and shall produce said counseling records as described below.
3. SELAH counselors shall produce all counseling records of counselors Kathy Pieper, Margy Staurseth-Grebe and Ryan Walsh that relate to counseling of R.X. and M.X., including notes, billing records, and transcripts of any depositions, and testimony regarding Jerry Barnes.
4. All counseling records produced pursuant to this order are subject to a protective order; said records shall be restricted to attorney's eyes and retained experts' eyes only absent further order of court.
5. Said counseling records shall be produced first to plaintiff's counsel, by close of business January 5, 2009. The counseling records shall then be produced to defendants' counsel by close of business January 12, 2009.
6. The Clerk of the Court shall serve a copy of this order on R. Mac Prout, Attorney for SELAH counselors, at 2021 N Street, Sacramento, CA 95811.
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