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Doe v. District of Columbia

August 9, 2005


The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge


This case was referred to me by Judge Kessler to resolve all discovery disputes. Currently pending and ready for resolution is Defendant District of Columbia's Motion for Protective Order ("Def.'s Mot.") [#168]. For the reasons stated herein, the motion isgranted in part and denied in part.


Plaintiff John Doe, a minor child, alleges, through his next friend Bob Doe, that he was physically and sexually abused while in the care and control of the District of Columbia, in violation of defendant's duties under the United States Constitution, federal law, and District of Columbia law. In particular, plaintiff brings claims of negligence and of civil rights violations under the Fifth Amendment and 42 U.S.C. § 1983. The central incidents of abuse at issue in this case allegedly involved three other minors and occurred in April 2002 while plaintiff resided at a group home called Columbia House II ("CH II"), operated by Associates for Renewal in Education, Inc. ("ARE"), a private, not-for-profit foster care contractor for the District of Columbia's Child and Family Services Agency ("CFSA"). Following the April 2002 incident, plaintiff was removed from CH II and eventually placed in a therapeutic foster home operated by PSI Family Services, Inc. ("PSI"), another private, not-for-profit foster care contractor for CFSA. PSI placed plaintiff in a foster home with other children, allegedly against CFSA instructions and without informing the foster mother of his history of abuse and disruptive behavior.

On March 16, 2005, plaintiff filed his Notice of Deposition for the District of Columbia, pursuant to Federal Rule of Civil Procedure ("Rule") 30(b)(6). Defendant objected to various topics for deposition on the grounds they were overly broad, burdensome, or privileged. The parties attempted to resolve the dispute, with plaintiff conceding one issue but with the parties failing to reach a complete agreement. Plaintiff's counsel suggested that, if defendant's counsel would "be making a 'privilege' objection to any questions regarding topics 1, 2, 11, 12, and 17 -- making the deposition a complete waste of time for all parties -- then [it] should . . . file [a] motion for protective order." Def.'s Mot., Ex. B, at 2. Defendant filed the instant motion on May 13, 2005.

In response, plaintiff cancelled the deposition in question and filed Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant District of Columbia's May 11, 2005 Motion for Protective Order and in Support of Plaintiff's Request for Fees and Costs ("Pl.'s Opp'n"), in which he asserts that defendant fails to show good cause for its objections and that those objections are premature and nonspecific. Defendant then filed The District of Columbia's Reply Memorandum in Support of Its Motion for Protective Order ("Def.'s Reply"), asserting its motion was appropriate because it sought to protect privileged information and restrict inquiries not limited in time or scope.


Defendant filed this motion for protective order pursuant to Rule 26(c), certifying that it in good faith conferred with plaintiff in an effort to resolve the dispute without court action.

A. Legal Standards

When moving for a protective order to limit discovery, the movant must establish "good cause" under Rule 26(c) "by demonstrating the specific evidence of the harm that would result." Jennings v. Family Mgmt., 201 F.R.D. 272, 275 (D.D.C. 2001). To do so, the movant must articulate specific facts to support its request and cannot rely on speculative or conclusory statements. Id. (citing Alexander v. F.B.I., 186 F.R.D. 71, 74 (D.D.C. 1998)). Accordingly, courts apply a balancing test, weighing the movant's proffer of harm against the adversary's "significant interest" in preparing for trial. Id. (citing Lohrenz v. Donnelly, 187 F.R.D. 1, 3 (D.D.C. 1999); Alexander v. F.B.I., 186 F.R.D. at 75)).

B. Substance of Plaintiff's Motion

In its motion for protective order, defendant objects to ten of plaintiff's topics for the 30(b)(6) deposition. As a preliminary matter, before discussing the topics in turn, I address plaintiff's contention that defendant has asserted its privileges prematurely and that they should be raised only at deposition in the event an objectionable question is asked. He asserts that this is how discovery "properly unfold[s]" and that the "[i]issuance of a protective order at this stage is both unnecessary and unprecedented." Pl.'s Opp'n at 2. I disagree. Indeed, courts have broad discretion in deciding when to issue protective orders and to what degree they should provide protection. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). "If the responding party believes that the information sought by a discovery request is privileged or subject to some rule of confidentiality, the responding party must object and/or apply to the court for a protective order." Gray v. Faulkner, 148 F.R.D. 220, 222 (N.D. Ind. 1992). I therefore will not dismiss defendant's motion for protective order for timing or procedural reasons. Instead, I will examine whether protection is appropriate with respect to any or all of the topics at issue.

1. Topic Number 2

Deposition Topic Number 2 seeks testimony regarding [a]ll federal, state, and local laws, regulations, and rules applicable to the District, relating to: (a) the District's placement, monitoring, and care of children in foster environments, including group homes; (b) the operation and monitoring of Columbia House II and any other youth residential facilities; (c) the District's Employment Practices and Policies; (d) the District's Training Practices and Policies; (e) the District's monitoring, reporting, and methods of addressing instances of possible sexual abuse, physical abuse, emotional abuse, and/or neglect of children in its custody or placed in the custody of others by CFSA; and (f) the allegations of the First Amended Complaint, and the representations the District has made in its various submissions in this matter.

Def.'s Mot., Ex. A, at 2-3.

The dispute over Deposition Topic Number 2 turns on the question of whether a deposition topic regarding the applicability of laws and regulations is a matter of legal conclusion or privileged legal analysis. Federal Rule of Evidence 704 suggests that legal conclusions are not, per se, inadmissible. See Fed. R. Evid. 704 advisory committee notes ("The basic approach to opinions, lay and expert, in these rules is to admit them when helpful to the trier of fact."). Because it may lead to the discovery of admissible evidence, that is, an opinion that is helpful to the trier of fact, this topic is not, per se, improper. Even so, plaintiff maintains he will not inquire into any "legal conclusions" but instead will ask only that a witness "identify the regulations he or she deals with on a daily basis." Pl.'s Opp'n at 4. As long as the information sought is "reasonably calculated to lead to the discovery of admissible evidence" (e.g., information that may help the trier of fact appreciate defendant's understanding of and attitude toward its task of providing foster care), this court will allow that discovery. Fed. R. Civ. P. 26(b)(1).

In addition, courts in this circuit have not recognized an independent privilege for "legal conclusions" or "legal analysis." Any such privilege, it seems, must conform to the elements of a recognized privilege, such as the attorney-client privilege, which applies only if

(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

United States v. KPMG LLP, 237 F. Supp. 2d 35, 40 (D.D.C. 2002) (citation omitted). But, mere legal analysis or conclusion is not, by itself, protected. In order for the privilege to apply, defendant must clearly demonstrate that this standard for the attorney-client privilege has been met. Because ...

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