Judge: Mark H. Epstein, Case: 22SMCV00652, Date: 2022-12-07 Tentative Ruling

Case Number: 22SMCV00652    Hearing Date: December 7, 2022    Dept: R

The motion for a protective order is GRANTED IN PART AND DENIED IN PART.

This case is one in which plaintiff leased property to defendants.  The property was vandalized and plaintiff blames McCarty, who lived there.  McCarty has been charged with a violent crime (unrelated to the instant case).  In that criminal proceeding, he has been deemed incompetent to stand trial due to severe mental health issues.  That conclusion was supported by McCarty’s expert as well as an expert appointed by the court, and the conclusion has been adopted by the criminal court.  McCarty has a Guardian ad Litem in this case.  Plaintiff here seeks to depose McCarty.  McCarty objects based on his mental health issues.  McCarty does not object based upon the right against self-incrimination (although McCarty would reserve the right to assert that privilege at any deposition) or on the ground that a deposition would be injurious to him physically or mentally.  Plaintiff states that the standards for standing trial in a criminal matter and being deposed in a civil matter are different.

At first, the court believed this motion to be a tough one but on reflection the court believes that what is really needed is a way to ensure that the deposition proceeds properly.  (There is some reason for concern.  For example, plaintiff argues that it wants its expert ultimately to view McCarty at the deposition to help draw conclusions as to McCarty’s mental state.  The court agrees with McCarty that such is not a proper reason to depose someone.  The purpose of a deposition is to get testimonial (or documentary) information under oath.  It is not a substitute for a mental examination—the Code has other methods to obtain that sort of discovery.)

The court does agree that if it were definitively shown that the deposition would be a waste of time a protective order would be appropriate.  However, there has been no showing like that.  The court will accept as fact that McCarty cannot presently stand trial in the criminal matter.  But that (as plaintiff points out) is not the standard here.  An eight year old might not be able to stand trial in a criminal matter, but that does not mean that an eight year old cannot give testimony.  (On the other hand, an eight week old could not.)  Further, it might well be that the deposition testimony cannot ultimately be used at trial because, as it might turn out, McCarty’s mental illness makes the testimony too unreliable.  But there is no conclusive evidence of that in the record now before the court.  If that turns out to be the case, the court will deal with it when appropriate.

The court is of the view that the motion ought to be granted in the sense of creating safeguards and ground rules for the deposition, but denied to the extent that the motion seeks to bar the deposition altogether.  Accordingly, the court will allow the deposition with the following rules:  First, there will be frequent breaks during the deposition—at least one per hour absent consent of the defense to go longer.  Second, any deposition day will not exceed four hours on the record (excluding colloquy).  Third, allowing the deposition is not a finding that the testimony can be used as it normally would be used.  The court reserves the right to exclude it at trial and to exclude it as evidence in support of or in opposition to any motion upon a proper showing.  Fourth, counsel will at all times be civil, polite, and respectful.  Voices will not be raised and plaintiff’s counsel will not come any closer to McCarty than six feet absent consent.  If McCarty needs to see a document, it will be handed to him by his counsel or the GAL, not plaintiff’s counsel.  Fifth, there will be a minimum of colloquy on the record.  If there is an objection to the form of the question, the objection will be made as if it were at trial; no speaking objections.  If there is an objection with an instruction not to answer, it will be conclusively presumed that McCarty will follow the advice and instruction and no answer will be given and any answer that is given after the instruction will not be considered by the court absent further order.  Counsel may, outside the McCarty’s presence, discuss the matter further and this is without prejudice to a motion to compel, but the matter will not be discussed in the witness’s presence.  Any such instruction will be marked by the court reporter without the need to so request.  Sixth, the deposition will be audiotaped or videotaped (it will be plaintiff’s choice which).  That will allow the court to observe everyone’s tone of voice to ensure that the fourth rule is followed.  Seventh, McCarty may be accompanied not only by counsel, but also by the GAL and also any medical professional (but only one) he, counsel, or the GAL chooses.  They are also bound by rule four.  If at any point during the deposition McCarty’s counsel believes that continuing the deposition would be detrimental to McCarty’s physical or mental health, counsel may call a recess either for a period of time, until a different day, or long enough to present a new motion for a protective order demonstrating that the deposition is injurious to McCarty’s health.

The court, frankly, would prefer a discovery referee to oversee the deposition, but in light of the allegations in the complaint the court is not confident that plaintiff can pay for it and, under the circumstances it does not seem equitable to force the defense to do so at this time.