United States District Court, E.D. California
ORDER AFTER MID-DISCOVERY STATUS CONFERENCE
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
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
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
Scheduling the deposition
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.
Videotaping of the Deposition
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).
Attendance at the Deposition by Mr. Anderson
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. These purposes are sufficient
justification-to the extent that any is needed-to allow Mr.
Anderson to be present.
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.
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. Mr.
Anderson's attorney is entitled to take a reasonable
number of breaks to consult with Mr. Anderson as the
Scope of the plaintiff's deposition
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
The plaintiff's sexual history
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 ...