PC 41 DOE v. POLY PREP COUNTRY DAY SCHOOL WILLIAM WILLIAMS MICHAEL NOVELLO (2022)

ORDER

Pursuant to the New York Child Victims Act, Plaintiff has sued Defendant Poly Prep Country Day School (“Poly Prep”) and two individual defendants (together, “Defendants”), alleging that when he was a minor student at the school in the late 1970s he was sexually abused by his then-football coach. Defendants now seek to depose Plaintiff's father about other sources of Plaintiff's claimed emotional distress. (Letter-Motion to Compel dated Mar. 11, 2022 (“Mot.”), Dkt. No. 59). The motion to take the deposition of Plaintiff's father is denied. A court “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including [an order] ․ forbidding the disclosure or discovery[.]” Fed. R. Civ. P. 26(c)(1)(A). The Court finds the deposition of Plaintiff's father to be a speculative foray that borders on harassment, denies the motion, and enters a protective order prohibiting his deposition.¹

Though the Defendants have withdrawn their prior motion related to the discovery of Plaintiff's father, it is relevant that the attempts to depose Plaintiff's father were first initiated through facially improper contact initiated by Defendants’ agent (though unknown by Defendants’ counsel). Defendants, in other words—without their counsel's knowledge—have already engaged in improper contact of a witnesses represented by counsel. (See Mot. to Compel dated Jan. 13, 2022, Dkt. No. 44; Order dated Jan. 20, 2022). This is relevant because Plaintiff's father is an elderly individual, over 80 years old, (see Opp'n Letter dated Mar. 21, 2022 (“Opp'n”), Dkt. No. 62 at 1), with significant health limitations, whose doctors do not recommend a deposition, because of the possible risks to his health. (Id.; Letter from Emad Hakemi, MD dated Nov. 24, 2021, attached as Ex. 9 to Opp'n at 1 (“Within the last month, [Plaintiff's father] had a valve procedure for which he is still recovering․ I am writing to confirm that it is my opinion, as his physician, that being examined at a deposition in a legal matter regarding highly sensitive matters concerning his family would be detrimental to his health and recovery.”)). Indeed, the deposition excerpts filed by Defendants show that Plaintiff's father suffers from “heart issues” and “memory loss issues.” (Tr. of Dep. dated Jan. 12, 2022 (“Dep.”), attached as Ex. B. to Karen Bitar Decl. dated Mar. 11, 2022, Dkt. No. 59-1 at 81: 4-10). He has already been forced to interact with Plaintiff's investigators despite the fact that he has counsel. This deposition would take place on top of the improper contact.

Perhaps the deposition and potential harm to health would be warranted if the probative value of his potential testimony were central to the case or otherwise significant to the Defendants’ defense. But it is not. Defendants allege that “Plaintiff's father's deposition testimony is highly relevant to Plaintiff's psycho-emotional state at the time the alleged abuse occurred, as well as any causal factors that could have caused trauma or impacted Plaintiff during those years.” (Mot. at 3). Both of these supposed justifications—that Plaintiff's father can shed light on Plaintiff's emotional distress—are without merit.

There is nothing to indicate that Plaintiff's father had any contemporaneous knowledge of the abuse Plaintiff suffered.² By Defendants’ own admission, neither Plaintiff himself nor his brother recall various childhood events with specificity, (see Mot. at 3); having exhausted their recollections and come up empty, there is nothing to suggest that Plaintiff's father would have any knowledge on the subject, given that he is older (and as noted, has health issues that make a deposition unduly stressful). Already Plaintiff, his brother, his wife, and a childhood friend have testified. (Opp'n at 2). Inferring that because other witnesses have not been able to provide the testimony, Plaintiff's father must therefore have percipient knowledge is a conclusion unwarranted by anything in the record. For instance, there is nothing to suggest that anyone identified Plaintiff's father as someone with knowledge during their depositions. No such record or deposition is cited to by Defendants. The argument is conjecture.

Separately, the theory that Plaintiff's father can assist in determining the source of Plaintiff's emotional distress is equally speculative. The fact that Plaintiff is claiming emotional distress “scarcely gives defendants a license to rummage through all aspects of the plaintiff's life in search of a possible source of stress or distress[.]” Evanko v. Elec. Sys. Assocs., Inc., No. 91 CIV. 2851, 1993 WL 14458, at *2 (S.D.N.Y. Jan. 8, 1993). Defendants believe Plaintiff's state of mind and emotional health were impacted by other issues besides the alleged sexual assaults—his mother's mental health; divorce; absence of his mother in the household—that caused Plaintiff's emotional distress. If Plaintiff's treating doctors or therapists or Plaintiff himself—or Defendants’ expert perhaps—identified these events as causally related, then a deposition of Plaintiff's father may have been warranted. (That too is a stretch, since a Plaintiff need not show that Defendants’ conduct was the sole factor causing his emotional distress. See Prunier v. City of Watertown, 936 F.2d 677, 679 (2d Cir. 1991) (stating that in a negligence action under New York law, a plaintiff “need not prove ․ that the defendant's conduct was the sole cause of the injuries”).) They do not cite to such a record or basis for emotional injury; this appears to be a theory of counsel's own making—speculation based on conjecture that these other life events could have caused emotional distress—not anything supported by an expert, any exhibit, deposition testimony, or record evidence. E.g., Evanko, 1993 WL 14458, at *2 (“The weakness of defendants’ position on this point is underscored by the fact that they have not yet retained an expert to guide their labors and are thus left with their counsel's speculations as to what might be pertinent to a psychological analysis. Their argument, not surprisingly, is devoid of any specific justification for their demand[.]”). In exploring alternative causes of a party's claimed emotional distress, it is quite proper and well-established to permit examination of the person's medical records. See Moore v. Chertoff, No. 00-953, 2006 WL 1442447, at *2 (D.D.C. May 22, 2006). And such records have already been sought in this case. To go beyond that requires some warrant, either in the record or perhaps from an expert, that the deponent or discovery source would have some information pertinent to the inquiry. The deposition testimony that Defendants provide does not provide their link. The excerpts from the depositions—including depositions of Plaintiff's other family members, establish that there were various events that took place during Plaintiff's childhood, including divorce and custody disputes. (E.g., Tr. of Dep. dated Feb. 2, 2022, attached as Ex. A. to Karen Bitar Decl. dated Mar. 11, 2022, Dkt. No. 59-1 at 231–33, 240; Dep. at 110–115). But none of that testimony suggests that Plaintiff suffered any emotional distress from those events. It is only counsel's speculation that provides that suggestion (and none of the witnesses provide the crucial link). Tellingly, Defendants cite not a single case where a family member was deposed for the purpose of determining the source of a plaintiff's emotional distress. That is not to say that such a deposition has not occurred. But here, where the Plaintiff's father is elderly, suffers from health issues, has already been improperly contacted by an agent of Defendants, and there is nothing beyond counsel's speculative say-so to suggest he can provide an alternative cause, the deposition is unwarranted.

SO ORDERED.

FOOTNOTES

1.   Defendants do not say whether they served a subpoena upon Plaintiff's father, who is a non-party. Nor do they cite to the standards for a motion to quash under Rule 45. In any event, the protections in Rule 26 from improper discovery are equally applicable to quash a subpoena. See Allstate Ins. Co. v. All Cnty., LLC, No. 19-CV-7121, 2020 WL 5668956, at *1 (E.D.N.Y. Sept. 22, 2020).

2.   Plaintiff's father only recently became aware of the alleged sexual abuse suffered by his son. (Opp'n at 3).

SANKET J. BULSARA United States Magistrate Judge