Opinion
Civil No. 00-238 BB/LFG-ACE
October 26, 2000
Paul J. Kennedy, Esq., Mary Y. C. Han, Esq., Bill J. Helwig, Esq. Counsel For Plaintiff.
James W. Klipstine, Jr., Esq., Counsel For Deft. Condarco.
Gregory L. Biehler, Esq., Counsel For Defts. Smith and City of Hobbs.
ORDER DENYING MOTION FOR PROTECTIVE ORDER TO QUASH TAKING OF DEPOSITION
THIS MATTER is before the Court on Plaintiffs Motion for Protective Order [Doc. 61].
Plaintiff, Sondra Garcia (Garcia), seeks an order barring the deposition of a non-party, Thad Smith, whose deposition is noticed for October 25, 2000 . The Court requested and received Defendants response, and on October 23, 2000 , conducted a telephonic hearing on the matter. This matter may be resolved based on the Courts review of Garcias motion, Defendants response and the matters raised during the telephonic conference.
A person to whom a deposition subpoena is directed may seek to quash or modify the subpoena upon a timely motion. Fed.R.Civ.P. 45(c)(3)(A). Here, however, the proposed deponent, Thad Smith (Smith), does not seek the Courts protection, rather, Plaintiff Garcia seeks to bar the deposition. A party to the action generally has no standing to seek to quash a deposition subpoena directed to a non-party. Discovery Proceedings in Federal Court (3d Ed. 1995) § 10.06.
However, Garcia argues that the protections under Fed.R.Evid. 412 authorize a victim to demand the protections under that rule, and therefore, she has standing to make this motion. Moreover, a party may object to a deposition in certain situations when some personal right or privilege relates to the documents or information sought. Oliver B. Cannon Son, Inc. v. Fidelity Cas. Co., 519 F. Supp. 668, 679 (D.Del. 1981). Indeed, Garcia seeks this protective order to enforce a privilege recognized by the Court in its prior discovery order [Doc. 54]. Thus, the Court concludes that Garcia has standing to seek the Courts protective order.
Garcia objects to the Smith deposition, contending that its sole purpose is to obtain information on Garcias sexual history and other matters protected under Fed.R.Evid. 412.
In the prior order, the Court noted that Fed.R.Evid. 412 makes evidence of prior sexual conduct, predisposition and behavior presumptively inadmissible and not discoverable. The burden is on the party seeking to discover or to admit the evidence that its probative value substantially outweighs the danger of harm or unfair prejudice. Rule 412(b)(2). Here, Defendants seek to shoulder that burden by arguing that the evidence sought to be obtained from Smith is relevant both for Garcias impeachment and, more importantly, to challenge Garcias damage claim.
As part of their impeachment claim, Defendants argue that Garcia previously made a statement to a supervisory official, Brenda Smith, that Garcia had a prior relationship with Thad Smith. Defendants implication is that Garcia, who was then a detainee at the Lea County detention facility, had a consensual sexual relationship with Smith, who was a corrections officer. During the course of Garcias deposition, she was asked about the relationship and either denied a relationship altogether or denied having a relationship with Smith during the time she was incarcerated at the Lea County detention facility. Defendants state that the conflict between Garcias sworn testimony and the statement she purportedly made to Brenda Smith may be used to impeach Garcias credibility at trial.
Garcia objects to Smiths deposition for purposes of seeking impeachment evidence, and states that courts generally do not permit the admission of extrinsic evidence on collateral issues.
Garcias argument is focused on admissibility of evidence and she is correct in her argument concerning extrinsic evidence. Generally, the cross-examiner is bound to accept a witnesss answer on cross-examination and may not introduce extrinsic evidence to rebut the answer. This is generally considered a collateral issue. See, e.g., United States v. Martinez, 76 F.3d 1145 (10th Cir. 1996); see also 28 Charles Alan Wright Victor James Gold, Federal Practice and Procedure: Evidence, § 6117 (1993).
However, the issue in this case is discoverability as opposed to admissibility, and Garcias argument that evidence is inadmissible is insufficient to defeat its discoverability. The Federal Rules of Civil Procedure allow for broad discovery. Indeed, Rule 26(b)(1) states:
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. The information sought need not be admissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
Generally, this kind of evidence Defendants seek to elicit would be discoverable and the issue of its admissibility would be resolved at trial. On the other hand, the protections of evidence Rule 412 would require the Defendants to make a showing that the evidence sought to be discovered substantially outweighs the degree of harm to Garcia. In this case, if the only reason for Smiths deposition would be to obtain extrinsic evidence to be used for impeachment, the Court would find that the harm outweighed the probative value and would normally grant Garcias motion for protective order.
However, impeachment is not the only reason for the proposed deposition. Garcia is making a substantial claim for emotional damages occurring as a result of the alleged incident with Jorge Condarco. Garcia contends that she suffered a severe emotional injury and attributes all of her emotional damages to that incident. Defendants seek to challenge Garcias damage claim by demonstrating that some of her emotional damages may have other causes. Indeed, Garcias own expert, Dr. Anne Rose, indicated that an inmates sexual relationship with a guard, even if consensual, could be psychologically and emotionally damaging. Thus, if there is evidence that Garcia had a prior sexual relationship with Smith, even if consensual, a portion of her present emotional injury may be due to that relationship.
At the telephonic conference hearing, the parties disagreed whether Dr. Rose stated that a consensual sexual relationship between an inmate and a guard would be more damaging than a non-consensual relationship. While that testimony may be in dispute, it is undisputed that Dr. Rose testified that even a consensual relationship between an inmate and a correctional officer could cause psychological injury.
This Court already issued an order intended to protect Garcias privacy by sustaining her objection to disclosure of past sexual conduct. In the aftermath of such an order, Defendants could not ordinarily obtain the same protected information from another source. In Giron v. Corrections Corp. of America, 981 F. Supp. 1406 (D.N.M. 1997), defendants sought to discover information from a plaintiffs prior sexual partners, arguing that the partners knowledge of plaintiffs history of sexual encounters was necessary to ascertain and counter plaintiffs claims regarding damages she suffered from a sexual assault. In denying the request, the court stated:
It appears to be his [defendants] contention that he must delve into plaintiffs entire sexual history to determine what injury really did result from the 1994 sexual incident, as distinguished from pre-existing injury. Defendant reasons that in order to establish whether plaintiffs injuries are new or pre-existing, he should have access to her prior sexual partners, because [r]omantic partners know the emotional and physical condition of each other. . . . It is defendants position that speaking with plaintiffs former sexual partners will reveal to him what pre-existing psychological and medical conditions she may have had. This is faulty reasoning.
It is evident to the Court that this type of information and analysis would be outside the expertise of plaintiffs former sexual partners. This request is overly broad and intrusive. Id. at 1408.
In the prior order, the Court agreed that the Defendants should not be held liable for damages attributable to any non-consensual, harmful sexual contact other than that which forms the basis of this suit. For example, had Garcia been the victim of sexual abuse or molestation caused by some non-party, and if that conduct resulted in a prior emotional or psychological injury, Defendants should not be held responsible for the prior harm, except to the extent that their acts or omissions, if any, aggravated a pre-existing condition. In a ruling on a prior discovery dispute, the Court authorized Defendants to ask and directed Garcia to answer whether she had been subject to sexual assault or molestation. The Court determined that the request was sufficiently narrow to satisfy the balancing test of Rule 412(b)(2). The Courts intent was clear. Should Defendants be found liable in this case, they should be responsible only for the harm they caused, and should not be held liable for harm caused by the sexual assault or molestation of others.
In light of Dr. Roses testimony that a prior sexual relationship, even if consensual, between a detainee and a correctional officer could cause psychological harm, it would be unfair and, indeed, improper to impose upon Defendants the totality of the emotional harm damages which Garcia attributes only to the Condarco matter. As a result, the Court determines that the information sought by Defendants is relevant and discoverable. Defendants may properly take Smiths deposition to determine whether Garcia had an affair with Smith during her incarceration, the nature, extent and duration of that affair, and whether that affair produced the kind of harm contemplated by Dr. Rose.
In sum, the Court finds that Defendants have demonstrated good cause for pursuing this deposition and have made a showing that the proposed evidence substantially outweighs the danger of harm to the victim and of any unfair prejudice. The Court will deny Garcias motion for a protective order and allow the deposition to go forward.