G et al v. South Carolina Department of Social Services et al
Filing
33
OPINION AND ORDER granting in part and denying in part 26 MOTION to Compel; directing the Clerk to seal Dkt. No. 26-3. (In Camera Submission due by 6/22/2011, Reply to Court's Interrogatories due by 5/16/2011) Signed by Honorable Cameron McGowan Currie on 5/2/2011. (cbru, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
N.G., by and through his guardian,
Wyella Gaymon and Wyella Gaymon,
)
)
)
Plaintiffs,
)
)
South Carolina Department of Social
)
Services, Jan Author, Deanna “Dinks”
)
Howard, Cassie Cajjino, Melissa Parker,
)
Carrie Fox, Beth Haynes, Christy White,
)
Amy Cue, and Growing Homes Southeast, )
Inc.,
)
)
Defendants
)
___________________________________ )
C.A. No. 0:10-cv-02973-CMC
OPINION AND ORDER
ON
MOTION TO COMPEL
Plaintiffs’ motion to compel is granted in part and denied in part. Defendants are directed
to conduct a document review and make disclosures as indicated below. To the extent production
of documents is required, that production shall, initially, be made for in camera review. Except to
the extent compelled by this order, Plaintiffs’ motion to compel production is either deemed moot
or denied and Plaintiff’s motion to compel responses to interrogatories is denied without prejudice.1
ARGUMENTS
Plaintiffs. Plaintiffs assert that they need to review a broad category of documents in order
to determine the extent to which Defendants were on notice that R.L., a foster child and the alleged
perpetrator of the minor-on-minor abuse underlying the claims in this action, posed a danger to other
1
The parties have advised the court that they have resolved the motion to the extent it relates
to employment records and information relating to prior similar complaints, settlements, and legal
actions. Plaintiffs’ motion is, therefore, deemed moot with respect to these categories of
information. To the extent Plaintiffs’ motion addresses interrogatories, it is granted to the extent of
requiring responses to the interrogatories set forth in this order and otherwise denied. This denial
is without prejudice to service of subsequent interrogatories consistent with the rulings herein.
1
children. Plaintiffs argue that the state law protections on which Defendants rely in objecting to the
discovery requests are not binding on a federal court and, even under state law, “can be overcome
by a judicial order.” Dkt. No. 26 at 5-6.2 Plaintiffs appear, nonetheless, to concede that an in
camera review of documents prior to disclosure may be appropriate.
In addition, Plaintiffs argue that some of the information sought is necessary “for N.G.’s
social worker expert to provide a valid opinion and survive a Daubert challenge[.]” Id. at 9.
Plaintiffs have not, however, provided promised support for this position. See id. (promising to
“submit an affidavit from [Plaintiffs’] expert in support of” this assertion). Lacking such support,
the court declines to consider Plaintiffs’ expert-specific argument.
Defendants. Defendants present multiple arguments for why they should not be compelled
to provide the requested discovery. First, acting on behalf of R.L., a foster child in its care,
Defendant South Carolina Department of Social Services (“DSS”) invokes R.L.’s rights under the
Fifth Amendment. Second, Defendants argue that the files are subject to protection under S.C. Code
§ 63-7-1990 and a related regulation.3 Third, Defendants argue the request is overbroad. Finally,
Defendants argue that files of other alleged victims of R.L. should not be produced for the same
reasons set forth above (with particular concern for the privacy interests of these children who are
not otherwise represented in this action) and because information in those files as to any abuse by
R.L. would also be reflected in R.L.’s files. Defendants affiliated with Growing Homes Southeast,
2
In opposing Plaintiffs’ motion, Defendants relied on only some of the grounds Plaintiffs
anticipated. This order addresses only those arguments actually advanced by Defendants.
3
Though cited, the regulation is not further discussed. The court does not, therefore,
consider it here.
2
Inc. (collectively “Growing Homes Defendants”) argue, in addition, that they are prohibited by
contract from making the requested disclosures.
DISCUSSION
Fifth Amendment. Defendants’ Fifth Amendment argument is limited to a generic
invocation of unspecified Fifth Amendment rights on R.L.’s behalf. Although Defendants do not
identify the specific right or rights at issue, the court presumes Defendants are referring to the Fifth
Amendment’s protection against self incrimination. It does not, however, appear that this right
would be implicated by third-party production. Absent some argument to the contrary, and none is
offered, the court finds the Fifth Amendment inapplicable as the discovery requests are not directed
to R.L.
Statutory Protection. It is essentially undisputed that the documents at issue fall within the
categories of document protected under S.C. Code. Ann. § 63-7-1990 (“the Act”). The Act allows
for limited disclosure of documents falling within its scope and imposes criminal (misdemeanor)
penalties for unauthorized disclosure. One provision of the Act allows disclosure to
parties to a court proceeding in which information in the records is legally relevant
and necessary for the determination of an issue before the court, if before the
disclosure the judge has reviewed the records in camera, has determined the
relevancy and necessity of the disclosure, and has limited disclosure to legally
relevant information under a protective order.
S.C. Code Ann. § 63-7-1990(B)(11).
The Act provides both substantive and procedural protections. The court assumes without
deciding that the procedural aspects of the statute are not binding on this court as a state law cannot
limit discovery in federal cases. See Dkt No. 26 at 6 (cases cited by Plaintiffs). The court,
nonetheless, concludes that it is appropriate for the court to conduct an in camera review of the
3
documents prior to disclosure and will subject any disclosed documents to protection under the
existing confidentiality order.4
To facilitate the court’s in camera review, the court will require defense counsel to review
all documents falling within specified categories in order to identify any which meet criteria likely
to make them relevant to the claims in this case. See infra Overbreadth and Duplication.
Defendants shall produce those documents and related indexes to the court in a specified form. See
infra Directions for Production for In Camera Review. The court recognizes that these procedures
may impose a substantial burden on defense counsel (and a corresponding cost on Defendants) but
finds that burden necessary to give proper protection to the documents.5
Overbreadth and Duplication. The court agrees that the document request is, to some
degree, overbroad and will limit the required production to documents which:
(1)
were created or refer to events prior to R.L.’s removal from the Gaymon home
(where the alleged minor-on-minor abuse occurred); and
(2)
report or reference any of the following (a) acts or threats of physical or sexual
aggression by R.L., (b) inappropriate sexual activity or comments directed to other
children by R.L., (c) indications that R.L. was, himself, sexually abused, or (d)
4
While this court is not bound by state procedural requirements, it does apply state law
regarding privileges to state law claims and may give weight to the state-law rules even as to federal
claims. See generally Fed. R. Evid. 501 (applying state law privilege rules as to elements of statelaw claims) and Notes (noting federal court may give state law persuasive or even controlling effect
in deciding federal common law of privilege). Here, Plaintiff has plead both state and federal
claims.
5
The only alternatives would be to (1) impose the same burdens on the court (to conduct
an in camera review of the entire files) or (2) allow Plaintiff’s counsel to review the documents in
a reading room setting. Defendants oppose the latter option, arguing that agreement to that course
would place them in violation of the statute.
4
expressions of concern by others that R.L. posed a risk of harm to others or, for any
reason, should not be placed in a home with other children.6
The court will not, however, limit the categories of files to be reviewed as neither Plaintiffs’
counsel nor the court can know where relevant documents might be located. Thus the review and
production required includes all files referenced in Plaintiffs’ memorandum including, as limited
below, files referring to other children who were housed with R.L. prior to his removal from the
Gaymon home. Files of other children need only be searched for references to adverse encounters
with R.L. and that requirement will be imposed only if there is some other evidence that R.L. may
have acted aggressively (physically or sexually) toward that child at some point prior to his removal
from the Gaymon home.7
Contract-Based Argument. The court presumes without deciding that the contract-based
limitations would preclude the Growing Homes Defendants from making disclosures of client
information without a court order. This argument does not, however, suggest any limitations on
what the court may require these Defendants to disclose. The Growing Homes Defendants are,
therefore, required to make production to the same extent required of the remaining Defendants
(collectively “DSS Defendants”).
6
Plaintiffs also sought disclosure of any references to “antisocial behavior” by R.L.
Because the definition of “antisocial behavior” is inherently broad, the court asked Plaintiffs’
counsel to submit a narrow list of particular antisocial behaviors which would suggest that R.L.
posed a particular risk of abusing other children. The list which counsel subsequently submitted was
exceptionally broad and persuades the court that it should not require disclosure of references to
antisocial behavior.
7
Such evidence would include any reference to such aggression in R.L.’s file or any other
file counsel is required to review by this order. It also includes any independent knowledge held by
any person who is named as a Defendant at the time of entry of this order. This requirement is
imposed regardless of when the knowledge was obtained, so long as the knowledge relates to an
event predating R.L.’s removal from the Gaymon home.
5
Directions for Production for In Camera Review. WHEREFORE, no later than June 22,
2011, attorneys for Defendants who are admitted to the bar of this court shall complete a review of
all files referenced in Plaintiffs’ motion at pages 7-8, paragraphs 1-13. Counsel shall identify any
documents in those files which satisfy the requirements referenced above. See supra Overbreadth
and Duplication. All documents so identified shall be copied in full,8 bates numbered, and indexed.
The index should provide each document’s bates number(s) and a brief description including the
nature of the document (e.g., letter, caseworker report, medical record), date, author, and source
(e.g., the file from which the document was obtained).
A copy of all such documents, together with the descriptive index, shall be provided to the
court for in camera review by the deadline set out above. Identifying information including the
names of any children (including R.L.) and identifying information as to the home will be redacted
and replaced with an alpha or numeric designation.9 The language which caused counsel to believe
the document was or might be subject to disclosure shall be highlighted on the copy provided for
in camera review.10
8
For example, if the statement requiring disclosure is found on one page of a four page
document, all four pages of the document shall be disclosed.
9
Prior to delivery to the court for in camera review, R.L. and N.G.’s names shall be
replaced with their initials. The names of other children (and other identifying information) shall
be redacted and the children’s names shall be replaced with a numeric identification. Identifying
information regarding the household shall also be redacted and replaced with a letter designation.
Defense counsel shall prepare and retain a document cross-referencing these alpha and
numeric designations with the relevant identifying information. That index shall provide (1) the
child’s age and gender, (2) the child’s name, and information adequate to identify the home in which
the child was housed at the time of the incident involving R.L.. A redacted version of this index,
giving only the child’s numeric designation, age and gender will be provided to the court together
with the production of documents for in camera review.
10
If the court orders production, it shall not require Defendants to provide a highlighted
version to Plaintiffs. Defendants should, therefore, retain a copy for this purpose which is redacted
but not highlighted.
6
Defendants shall provide the above referenced documents and related indexes to the court
no later than June 22, 2011.11 In addition, Defendants shall include a certification by the attorneys
involved in the review process that they have reviewed the listed categories of file and produced
documents in conformity with the requirements of this order. To the extent a category of file does
not exist or contains no relevant document, counsel shall so certify. Upon receipt of these
documents, indexes, and certification(s), the court will determine which, if any, documents must be
disclosed to Plaintiffs. Unless otherwise ordered, all documents shall be treated as confidential
under the existing confidentiality order if and when produced.
At the time the documents are provided for in camera review, counsel shall provide copies
of the indexes to all counsel. The indexes shall not, however, be filed and shall be treated as
confidential absent further order. Either group of Defendants may file supplemental indexes and
documents within fourteen days after receipt of their co-Defendants’ submission.12
Interrogatories. Within fourteen days of entry of this order, Defendants are directed to
respond to the interrogatories set out below. To the extent Defendants’ responses may refer to any
minors other than N.G. and R.L. or households other than the Gaymon home, Defendants should
identify the children and homes using letters and numbers as indicated above. Defendants should
maintain a cross-reference for these designations.13
11
The court intends that the document review be completed by attorneys admitted to the
District of South Carolina bar. Recognizing the significant amount of work this may entail, the court
has allowed a generous period for completion of the task. Counsel should not anticipate any
extension of this deadline.
12
This allowance for supplementation recognizes both the risk of oversight and that different
individuals may interpret the same or similar reports differently.
13
The alpha and numeric designations used to replace identifying information redacted from
documents should, to the extent possible, correspond with the designations used in interrogatory
7
1.
Defendants shall state, on a Defendant-specific basis
(a)
what role, if any, he or she played in evaluation of R.L.’s suitability for placement
in a home with other children in general and the Gaymon home in particular prior to
R.L.’s removal from the Gaymon home;
(b)
what information (including any documents) regarding R.L.’s suitability he or she
considered in making any decision or recommendation regarding R.L’s placement(s)
at any time prior to his removal from the Gaymon home;
(c)
if involved in R.L.’s placement in the Gaymon home (including a continuation of the
initial placement), the reasons he or she considered in deciding to place or leave R.L.
in that home;
(d)
whether he or she has, at any time, learned or been informed of any incidents which
occurred prior to R.L’s removal from the Gaymon home involving threats or acts of
physical or sexual aggression by R.L. against other children. To the extent a
Defendant has learned or been informed of such an incident, Defendant should
describe the reported incident and state when and how he or she learned of it. In
addition, Defendant should identify the minors and households involved by alphanumeric designation.
2.
Defendants shall also disclose the household makeup of R.L.’s subsequent placements for
a period of twelve months following his removal from the Gaymon home. Specifically, Defendants
shall indicate the dates and nature of subsequent placements (e.g., foster home or group home), and
responses.
8
the ages and genders of all persons residing in the homes at the same time as R.L. Defendants need
not provide any further information from which the home or residents might be identified.
Responses to these interrogatories shall be served on Plaintiffs within fourteen days of entry
of this order. Copies shall also be provided to the court together with the in camera review but these
documents shall not be filed.
SEALING OF FILED DOCUMENTS
An exhibit filed in support of Plaintiff’s motion to compel includes confidential information
regarding R.L. Dkt. No. 26-3. Although that document has been redacted to remove identifying
information and R.L. is identified in this action only by his initials, the public filing of this document
poses a serious risk of disclosure of confidential information to anyone who is or becomes aware
of R.L’s identity and is not otherwise entitled to review this confidential information. The document
was, in any event, filed in support of a discovery motion, making in camera review appropriate. The
court, therefore, concludes that this document should be sealed and directs the clerk to do so. The
court further directs all parties to contact chambers by teleconference (with opposing counsel online) for instructions prior to filing any other confidential document as redaction of identifying
information, while helpful, may not be adequate protection.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
May 2, 2011
9
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