Doe v. County of Kern

          ORDER AFTER MID-DISCOVERY STATUS CONFERENCE

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE

         On June 21, 2016, the Court held the mid-discovery status conference. In advance of the hearing, the parties filed their joint status conference statement and, after the Court requested additional information, the parties lodged additional briefs related to discovery disputes they are facing. (Docs. 29, 32, 33, 34) Counsel raised concerns related to the acceptable topics for the plaintiff's deposition, whether Mr. Anderson may attend the deposition and whether the deposition may be videotaped. Also, counsel indicated concerns over whether Mr. Anderson's deposition should go forward until he is assured he will not be subject to criminal charges. Finally, the defendants seek an amendment to the case schedule.

         After significant discussion of the topics, the Court concludes that limits should be placed on the deposition of the plaintiff, that, with proper safeguards, Mr. Anderson may attend the deposition and that it may be videotaped. Mr. Anderson will submit to deposition, but it remains uncertain whether he will assert his rights under the Fifth Amendment. Finally, the Court does not find that there has been a sufficient showing of diligence in completing discovery or that there is sufficient need to modify the case schedule at this time.

         I. Plaintiff's Deposition

         A. Scheduling the deposition

         Though County has noticed the plaintiff's deposition, she has refused to appear on the noticed date and has not provided alternative dates. Thus, at the conference the Court ordered the plaintiff's attorney to provide dates for her deposition, no later than June 24, 2016, to occur as soon as possible but no later than the end of July 2016. Counsel will work together to schedule this deposition near in time to that of Mr. Anderson.

         B. Videotaping of the Deposition

         Except for concerns that the plaintiff will be made nervous by the videotaping, the plaintiff offered no legal basis upon which the Court can conclude that this method of recording is in any way harmful to her or the process. Moreover, the plaintiff feels no compunction about videotaping depositions she will take. For example, she has noticed the deposition of Mr. Anderson and indicates in the notice that she intends to preserve his testimony via videotaping. Thus, the Court concludes that the defendants are within their rights to videotape the plaintiff's deposition as long as they have properly noticed it under Fed.R.Civ.P. 30(b)(3)(A).

         C. Attendance at the Deposition by Mr. Anderson

         Mr. Anderson has expressed that he intends to attend the deposition of the plaintiff. Mr. Anderson's attorney reported that it is important for Mr. Anderson to be present so that he can hear for himself exactly what the plaintiff is saying and so he can assist his attorney in conducting a thorough examination.^[1] These purposes are sufficient justification-to the extent that any is needed-to allow Mr. Anderson to be present.

         However, the nature of the claims, the fact that Mr. Anderson held custodial authority over the plaintiff and the fact the plaintiff was a child at the time of the events, raises competing concerns. In Maryland v. Craig, 497 U.S. 836, 851 (1990), the Court found the Confrontation Clause was not violated by requiring the criminal defendant to be shielded from view from the alleged child-victim while the child testified. In Maryland, the Court noted the myriad ways that states act to protect child-victims from the further emotional trauma of facing the alleged perpetrator while testifying. The Court observed, "We likewise conclude today that a State's interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accusers in court. That a significant majority of States have enacted statutes to protect child witnesses from the trauma of giving testimony in child abuse cases attests to the widespread belief in the importance of such a public policy." Id. at 853. In this civil case, of course, Mr. Anderson's rights are not nearly so weighty.

         Thus, though Mr. Anderson is fully entitled to attend the deposition, the plaintiff should not be required to have face-to-face contact with him while she testifies. He will sit behind a screen in the same room as the plaintiff while she testifies; he will sit in a nearby room and have the video and/or audio recording of the deposition broadcast to him; or counsel will develop another procedure satisfactory to them that achieves the goals of this order.^[2] Mr. Anderson's attorney is entitled to take a reasonable number of breaks to consult with Mr. Anderson as the deposition proceeds.

         D. Scope of the plaintiff's deposition

         The parties agree that inquiry into the incidents that give rise to the complaint for damages and the events leading up to the acts complained of and those that occurred after-at least to the extent that it sheds light on what actually occurred between the plaintiff and Mr. Anderson-is proper matter for the deposition. However, the parties disagree whether the defendants should be able to inquire into plaintiff's "sexual history" or into her "medical history, criminal history, or other conduct prior to the incident." As to the disputed topics, Defendants indicated that they wished to better understand the damages claim but the Court presumes also they wish to test the plaintiff's truthfulness; they are entitled to do both. However, how this occurs and the extent to which they may invade the plaintiff's privacy must be carefully considered by all. The Court is confident that neither defense attorney would intentionally wish to cause the plaintiff unnecessary emotional upset but the Court is equally confident that absent proper parameters, this will occur.

         i. The plaintiff's sexual history

         Federal Rules of Evidence Rule 412 controls the evidence that may be admitted in civil cases involving alleged sexual assault. Evidence of the victim's other sexual behavior or sexual predisposition cannot be admitted unless the probative value "substantially outweighs the danger of harm to any victim and of ...