Doe v. University of Hartford
ORDER granting in part and denying in part 44 Motion for Protective Order. See attached ruling. Signed by Judge Holly B. Fitzsimmons on 1/4/2012. (Garcia, M.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
UNIVERSITY OF CONNECTICUT
CIV. NO. 3:09cv1071 (WWE)
RULING ON PLAINTIFF’S MOTION FOR PROTECTIVE ORDER
Plaintiff John Doe moves for a protective order to preclude
defendant University of Connecticut from taking the deposition of
Katherine McKeon, plaintiff’s probation officer. [Doc. #44]. Upon
careful consideration, the plaintiff’s motion for protective order
[Doc. #44] is GRANTED IN PART AND DENIED IN PART.
Plaintiff alleges this action that the University of
Connecticut, Doe’s former employer, violated his rights under Title
This civil case is the culmination of a series of highly
troubling events between John Doe and his former friend and
supervisor John Smith. Plaintiff and Smith knew have known other
With Smith’s assistance, plaintiff, born in Afghanistan
and a freedom fighter against the Soviet Union, was granted political
asylum in 1986. In 1998, plaintiff began working at the University of
Connecticut as a part time Special Payroll Administrator, and in 2002
plaintiff became a full time program aide under the immediate
supervision of John Smith. Plaintiff and Smith lived in the same
multi-family home with their respective families. In May 2006, Smith
accused Doe of assault and Doe was arrested and suspended from
employment at UConn. In June 2006, Doe filed an internal complaint
against Smith, alleging that Smith subjected him to sexual harassment
In July 2006, Smith filed criminal charges against
Doe, alleging that Doe had sexually molested Smith’s minor daughter.
In 2008, Smith’s employment was terminated as a result of UConn’s
internal investigation of plaintiff’s allegations of harassment.
Doe was charged with sexually molesting Smith’s minor daughter.
On January 18, 2008, plaintiff pleaded guilty, under the Alford
doctrine, to risk of injury to a child in violation of Connecticut
General Statutes § 53-21(a)(2), a class C felony, and was sentenced
by the Honorable Antonio C. Robaina to 7 years in jail, which
execution was suspended, and 10 years probation. At the time of
sentencing, a condition of probation was that plaintiff undergo
sexual offender evaluation and treatment.
Judge Robaina specifically
explained to plaintiff that, “Part of the [sexual offender] treatment
may require you to admit outside of the context of the Alford
Doctrine the behavior that the allegations here state that you
engaged in.” [Sentencing Transcript p. 9]. Judge Robaina further
canvassed the plaintiff, inquiring, “And you understand that if you
don’t comply with that treatment, it can give rise to a violation of
your probation. Do you understand that, sir?”, to which plaintiff
responded, “yes”. [Sentencing Transcript p. 9].
Since plaintiff’s guilty plea, records reveal that plaintiff
has undergone and participated in the requisite sexual offender
treatment, struggling at times with admitting to certain conduct that
gave rise to the criminal charges. On December 2, 2009, plaintiff
pleaded guilty to a violation of probation. The record is unclear
what conduct led to the probation violation.
Standard of Review
Parties may obtain discovery regarding any non-privileged matter
that is relevant to the subject matter involved in the pending
litigation. Fed.R.Civ.P. 26(b)(1). The information sought need not be
admissible at trial as long as the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.
Notwithstanding the breadth of the discovery rules, the district
courts are afforded discretion under Rule 26(c) to issue protective
orders limiting the scope of discovery. Dove v. Atlantic Capital
Corp., 963 F.2d 15, 19 (2d Cir. 1992) (“[t]he grant and nature of
protection is singularly within the discretion of the district
court....”). When the party seeking the protective order demonstrates
good cause, the court “may make any order which justice requires to
protect a party or person from annoyance, embarrassment, oppression,
or undue burden or expense, including ... that the disclosure or
discovery not be had.” Fed.R.Civ.P. 26(c)(1). “The party resisting
discovery bears the burden of showing why discovery should be
denied.” Chamberlain v. Farmington Sav. Bank, 247 F.R.D. 288, 289 (D.
Conn. Nov. 30, 2007) (citing Blankenship v. Hearst Corp., 519 F.2d
418, 429 (9th Cir. 1975)).
In connection with this case, plaintiff was deposed on June 29 and
July 12, 2011. At the deposition, plaintiff made certain statements denying
the improper sexual contact between him and the minor victim, and refusing
to acknowledge the authenticity of probation records shown to him at
the deposition by defendant’s counsel. Following the deposition,
defendant’s counsel noticed the deposition of plaintiff’s probation
officer, Katherine McKeon.
On July 9, 2011, plaintiff filed a motion for protective order
seeking to either prevent the deposition entirely or limit the scope
of the deposition. Plaintiff argues that the deposition will have an
in terrorem effect on plaintiff’s pursuit of this case, given that
disclosure to the probation officer of certain facts of this case
could subject plaintiff to criminal prosecution for violation of his
probation. In particular, plaintiff is concerned that his deposition
denials of engaging in the criminal conduct, if known to the
probation officer, could lead to a probation violation charge. In an
effort to avoid the deposition, plaintiff offers to stipulate (1) to
the authenticity of the probation records and (2) that there is a
discrepancy between the statements plaintiff has made as a part of
his sexual offender treatment and the statements made under oath in
Defendant opposes the motion for protective order [Doc.
#46], arguing that there are protective orders in place that would
protect any confidentiality concerns, and that the deposition is
warranted for impeachment purposes and to inquire about statements
plaintiff made to the probation officer that are relevant to the
The Court heard argument on September 22, 2011.
argument, it was decided to continue the matter to allow defendant to
obtain documents from the probation officer to see whether in fact
plaintiff has been inconsistent in his statements to the probation
officer and in his treatment, such that it would make no difference
to depose the PO and show her the plaintiff's deposition, where he
denies any wrongdoing. In addition, it was agreed that plaintiff
would file an amended complaint withdrawing paragraph 17, which
alleged that Smith threatened to file false criminal charges against
plaintiff and did file the false charges.
Following the hearing, plaintiff filed the amended complaint
withdrawing the previous ¶ 17, and defendant sought records from
plaintiff’s probation officer. Still, the parties were unable to
arrive at a resolution and a second argument took place on December
16, 2011. At this second hearing, plaintiff’s counsel reiterated that
he would stipulate to the authenticity of the records and to
plaintiff’s inconsistent statements, but maintained the position that
conducting the probation officer’s deposition and showing the
probation officer plaintiff’s statements in which he denied engaging
in the conduct that is the subject of the criminal guilty plea could
subject plaintiff to new criminal charges being brought against him
for violation of the terms of probation.
Defendant’s counsel stated
that since the argument she had received and reviewed probation
records she was able to obtain without a court order and talked to
the probation officer. Defendant is pursuing the deposition to
inquire into oral statements plaintiff made to the probation officer
that may not have been recorded, and any other topics that might lead
to admissible evidence, including the ability to impeach the
After careful consideration of the arguments and the
record before the Court, the Court rules as follows.
The relationship between a probation officer and probationers is
a unique one, requiring a significant degree of trust between the
offender and his or her officer, in order to successfully accomplish
the goals of the probation. So much so, that some jurisdictions
recognize a privilege between probation officers and probationers.
Michigan recognizes a limited privilege which attaches to all
communications made within the scope of the probation officer’s
duties. See People v. Burton, 74 Mich. App. 215 (1977); Mich Comp.
Laws § 791.229. Similarly Wyoming and South Carolina protect as
all information and data obtained in the discharge of
official duties by probation and parole agents. W.S. 1977 § 7-13-409;
Code 1976 § 24-21-290. South Carolina’s privilege, as interpreted by
the state’s highest court, goes as far as prohibiting a probationer’s
statements as admissions in court for any purpose, including
impeachment. See State v. Hook, 356 S.C. 421, 425 (2003).
The importance of the work of probation officers and of
maintaining the confidentiality of probation information was
addressed in Johnson Cherry Creek L.L.C. v. United States, 469 F.
Supp. 2d 725 (S.D. Iowa 2007). There, the district court, as a matter
of first impression, held that good cause existed to permit a moving
company to subpoena and depose a federal probation officer in
relation to the probationer’s civil lawsuit against the moving
company, given that the moving company was unable to locate any
witness other than the probation officer who could provide opinion
testimony about the probationer’s character for truthfulness. The
court cautioned that the outcome was a unique one that the court
“does not believe is likely to recur with frequency.” Id. at 727. The
court noted that as
a general matter, probation officers should not be subject to
being called as character witnesses in civil litigation
pertaining to offenders under their supervision. Were such a
practice to become commonplace, it could easily disrupt the
important tasks charged to probation officers in ensuring
offender compliance and community safety.
Id. at 727.
Neither Connecticut nor the federal rules of evidence recognize
a privilege between probation officer and probationer. However, this
court has the power to prevent disclosure of information and “make
any order which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense,
including ... that the disclosure or discovery not be had.”
The Court is concerned with the burden to the probation officer
who has no interest in the outcome of this litigation, and the
plaintiff’s right to pursue his civil action without the threat of
criminal consequences. With regard to the burden to the probation
officer, the Court, as in Johnson Cherry Creek, is mindful of the
hard work undertaken by probation officers with increasingly limited
resources. As such, any deposition the Court may permit will be
limited in time and scope to avoid any undue burden on the probation
officer, who should not be tied up in private litigation.
With regard to the plaintiff’s right to pursue a civil action,
the Court is unpersuaded that the deposition of his probation
officer, with proper limits in place, would have the chilling effect
conveyed by plaintiff’s counsel. As articulated by both counsel, the
allegations in this case have been covered by the media and the
probation officer is aware of the civil case and that plaintiff sat
for a deposition.
On the other hand, the Court deems much of defendant’s stated
purpose for the deposition as cumulative and duplicative, especially
where plaintiff will stipulate to the authenticity of the probation
documents and to the inconsistencies in his deposition for
Balancing the liberal rules of discovery
against the undue burden to the probation officer and potential
oppressive consequences to plaintiff, the Court will allow a
deposition of no more than 2 hours, limited to statements made by the
plaintiff to the probation officer regarding emotional distress
suffered by plaintiff as a result of his probation, reasons for
leaving UConn, or other topics related to his treatment, probation,
family life, work life, health and economic situation, which were
either memorialized in probation documents or which the probation
officer recollects. Given the cumulative nature of any potential
testimony from the probation officer regarding plaintiff’s
inconsistencies at the deposition and the potential harm to
plaintiff, the defendant will not be permitted to show or reveal to
the probation officer plaintiff’s deposition statements in any way.1
Defendant may show the probation officer the amended complaint, as it
is a public document.
Plaintiff shall stipulate in writing to the
authenticity of the probation records and to the inconsistencies in
his deposition testimony.
Accordingly, plaintiff’s motion for protective order is GRANTED
IN PART AND DENIED IN PART [Doc. #44].
The deposition will take
place at a time and place convenient for the probation officer within
The Court is concerned that the protective order in place
would not ensure the confidentiality necessary and possibly place
the probation officer in a dilemma with regard to her reporting
21 days of this ruling. Dispositive motions are due February 15,
This is not a recommended ruling.
This is a discovery ruling
and order which is reviewable pursuant to the "clearly erroneous"
statutory standard of review.
28 U.S.C. § 636 (b)(1)(A); Fed. R.
Civ. P. 6(a), 6(e) and 72(a); and Rule 2 of the Local Rules for
United States Magistrate Judges.
As such, it is an order of the
Court unless reversed or modified by the district judge upon motion
SO ORDERED at Bridgeport this 4th day of January 2012.
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE
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