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Jane Doe, A Minor, Etc v. United States Swimming

November 21, 2011


(Santa Clara County Super. Ct. No. 1-09-CV149813) Trial Court: Santa Clara County Superior Court Trial Judge: Hon. James Kleinberg

The opinion of the court was delivered by: Elia, J.


Defendant United States Swimming, Inc. ("U.S. Swimming") appeals from an order directing it to pay monetary sanctions in the amount of $5,250 to plaintiff Jane Doe. The superior court found that U.S. Swimming, without substantial justification, failed to comply with its August 6, 2010 discovery order and opposed plaintiff's motion to compel compliance with that order. (Code Civ. Proc., § 904.1, subds. (a)(11), (a)(12).)*fn1

On appeal, U.S. Swimming argues that imposition of monetary sanctions was an abuse of discretion since it had complied with the August 6, 2010 discovery order and the court refused to confirm this by conducting an in camera inspection of an unredacted version of the documents produced. No challenge is made to the amount of the sanction.

We affirm.*fn2

A. Background

On July 2, 2010, plaintiff filed a motion for an order compelling further answers to deposition questions and production of documents and for an order imposing monetary sanctions for discovery abuses. Plaintiff's notice of deposition was directed to the person most qualified to testify on U.S. Swimming's behalf regarding claims or complaints of sexual harassment or abuse by its coaches during the prior 10 years and demanded that the deponent produce documents in its possession or control concerning those claims or complaints.

The memorandum of points and authorities in support of the motion stated that plaintiff's "lawsuit involves a claim for damages resulting from the sexual molestation and abuse of plaintiff, a 15-year-old female, by her swim coach, Andrew King" who was employed by U.S. Swimming. It indicated that there were tort claims against U.S. Swimming for "its direct negligence in hiring, training, control, supervision, and retention of defendant King."*fn3 The memorandum stated that King had been arrested and sentenced to a 40 year prison term and during his trial it had been discovered that he had "a long history of molesting underage female swimmers placed under his control by US Swimming." The memorandum asserted that "the fundamental question of what US Swimming knew about the problem of coach abuse at (and prior to) King's abuse of plaintiff, [was] of the utmost relevance" and that the existence of "[s]imilar claims or complaints of coach abuse" that were communicated to U.S. Swimming were "central to the issues in this case." It stated: "Logically, the higher the incidence of prior wrongful conduct [by coaches], the more care that should be devoted to the problem" by U.S. Swimming.

On July 9, 2010, defendants U.S Swimming and Pacific Swimming moved for a protective order excluding from production documents pertaining to "swim coaches who have merely been alleged to have engaged in sexual misconduct, but such allegations have not been proven, and no due process has been given to those coaches." In the alternative, defendants requested a limited in camera disclosure. They also filed opposition to the motion to compel answers and production.

On August 6, 2010, the court granted plaintiff's motion to compel and granted, in part, the motion for a protective order. The court ordered U.S. Swimming to "produce its person most knowledgeable for further testimony and produce the documents requested in the deposition notice . . . ." It required U.S. Swimming to identify any documents withheld on the basis of attorney-client privilege or work-product doctrine. Its protective order authorized U.S. Swimming to "redact any identifying information regarding the accused coaches and complainants from any documents produced." The court denied the plaintiff's request for a monetary sanction against U.S. Swimming or its attorneys.

In response to the August 6, 2010 order, U.S. Swimming produced heavily redacted documents. On September 13, 2010, plaintiff Doe moved to compel U.S. Swimming to comply with the court's August 6, 2010 order. Plaintiff asserted that in response to that August 2010 order, "defendant provided plaintiff with 1,864 documents in no logical order and each and every specific necessary for assembling the documents in a logical manner (either by incident, complaint number, date, region, team, etc.) has been redacted as has virtually all other information necessary for plaintiff to determine, among other things, 1) the date of the complaint; 2) the nature of the complaint; 3) the swim club and/or regional swim committee involved; 4) witnesses to the incident; and 5) what was done in response to the complaint, if anything." Plaintiff alleged that "the documents produced were not produced in a manner consistent with the ordinary course of business and the information redacted from the documents greatly exceeds the court order limiting any redaction only to that which specifically identifies the complainant or coach involved."

Exhibit D to the supporting declaration of plaintiff's attorney Robert Allard consisted of over 150 pages of redacted documents excerpted from the documents produced by U.S. Swimming. Numerous pages of member and club "lookups" were redacted to omit information related to members and clubs. The redacted documents in the exhibit included but were not limited to email messages, faxes, and letters, memoranda, organizational rosters, a membership list, witness statements, grand jury letters, and miscellaneous official records. The redactions encompass the names and contact information of persons other than accused coaches or complainants including other coaches, witnesses and swim officials, information related to local swim committees and swim clubs, geographic locations, and police department, school, school district, and camp names. On documents regarding complaints before the U.S. Swimming's National Board of Review, the name and contact information of the local swim committee (LSC), the LSC General Chair, and the club were blacked out as well as the names of the complainants and respondents. Pages apparently consisting of the record on appeal from a decision of the National Board of Review were blank except for a typed label identifying the omitted documents. Similarly, U.S. Swimming also produced blank pages with a typed label stating "internal correspondence" and "legal correspondence." The redacted documents included newspaper articles, Yahoo search results, information copied from an Internet news site, and a complaint filed in Texas.

Defendants U.S. Swimming and Pacific Swimming filed opposition to the motion to compel compliance. They asserted that they had fully complied with the court's August 6, 2010 order and, consequently, were acting with substantial justification in opposing the motion to compel compliance. The opposition papers did not request an in camera inspection of the unredacted documents but rather stated that defendants were "fully prepared to re-produce the subject documents in whatever manner the Court determines is proper" if the court determined defendants' interpretation had been incorrect.

The declaration of the attorney responsible for overseeing the redactions, Jennifer Bielak, was filed in support of U.S. Swimming's opposition. She explained her interpretation of the protective order. She cited the Family Educational Rights and Privacy Act (FERPA) (20 U.S.C., § 1232g) and the implementing federal administrative regulation, part 99.3 of title 34 of the Code of Federal Regulations, which very broadly defines "personally identifiable information."

On October 5, 2010, the court indicated to the parties that it believed that "there ha[d] not been a good faith compliance with the Discovery Act in the production of these ...

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