Williams v. San Diego, County of

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KATY WILLIAMS, et al., Case No.: 17-cv-00815-MMA (JLB)

12 Plaintiffs, ORDER: 13 v. (1) GRANTING MOTION TO 14 COUNTY OF SAN DIEGO, et al., QUASH DEPOSITION SUBPOENA 15 Defendants. AND FOR PROTECTIVE ORDER REGARDING DEPOSITION OF 16 MINOR D.C. [ECF No. 110]; AND 17 (2) GRANTING MOTION FOR 18 RECONSIDERATION OF THE 19 COURT’S OCTOBER 2, 2019 MINUTE ORDER [ECF No. 135] 20 21 22 Before the Court is a motion to quash deposition subpoena and for protective order 23 regarding the deposition of minor D.C. and a motion for reconsideration of the Court’s 24 October 2, 2019 Minute Order. (ECF Nos. 110, 135.) Non-party minor D.C requests that 25 the Court quash a deposition subpoena served on him by Defendant County of San Diego 26 (“Defendant” or “County”) and enter an order protecting D.C. from being deposed in this 27 action. Defendant opposes. (See ECF Nos. 113, 125.) 28 /// 1 The Court held a hearing on the motion on October 2, 2019. Following the hearing, 2 the Court ordered the parties to meet and confer and file a joint supplemental statement 3 informing the Court of their respective positions on the location for D.C.’s deposition. 4 (ECF No. 129.) On October 9, 2019, the parties filed a joint supplemental statement in 5 which D.C. and Plaintiffs indicated that they intended to move for reconsideration and/or 6 file objections to the Court’s October 2, 2019 Minute Order and therefore did not 7 participate substantively in the meet and confer. (ECF No. 133.) Thereafter, D.C. filed a 8 motion for reconsideration of the Court’s October 2, 2019 Minute Order and a 9 supplemental brief in support of his motion to quash and for a protective order. (ECF No. 10 135.) Defendant filed an opposition to the motion for reconsideration on October 23, 2019. 11 (ECF No. 141.)1 12 For the reasons set forth below, the motion to quash deposition subpoena and for 13 protective order regarding the deposition of minor D.C. is GRANTED and the motion for 14 reconsideration of the Court’s October 2, 2019 Minute Order is GRANTED. 15 I. BACKGROUND 16 Plaintiffs Katy Williams (“Williams”), Gary Evans (“Evans”), and minor plaintiffs 17 A.C., Am.E., and Aa.E., by and through their Guardian ad Litem, John Garter (collectively, 18 “Plaintiffs”), filed this action against Defendant alleging claims for: (1) Monell liability 19 based upon violations of Plaintiffs’ Fourth and Fourteenth Amendment rights pursuant to 20 42 U.S.C. § 1983; and (2) injunctive relief. (See ECF No. 24 (“FAC”).) 21 Williams is the natural mother of A.C., Am.E., and Aa.E (collectively, “Minor 22 Plaintiffs”). (Id. at ¶ 8.) Williams has another minor child, D.C., born in 2012, who is not 23 a plaintiff in this action. (Id.) Evans is the natural father of Am.E. and Aa.E. (Id. at ¶ 9.) 24 Williams and Evans share custody of Am.E. and Aa.E, and Williams has sole custody of 25

26 27 1 D.C. was required to obtain leave of court to file a supplemental brief, or reply, and did not do so. However, after review, the Court finds it appropriate and in the interests of 28 1 A.C. (Id. at ¶¶ 10-11.) On April 24, 2017, the Court appointed Mr. John Garter as Guardian 2 ad Litem for Minor Plaintiffs. (See ECF No. 4.) 3 In 2013, Defendant first became acquainted with Williams and her children after an 4 incident involving D.C.’s father, Jason Clark (“Clark”). (FAC at ¶ 12.) Clark became 5 violent with Williams and threatened to kill her. (Id.) As a result, Williams obtained a 6 restraining order against Clark. (Id.) 7 In June 2014, the County of San Diego Health and Human Services Agency 8 (“HHSA”) filed a petition on D.C.’s behalf alleging D.C. sustained bruises to his head, 9 “which would not ordinarily be sustained except as a result of the unreasonable acts of 10 D.C.’s father[.]” (Id. at ¶ 13.) Juvenile dependency proceedings commenced shortly 11 thereafter. (See id.) D.C. lived with Williams during this time, and Clark was no longer 12 able to have unsupervised visits with his son. (See id.) Clark then began making “false 13 allegations against Williams and her boyfriend.” (Id. at ¶¶ 14-15.) 14 In January 2016, Clark reported a bruise near D.C.’s eye to HHSA. (See id. ¶ 18.) 15 D.C. “hit his left eye on a corner of a kitchen island while playing with Minor Plaintiff 16 Aa.E.” (Id. at ¶ 18.) Social worker Daniel Bernal (“Bernal”) inspected the bruise on 17 January 8, 2016. (Id.) During Bernal’s investigation, Bernal informed Williams that he 18 wished to interview minor plaintiff Aa.E. alone, but Williams did not consent to such an 19 interview. (Id. at ¶ 19.) On January 11, 2016, Evans and Williams’ attorney sent a letter 20 to the County, HHSA, and Bernal, indicating that “Minor Plaintiffs were represented by 21 counsel and that no interviews of Minor Plaintiffs A.C., Am.E. or Aa.E. should take place 22 without counsel present.” (Id. at ¶ 20.) 23 On January 12, 2016, D.C. sustained additional injuries to his head when “he ran 24 into a doorknob at his home[.]” (Id. at ¶ 21.) Williams took D.C. to the hospital, and the 25 doctor discharged D.C., indicating that D.C. had “sustained a ‘normal childhood injury.’” 26 (Id.) Clark, once again, reported the incident to the HHSA hotline. (See id.) 27 On January 19, 2016, Bernal traveled to A.C.’s middle school, instructed staff to 28 remove her from her classroom, and “detained her against her will” without court order or 1 parental consent, knowledge, or presence. (Id. at ¶ 22.) That same day, Bernal also visited 2 Am.E. and Aa.E.’s elementary school, instructed staff to remove them from their 3 classrooms, and “detained them against their will” without court order, or parental consent, 4 knowledge, or presence. (Id. at ¶ 23.) Once the children were removed from their 5 classrooms, Bernal, social worker Janet Barragan (“Barragan”), and social worker Miriam 6 Partida (“Partida”) “interrogated” the children, despite the fact that Bernal, the County, and 7 HHSA “were informed in writing” that Evans and Williams “did not want their minor 8 children to be interviewed by social workers with the County and HHSA without a parent 9 and/or attorney being present at that interview.” (Id. at ¶ 24.) Notably, there were not, nor 10 have there ever been, any allegations that Minor Plaintiffs were abused or neglected by 11 their parents, or any other individuals. (See id.) 12 During the interviews, the social workers inquired about whether the Minor 13 Plaintiffs’ felt safe at home, how their parents disciplined them and D.C., and whether D.C. 14 “was an active child.” (Id. at ¶ 25.) The social workers did not inform the Minor Plaintiffs 15 that they could decline to be interviewed, nor were they given a choice about being 16 interviewed “once they were detained and confronted by the County workers.” (Id. at ¶ 17 26.) Further, the Minor Plaintiffs “were not informed that they could have a parent and/or 18 an attorney present for the interviews.” (Id.) At the time of the interviews, the social 19 workers “did not have exigency, Court Order, parental consent, knowledge or presence, or 20 even reasonable suspicion that the Minor Plaintiffs were the subject of abuse or neglect.” 21 (Id. at ¶ 27.) 22 Clark “continues to make false allegations” and, on December 29, 2017, social 23 worker Lisette Alvarez (“Alvarez”) contacted Williams to inquire about conducting an in- 24 person interview regarding disciplinary issues involving the Minor Plaintiffs and D.C. (Id. 25 at ¶ 28.) On January 11, 2018, Alvarez “reiterated her intent” to interview Williams and 26 her children regarding Clark’s latest allegations regarding D.C. (See id. ¶ 29.) Williams 27 indicated that she agreed to a meeting with herself, D.C., and her counsel, but that she 28 would not agree to interviews of her other children. (See id.) Alvarez, however, “refused 1 to agree not to go to the schools” of the Minor Plaintiffs pursuant to Defendant’s “policies 2 that allowed her to conduct such interviews[.]” (Id. (emphasis in original).) Based on these 3 allegations, Plaintiffs commenced the instant action. 4 II. LEGAL STANDARD 5 Federal Rule of Civil Procedure 45 governs discovery of nonparties by subpoena. 6 Fed. R. Civ. P. 45; see also Fed. R. Civ. P. 30(a)(1) (“[A] deponent’s attendance [at a 7 deposition] may be compelled by subpoena under Rule 45”). The Advisory Committee 8 Notes to Rule 45 state that “the scope of discovery through a subpoena is the same as that 9 applicable to Rule 34 and the other discovery rules,” which in turn is the same as under 10 Rule 26(b). Advisory Committee Notes to 1970 Amendment; Fed. R. Civ. P. 34(a). 11 Federal Rule of Civil Procedure 26(b) allows a party to obtain discovery concerning “any 12 nonprivileged matter that is relevant to any party’s claim or defense and proportional to the 13 needs of the case.” Fed. R. Civ. P. 26(b)(1); see also Moon v. SCP Pool Corp., 232 F.R.D. 14 633, 637 (C.D. Cal. 2005) (noting “courts have incorporated relevance as a factor when 15 determining motions to quash a subpoena”). “Relevancy, for the purposes of discovery, is 16 defined broadly, although it is not without ultimate and necessary boundaries.” Gonzales 17 v. Google, Inc., 234 F.R.D. 674, 679-80 (N.D. Cal. 2006) (internal quotation marks and 18 citation omitted); see also Fed. R. Civ. P. 26(b)(2)(C). 19 Rule 45 provides that “[o]n timely motion, the court for the district where 20 compliance is required must quash or modify a subpoena that . . . subjects a person to undue 21 burden.” Fed. R. Civ. P. 45(d)(3)(A)(iv). The question of “whether a subpoena is 22 burdensome depends on the facts of the case.” Lillie v. ManTech Int’l. Corp., No. 2:17- 23 cv-02538-CAS-SSX, 2019 WL 653085, at *1 (C.D. Cal. Feb. 15, 2019) (quoting Green v. 24 Baca, 226 F.R.D. 624, 653-54 (C.D. Cal. 2005), order clarified, No. CV 02-204744 MMM 25 (MANx), 2005 WL 283361 (C.D. Cal. Jan. 31, 2005)). “[A] court determining the 26 propriety of a subpoena balances the relevance of the discovery sought, the requesting 27 party’s need, and the potential hardship to the party subject to the subpoena.” ATS Prod., 28 Inc v. Champion Fiberglass, Inc., 309 F.R.D. 527, 531 (N.D. Cal. 2015) (quoting Gonzales, 1 234 F.R.D. at 680); see also Amini Innovation Corp. v. McFerran Home Furnishings, Inc., 2 300 F.R.D. 406, 409 (C.D. Cal. 2014) (“In determining whether a subpoena poses an undue 3 burden, courts weigh the burden to the subpoenaed party against the value of the 4 information to the serving party.” (internal quotations and citation omitted)). However, “if 5 the sought-after [information is] not relevant . . . then any burden whatsoever imposed . . . 6 would be by definition ‘undue.’” Compaq Computer Corp. v. Packard Bell Elec., Inc., 163 7 F.R.D. 329, 335-36 (N.D. Cal. 1995) (emphasis in original). 8 “[C]oncern for the unwanted burden thrust upon non-parties is a factor entitled to 9 special weight in evaluating the balance of competing needs,” and a court may quash a 10 subpoena where the court determines that the same evidence could be obtained from a party 11 to the litigation. Amini Innovation Corp., 300 F.R.D. at 409-10; see also Lemberg Law 12 LLC v. Hussin, No. 16-mc-80066-JCS, 2016 WL 3231300, at *5 (N.D. Cal. June 13, 2016) 13 (“The Ninth Circuit has long held that nonparties subject to discovery requests deserve 14 extra protection from the courts.” (citing United States v. C.B.S., Inc., 666 F.2d 364, 371- 15 72 (9th Cir. 1982))). 16 “The party issuing the subpoena must demonstrate that the information sought is 17 relevant and material to the allegations and claims at issue in the proceedings.” Optimize 18 Tech. Sols., LLC. v. Staples, Inc., No. 14-mc-80095-LHK (HRL), 2014 WL 1477651, at 19 *2 (N.D. Cal. Apr. 14, 2014) (citation omitted). The party moving to quash the subpoena 20 bears the “burden of persuasion” under Rule 45(d)(3). Moon, 232 F.R.D. at 637 (citations 21 omitted). “[B]road discretion is vested in the trial court to permit or deny discovery.” 22 Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002); see also Exxon Shipping Co. v. U.S. 23 Dep’t of Interior, 34 F.3d 774, 779 (9th Cir. 1994) (“Rule 26(c) and Rule 45([d])(3) give 24 ample discretion to district courts to quash or modify subpoenas causing ‘undue burden.’”). 25 A non-party moving to quash a subpoena may also seek a protective order under 26 Federal Rule of Civil Procedure 26. See Fed. R. Civ. P. 45, Advisory Committee Notes, 27 1937 Adoption (“Under this amendment, the person subpoenaed may obtain the protection 28 afforded by any of the orders permitted under Rule 30(b) [the provisions of Rule 30(b) 1 were transferred to Rule 26(c)] or Rule 45(b).”). Pursuant to Rule 26, a “court may, for 2 good cause, issue an order to protect a party or person from annoyance, embarrassment, 3 oppression, or undue burden or expense,” arising out of a discovery request. Fed. R. Civ. 4 P. 26(c)(1); see also Fed. R. Civ. P. 26(b)(2)(C). District courts have “broad latitude” to 5 issue a protective order. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 6 1206, 1211 (9th Cir. 2002). The party seeking a protective order has the burden of proving 7 “good cause,” which requires a showing “that specific prejudice or harm will result” if the 8 protective order is not granted. In re Roman Catholic Archbishop of Portland in Or., 661 9 F.3d 417, 424 (9th Cir. 2011). 10 III. DISCUSSION 11 A. Defendant’s Arguments 12 On July 11, 2019, Defendant served a deposition subpoena on D.C., who is a minor 13 and non-party to this case. (ECF Nos. 110-3; 113 at 3.) D.C. is currently seven years old. 14 (ECF No. 110-1 at 2.) D.C. was three years old on January 19, 2016 when Defendant 15 interviewed the Minor Plaintiffs. (Id.) Defendant contends that it is entitled to “broad 16 discovery” (ECF No. 113 at 2), and that D.C. can testify as to the following: 17  The veracity of the allegations contained in the County’s child abuse reports 18 (from 2013 to January 2016) that resulted in the interviews of the Minor 19 Plaintiffs. (Id. at 2-3, 5-6; see also ECF No. 125.) 20  The veracity of the allegations contained in child abuse reports made after the 21 interviews of the Minor Plaintiffs on January 19, 2016. (ECF No. 113 at 2, 22 6.) 23  His observations and perception of whether he and the Minor Plaintiffs 24 were—and continue to be—at risk of abuse in the home. (Id. at 2, 6.) 25  His observations and perception of whether the Minor Plaintiffs “are at risk 26 of being interviewed again.” (Id. at 6-7.) “For example, D.C. could testify 27 about how often social workers visited the house or attempted to speak to his 28 sisters.” (Id.) 1  Plaintiffs’ damages, including their “alleged emotional distress.” (Id. at 2, 7.) 2 D.C. lives with Plaintiffs and attends “family counseling sessions” with the 3 Minor Plaintiffs and therefore can testify to his “observations and perception 4 of Plaintiffs’ emotional state.” (Id. at 7.) D.C. can also testify “to any 5 communications between himself and Plaintiffs about their emotional state at 6 home and during their therapy sessions.” (Id.) 7  Plaintiffs’ possible biases against Defendant. (Id. at 2, 7.) D.C. “can testify 8 to any negative or derogatory statements made by Plaintiffs” about Defendant. 9 (Id. at 7.) 10 Defendant contends that D.C.’s testimony is relevant for the following reasons: 11  To “prove or disprove Plaintiffs’ contention that [the interviews of Minor 12 Plaintiffs on January 16, 2016] were unreasonable.” (Id. at 5.) 13  To “understand why County social workers interviewed minor Plaintiffs and 14 why they conducted those interviews at school.” (Id.) 15  It is “probative of Plaintiffs’ claim that the County was ‘well aware’ that 16 D.C.’s father made false reports about D.C. to the County’s child abuse hotline 17 and, therefore, did not have a legitimate reason to interview his siblings.” (Id. 18 at 6 (citing ECF No. 110-1 at 2).) 19  To determine whether the injunctive relief sought (i.e., restrictions on the 20 County “from conducting future interviews to determine the children’s 21 safety”) is warranted. (Id. at 6-7.) 22  Impeachment (e.g., testimony regarding Plaintiffs’ possible biases against 23 Defendant and Plaintiffs’ alleged emotional distress). (Id. at 7.) 24  Damages. (Id.) 25 26 Defendant points out that “Plaintiffs have not limited their discovery to only 27 information about the January 19, 2016 interviews” but have instead “propounded 28 interrogatories and requests for production of documents regarding all reports and 1 investigations dating from 2013 to the present.” (Id. at 5.) Defendant argues that “the 2 County should not be prevented from casting the same net to gather information.” (Id. at 3 6.) 4 At the hearing on the motion, Defendant clarified that this discovery was necessary 5 to refute Plaintiffs’ contention that, not only are the allegations about abuse in the home 6 false, but “the County should have known[,] or there was information that the County 7 knew[,] that those allegations were false.” (ECF No. 130 at 8.) Thus, the County asserts 8 that it should be able to conduct discovery that may indicate the allegations were actually 9 true. (Id. at 8-9.) 10 In an attempt to alleviate any harm to D.C., Defendant has agreed to limit the time 11 of the deposition to one hour2 and to conduct the deposition in a place that is comfortable 12 to D.C. (ECF Nos. 113 at 4; 125 at ¶ 20.) In addition, Defendant does not oppose Williams’ 13 request to be present for D.C.’s deposition. (Id.) 14 B. D.C.’s Arguments 15 D.C. moves to quash the deposition subpoena on the basis that it will likely cause 16 him “serious psychological damage,” and this psychological harm “far outweighs any 17 possible benefit” to Defendant of the requested discovery. (ECF No. 110-1 at 3, 5, 8.) 18 D.C. explains that in 2014, when he was only two years old, Defendant separated him from 19 his mother and placed him in the Polinsky Children’s Center. (Id. at 4.) The separation 20 from his mother was “deeply traumatizing to D.C” and he has been diagnosed with severe 21 trauma disorder stemming from this incident. (Id. at 4-5.) D.C. has been in consistent 22 therapy since 2017. (Id. at 5.) 23 To his motion, D.C. attaches a declaration from Emily Kierce, Psy.D., who has been 24 treating D.C. since September 2017. (ECF No. 110-4 at ¶ 2.) Dr. Kierce has a doctoral 25

26 27 2 Although Defendant initially represented that it had agreed to limit the deposition to two hours, at the hearing, Defendant represented that it agrees to limit the deposition to one 28 1 degree in Clinical Psychology and has spent more than ten years working with children 2 and their families. (Id. at ¶ 1.) Dr. Kierce states that “[w]hen D.C. encounters stressful 3 situations (e.g., being involved in a deposition), his psychological and behavioral state 4 regresses from baseline to excessive fears, hoarding behavior (in regard to food), and verbal 5 and physical outbursts.” (Id. at ¶ 4.) She explains that “[s]tressful situations overwhelm 6 [D.C.’s] ability to effectively manage his emotion and behavior” and “[b]oth the content 7 and the process of a deposition would be distressing for him to understand and manage 8 emotionally.” (Id.) As a result, Dr. Kierce opines that “the deposition of D.C. will likely 9 cause psychological decompensation that would reverse the positive impact of his 10 treatment.” (Id.) Dr. Kierce adds that “D.C. is not a child who utilizes much language to 11 communicate” and “[u]nder stress, he shuts down and withdraws.” (Id. at ¶ 5.) Therefore, 12 Dr. Kierce opines that she does not believe D.C. “will speak openly about difficult issues, 13 particularly with strangers.” (Id.) Based on the foregoing, Dr. Kierce recommends that 14 D.C. not be required to have his deposition taken (id. at ¶ 6), and D.C. argues that 15 Defendant “is not likely to obtain useful information by deposing” him (ECF No. 110-1 at 16 3). 17 D.C. further argues that his testimony “is not remotely important in resolving the 18 issues in this case.” (ECF No. 110-1 at 8.) D.C. notes that he was not a witness to the 19 interviews of his half-sisters, the Minor Plaintiffs, which took place at their schools when 20 he was three years old. (Id. at 5, 9.) Therefore, he would have “nothing substantive” to 21 say about the interviews. (Id. at 9.) Nor would D.C. be able to testify about the emotional 22 reaction of his mother and half-sisters at the time of the January 2016 interviews, as he was 23 only three years old at the time. (Id.) D.C. further contends that, as “an emotionally 24 disturbed seven-year-old,” he would not be “able to properly attribute or articulate the 25 cause of any emotions he may have witnessed in his home” over the three and a half years 26 that followed. (Id.) D.C. adds that the information sought by Defendant “is available from 27 other, more competent and reliable” and “less fragile” sources. (Id. at 3, 10.) He notes that 28 “[t]here are others, including adult members of the family, who can far better speak to the 1 emotional impact the interviews have had on the Minor Plaintiffs.” (Id. at 9.) With respect 2 to Plaintiffs’ claim for injunctive relief, D.C. argues that he “will have no insight into his 3 father’s mindset or plans to continue his campaign of harassment” against Williams and 4 her family, nor will he be able to testify regarding Defendant’s policies, procedures, 5 practices and/or customs. (Id. at 9-10.) 6 During the hearing on the present motion, the Court repeatedly inquired of Plaintiffs 7 whether one of the issues in this case is that the County’s conduct is wrongful because the 8 County knew or should have known that D.C. was not being abused by his mother. Despite 9 being given many opportunities to do so, Plaintiffs never disavowed that they were taking 10 this position, and in fact, ultimately confirmed that this was their position and that this was 11 an issue in the case, albeit a “subissue.”3 However, as with D.C., Plaintiffs nonetheless 12 maintained that any inquiry into the veracity of the abuse allegations is irrelevant. Plaintiffs 13 argue that this area of inquiry is irrelevant because Plaintiffs’ position that the County knew 14 or should have known that the abuse allegations were and are false is a “subissue” and not 15 the main issue.4 (Id. at 20.) 16 In supplemental briefing, D.C. now asserts for the first time that none of Plaintiffs’ 17 “claims or elements requires a showing that the County knew or should have known that 18 19 20 3 The Court: As long as you are saying that part of the problem of the County’s 21 conduct is the fact that they knew or should have known that there was no abuse in this case, as long as that is part of your argument, the County – I may 22 have to let the County do discovery on whether there was or wasn’t abuse of 23 this victim.

24 Mr Cox: Well, your Honor, again, it is a subissue. . . . 25 (ECF No. 130 at 20.) 26 4 The main issues being whether the County’s policy of interviewing minors in 27 schools who are not suspected of being abused violated Plaintiffs’ constitutional rights, and whether the County will undertake to interview the Minor Plaintiffs again if there are future 28 1 the allegations made by D.C.’s father about alleged physical abuse of D.C. were untrue.” 2 (ECF No. 135 at 6.) More importantly, in support of this supplemental briefing, D.C. 3 attaches a declaration of Plaintiffs’ counsel, Donnie R. Cox, in which he states, under 4 penalty of perjury: “Plaintiffs’ claims do not include or require proof that the County ‘knew 5 or should have known’ that D.C. was not being abused. This is true for both Plaintiffs’ 6 claims for damages arising out of the unconstitutional interviews, and Plaintiffs’ claim for 7 injunctive relief.” (Declaration of Donnie R. Cox, ECF No. 135-1 (“Cox Decl.) at ¶ 5.) 8 C. Analysis 9 Defendant cites several cases to support the proposition that it is “very unusual for a 10 court to prohibit the taking of a deposition altogether,” even the deposition of a minor, 11 “absent extraordinary circumstances.” (ECF No. 113 at 9-11 (citations omitted).) 12 Conversely, Plaintiffs cite two cases in which the depositions of minors were precluded 13 and argue that Defendant’s cases involve “children who were parties to the case and/or 14 who were competent, percipient witnesses to the events that were central to the litigation.” 15 (ECF No. 110-1 at 10-11 (emphasis in original).) 16 In deciding what restrictions, if any, to impose on discovery directed to a young child 17 party or witness, courts compare “the hardship to the party [or person] against whom the 18 discovery is sought, if discovery is allowed, with the hardship to the party seeking 19 discovery if discovery is denied.” Lamberth v. Clark Cnty. Sch. Dist., No. 2:14-cv-02044- 20 APG, 2015 WL 4076506, at *4 (D. Nev. July 1, 2015) (quoting Arassi v. Weber-Stephen 21 Prod. LLC, No. 13-CV-684, 2014 WL 1385336, at *2 (E.D. Wis. Apr. 9, 2014)). In several 22 cases where the depositions of young children who were parties to the action have been 23 permitted to proceed, the courts determined, after weighing the considerations, that any 24 undue burden on the child was outweighed by the significance of the testimony to the party 25 seeking to depose them. For example, in Graham v. City of New York, No. 08-cv- 26 3518(KAM) RML, 2010 WL 3034618 (E.D.N.Y. Aug. 3, 2010), the court determined that 27 although the minor plaintiff was four years old at the time of the underlying incident, his 28 testimony “regarding his state of mind is relevant to establishing the elements of his claims, 1 and essential to defendants’ ability to discover facts necessary to their defense, whether 2 through a motion for summary judgment or trial.” Id. at *4. The Graham court specifically 3 noted that the defense sought to depose the minor, who was a “party witness,” in part, on 4 a “critical and very meaningful” and “crucial” issue that “could prove essential to the 5 defense.” Id.; see also Doe v. New Fairfield Bd. of Educ., No. 3:13CV1025 (WWE), 2014 6 WL 7271522, at *1-3 (D. Conn. Dec. 18, 2014) (permitting the deposition of a minor 7 plaintiff who was in sixth grade at the time of the underlying incident because her testimony 8 was relevant to her claim of damages and the causal relationship between the alleged 9 conduct and claimed damages). 10 In Arassi, the court dealt with a motion to quash the deposition subpoenas of two 11 minors, ages fourteen and ten (ages ten and six at the time of the underlying incident), who 12 were non-parties to the lawsuit. Arassi, 2014 WL 1385336, at *1-2. The plaintiffs, who 13 were the minors’ parents, brought a personal injury action against the defendant claiming 14 that the defendant’s gas grill caused the victim-plaintiff a “permanent life-altering hand 15 injury.” Id. at 1. The plaintiffs asserted claims against the defendant for “past and future 16 medical expenses, pain and suffering, loss of society and companionship, lost wages, and 17 loss of future earning capacity.” Id. In their pleadings, depositions, and disclosures, the 18 plaintiffs “repeatedly maintained that part (if not most) of the damages in the case” 19 stemmed from a significant alteration in the victim’s family and home life. Id. The 20 defendant sought to depose the plaintiffs’ children, who were “in the home at the time” of 21 the accident, about the accident and about their “observations of their parents before and 22 after the accident and their family life before and after the accident.” Id. In denying the 23 motion to quash, the court noted that “the children are fact-witnesses as they were at home 24 on the day of the accident” and “they may also possess information on changes in their 25 home life, which plaintiffs have asserted as part of their claim.” Id. at *3. The Court 26 weighed this information against claims that participation in the lawsuit would be harmful 27 to the mental and emotional health of the children, the subject matter of the deposition, and 28 the possibility of setting limitations to address specific concerns. Id. at *2. 1 Similarly, in Hamilton v. Southland Christian Sch., Inc., No. 6:10-cv-871-ORL- 2 22DAB, 2011 WL 13143561 (M.D. Fla. Apr. 18, 2011), the plaintiff sued her former 3 employer, a Christian school, for employment discrimination arising from her termination 4 from the school after the administration learned she was pregnant and had conceived the 5 child prior to marriage. Id. at *1. The plaintiff also asserted a claim for invasion of privacy 6 for public disclosure of private facts. Id. The school served deposition subpoenas on the 7 plaintiff’s two oldest children “under the theory that the children—not the School 8 administration—spread the information of [the] [p]laintiff’s pregnancy.” Id. The children 9 were eleven and twelve years old at the time of their mother’s termination. Id. In moving 10 to compel the depositions, the school argued that the plaintiff “put the matter into 11 controversy with her invasion of privacy claim and the School is entitled to discover what 12 the children told their classmates and teachers about their mother’s relationship with her 13 then-boyfriend in order to defend the invasion of privacy action against it.” Id. at *2. The 14 school submitted the affidavit of two teachers who stated that, prior to the plaintiff’s 15 termination, the plaintiff’s two children told them or their children that the plaintiff was 16 pregnant before she was married. Id. The court determined that the depositions should go 17 forward with appropriate restrictions in place. Id. at *3. In doing so, the court noted that 18 “[t]he great weight of the decisions permit a deposition when children are parties or 19 witnesses to the claims in dispute, with reasonable restrictions.” Id. (internal quotation 20 marks omitted) (emphasis added) (collecting cases). 21 The Court takes the above considerations into account in analyzing the present 22 motion to quash and for a protective order. The Court considers whether the requested 23 information is relevant under Rule 26 and, if it is relevant, balances the hardship to D.C. if 24 discovery is allowed and the hardship to Defendant if the discovery is denied. The Court 25 also considers any reasonable restrictions that may be available. 26 1. Accuracy of Child Abuse Reports About Minor D.C. 27 Defendant seeks to depose D.C. about whether the child abuse reports that resulted 28 in the interviews of the Minor Plaintiffs were accurate. This information is purportedly 1 “relevant to prove or disprove Plaintiffs’ contention that [the interviews of the Minor 2 Plaintiffs] were unreasonable.” (ECF No. 113 at 5 (emphasis added).) Specifically, the 3 information is “probative of Plaintiffs’ claim that the County was ‘well aware’ that D.C.’s 4 father made false reports about D.C. to the County’s child abuse hotline and, therefore, did 5 not have a legitimate reason to interview his siblings.” (Id. at 6 (citing ECF No. 110-1 at 6 2) (emphasis added).) 7 D.C. argues in response that such testimony is irrelevant because there is nothing 8 before the Court suggesting that the Minor Plaintiffs were subject to abuse or neglect. (ECF 9 No. 110-1 at 4; see also FAC at ¶¶ 24, 27.) Furthermore, as previously noted, D.C. argues 10 in his supplemental brief that such testimony is irrelevant because none of Plaintiffs’ 11 “claims or elements requires a showing that the County knew or should have known that 12 the allegations made by D.C.’s father about alleged physical abuse of D.C. were untrue.” 13 (ECF No. 135 at 6.) Although this was a point of contention during the hearing, in support 14 of his supplemental brief, D.C. attached a declaration of Plaintiffs’ counsel, Donnie R. Cox, 15 in which he states, under penalty of perjury: “Plaintiffs’ claims do not include or require 16 proof that the County ‘knew or should have known’ that D.C. was not being abused. This 17 is true for both Plaintiffs’ claims for damages arising out of the unconstitutional interviews, 18 and Plaintiffs’ claim for injunctive relief.” (Cox Decl. at ¶ 5 (emphasis added).) 19 Based on Mr. Cox’s new representation under penalty of perjury that this is not an 20 issue – or even a subissue – in this case, the Court finds that Defendant has not established 21 the relevance of this requested testimony. 22 2. Other Proposed Subject Areas of the Deposition 23 Next, Defendant argues that D.C.’s testimony is relevant to understanding why the 24 County’s social workers interviewed the Minor Plaintiffs and why they interviewed them 25 at the school, and whether the County was aware of the falsity of the reports made by 26 D.C.’s father. However, Defendant does not explain how D.C.’s testimony is relevant to 27 determining what the County’s social workers did or did not believe, know, or understand 28 1 at the time of the interviews of the Minor Plaintiffs. Those are subjective questions that 2 D.C. cannot answer. 3 Defendant further argues that D.C.’s testimony is relevant to Plaintiffs’ claim for 4 injunctive relief. Defendant contends that D.C. can testify as to his observations and 5 perception of whether the Minor Plaintiffs are at risk of being interviewed again. As an 6 example, Defendant states that “D.C. could testify about how often social workers visited 7 the house or attempted to speak to his sisters.” (ECF No. 113 at 6.) This type of 8 information, however, is already in the possession of Defendant and can also be obtained 9 from Plaintiffs. See Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575, 577 (N.D. Cal. 10 2007) (“There is simply no reason to burden nonparties when the documents sought are in 11 possession of the party defendant.”); Amini Innovation Corp., 300 F.R.D. at 409; see also 12 Fed. R. Civ. P. 26(b)(2)(C)(i) (a court must limit the extent of discovery otherwise allowed 13 if “the discovery sought is unreasonably cumulative or duplicative, or can be obtained from 14 some other source that is more convenient, less burdensome, or less expensive”). To the 15 extent Defendant intends to ask D.C. whether he believes he is at risk of abuse or 16 allegations of abuse in the future, the Court finds that any purported relevance of such 17 highly speculative testimony is heavily outweighed by the undue burden on D.C., given his 18 age and current emotional state. 19 Next, Defendant contends that D.C.’s testimony is relevant to determining whether 20 Plaintiffs have any biases against Defendant. Defendant contends that D.C. can testify as 21 to whether Plaintiffs have made any negative or derogatory statements about Defendant. 22 Evidence of bias is relevant to impeachment. See United States v. Hankey, 203 F.3d 1160, 23 1171 (9th Cir. 2000) (“Evidence is relevant to a matter of consequence to the determination 24 of the case if it has a mere tendency to impeach a witness’ credibility by a showing of bias 25 or coercion.”); see also United States v. Abel, 469 U.S. 45, 51 (1984) (“[I]t is permissible 26 to impeach a witness by showing his bias under the Federal Rules of Evidence just as it 27 was permissible to do so before their adoption.”). Moreover, information “need not be 28 1 admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1); see also Fed. R. Evid. 2 801, 802. 3 However, in this case, the potential relevance of any such testimony is slight given 4 D.C.’s age and therefore his limited ability to comprehend his family’s relationship with 5 the County. Moreover, D.C. and his family have had numerous negative interactions with 6 the County, starting when D.C. was two years old. As noted above, D.C. was removed 7 from his mother’s custody when he was two years old and his mother filed suit resulting in 8 a judgment against the County. (ECF No. 110-1 at 4, n.3 (citing Evans v. County of San 9 Diego, No. 15-cv-01870-MMA (NLS) (S.D. Cal.), at ECF No. 37).) D.C., through his 10 Guardian ad Litem, also filed a proposed class action on behalf of himself and all others 11 similarly situated concerning the allegedly unlawful physical evidentiary examinations 12 conducted on D.C. and all other children who entered the Polinsky Children’s Center. (Id. 13 at 5 (citing D.C. v. County of San Diego, No. 15-cv-01868-MMA-NLS (S.D. Cal.)).) That 14 case is currently pending review by the Ninth Circuit. (Id.) The present suit was 15 subsequently filed in 2017. Therefore, Defendant seeks the testimony of a seven-year-old 16 regarding any “negative or derogatory statements” made by his family members about the 17 County stemming from interactions and lawsuits that commenced when he was 18 approximately two years old. Even assuming that D.C. could testify about such statements, 19 the same type of evidence is available in the public record or readily obtainable from the 20 parties to this litigation. As D.C.’s statements would be of little added value, the Court 21 again finds that any purported relevance of D.C.’s testimony on this topic is heavily 22 outweighed by the undue burden on D.C. 23 Lastly, Defendant contends that D.C.’s testimony is relevant to Plaintiffs’ damages 24 claim. Defendant intends to ask D.C. about what happens during their family counseling 25 sessions and his observations and perception of Plaintiffs’ emotional state. As detailed in 26 several prior discovery orders, Plaintiffs are seeking damages for emotional distress. 27 Accordingly, testimony regarding their emotional state would be relevant. However, D.C. 28 was three years old at the time of the interviews of the Minor Plaintiffs and therefore would 1 likely not be able to testify about the emotional reaction of his mother and half-sisters 2 immediately after the event. (See ECF No. 110-1 at 9.) 3 Even if he were able to testify regarding Plaintiffs’ emotional responses stemming 4 from the underlying incident in this case, the Court agrees that D.C. likely would not be 5 able to “properly attribute or articulate the cause of any emotions he may have witnessed” 6 due to his age and current emotional state. (Id.) Therefore, the relevance and value of 7 D.C.’s testimony on this point appears slight. Moreover, the Court notes that information 8 regarding Plaintiffs’ emotional distress will be available from the parties. Plaintiffs will 9 be deposed on these claims, and the Court has ordered Plaintiffs to respond to 10 interrogatories and produce documents which reflect mental or emotional health treatment 11 received from healthcare providers for injuries that Plaintiffs attribute to the underlying 12 incident. (See ECF No. 98 at 19.) Accordingly, any testimony D.C. may be able to provide 13 regarding statements during family counseling sessions would be otherwise obtainable 14 through Plaintiffs in discovery. 15 D. Motion for Reconsideration 16 D.C. also moves for reconsideration of the Court’s October 2, 2019 Minute Order 17 requiring the parties to meet and confer regarding a location for D.C.’s deposition. (ECF 18 No. 135.) D.C. moves for reconsideration under Federal Rule of Civil Procedure 60. (Id. 19 at 3.) Defendant argues that D.C.’s Rule 60 motion is premature and procedurally 20 improper, as no final order had been issued. (ECF No. 141 at 4-5.) Regardless of whether 21 Rule 60 was the proper procedural rule under which D.C.’s motion for reconsideration of 22 the Court’s October 2, 2109 Minute Order should have been brought,5 in light of the 23 Court’s ruling on D.C.’s motion to quash deposition subpoena and for protective order, the 24 Court’s order that the parties meet and confer regarding a location for the deposition of 25

26 27 5 See 88 Int’l Inc. v. Hartford Cas. Ins. Co., No. CV 13-09442-DMG (SHx), 2014 WL 12607693, at *2 (C.D. Cal. Mar. 17, 2014) (Rule 60(b) motion is procedurally improper 28 1 is now moot. Accordingly, the motion for reconsideration is GRANTED and the 2 || parties are excused from meeting and conferring further on this issue. 3 CONCLUSION 4 For the foregoing reasons, the Court GRANTS non-party minor D.C.’s motion to 5 || quash the deposition subpoena served on him by Defendant and for a protective order, and 6 || GRANTS non-party minor D.C.’s motion for reconsideration of the Court’s October 2, 7 Minute Order. 8 IT IS SO ORDERED. 9 || Dated: November 13, 2019 10 ‘ he khendtr 2 n. Jill L. Burkhardt ited States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28