Halley v. Oklahoma State Department of Human Services et al

Filing 214

OPINION AND ORDER by District Judge James H. Payne: (Re: 201 Plaintiff's MOTION for Protective Order) (cjt, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
FRANK HALLEY, as Next Friend
of J.H., a minor child,

)
)
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Plaintiff,
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vs.
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STATE OF OKLAHOMA ex rel. the
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OKLAHOMA STATE DEPARTMENT OF )
HUMAN SERVICES, et al.,
)
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Defendants.
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Case No. 14-CV-562-JHP

OPINION AND ORDER
Before the Court is Plaintiff’s Motion for Protective Order (Doc. No. 201). Plaintiff
seeks to prevent the Defendants from taking the deposition of eight-year-old J.H., on whose
behalf this case is brought. In the alternative, Plaintiff proposes several limitations on J.H.’s
deposition to ensure J.H.’s safety.

Defendants oppose Plaintiff’s request to prevent J.H.’s

deposition and also oppose most of Plaintiff’s proposed restrictions on J.H.’s deposition.
BACKGROUND
In this lawsuit, Plaintiff alleges the Defendants violated J.H.’s constitutional and state law
rights by removing J.H., then a six-year-old child, from his school and transporting him to
another location, where he was questioned about his father for approximately one hour in an
attempt “to solicit information to either file criminal charges against [J.H.’s father], or to break
apart his family.” (Doc. No. 48, ¶¶ 20, 26). Plaintiff alleges J.H.’s removal and interrogation
stemmed from a failed criminal prosecution against J.H.’s father. (Id. ¶ 23). After Defendants
failed to obtain the desired information, J.H. was taken back to his school. (Id. ¶ 27). As a result

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of the seizure and interrogation, J.H. has allegedly suffered stress and trauma requiring
professional counseling. (Id. ¶ 29).
J.H. is now eight years old. The parties now dispute whether Defendants may take J.H.’s
deposition. Plaintiff has not listed J.H. as a trial witness, but all remaining Defendants have
listed him on their respective witness lists.1 Plaintiff argues a deposition, particularly one
without any restrictions, may traumatize J.H. or destroy any progress his counselors have made
since the date of the incident.
DISCUSSION
I.

Prevention of J.H.’s Deposition
This situation is not specifically addressed in the Federal Rules of Civil Procedure.

However, the Court “may, for good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1).
A party seeking to quash a deposition has a “heavy burden of demonstrating good cause” that the
deposition should not be taken. Bucher v. Richardson, 160 F.R.D. 88, 92 (N.D. Tex. 1994)
(citations omitted).

The party seeking to prevent a deposition must show “extraordinary

circumstances that present a particular and compelling need for such relief.” Klesch & Co. Ltd.
v. Liberty Media Corp., 217 F.R.D. 517, 524 (D. Colo. 2003) (citing Bucher, 160 F.R.D. at 92).
“Conclusory assertions of injury” do not suffice to prevent a deposition. Bucher, 160 F.R.D. at
92.
Plaintiff argues the Court should prevent the deposition of J.H., because (1) J.H. needs
protection from any mental or emotional trauma that may result from a deposition, (2) the
Defendants may depose any of J.H.’s care givers and medical professionals who can describe

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Defendants Ken Golden, Nathan Callaway, Oklahoma Department of Human Services, and Sara Huckaby assert
they have listed J.H. as a witness by incorporation. (See Doc. Nos. 192, 194).

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how the subject incident affected J.H, and (3) the probative value of J.H.’s testimony is minimal
compared to the assessment of a child psychologist. The only supportive evidence Plaintiff
offers is an email from Dana L. McCall, J.H.’s counselor (Doc. No. 204-1). In the email, Dr.
McCall expresses her concern that the deposition could re-traumatize J.H. unless the questions
are structured specifically for a child and the deposition is constructed “extremely well.” (Id.).
Dr. McCall also states her fear that “certain settings” would re-trigger nightmares and anxieties
left by the first “interrogation.” (Id.).
The Court appreciates Plaintiff’s concerns and has a strong interest in preserving J.H.’s
mental and emotional health. However, the Court has located no precedent for preventing a
deposition in these circumstances, and Plaintiff points to none. In each of the decisions Plaintiff
cites in his brief, the proposed testimony of a traumatized child was not prevented, but rather
reasonable restrictions were put in place to protect the well-being of the child during testimony.
See, e.g., Bucher, 160 F.R.D. at 94; United States v. Carrier, 9 F.3d 867, 869 (10th Cir. 1993),
Thomas v. Gunter, 962 F.2d 1477, 1480 (10th Cir. 1992). See also Kuyper v. Bd. of Cty.
Comm’rs of Weld Cty., 2010 WL 4038831 (D. Colo. Oct. 14, 2010) (denying motion for
protective order to prevent deposition of minor child); Graham v. City of New York, 2010 WL
3034618 (E.D.N.Y. Aug. 3, 2010) (same). J.H. is at the center of this case, and Defendants are
entitled to discovery regarding his memory and understanding of the events of this case, in the
absence of a showing of good cause to prevent it.
Here, Plaintiff has provided some medical support for limiting J.H.’s deposition. J.H.’s
counselor has suggested that, depending on the circumstances of the questioning, the deposition
could re-traumatize J.H. and undo his trauma work. However, Dr. McCall’s statements, which
are vague and conclusory, do not satisfy the Court that J.H.’s deposition should be prevented.

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Plaintiff’s arguments in favor of preventing the deposition are speculative and unsupported.
Plaintiff has not met his burden to demonstrate “extraordinary circumstances” that would warrant
preventing the deposition. Accordingly, Plaintiff’s request to prohibit the deposition of J.H. is
denied.
II.

Limitations on J.H.’s Deposition
Plaintiff proposes several limitations on J.H.’s deposition in the event the Court is

inclined to permit the deposition. Specifically, Plaintiff requests (1) that the deposition occur
near J.H.’s home in Texas; (2) that the deposition time be limited to a total of no more than two
hours; (3) that J.H. be accompanied by a care giver who can sit near him; (4) that defense
counsel coordinate and combine their questions to a single person; (5) that individual Defendants
be excluded from the deposition; and (6) that defense counsel limit their questioning to the
incident. Defendants are not opposed to permitting a care giver in the room while J.H. is being
deposed, but they vigorously object to Plaintiff’s other proposed limitations.2
Dr. McCall’s concerns do raise the possibility that deposing J.H. without any restriction
could risk J.H.’s mental and emotional health. However, Plaintiff provides no evidence from Dr.
McCall or any other medical provider specifically addressing his six proposed limitations. For
example, Dr. McCall’s email states “certain settings” would re-trigger J.H.’s nightmares and
anxieties” (Doc. No. 204-1), but she does not state whether J.H. would be traumatized by
appearing for deposition in the Eastern District of Oklahoma. Dr. McCall also states it is
important that “Doug” not attend the deposition, but she offers no opinion on how it would affect

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Defendants state they do not object to conducting the deposition near J.H.’s home, provided the remaining
limitations requested by Plaintiff are not granted. Because the Court has not yet ruled on Plaintiff’s remaining
proposed limitations, the Court will assume for the time being that Defendants object to holding the deposition in
Texas.

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J.H. if the individual Defendants attend.

Without medical evidence supporting Plaintiff’s

proposed limitations, the Court is not in a position to grant them.
Nonetheless, the Court remains concerned for J.H.’s well-being and is not prepared to
deny Plaintiff’s requested limitations at this time. Accordingly, Plaintiff is granted leave to
submit additional evidence in support of placing the proposed restrictions on J.H.’s deposition.
Specifically, Plaintiff is instructed to provide medical evidence in support of Plaintiff’s six
proposed limitations on J.H.’s deposition. Defendants may submit their own medical evidence if
they so choose. At a minimum, the Court will consider holding J.H.’s deposition at the U.S.
Courthouse in Muskogee, Oklahoma, under the supervision of a Magistrate Judge, to ensure the
protection of J.H. All evidence must be submitted within seven (7) days of the service of this
Opinion and Order.
CONCLUSION
For the reasons detailed above, Plaintiff’s request to prevent the deposition of J.H. is
DENIED.

In accordance with this Order, the parties are directed to submit any medical

evidence regarding Plaintiff’s proposed restrictions on the deposition within seven (7) days of
the service of this Opinion and Order.
IT IS SO ORDERED this 19th day of September, 2016.

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