Chiat v. State of Washington et al, No. 2:2018cv01142 - Document 92 (W.D. Wash. 2020)
Court Description: ORDER granting Defendant's 76 Motion for Protective Order; granting Plaintiff's 84 Motion for Clarification Regarding Discovery and Deposition Order; This litigation is hereby STAYED. Once the Courthouse reopens for in-person hearings and proceedings, the parties shall cooperate in scheduling the three depositions authorized by the Court. Signed by Judge Robert S. Lasnik.(LH) CC to Plaintiff via mail on 8/13/2020.
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Chiat v. State of Washington et al Doc. 92 Case 2:18-cv-01142-RSL Document 92 Filed 08/11/20 Page 1 of 7 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 HEIDI CHIAT, 8 Plaintiff, 9 10 v. STATE OF WASHINGTON, et al., 11 Case No. C18-1142RSL ORDER GRANTING DEFENDANT’S MOTION FOR PROTECTIVE ORDER AND CLARIFYING PRIOR ORDERS Defendants. 12 13 This matter comes before the Court on “Defendant DSHS’s Motion for Protection” 14 (Dkt. # 76) and plaintiff’s “Motion for Clarification Regarding Discovery & Deposition 15 Order, Ten (10) Points” (Dkt. # 84).1 On April 3, 2020, the Court dismissed all of 16 plaintiff’s claims except an abuse of process claim. That claim is based on allegations that 17 the Department of Social and Health Services (“DSHS”) initiated an investigation in 18 April 2015 for retaliatory purposes not within the proper scope of the child welfare laws. 19 Dkt. # 57 at 7-8. All claims against the individual defendants were dismissed. Dkt. # 57 at 20 3-4; Dkt. # 61. The only remaining defendant is the State of Washington, Department of 21 Social and Health Services (“DSHS”), and the only remaining claim requires a showing 22 of abuse of process. 23 24 25 26 1 The Court has considered plaintiff’s untimely response to DSHS’ motion for protective order (Dkt. # 85) as well as DSHS’ sur-reply (Dkt. # 88). The Court cannot, however, consider the emails written by attorney Richard Pope when he was representing plaintiff for the truth of the matters asserted therein. Dkt. # 84 at 16-18. The emails are inadmissible hearsay. ORDER GRANTING DEFENDANT’S MOTION FOR PROTECTIVE ORDER AND CLARIFYING PRIOR ORDERS - 1 Dockets.Justia.com Case 2:18-cv-01142-RSL Document 92 Filed 08/11/20 Page 2 of 7 1 Given the number of claims initially at issue in this litigation and the way DSHS 2 interpreted the allegations related to the April 2015 events, the parties had failed to focus 3 their discovery on the elements of an abuse of process claim. The Court therefore 4 provided a brief window in which relevant documents would be disclosed and follow-up 5 discovery taken.2 DSHS was given twenty-one days to produce all non-privileged 6 information regarding the April 2015 report and investigation. Plaintiff was given until 7 May 15, 2020 to “file up to ten interrogatories and ten requests for production directed to 8 DSHS and aimed solely at discovering information relevant to her abuse of process claim 9 . . . .” Dkt. # 57 at 10-11. Although discovery is not normally filed, “the parties’ past 10 interactions suggest[ed] that utilizing CM/ECF for service purposes and to create a record 11 of the discovery requests and answers is appropriate.” Dkt. # 57 at 10 n.8. Once plaintiff 12 had an opportunity to review DSHS’ responses and document production, plaintiff could 13 “note up to three depositions, which shall occur at mutually agreeable times before 14 discovery closes on July 17, 2020.” Dkt. # 57 at 11. Motions for summary judgment, if 15 any, were due on or before August 6, 2020. Id. 16 A review of the docket shows that, although DSHS filed the required documents a 17 few days before they were due (Dkt. # 59 and # 60), plaintiff did not file interrogatories 18 or requests for production by the May 15, 2020, deadline. On May 18, 2020, the Clerk’s 19 Office received ten interrogatories and ten requests for production addressed to Linda 20 Townsend-Whitham, eight interrogatories and eight requests for production addressed to 21 Nicole Gorman, and an array of other extraneous papers. Dkt. # 65. Ms. Townsend- 22 Whitman and Ms. Gorman were both DSHS employees at the time of the April 2015 23 events. Plaintiff explained in a cover letter that she had had printer problems and was 24 25 26 2 Plaintiff was specifically advised of the elements of an abuse of process claim under Washington law and that discovery would be limited to those issues. Dkt. # 57 at 11 n.9. ORDER GRANTING DEFENDANT’S MOTION FOR PROTECTIVE ORDER AND CLARIFYING PRIOR ORDERS - 2 Case 2:18-cv-01142-RSL Document 92 Filed 08/11/20 Page 3 of 7 1 unable to get the discovery in the mail before the due date. Although not filed with the 2 Court, plaintiff also served on defense counsel ten interrogatories and ten requests for 3 production directed to Roxanne Kar, an individual never represented by defense counsel. 4 Dkt. # 77-2 at 16-21. Plaintiff subsequently indicated that she intended to propound 5 additional interrogatories on Theresa Burton, another DSHS employee, at some point in 6 July. Dkt. # 77-13 at 2. 7 The discovery requests plaintiff filed and/or served were clearly objectionable. 8 First, they were untimely. The discovery requests were to be filed on or before May 15, 9 2020, not mailed by that (or a later) date. Second, the discovery requests were not 10 directed to DSHS but rather to three non-parties. Third, the discovery requests were not 11 aimed solely at discovering information relevant to the abuse of process claim. For 12 example, many of the interrogatories directed to Ms. Kar, K.C.’s former foster parent, 13 sought personal biographical information regarding Ms. Kar and information regarding 14 her fostering of K.C., none of which has any relationship to the April 2015 report and 15 investigation. Finally, the number of discovery requests issued by plaintiff, both as 16 numbered and in discrete subparts, far exceeded the number authorized by the Court. 17 Even if plaintiff had good cause for the delay in filing her discovery requests, the requests 18 substantively violated the Court’s April 3, 2020, Order multiple ways and were therefore 19 improper. 20 At the beginning of June, plaintiff contacted defense counsel and requested that 21 she make witnesses available for deposition “the week of July 8”. Dkt. # 70 at 3. Defense 22 counsel responded that she would be unavailable from July 2-15, but offered to check on 23 the witnesses’ availability between mid-June and July 1st. Defense counsel requested 24 deposition notices in compliance with Fed. R. Civ. P. 30 and noted that one of the 25 proposed witnesses is in a high risk category for COVID-19 and would need to be 26 ORDER GRANTING DEFENDANT’S MOTION FOR PROTECTIVE ORDER AND CLARIFYING PRIOR ORDERS - 3 Case 2:18-cv-01142-RSL Document 92 Filed 08/11/20 Page 4 of 7 1 deposed by a means that protects her health and safety. Defense counsel also objected to 2 the three sets of non-party interrogatories and requests for production. 3 Plaintiff immediately began filing discovery motions accusing defense counsel of 4 unethical behavior, obstruction, and suborning perjury, all without any evidence of such 5 wrongful conduct. See Dkt. # 69-72, 75, and 84. Plaintiff seems to believe that objecting 6 to discovery requests and/or requiring that plaintiff following the Federal Rules of Civil 7 Procedure when noting depositions or serving subpoenas is sanctionable. The procedural 8 rules that govern federal litigation are not optional, however, and a well-founded 9 objection generally excuses the need to respond to the discovery unless and until the 10 Court orders a response. In this case, plaintiff’s discovery clearly violated the limitations 11 imposed by the April 3rd Order. Defendant’s objections were therefore well-founded, 12 defense counsel timely raised the objections, and no further responses will be required. 13 With regards to plaintiff’s insistence that the three depositions be conducted in 14 person, the issue has already been resolved by the Court. Dkt. # 82 at 3. The Court will 15 not compel the witnesses, defense counsel, or the court reporter to appear for a face-to- 16 face deposition in the current circumstances. Plaintiff has identified herself as “at higher 17 risk due to age and an autoimmune disorder” (Dkt. # 77-4 at 4): rather than take steps to 18 lessen that risk, she refuses to consider alternative means for obtaining information and 19 repeatedly warns/threatens that if anyone contracts COVID-19 because of the depositions, 20 defense counsel will be held liable. See Dkt. # 77-4 at 2 and 4; Dkt. # 77-5 at 3; Dkt. # 84 21 at 38. A review of the correspondence between plaintiff and defense counsel establishes 22 that plaintiff will not agree to conduct the depositions through written questions or video 23 conferencing. Therefore, as previously ordered by the Court, the depositions must await 24 the reopening of the U.S. Courthouse in Seattle, which is currently scheduled for 25 26 ORDER GRANTING DEFENDANT’S MOTION FOR PROTECTIVE ORDER AND CLARIFYING PRIOR ORDERS - 4 Case 2:18-cv-01142-RSL Document 92 Filed 08/11/20 Page 5 of 7 1 September 8, 2020.3 2 Once the Courthouse reopens for in-person hearings and proceedings, the parties 3 shall cooperate in scheduling the three depositions authorized by the Court. Once dates 4 and times have been agreed upon, plaintiff shall provide official written notice of the 5 depositions as required by Fed. R. Civ. P. 30(b). No subpoena duces tecum shall be 6 issued: the only discovery that is authorized are the three depositions. Because there has 7 been some confusion on the matter, plaintiff is advised that defense counsel does not 8 represent the individual deponents, none of whom are parties in this litigation, in their 9 capacities as witnesses. Defense counsel has agreed, however, to accept service of the 10 notices of deposition on behalf of individuals who are currently employed by DSHS: the 11 notices must be mailed to the Attorney General’s office, ATTN: Janay Ferguson. Plaintiff 12 must serve non-DSHS deponents pursuant to Fed. R. Civ. P. 45, including providing 13 witness and mileage fees and setting the location of the deposition within 100 miles of the 14 witness’ residence or place of work. Defense counsel is entitled to notice of the 15 depositions under both Rule 30 and Rule 45 and will attend and defend the depositions on 16 behalf of DSHS. 17 18 19 20 For all of the foregoing reasons, defendant’s motion for a protective order (Dkt. # 76) is GRANTED. ! Plaintiff failed to comply with the Court’s order regarding written discovery and 21 has waived her opportunity to serve discovery on DSHS. DSHS is therefore relieved of 22 any obligation to provide substantive responses to the interrogatories and requests for 23 production plaintiff filed and served in mid-May. No additional interrogatories, requests 24 25 26 3 Updates regarding Courthouse operations can be found at https://www.wawd.uscourts.gov/node/614. ORDER GRANTING DEFENDANT’S MOTION FOR PROTECTIVE ORDER AND CLARIFYING PRIOR ORDERS - 5 Case 2:18-cv-01142-RSL Document 92 Filed 08/11/20 Page 6 of 7 1 for production, requests for admission, or third-party subpoena duces tecum may be 2 served in this case. 3 ! Except as specified below, this litigation is hereby STAYED. Plaintiff’s efforts 4 to depose three witnesses regarding the alleged abuse of process must await the reopening 5 of the U.S. Courthouse in Seattle. No other discovery, motions, conferences, or 6 communications are authorized in the interim. The only part of the case that will proceed 7 is the briefing and consideration of DSHS’ pending motion for summary judgment (Dkt. 8 # 91), which was filed pursuant to the schedule established by the Court on April 3rd. 9 Plaintiff’s opposition must be received by the Court (not put in the mail) on or before 10 August 17, 2020. If plaintiff believes she needs the deposition testimony of the three 11 witnesses in order to present facts essential to justify her opposition to the motion, she 12 must state under penalty of perjury what she hopes to discover during the depositions that 13 will affect the outcome of the motion for summary judgment. Fed. R. Civ. P. 56(d). 14 Plaintiff’s motion for clarification (Dkt. # 84) is GRANTED to the extent the 15 16 Court’s prior orders have been clarified herein. The motion also contained ten specific 17 inquiries directed to the Court, many of which are argumentative and based on the 18 unsupported allegations against defense counsel. The short answers to plaintiff’s inquiries 19 are as follows: 20 (1) The Court will not hold DSHS and the persons on whom subpoenas were 21 apparently served in contempt. Plaintiff has not provided copies of the subpoenas 22 themselves, and, assuming the subpoenas directed the recipients to appear and testify, the 23 proofs of service show that witness and mileage fees were not paid. See Dkt. # 84 at 153- 24 60. 25 26 (2) Plaintiff has not, despite all of her accusations, motions, and exhibits, shown ORDER GRANTING DEFENDANT’S MOTION FOR PROTECTIVE ORDER AND CLARIFYING PRIOR ORDERS - 6 Case 2:18-cv-01142-RSL Document 92 Filed 08/11/20 Page 7 of 7 1 that defense counsel has violated the Federal Rules of Civil Procedure. 2 (3) Discovery in this case is now limited to the three depositions discussed above. 3 (4) The Court has reviewed all of the submissions of the parties. 4 (5) The three remaining depositions will await the reopening of the U.S. 5 6 Courthouse in Seattle, as discussed above. (6)-(7) and (9)-(10) Plaintiff’s allegations of a cover-up and conspiracy unrelated 7 to her abuse of process claim are irrelevant and unsupported. The emails created by her 8 former attorney are hearsay and cannot be considered for the truth of the matters asserted 9 therein. 10 (8) The Court will not reconsider the dismissal of the individual defendants or 11 reinstate any of the dismissed claims. The sole claim remaining is plaintiff’s abuse of 12 process claim against DSHS. 13 14 Dated this 11th day of August, 2020. 15 16 A 17 Robert S. Lasnik United States District Judge 18 19 20 21 22 23 24 25 26 ORDER GRANTING DEFENDANT’S MOTION FOR PROTECTIVE ORDER AND CLARIFYING PRIOR ORDERS - 7
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