Vous êtes sur la page 1sur 20

Case: 25CI1:13-cv-00931-JAW

Document #: 57

Filed: 02/13/2014

Page 1 of 20

IN THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI PRECIOUS MARTIN, SR. and CRYSTAL MARTIN v. SAINT ANDREWS EPISCOPAL SCHOOL, GEORGE PENICK, INDIVIDUALLY and IN HIS CAPACITY AS HEADMASTER, and LEANNA RANGE OWENS, INDIVIDUALLY and IN HER CAPACITY AS HEAD OF THE ST. ANDREWS EPISCOPAL LOWER SCHOOL PLAINTIFFS MOTION TO COMPEL Plaintiffs, by and through counsel and pursuant to the Mississippi Rules of Civil Procedure, hereby file this Motion to Compel, seeking an order from this court pursuant to Rule 37 compelling the Defendants to answer certain written discovery responses, produce documents, and otherwise cooperate in discovery. While the Plaintiffs understandand agree that matters involving minors should be kept confidential, that does not prevent discovery. The Plaintiffs have been willing for some time now to agree to a reasonable protective order to protect the confidentiality of any minors. The Defendants have rebuffed those offers in favor of a tactic of avoiding discovery and litigation altogether. For the reasons set forth herein, the Motion to Compel is due to be granted. I. INTRODUCTION AND NATURE OF THE CONTROVERSY PLAINTIFFS

CAUSE NO. 251-13-931-CIV

DEFENDANTS

In this case, Plaintiffs, Crystal Martin and Precious Martin, have sued Defendants, Saint Andrews Episcopal School (St. Andrews), George Penick, and Leanna Range Owens under several theories of liability. In a nutshell, Plaintiffs are suing the Defendants for the bullying of one of their children that was not appropriately addressed by the Defendants, the wholesale

Case: 25CI1:13-cv-00931-JAW

Document #: 57

Filed: 02/13/2014

Page 2 of 20

failure of Defendants to address bullying and intimidation in their school, interfering with Plaintiffs rights and responsibilities to protect their children, failing to provide a safe and secure educational environment for their children, and constructively expelling the Plaintiffs children when Plaintiffs exercised their rights and responsibilities to protect their children. The allegations of the Amended Complaint (Docket #6) frame the issues being litigated in this case. The Plaintiffs have sued Defendant St. Andrews for (1) breach of contract, (2) breach of duty of good faith and fair dealing, (3) and intentional infliction of emotional distress. See Docket #6, pp. 5-6. The Plaintiffs have sued Defendant Penick for (1) intentional infliction of emotional distress, (2) the tort of outrage, (3) negligence, (4) conspiracy, and (5) tortious interference with contract. See Docket #6, pp. 6-9. The Plaintiffs have sued Defendant Owens for (1) intentional infliction of emotional distress, (2) negligence, (3) conspiracy, and (4) tortious interference with contract. See Docket #6, pp. 6-9. All told, the Plaintiffs have asserted seven causes of action against three separate defendants. Throughout their discovery responses in this case, the Defendants have acted as if this case is solely one for breach of contract. Clearly, as shown above, that is not the case. The Defendants attempt to narrow the nature of this case is an attempt by them to create immunity for themselves. The Defendants are not entitled to pick which of the seven well-pled causes of action they will litigate and which discovery requests to which they will respond. Defendants are not immune from liability or discovery. The

The Mississippi Rules of Civil

Procedure apply to this case and require production of the information sought by this Motion. II. DISCOVERY STANDARDS

Rule 26(b)(1) of the Mississippi Rules of Civil Procedure provides that [p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the issues raised by

Case: 25CI1:13-cv-00931-JAW

Document #: 57

Filed: 02/13/2014

Page 3 of 20

the claims or defenses of any party. That rule also states: It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Rule 26(d) governs the issuance of protective orders upon a showing of good cause. Motions to compel discovery are governed by Rule 37 and are committed to the discretion of the trial court. See Elec. Data Sys. Corp. v. Miss. Div. of Medicaid, 853 So. 2d 1192, 1209 (Miss. 2003). Where, however, limitations on discovery are improvidently ordered or allowed and important information is denied a litigant reversal will obtain. Id. at 1209-10 (quoting Dawkins v. Redd Pest Control Co., Inc., 607 So.2d 1232, 1235 (Miss. 1992)). Dawkins sets forth guidelines for a trial judge to exercise discretion in discovery matters such as those at issue here: [A] trial courts discretion in the discovery area is generally guided by the principles that (a) the court follow the general policy that discovery be encouraged, (b) limitations on discovery should be respected but not extended, (c) while the exercise of discretion depends on the parties factual showings disputed facts should be construed in favor [of] discovery, and (d) while the importance of the information must be weighed against the hardships and cost of production and its availability through other means, it is preferable for the court to impose partial limitations on discovery rather than an outright denial. Any record which indicates a failure to give adequate consideration to these concepts is subject to the attack of abuse of discretion, regardless of the fact that the order shows no such abuse on its face. 607 So.2d at 1236 (emphases added). III. DISCOVERY MATTERS AT ISSUE

The Defendants have refused to answer certain written discovery responses, to produce certain documents and tangible things requested, and to respond to certain questions in upcoming depositions. In conformity with Rule 4.04 of the Uniform Rules of Circuit and County Court Practice, Plaintiffs set forth below verbatim each contested request and the specific objection

Case: 25CI1:13-cv-00931-JAW

Document #: 57

Filed: 02/13/2014

Page 4 of 20

to the request. The grounds for the objection and the reasons supporting the motion are set forth in Sections IV and V. The following references to written discovery responses are from Defendants responses that have already been provided to the Court in conjunction with Defendants Motion for Protective Order (Docket #50). DISCOVERY PROPOUNDED TO DEFENDANT ST. ANDREWS Request for Production No. 7: Please produce any and all documents generated by

you by way of investigation, incident report or otherwise, or any other document which tends to show the results of any investigation of the incidents comprising the details surrounding the Plaintiffs son, D.M. Response: Defendant objects to this request to the extent it seeks confidential and

private information regarding a minor student for whom the Plaintiffs are not the natural or legal guardians. Defendant further objects as this information is protected confidential information as to any other minors. Defendant further objects to this request to the extent it is not reasonably calculated to lead to the discovery of admissible evidence. The Plaintiffs Amended Complaint has narrowed the issue to breach of contract by the Defendant along with certain torts arising from that alleged breach of contract. First Supplemental Response: Without waiver of the prior objections stated, please

see St. A. 000182, 208-231. Some of the identified documents have been redacted to remove the name of Plaintiffs son, the minor M.K. and other minors mentioned in passing in some of the documents on privacy and confidentiality grounds. Request for Production No. 9: memoranda, correspondence, letters, Please produce copies of any memorandums, etc. regarding incidents and complaints of

Case: 25CI1:13-cv-00931-JAW

Document #: 57

Filed: 02/13/2014

Page 5 of 20

bullying/intimidation on the premises and procedures for teachers and/or administration to handle bullying/intimidation incidents. Response: Defendant objects to this request to the extent it is overly broad.

Defendant further objects to this request to the extent it is not reasonably calculated to lead to the discovery of admissible evidence as any issues regarding bullying/intimidation of others are not the issue in this lawsuit. The Plaintiffs Amended Complaint has narrowed the issue to breach of contract by Defendant along with certain torts arising from that alleged breach of contract personal to these Plaintiffs. Other incidents of bullying or intimidation are not relevant to the breach of contract. First Supplemental Response: Without waiver of the above objections, please see

St. A 000036-000275 which contains procedures for teachers and/or administrators to handle bulling [sic]/intimidation and also contains reports of any incident between D.M. or M.K. Defendant stands by its objections and will not produce files of other students because these are confidential and not relevant to the specific complaint of these Plaintiffs. Plaintiff is seeking to harass these Defendants by seeking overreaching and irrelevant documents that contain personal and confidential information of other students in order to obtain information to harass or bully these students and their parents in the same manner Plaintiffs harassed and bullied M.K. and his parents. Request for Production No. 13: Please produce the student file for the minor, M.K.,

including but not limited to, conduct/disciplinary actions, academics, attendance, etc. Response: No, this request constitutes continued harassment of a minor by these adult

Plaintiffs and will not be produced. Defendant objects to this request to the extent it seeks confidential and private information regarding a minor student for whom the Plaintiffs are not

Case: 25CI1:13-cv-00931-JAW

Document #: 57

Filed: 02/13/2014

Page 6 of 20

the natural or legal guardians. confidential information.

Defendant further objects as this information is protected

Defendant further objects to this request to the extent it is not

reasonably calculated to lead to the discovery of admissible evidence as any issues regarding other children are not the issue in this lawsuit. The Plaintiffs Amended Complaint has narrowed the issue to breach of Plaintiffs contract by the Defendant along with certain torts arising from the alleged breach of contract. Defendants further object as it is the Plaintiffs conduct not that of M.K. or D.M. that is at issue in this case. Request for Admission No. 6: Admit that Saint Andrews Episcopal school was

provided complaints regarding the minor, M.K.s behavior on more than one occasion prior to the 2013-2014 academic school year. Response: Defendant objects to this request to the extent it seeks confidential and

private information regarding a minor student for whom the Plaintiffs are not the natural or legal guardians. Defendant further objects as this information is protected confidential information. Defendant further objects to this request to the extent it is not reasonably calculated to lead to the discovery of admissible evidence as the conduct of the minor M.K. is not the issue in this lawsuit. The Plaintiffs Amended Complaint has narrowed the issue to breach of contract by the Defendant along with certain torts arising from that alleged breach of contract. Therefore, request for Admission No. 6 is denied. Supplemental Response: In addition to the previously stated objections, this Request

for Admission is not sufficiently specific as it does not identify the type of behavior about which complaints were or were not received. It is over broad, vague and ambiguous and seeks an admission that would result in a general admission of virtually anything the Plaintiffs might wish. Requests for admissions are vague and ambiguous if subject to more than one reasonable

Case: 25CI1:13-cv-00931-JAW

Document #: 57

Filed: 02/13/2014

Page 7 of 20

interpretation. Haley v. Harbin, 933 So.2d 261, 262-63 (Miss. 2005). In this case this request, if admitted, could be interpreted as an admission of prior complaints or behavior that might encompass anything from talking in class out of turn to assault with a deadly weapon depending on how Plaintiffs chose to spin it. It is simply not specific and could be used to imply a meaning that is not accurate and in fact is false. Further, the intent of an admission is to narrow issues for trial and this does not narrow the issue it simply provides the Plaintiffs a vehicle to exploit a generic factual statement constructed for their benefit to which no specific factual evidence has been identified. Request for Admission No. 7: Admit that Saint Andrews Episcopal school was

provided complaints regarding the minor, M.K.s behavior on more than one occasion prior to September 3, 2013. Response: Defendant objects to this request to the extent it seeks confidential and

private information regarding a minor student for whom the Plaintiffs are not the natural or legal guardians. Defendant further objects as this information is protected confidential information. Defendant further objects to this request to the extent it is not reasonably calculated to lead to the discovery of admissible evidence as the conduct of the minor M.K. is not the issue in this lawsuit. The Plaintiffs Amended Complaint has narrowed the issue to breach of contract by the Defendant along with certain torts arising from that alleged breach of contract. Therefore, request for Admission No. 7 is denied. Supplemental Response: In addition to the previously stated objections, this Request

for Admission is not sufficiently specific as it does not identify the type of behavior about which complaints were or were not received. It is over broad, vague and ambiguous and seeks an admission that would result in a general admission of virtually anything the Plaintiffs might

Case: 25CI1:13-cv-00931-JAW

Document #: 57

Filed: 02/13/2014

Page 8 of 20

wish. Requests for admissions are vague and ambiguous if subject to more than one reasonable interpretation. Haley v. Harbin, 933 So.2d 261, 262-63 (Miss. 2005). In this case this request, if admitted, could be interpreted as an admission of prior complaints or behavior that might encompass anything from talking in class out of turn to assault with a deadly weapon depending on how Plaintiffs chose to spin it. It is simply not specific and could be used to imply a meaning that is not accurate and in fact is false. Further, the intent of an admission is to narrow issues for trial and this does not narrow the issue it simply provides the Plaintiffs a vehicle to exploit a generic factual statement constructed for their benefit to which no specific factual evidence has been identified. Rule 30(b)(6) Deposition Categories: The following objections are from Defendants Objection and Response to the Rule 30(b)(6) Deposition (Docket #49).
2. The policies and procedures regarding disciplinary actions of a child attending Saint Andrew's Episcopal School; Response: a. Objection: Not likely to lead to discoverable information. This suit is over the action taken by Plaintiffs as parents, not the policy and procedure of the school regarding discipline. Defendant objects to any questions regarding a student for which the Plaintiffs are not the parent or guardian and will not answer such inquires specific to any student as such is private, confidential and not likely to lead to the discovery of admissible information. b. Designation: Will designate subject to the above objection. 5. Information concerning any instructions given to faculty regarding incidents involving bullying, including but not limited to, the chain of command once reported by faculty and/ or staff;

Case: 25CI1:13-cv-00931-JAW

Document #: 57

Filed: 02/13/2014

Page 9 of 20

Response: a. Objection: No objection to the extent questions are constrained to the general polices of the school. Defendant will not respond to questions specific to any student to whom Plaintiffs are not the parent or guardian as such information is private, confidential and not likely to lead to the discovery of admissible information. b. Designation: Will designate subject to the above objection. 8. All communications/ discussions amongst faculty and or staff regarding any incidents between Plaintiffs' minor son and the minor referred to as M.K.; Response: a. Objection: Defendant objects to the extent any questions arise related to any matters regarding M.K. outside of those specific to Plaintiffs son as such additional information, if any, regarding M.K. is private, confidential and not likely to lead to the discovery of admissible information. Defendant will provide a designee to address any interaction between M.K. and Plaintiffs son but will not respond to any questions regarding M.K. beyond those very specific interactions. b. Designation: Will designate subject to the objections and limitations stated. 9. Description, scope of employment, responsibilities and duties of the Head of Lower School and Head of School as it relates to complaints of any inappropriate student conduct, including but not limited to, bullying; Response: a. Objection: To the extent this area of inquiry regards responsibilities, duties and general policies and procedures, no objections. To the extent information regarding other students to whom Plaintiffs are not the parent or guardian is sought, Defendant objects as such information is private and confidential and not likely to lead to the discovery of admissible evidence. No designee will respond to such inquiries.

Case: 25CI1:13-cv-00931-JAW

Document #: 57

Filed: 02/13/2014

Page 10 of 20

b. Designation: Subject to the objections and limitations above, will designate. 12. Any and all documentation regarding the investigation complained of in the Complaint filed in this matter; Response: a. Objection: Overbroad, ambiguous and not specific enough for which to make a designation. Defendant will make its best effort to provide a designee to address Plaintiffs allegations. To the extent investigation complained of means any investigation regarding any minor child of which the Plaintiffs are not the parent or guardian, Defendant objects on the grounds that such information, if any, is private, confidential and not likely to lead to the discovery of admissible information. No designee will respond to questions regarding other minors. To the extent the Complaint filed might reference the Complaint filed in the Hinds County Circuit Court, information arising from that investigation is subject to attorney-client privilege and the work product doctrine. To the extent the investigation complained of in the Complaint means the failure of Plaintiffs to do any investigation, speak to teachers of the students, inquire of the teacher in the room on the day of the alleged event, notify Leanna Owens, notify any other administrator of St. Andrews before filing criminal charges against a nine year old the Defendant will provide a designee to confirm that Plaintiffs did not conduct any investigation before engaging the criminal justice system. Otherwise, it is unclear about what investigation the complaint references because none was conducted by Plaintiffs before filing a criminal charge. The investigation by this Defendant regarding the alleged September 3, 2013 event was only began after the criminal charges were lodged by Plaintiffs. b. Designation: Subject to the objections and limitations on testimony above, will designate. 19. Knowledge of training involving incidents of assault, including but not limited to, bullying or intimidation against a teacher and/ or student; Response:

10

Case: 25CI1:13-cv-00931-JAW

Document #: 57

Filed: 02/13/2014

Page 11 of 20

a. Objection: Defendant does not object to the general area of inquiry regarding policies or procedures specific to training for the types of incidents described. Defendant objects and will not respond to any questions regarding inquiry about specific incidents involving any student for which Plaintiffs are not the parents or guardians. b. Designation: Subject to the limitation stated in the objection, will designate. 25. The allegations of, and/ or the events described in, the Complaint; Response: a. Objection: To the extent this area of inquiry anticipates questions regarding minors to whom Plaintiffs are not the parent or guardian, Defendant objects on the grounds that the information is private, confidential and not likely to lead to discoverable information and a designee will not answer such inquires. b. Designation: Subject to the stated limitations and objections, will designate. The Document Requests (1-3) in the Rule 30(b)(6) Deposition Notice also received similar objections. See Docket #49, pp. 10-13.

DISCOVERY PROPOUNDED TO DEFENDANTS PENICK AND OWENS Request for Production No. 6: Please produce copies of all incidents involving a

student being expelled and/or removed from the school premises because the students and/or their parents took actions without regard to values of the school, the competence of the teachers to manage the procedures in place, the ability of the administration to deal with situations fairly and effectively, or without the spirit of the St. Andrews community in mind, including but not limited to, the date and actions that the students and/or parents took. Response: Objection. This request is vague and ambiguous and attempts to create an

incident from Plaintiffs facts to apply to others generally where each situation is different. Further, each situation is confidential and not relevant, if any. Defendants object to this request 11

Case: 25CI1:13-cv-00931-JAW

Document #: 57

Filed: 02/13/2014

Page 12 of 20

to the extent it seeks confidential and private information. Defendants further object to this request to the extent it is not reasonably calculated to lead to the discovery of admissible evidence as St. Andrews actions involving other students is not the issue in this lawsuit. Defendants further object as such is overbroad and could require production of virtually all confidential records regarding incidents. The Plaintiffs Amended Complaint has narrowed the issue to breach of contract by the Defendant along with certain torts arising from that alleged breach of contract. Request for Production No. 9: memoranda, correspondence, letters, Please produce copies of any memorandums, etc. regarding incidents and complaints of

bullying/intimidation on the premises and procedures for teachers and/or administration to handle bullying/intimidation incidents. Response: Defendants object to this request to the extent it is overly broad.

Defendants further object to this request to the extent it is not reasonably calculated to lead to the discovery of admissible evidence as any issues regarding bullying/intimidation of others are not the issue in this lawsuit. The Plaintiffs Amended Complaint has narrowed the issue to breach of contract by the Defendant along with certain torts arising from the alleged breach of contract personal to these Plaintiffs. Other incidents of bullying or intimidation are not relevant to the breach of contract. Request for Production No. 13: Please produce the student file for the minor, M.K.,

including but not limited to, conduct/disciplinary actions, academics, attendance, etc. Response: No, this request constitutes continued harassment of a minor by these adult

Plaintiffs and will not be produced. Defendants object to this request to the extent it seeks confidential and private information regarding a minor student for whom the Plaintiffs are not

12

Case: 25CI1:13-cv-00931-JAW

Document #: 57

Filed: 02/13/2014

Page 13 of 20

the natural or legal guardians. Defendants further object to this request to the extent it is not reasonably calculated to lead to the discovery of admissible evidence as any issues regarding other children are not the issue in this lawsuit. The Plaintiffs Amended Complaint has narrowed the issue to breach of Plaintiffs contract by the Defendant along with certain torts arising from the alleged breach of contract. Defendants further object as it is the Plaintiffs conduct not that of M.K. or D.M. that is at issue in this case. IV. GOOD FAITH EFFORTS TO RESOLVE THIS DISCOVERY DISPUTE

The discovery disputes described in this Motion have been the subject of multiple good faith efforts of the parties to resolve the disputes without court intervention. Plaintiffs first identified the deficiencies with respect to Defendants refusal to produce discoverable information in a good faith letter dated January 13, 2014. (See Exh. A, Letters from Martin to Monroe dated 1/6/2014 and 1/13/2014). Counsel for the Defendant responded to that letter, but continued to assert the Defendants position that the information at issue would not be produced. (See Exh. B, Letter from Monroe to Martin dated 1/22/2014). The Plaintiffs made further good faith efforts before the filing of this Motion. In an effort to mollify the Defendants concerns about confidentiality, the Plaintiffs offered to agree to the entry of a protective order that would cover all information related to any minors including, but not limited to, documents produced, discovery responses, and portions of deposition testimony concerning such information. (See Exh. C, Letter from Carner to Monroe dated 1/30/2014). In response to this offer, the Defendants still would not agree to produce the discoverable information. (See Exh. D, Email from Monroe to Carner dated 1/31/2014). In conformity with Rule 4.04 of the Uniform Rules of Circuit and County Court Practice, a Good Faith Certificate is attached to this Motion as Exhibit E.

13

Case: 25CI1:13-cv-00931-JAW

Document #: 57

Filed: 02/13/2014

Page 14 of 20

V. A.

ARGUMENT Summary of Discovery Dispute

The specific discovery matters at issue are set forth verbatim in Section III above. In a broad sense, these are the matters in dispute: (1) information that mentions in any way other St. Andrews students, past or present, who are minors; (2) information regarding other incidents and complaints of bullying/intimidation at St. Andrews; (3) information concerning the minor, M.K., whose conduct is a central focus of the events in this case and Plaintiffs claims; (4) information concerning prior behavioral complaints involving M.K.; (5) information concerning other students who have been removed or expelled from St. Andrews for parental actions. B. The Information is Discoverable and Not Privileged

The Mississippi Rules of Civil Procedure and general principles of Mississippi law concerning discovery provide for wide open discovery on issues relevant to the claims and defenses of the parties. See Miss. R. Civ. Proc. 26(b)(1); Elec. Data Sys. Corp. v. Miss. Div. of Medicaid, 853 So. 2d 1192 (Miss. 2003); Dawkins v. Redd Pest Control Co., Inc., 607 So.2d 1232 (Miss. 1992). If information is discoverable and not privileged, then it must be produced. To begin, it bears noting that the Defendants have not asserted that any of the information in dispute is privileged. The chief questions are whether the information is discoverable and how to handle confidentiality concerns. Matters are discoverable under Rule 26(b)(1) if relevant to the issues raised by the claims or defenses of any party. As detailed above, the Plaintiffs Amended Complaint sets forth 7 causes of action against 3 defendants. Plaintiffs claims are focused on the bullying of one of their children that was not appropriately addressed by the Defendants, the wholesale failure of Defendants to address bullying and intimidation in their school, interfering with

14

Case: 25CI1:13-cv-00931-JAW

Document #: 57

Filed: 02/13/2014

Page 15 of 20

Plaintiffs rights and responsibilities to protect their children, failing to provide a safe and secure educational environment for their children, and constructively expelling the Plaintiffs children when Plaintiffs exercised their rights and responsibilities to protect their children. See Docket #6, Amended Complaint. In discovery that has been conducted to date, the Plaintiffs have set forth the basis of these claims. For instance, in Interrogatory 15 propounded by the Defendants, information was sought about each action taken by Leanna Owens that you contend was either a breach of contract or negligence. Plaintiff Crystal Martins response states that Owens failed to properly assess and evaluate the prior bullying accusations against the minor child, M.K. despite actual knowledge of behavioral problems. In response to Interrogatory 16, seeking similar

information regarding Defendant Penick, Mrs. Martin gives a similar response. See Exhibit F, Crystal Martins Excerpted Interrogatory Responses. Further, in their depositions, the Plaintiffs testified that another basis for their claims is that the Defendants failed to provide a safe and secure educational environment for their children and failed to take appropriate steps to handle bullying at the school. See Exh. G, Crystal Martins Deposition at pp. 52-56, 60, 89; Exh. H, Precious Martins Deposition at pp. 89, 142-43. In light of the causes of action set forth in the Plaintiffs Amended Complaint and the bases for these causes of action, it is clear that the information at issue here is discoverable. Information concerning the minor, M.K., including prior behavior and prior complaints about behavior, are central to this case, as it is the Plaintiffs contention that the Defendants failed to properly address those issues and complaints despite having knowledge of them. For instance, an email was sent to Defendant Owens by another school parent prior to the culminating bullying

15

Case: 25CI1:13-cv-00931-JAW

Document #: 57

Filed: 02/13/2014

Page 16 of 20

incident, demonstrating the Defendants actual knowledge of such issues. Exh. I, Email dated 8/27/2013 (identifying information from this email is being redacted). In addition, the Defendants themselves have requested from the Plaintiffs in discovery information about the minor, M.K. In Interrogatory No. 18, Defendants asked: In regard to your Paragraph 13 through 16 of your Amended Complaint please identify each fact on which you rely to label M.K. a problem child, each person from whom you obtained the information, whether employed by Defendant or not, and itemize every fact on which you base your contentions. See Exhibit F, Crystal Martins Excerpted Interrogatory Responses. The

Defendants also asked many detailed questions concerning this minor during the depositions of the Plaintiffs. And yet the Defendants seek to hide such information when the Plaintiffs request it despite the fact that they are in the best position to have such relevant information. The

Defendants cannot have it both ways. Discovery under Mississippi law is a two way street. Since information concerning this minor is clearly relevant to the claims and defenses of the parties, it is discoverable and must be produced. As further support of the request for information concerning prior incidents of intimidation and bullying at St. Andrews, Plaintiffs would show that several people have reached out to Crystal Martin about such prior issues. See Exh. G, Crystal Martin Depo. at pp. 85-88. Further, comments about this case on a local website (www.kingfish1935.blogspot.com (also known as Jackson Jambalaya) demonstrate that others in the community are aware of issues with bullying not being addressed properly by St. Andrews over the years. See Exh. J, Website Comments. While these comments are certainly not admissible evidence, they do show that the Plaintiffs discovery requests are not without a substantial basis. The examples of prior

16

Case: 25CI1:13-cv-00931-JAW

Document #: 57

Filed: 02/13/2014

Page 17 of 20

incidents revealed to Mrs. Martin and evidenced in these website comments show that discovery concerning prior incidents of bullying is not, as Defendants claim, a fishing expedition but instead necessary for the development of Plaintiffs claims that are focused on the failure of Defendants to properly address bullying and intimidation of students. These acts and omissions contributed to the failure to provide the Plaintiffs children with a safe and secure educational environment. In short, the discovery requested is clearly relevant to the claims and defenses of the parties. The discovery is reasonably calculated to lead to the discovery of admissible evidence. The discovery does not seek any item that is privileged. Therefore, this Motion to Compel should be granted. C. Confidentiality is Not a Valid Basis for Refusing to Participate in Discovery

As set forth above, the information in dispute is discoverable and not privileged. The primary reason that Defendants have cited in refusing to participate in this discovery is a concern about confidentiality of information involving minors. Notably, the Defendants have not cited a single authority for the proposition that such confidentiality concerns justify refusing to answer written discovery, produce documents, or otherwise participate in discovery. Defendants have not set forth a single state or federal statute, case law, or even a policy or procedure of St. Andrews that prohibits disclosure of the information at issue. The Plaintiffs understandand agreethat matters involving minors are sensitive and should be guarded from public disclosure. But there are safeguards that this Court can employ to ensure that non-privileged, discoverable information is produced while safeguarding from public dissemination information that concerns minors. Plaintiffs are agreeable to the entry of a

protective order that would safeguard the confidentiality of all information produced in this case

17

Case: 25CI1:13-cv-00931-JAW

Document #: 57

Filed: 02/13/2014

Page 18 of 20

concerning minors, including the plaintiffs children. It is telling that when Plaintiffs offered to enter such a protective order to avoid having to file this Motion, that the Defendants balked. This shows that the Defendants chief concern is not confidentiality but instead trying to shield itself from participating in discovery in this litigation. Applying the Dawkins guidelines detailed above, it is clear that Mississippi law favors the production of this information subject to limitations that will account for the Defendants confidentiality concerns. As Dawkins illustrates, discovery in litigation is encouraged and, when there is a factual dispute over whether certain information should be produced, the court should favor discovery. 607 So.2d at 1236. Since the information at issue is discoverable and not privileged, the general policy of Mississippi law favors production of this information. While the Dawkins guidelines favor production of this information, they also permit partial limitations on discovery rather than an outright denial in an effort to address concerns over matters such as confidentiality. Id. Rule 26(d) details the protective measures that this court can employ. In summary, this Court should grant the Motion to Compel, order the Defendants to answer the written discovery detailed above, produce all discoverable documents, answer deposition questions concerning these matters, and otherwise participate in discovery. The Plaintiffs do not object to the entry of a Protective Order that will protect the confidentiality of any minors, including the Plaintiffs children. VI. CONCLUSION

The information at issue is clearly discoverable under the Mississippi Rules of Civil Procedure. There is no reason why the information cannot be produced subject to a protective order that will address the Defendants confidentiality concerns. As such, this Motion to Compel should be granted, and this Court should order the Defendants to answer the written discovery

18

Case: 25CI1:13-cv-00931-JAW

Document #: 57

Filed: 02/13/2014

Page 19 of 20

requests detailed above, produce all discoverable documents that have been requested, and answer questions regarding these matters at the upcoming depositions of Defendants. The Plaintiffs do not object to the entry of a Protective Order that will protect the confidentiality of any minors, including the Plaintiffs children. RESPECTFULLY SUBMITTED, this the 13th day of February, 2014.

BY: OF COUNSEL: GRAHAM P. CARNER Miss. Bar No. 101523 GRAHAM P. CARNER, PLLC 771 N. Congress Street Jackson, Miss. 39202 T: 601.949.9456 F: 601.354.7854 E: graham.carner@gmail.com JAMES BOBO Miss. Bar No. 3604 Post Office Box 97998 Pearl, Mississippi 39288 T: (601) 506-6727 F: (601) 510-9294 E: jbobo@jbobolaw.com

/s/ Graham P. Carner GRAHAM P. CARNER

19

Case: 25CI1:13-cv-00931-JAW

Document #: 57

Filed: 02/13/2014

Page 20 of 20

CERTIFICATE OF SERVICE I, Graham P. Carner, attorney for the Plaintiffs, hereby certify that on the below date I electronically filed the foregoing pleading with the Clerk of the Court using the MEC system, which sent notification of such filing to the following: G. Clark Monroe gcmonroe@dunbarmonroe.com Eric R. Price eprice@dunbarmonroe.com DUNBAR MONROE, P.A. James Bobo jbobo@jbobolaw.com Precious T. Martin, Sr. Suzanne Keys RaToya Gilmer PRECIOUS MARTIN, SR. & ASSOCIATES, PLLC On February 13, 2014 /s/ Graham P. Carner Graham P. Carner Miss. Bar No. 101523

20

Vous aimerez peut-être aussi