Opinion
Court of Appeals Case No. 20A-CR-1446
05-19-2021
Donnie Louis SAWYER, Appellant, v. STATE of Indiana, Appellee.
Attorneys for Appellant: Mark E. Kamish, Maxwell B. Wiley, Baldwin Perry & Kamish, P.C., Franklin, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Ian McLean, Supervising Deputy Attorney General, Indianapolis, Indiana
Attorneys for Appellant: Mark E. Kamish, Maxwell B. Wiley, Baldwin Perry & Kamish, P.C., Franklin, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Ian McLean, Supervising Deputy Attorney General, Indianapolis, Indiana
Brown, Judge. [1] In this interlocutory appeal Donnie Louis Sawyer challenges the validity of Ind. Code § 35-40-5-11.5, which became effective on March 18, 2020, and argues the statute, which restricts a defendant's ability to take the deposition of a child less than sixteen years of age who is the victim or alleged victim of a sex offense, conflicts with the Indiana Trial Rules. We agree and reverse.
We heard virtual argument on April 28, 2021. We thank counsel for their well-prepared and engaging oral advocacy.
Facts and Procedural History
[2] In 2019, the State charged Sawyer with two counts of child molesting: as a level 1 felony committed against D.S., who was seven or eight years old during the charged events, and as a level 4 felony committed against A.S., who was nine years old during the charged events.
According to the Affidavit of Probable Cause, the charges followed a report of abuse by the children to a family member that they had been molested by Sawyer after he and his wife moved into the residence in August 2018. The affidavit stated that A.S. told the family member about an incident when she was in Sawyer's bed and he was patting her buttocks while possibly masturbating, and that the family member spoke to D.S. who told her that Sawyer placed his hand down D.S.’s pants and inserted a finger into his anus.
[3] Prior to the State charging Sawyer, D.S. and A.S. were interviewed on March 8, 2019, at the Cherish Center, and they provided statements that they had been molested. That same day, a detective interviewed a parent of the children who stated that D.S. and A.S. wore diapers several months earlier, they had not worn them in months, and Sawyer "has a diaper fetish and watches diaper pornography all the time." Appellant's Appendix Volume II at 20. Also according to the probable cause affidavit, Sawyer was interviewed in April 2019 at the Department of Child Services office, voluntarily waived his rights when advised, denied ever touching the children inappropriately, said he and his wife had a bed in the living room at the residence and the children slept with them a couple times, and admitted he has a diaper fetish.
[4] On July 19, 2019, the State filed a discovery response and notice of compliance indicating it provided defense counsel a recorded video interview of Sawyer, recorded video child forensic interviews, and various paperwork and documents. Sawyer moved for continuances in September and November 2019, which the court granted.
[5] On March 3, 2020, Sawyer filed a Motion for Order Authorizing Public Funding for Discovery Expenses, which requested public funds to obtain sworn testimony of up to ten witnesses, including the two children, which the court granted two days later. On March 6, 2020, the State filed a supplementary discovery notice indicating it provided defense counsel with "Noblesville Police Department Incident/Investigation Report 08-001288." Id. at 66.
[6] On March 17, 2020, the prosecuting attorney sent defense counsel a message stating that, as far as scheduling the depositions of the State's witnesses, she did not have dates available for the following week any longer, "so we would need to go into early April," and indicating that, if defense counsel would inform her of dates that worked in April, they could "at least tentatively plan the depositions." Id. at 113.
[7] Ind. Code § 35-40-5-11.5 became effective on March 18, 2020. See Pub. L. No. 62-2020, §§ 8-9 (2020). On March 19, 2020, the prosecuting attorney sent defense counsel an email message which referenced the March 17, 2020 message and stated:
I need to add to this e-mail that I do not agree to [redacted] and [redacted][ ] being deposed in this case. [I]t's my understanding that the new statute ( IC 35-40-5-11.5 ) is in effect as of yesterday. I'm not doing this to be difficult; it's that I have never viewed multiple-hour depositions of young children as being reasonable or fair to them. Under the new statute, depositions of child victims of sex crimes are not to be conducted unless either a) the prosecutor agrees, or b) in "extraordinary circumstances and in the interest of justice" (as specifically found and ordered by a court), and I don't believe there are any such circumstances here – for good or ill, it's a very typical child molest case. I am guessing that you most likely feel differently about all of that, so if we need to go through the statutory procedures and get a ruling from the court, I understand completely.
The message contains redaction marks at these locations.
Appellant's Appendix Volume II at 113.
[8] On April 6, 2020, Sawyer filed a Petition for Authorization to Depose Child Accusers, in which he referenced Ind. Code § 35-40-5-11.5, the Indiana Trial Rules, the state and federal constitutions, and his communication with the prosecuting attorney. He argued subsections (c) and (d)(1) of the statute could be used by a prosecutor to completely block a defendant from taking the depositions of child communicators, such a block occurred in his case, and
Indiana Code § 35-40-5-11.5(e) having now been triggered, the Defendant respectfully petitions the Court for authorization to depose D.S. and A.S. under Indiana subsections (d)(2) and (d)(3). [ ] The Defendant asks the Court, pursuant to subsection (e), to notify the [ ] Prosecutor and set the mandatory hearing.
Id. at 79. On April 7, 2020, the court set a hearing for May 14, 2020, to determine whether to authorize the depositions of the children and, if applicable, the manner of the depositions.
[9] On April 24, 2020, Sawyer filed a Demand for Authorization to Depose Child Accusers and Objection to a Prerequisite I.C. 35-40-5-11.5 Hearing, in which he indicated he now objected to the hearing he previously requested because the evidentiary showing and burden of proof placed upon him was unfair. He attached the correspondence with the prosecuting attorney and moved the court to authorize the taking of the children's depositions without a hearing.
[10] On April 27, 2020, the court confirmed the May 14th hearing. In the interim, the State filed responses to Sawyer's April 6th and 24th pleadings, to which Sawyer filed a reply and supplemental brief. Following the hearing and additional briefing, the court held another hearing on June 18, 2020, at which it denied Sawyer's request and stated:
On the ... issue of the deposition, it is true that rules, supreme court promulgated rules generally trump statutes when there is a direct conflict. When there isn't a direct conflict I believe it is also true that courts try mightily to allow both the statute and the rule [to] coexist. And I have a rule that of course allows for preparation of discovery and I have a statute that talks about preventing a certain type of discovery in certain situations with exceptions. I think I can allow them to coexist by in this particular situation refusing the Defense's request to allow the deposition
of the victim.... I will deny [the] request to depose the child victims.
Transcript Volume II at 32-33. On June 24, 2020, the court issued an order denying Sawyer's Petition for Authorization to Depose Child Accusers "as discussed on the record" at the June 18, 2020 hearing. Appellant's Appendix Volume II at 185. Upon certification of the interlocutory order, this Court accepted jurisdiction over the appeal.
Discussion
[11] Sawyer argues that, in this case of first impression, the trial court abused its discretion in denying him an opportunity to depose the children. Specifically, he argues that Ind. Code § 35-40-5-11.5 restricts the use of depositions, "significantly alters the ability of those accused of ... particular sex crimes to investigate the allegations against them," and irreconcilably conflicts with the Ind. Trial Rules and, thus, is without force or effect. Appellant's Brief at 12. He claims it "simultaneously and unlawfully imposes new burdens" on him as he seeks to depose the children, "thus restricting his access to critical pre-trial discovery," a burden "at odds and incompatible with clear and unambiguous rules for discovery depositions" through Indiana's Trial Rules. Id.
[12] The State contends the court did not err and argues in essence that Ind. Code § 35-40-5-11.5 is a substantive provision and "part of a deliberate decision by the General Assembly to address the rights of Children affected by vigorous litigation over a crime." Appellee's Brief at 22. It argues that the statute substantively protects children from the experience of a deposition which, in the context of the litigation environment, is "free to delve into any and every aspect of a child's life and experiences that fits into the far-reaching phrase ‘relevant to discovery.’ " Id. at 23 (internal quotations removed).
[13] The Indiana Supreme Court "has recognized on multiple occasions that the Indiana Trial Rules ‘are designed to allow liberal discovery.’ " Beville v. State , 71 N.E.3d 13, 18 (Ind. 2017) (quoting Richey v. Chappell , 594 N.E.2d 443, 445 (Ind. 1992) (some internal quotations omitted)). "Trial courts have broad discretion on issues of discovery." Id. (citing Hardiman v. State , 726 N.E.2d 1201, 1206 (Ind. 2000) ). The "standard of review in discovery matters is limited to determining whether the trial court abused its discretion." Hale v. State , 54 N.E.3d 355, 357 (Ind. 2016) (quoting Crawford v. State , 948 N.E.2d 1165, 1169 (Ind. 2011) ). Matters of statutory interpretation present pure questions of law and are thus reviewed de novo. Matter of M.S. , 140 N.E.3d 279, 282 (Ind. 2020) (citing In re Adoption of B.C.H. , 22 N.E.3d 580, 584 (Ind. 2014) ). We "presume[ ] that the legislature intended for the statutory language to be applied in a logical manner consistent with the statute's underlying policy and goals." Id. (quoting Rodriguez v. State , 129 N.E.3d 789, 793 (Ind. 2019) ).
[14] Both parties cite the 2016 case, Hale v. State , in which the Indiana Supreme Court discussed depositions, indicating they are
a routine component of pre-trial practice, both in civil and criminal matters. See Ind. Trial Rule 30(A) ...; Ind. Crim. Rule 21 ("The Indiana rules of trial and appellate procedure shall apply to all criminal proceedings so far as they are not in conflict with any specific rule adopted by this court for the conduct of criminal proceedings."); see also Ind. Code § 35-37-4-3 (2014) ("The state and the defendant may take and use depositions of witnesses in accordance with the Indiana Rules of Trial Procedure."). Typically, leave of court is not required
in order to depose a witness, see Ind. Trial Rule 30(A), but as we noted in Murphy [v. State ], "inasmuch as the defendant here was an indigent and the cost of such action would ultimately have had to have been paid from public funds, subject to the approval of the court, it was altogether appropriate for counsel to seek prior approval." [ 265 Ind. 116, 120, 352 N.E.2d 479, 482 (1976) ]....
The Indiana Rules of Trial Procedure came into force in 1970, and just a year later, this Court laid out the following three-part balancing test for addressing a defendant's discovery request in a criminal case: "(1) Is there a sufficient designation of the items sought to be discovered?"; "(2) Is the item sought to be discovered material to the defense?"; and "(3) Has the State made a sufficient showing of its paramount interest, if any, in non-disclosure?" Dillard v. State , 257 Ind. 282, 291-92, 274 N.E.2d 387, 392 (1971). Five years later, Murphy tacitly applied the Dillard test to a defendant's request to depose witnesses at public expense, finding the trial court's denial of the request an abuse of discretion. See Murphy, 265 Ind. at 120, 352 N.E.2d at 482 ("In this case, there was no showing that the defendant's purpose was not bona fide or that there was any paramount interest of the State in non-disclosure."). And in reversing the conviction, Murphy further held that the harmless error doctrine was "inapposite to the issue," irrespective of the fact that the defendant's task of rebutting the State's other evidence "seem[ed] insurmountable":
We cannot presume, as a matter of law, that no exculpatory or mitigating evidence would have surfaced from the depositions sought. Even if it were determined retrospectively that nothing in aid of his defense was discoverable, we could not discount the effect of a denial. Effective counseling is dependent upon knowledge of the facts, and it is essential that weaknesses as well as strengths be discovered and intelligently assessed.
Id. at 121, 352 N.E.2d at 482-83.
* * * * *
We have not previously had occasion to revisit Murphy , but we have upheld and more fully developed the three-part Dillard test several times, most recently in Crawford[ v. State ]: "(1) there must be sufficient designation of the items sought to be discovered (particularity); (2) the items requested must be material to the defense (relevance or materiality); and (3) if the first two requirements are met, the trial court must grant the request unless there is a showing of paramount interest in nondisclosure." 948 N.E.2d [1165,] 1168 [(Ind. 2011)] (emphasis added). Moreover, these requirements are not to be "construed strictly against the defendant but should be administered so as to maximize pre-trial discovery and the benefits to the judicial system which flow therefrom." Id. at 1169 (quoting Dillard , 257 Ind. at 291, 274 N.E.2d at 392 ).
This test does not, however, address several issues which could impact the "materiality" of the proposed depositions, particularly since they are being conducted at public expense. For instance, on average trial testimony is thought to be briefer than deposition testimony "since the issues are less well developed at the pretrial stage," DAVID CRUMP , On the Uses of Irrelevant Evidence , 34 HOUS. L. REV . 1, 52 n.238 (1997), and trial counsel may be concerned about maintaining the attention of the judge or jury; thus the expense of conducting such depositions could significantly increase the overall costs of trial – costs which the taxpayers would
ultimately bear. It is also plausible that a defendant could attempt to utilize depositions as a harassment technique, by forcing his or her victims to unnecessarily relive the experience without the defendant having any real expectation of obtaining new information.[ ] Moreover, if the defendant's proposed deponents possess factual knowledge only marginally material to his or her case, such depositions could amount to little more than a fishing expedition, designed to impede the administration of justice rather than promote it.
A footnote appears here which states: "Indeed, Indiana Trial Rule 26(C) expressly permits the trial court, upon a showing of good cause, to prohibit a deposition which would cause "a party or person ... annoyance, embarrassment, oppression, or undue burden or expense." Hale , 54 N.E.3d at 360 n.4.
[15] Ind. Code § 35-40-5-11.5, which was enacted in a public law for which an emergency was declared and became effective on March 18, 2020, see Pub. L. No. 62-2020, § 9 (2020), is titled "Depositions of certain child victims or alleged victims of a sex offense." The statute is part of an article construed to preserve and protect the rights to which a victim is entitled "without interfering with the rights of the accused to receive a fair trial...." Ind. Code § 35-40-3-1. It provides that it applies only to criminal cases involving a child less than sixteen years of age who is the victim or alleged victim of a sex offense, and it lists definitions that apply throughout the section. Ind. Code § 35-40-5-11.5(a) - (b). It then provides a defendant "may depose a child victim only in accordance with this section," but
In the same session law, the General Assembly repealed Ind. Code § 35-40-5-11, see Pub. L. No. 62-2020, § 7 (2020), which was titled "Defense counsel interviews; rights of certain child victims of a sex offense," originally enacted by Pub. L. No. 169-2009, § 3 (eff. July 1, 2009), and provided:
(a) This section applies only to a child less than sixteen (16) years of age who is the victim or alleged victim of a sex offense (as defined in IC 11-8-8-5.2 ).
(b) As used in this section, "defense counsel" includes an agent of:
(1) the defense counsel; or
(2) the defendant.
(c) After charges are filed against a defendant, if defense counsel would like to interview a child described in subsection (a), the defendant or defense counsel must contact the prosecuting attorney. The child has the right under section 3 of this chapter to confer with the prosecuting attorney before the interview occurs. The prosecuting attorney may not instruct the child not to speak with defense counsel.
(d) If the parties are unable to agree to the terms of the interview, the parties may petition the court for a hearing on the terms of the interview prior to the interview taking place. The court shall review the terms suggested by the parties and consider the age of the child, any special considerations, and the rights of victims provided by IC 35-40-5-1 in setting reasonable terms for the interview.
The definitions include the following:
(4) "Deposition" or "depose" means a deposition upon oral examination, or taking a deposition upon oral examination, as described in Indiana Trial Rule 30.
(5) "Sex offense" has the meaning set forth in IC 11-8-8-5.2.
Ind. Code § 35-40-5-11.5(b). On March 18, 2020, Ind. Code § 11-8-8-5.2 stated " ‘sex offense’ meant an offense listed in section 4.5(a) of this chapter," and Ind. Code § 11-8-8-4.5 includes a list of various crimes in the Indiana Code.
(d) ... may not take the deposition of a child victim unless the defendant contacts the prosecuting attorney before contacting the child, and one (1) or more of the following apply:
(1) The prosecuting attorney agrees to the deposition. The prosecuting attorney may condition the prosecuting attorney's agreement to the deposition
upon the defendant's acceptance of the manner in which the deposition shall be conducted.
(2) The court authorizes the deposition after finding, following a hearing under subsection (f), that there is a reasonable likelihood that the child victim will be unavailable for trial and the deposition is necessary to preserve the child victim's testimony.
(3) The court authorizes the deposition after finding, following a hearing under subsection (g), that the deposition is necessary:
(A) due to the existence of extraordinary circumstances; and
(B) in the interest of justice.
(e) If the prosecuting attorney does not agree to the deposition, the defendant may petition the court for authorization to depose the child victim under subsection (d)(2), (d)(3), or both subsection (d)(2) and (d)(3). Upon receipt of the petition, the court shall notify the prosecuting attorney and set a hearing to determine whether to authorize a deposition of the child victim, and, if applicable, to determine the manner in which the deposition shall be conducted.
(f) The court shall authorize the deposition of a child victim under subsection (d)(2) if the defendant proves by a preponderance of the evidence that there is a reasonable likelihood that the child victim will be unavailable for trial and the deposition is necessary to preserve the child victim's testimony.
(g) The court may not authorize the deposition of a child victim under subsection (d)(3) unless the defendant establishes by a preponderance of the evidence that the deposition is necessary:
(1) due to the existence of extraordinary circumstances; and
(2) in the interest of justice.
Ind. Code § 35-40-5-11.5(c) - (g). The section provides a list of factors for the trial court to consider following an authorization of the deposition of a child victim under subsection (f) or (g). See Ind. Code § 35-40-5-11.5(h). Based upon our review of these statutes, we find that Ind. Code § 35-40-5-11.5 is a procedural law. See State ex rel. Blood v. Gibson Cir. Ct. (1959), 239 Ind. 394, 400, 157 N.E.2d 475, 478 (noting that, unlike substantive laws, procedural laws "prescribe the manner in which ... rights and responsibilities may be exercised and enforced in a court."), reh'g denied.
Subsection (h) provides that the court shall consider the age of the child, the rights of the victim under Ind. Code § 35-40-5-1, and any other relevant factors or special considerations. Ind. Code § 35-40-5-1 provides that a victim "has the right to be: [ ] treated with fairness, dignity, and respect; and [ ] free from intimidation, harassment, and abuse[ ] throughout the criminal justice process."
Subsection (j) requires the court to issue a written order describing the reason for granting the petition and setting forth the manner in which the deposition shall be conducted, which shall "expressly prohibit the accused from deposing or being present at the deposition of the child victim" unless certain conditions are met, and "if applicable, issue a protective order under Indiana Trial Rule 26(C)."
Subsection (i) requires the court, if it denies the petition, to issue a written order describing the reason for denial.
[16] Before turning to Indiana's relevant trial rules, we note, as did the Hale Court, that Indiana Criminal Procedure Rule 21 provides the "Indiana rules of trial and appellate procedure shall apply to all criminal proceedings so far as they are not in conflict with any specific rule adopted by this court for the conduct of criminal proceedings." See Hale , 54 N.E.3d at 357 ; see also Brewer v. State , 173 Ind.App. 161, 362 N.E.2d 1175, 1177 n.4 (1977) (" Trial Rules 30 and 31 provide for the taking of depositions in civil cases, and these rules apply to criminal cases through Ind. R. Crim. P. 21."). "It is a fundamental rule of Indiana law that when a procedural statute conflicts with a procedural rule adopted by the supreme court, the latter shall take precedence." Key v. State , 48 N.E.3d 333 (Ind. Ct. App. 2015) (citing Bowyer v. Ind. Dep't of Nat. Res. , 798 N.E.2d 912, 917 (Ind. Ct. App. 2003) ). "Thus, when a procedural statute conflicts with the Indiana Rules of Trial Procedure, the trial rules govern, and phrases in statutes that are contrary to the trial rules are considered a nullity." Id. (citing Bowyer , 798 N.E.2d at 917 ). See also State v. Holtsclaw , 977 N.E.2d 348, 350 (Ind. 2012) ("Our ‘rules of procedure prevail over any statute or statutory construction.’ ") (quoting State ex rel. Crawford v. Del. Cir. Ct. , 655 N.E.2d 499, 500 (Ind. 1995) ).
[17] Ind. Trial Rule 26 provides that parties may obtain discovery by "depositions upon oral examination or written questions," and indicates that, "[u]nless the court orders otherwise under subdivision (C) of this rule, the frequency of use of these methods is not limited." Ind. Trial Rule 26(C) deals with protective orders and states that, upon motion and for good cause shown, the court in which the action is pending or "alternatively, on matters relating to a deposition, the court in the county where the deposition is being taken," may make "any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following," and it lists several examples, including that the discovery "not be had," "may be had only on specified terms and conditions, including a designation of the time or place," "may be had only by a method of discovery other than that selected by the party seeking discovery," or that "certain matters not be inquired into, or that the scope of the discovery be limited to certain matters."
[18] Ind. Trial Rule 30(A) provides:
When depositions may be taken . After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of twenty [20] days after service of summons and complaint upon any defendant except that leave is not required:
(1) if a defendant has served a notice of taking deposition or otherwise sought discovery; or
(2) if special notice is given as provided in subdivision (B)(2) [a subdivision regarding the taking of a deposition by the plaintiff] of this rule.
The attendance of witnesses may be compelled by the use of subpoena as provided in Rule 45....
[19] We note the recent guidance of the Indiana Supreme Court in Matter of M.S. , 140 N.E.3d 279. In determining whether a provision in a CHINS statute addressing factfinding hearings conflicted with the Indiana Trial Rules, the Court stated:
"[T]o the extent a statute is at odds with our [Rules of Trial Procedure], the rule governs" on matters of procedure. Garner v. Kempf , 93 N.E.3d 1091, 1099 (Ind. 2018) (citation omitted). To be at odds or "in conflict ..., it is not necessary that the statutory rule be in direct opposition to our rule, so that but one could stand per se." State v. Bridenhager , 257 Ind. 699, 704, 279 N.E.2d 794, 796 (1972). "The rule and the statute need only be incompatible to the extent that both could not apply in a given situation." Bowyer v. Ind. Dept. of Nat. Res. , 798 N.E.2d 912, 917 (Ind. 2003).
140 N.E.3d at 284. The Court stated the statute in question was procedural and that both the statute and the trial rule could not apply because one mandated dismissal and the other allowed an extension of the timeframe discussed for good cause.
[20] Considering Ind. Code § 35-40-5-11.5 in light of the Indiana Trial Rules, we find that they are incompatible to the extent that both cannot apply in Sawyer's situation. The former contemplates that a defendant "may depose a child victim only in accordance with this section," whereas Ind. Trial Rule 26 provides that, unless in the case of protective orders, the frequency of use of the discovery methods including depositions "is not limited," and Ind. Trial Rule 30(A) provides that "any party may take the testimony of any person, including a party, by deposition upon oral examination " after commencement of the action. (Emphasis added). The statute further conflicts with the Indiana Trial Rules when it necessitates the prosecutor's permission, compare Ind. Code § 35-40-5-11.5(d), with Ind. Trial Rules 30 and 45(D), and when it requires a defendant to move for a hearing when the permission sought is not forthcoming and otherwise places the burden of proof on the defendant at the contemplated hearing. Compare Ind. Code § 35-40-5-11.5(e) - (g), with Ind. Trial Rule 26(C). Because the procedural provisions in the statute conflict with those of the Indiana Trial Rules, the provisions of the Indiana Trial Rules govern. See McEwen v. State , 695 N.E.2d 79, 89 (Ind. 1998) (citing Humbert v. Smith , 664 N.E.2d 356, 357 (Ind. 1996) ).
[21] To the extent that the State argues the General Assembly enacted Ind. Code § 35-40-5-11.5 to address and protect victim's rights, we note that the "General Assembly itself has recognized that we have sole authority over ‘practice and procedure in all the courts of Indiana,’ and that ‘all laws in conflict with the supreme court's rules have no further force or effect.’ " Holtsclaw , 977 N.E.2d at 350 (quoting Ind. Code § 34-8-1-3 (added by Pub. L. No. 1-1998, § 3 (1998))). Similarly, to the extent that the State relies on Humbert v. Smith , we note that Humbert stated:
The Court of Appeals was correct in applying appropriate law to void the portion of the paternity statute that conflicts with Rule 803(6). Any other conclusion would have been inappropriate for an intermediate court of appeal. This Court is persuaded, however, that we should assent to provisions the General Assembly has placed in the paternity statute, treating them as an exception to the requirements of Rule 803(6).
664 N.E.2d at 357 (emphasis added).
[22] For the foregoing reasons, we reverse the trial court's order denying Sawyer's petition for depositions.
[23] Reversed.
Vaidik, J., and Tavitas, J., concur.