2016-00200712-CU-PO

Ahryah Ward vs. St. Hope Public Schools

Nature of Proceeding: Motion for Protective Order

Filed By: Spinelli, Domenic D.

APPEARANCE REQUIRED.

At the time of hearing, counsel shall be prepared to discuss (1) the likelihood counsel can reach one or more stipulations rendering it unnecessary to have a PMK testify on Categories 19 through 22 of the PMK Deposition Notice served on 7/27/18 and, if not

(2) the number of witnesses the Defendant Sacramento City Unified School District (District) would be require to produce to testify on these categories.

Although counsel are required to appear at the hearing (either in person or by telephone), if either side wishes to argue matters other than those identified in the preceding paragraph, (s)he shall request such additional oral argument pursuant to Local Rule 1.06 and inform the court and opposing counsel of the specific issue(s) on which oral argument is sought.

* * * * *

The District’s motion for protective order is GRANTED in part and DENIED in part.

This case involves allegations that in late 2015 or early 2016, a five-year-old child (“the Minor”) participating in a District after school program was sexually assaulted by other minors enrolled in the program. The assault allegedly occurred in a bathroom located in St. Hope Public School #7. According to the Minor and her co-plaintiff parents (collectively “Plaintiffs”), the District concealed the assault. The complaint contains causes of action against the District and others for Negligent Supervision of Minor Students; Negligent Hiring, Supervision, Training, and Retention; Failure to Timely Report Child Abuse; Fraudulent Concealment; and Intentional Infliction of Emotional Distress.

Trial is set to commence on 10/02/18.

The District has produced documents during discovery. On June 28, 2018, Plaintiffs served the District with a PMK deposition notice (the “1st PMK Notice”) identifying 22 categories for examination and 11 accompanying documents requests for documents. (See Dist. Exh. C.) Portions of the 1st PMK Notice were aimed at establishing the authenticity of the District’s documents as well as the documents’ qualification as business records. Also on June 28, 2018, counsel exchanged emails and, it appears, reached a tentative stipulation that the District’s documents fell within the business records exception. (See id., Exhs. A, B.) The District’s counsel suggested that a stipulation could narrow the scope of the PMK deposition and reduce the number of document requests. (Id., Exh. C.) On 7/03/18, the District’s counsel served objections to the 1st PMK Notice, including an objection that the date of the deposition was inconvenient for him and potential witnesses. (Id., Exh. D.) The District’s counsel reiterated his hope that a stipulation would narrow the deposition. He also indicated he could be required to seek a protective order given the approaching trial date. On 7/06/18, Plaintiffs’ counsel wrote in an email that the PMK deposition was off calendar “for the time being” pending a signed stipulation. (Id., Exh. E.) Draft stipulations were circulated but not executed.

On 7/27/18, Plaintiffs served a second PMK Notice (2nd PMK Notice) identifying 22 categories for examination and 17 accompanying document requests. (Dist. Exh. H.) The 2nd PMK Notice once again focuses in part on qualifying the District’s documents as business records and establishing their authenticity. The categories for examination include bullying and assaults on campus as well as various policies and investigations into the incident giving rise to Plaintiffs’ allegations. The District’s counsel served another set of written objections, including objections that the 2nd PMK Notice is vague, ambiguous, overbroad, burdensome and invasive of privacy rights. ( Id., Exh. J.) This motion followed.

Plaintiffs’ objection that the District’s counsel failed adequately to meet and confer is

overruled. The court turns to the merits.

The 2nd PMK Notice is burdensome on its face, especially at this late stage in the litigation.

There are no bullying allegations in this case, and Plaintiffs do not explain why the proposed categories for examination include policies, practices or incidents related to bullying.

Although PMK testimony about child-on-child sexual assaults is appropriate, the proposed time frame of January 2008 through the present is overly broad. The alleged incident occurred in late 2015 at the earliest, and there is no need for testimony or documents related to incidents occurring more than five years prior.

Similarly, although PMK testimony about the District’s policies regarding supervision is appropriate, there is no reason to compel the District to provide testimony or documents about the supervision of children significantly older than five years of age. Accordingly, the court limits the examination and requests to supervision of children ages 12 and younger.

To the extent Plaintiffs seek a PMK to testify about investigations a party other than the District undertook, (see Categories 12 and 13), it may seek a PMK deposition from the investigating party, not the District.

In their opposition, Plaintiffs acknowledge the privacy rights of current and former students who might be identified during the deposition. (See Opp. at 3:3-7.) Accordingly, the District may redact all identifying information about non-party students referenced in documents produced in response to the document requests accompanying the 2nd PMK Notice.

No monetary sanctions are imposed.

Disposition

The District has shown good cause for an order (1) relieving it of the obligation to produce any PMK to testify about Examination Categories 1, 2, 4, 12, 13, 15 or 16 in the 2nd PMK Notice, (2) relieving it of the obligation to produce documents responsive to Requests 1, 2, 4, 5, 12, 15 or 16 in the 2nd PMK Notice, (3) limiting testimony under Examination Category 3 to child-on-child sexual assaults occurring between November 2010 and the present, (4) limiting testimony about “policies regarding supervision” under Examination Categories 5 through 10 to supervision of children ages 12 and younger, (5) limiting Examination Category 18 so that it does not include the vague phrase “any other requirements”; (6) limiting documents responsive to Requests 3, 6 and 8 to the period between November 2010 and the present, (6) limiting documents responsive to Requests 7 and 8 to supervision of children ages 12 and younger, (7) limiting Requests 11, 13 and 14 to actual agreements, reviews and evaluations, as opposed to documents more broadly “reflecting” or “regarding” agreements reviews and evaluations, and (8) authorizing the redaction of non-party students’ identifying information appearing in responsive documents.

The balance of the motion for protective order is denied.

Counsel shall cooperate on a mutually date(s) and time(s) for the deposition. The deposition(s) and production may take place within 30 days of trial, but current discovery and motion cutoffs shall otherwise remain in effect.

The notice of motion does not provide notice of the court’s tentative ruling system, as required by Local Rule 1.06(D). Counsel for moving party is directed to contact counsel for opposing party forthwith and advise counsel of Local Rule 1.06 and the court’s tentative ruling procedure. If counsel for moving party is unable to contact counsel for opposing party prior to hearing, counsel for moving party shall be available at the hearing, in person or by telephone, in the event opposing party appears without following the procedures set forth in Local Rule 1.06(B).

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or further notice is required.