Blossom v. Blossom
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This case stems from an interlocutory appeal by Kelly Blossom regarding the issuance of a protective order by the Rankin County Chancery Court that denied her attempt to take two depositions in her divorce case. In 2009, Michael Blossom filed a complaint and obtained a temporary restraining order, preliminary injunction and permanent injunction against Ms. Blossom enjoining her from any contact with their children. At the time the trial court issued the protective order, Ms. Blossom was being prosecuted for sexual battery in the circuit court. One of the witnesses was the minor victim in the criminal case. In the criminal case, Ms. Blossom eventually pled guilty to having committed sexual battery. The other potential deponent, another minor, was identified by Ms. Blossom as having knowledge about the the sexual battery from the criminal case. Upon review of the trial court record, the Supreme Court found that the chancellor of the court below erred by granting the protective orders without meeting the requirements set out in the Mississippi Rules of Civil Procedure: "the fact that a witness is an 'alleged minor victim of a crime' alone does not constitute sufficient grounds to deny a party the right to depose that witness." Therefore, the Court reversed the decision of the lower court and remanded the case back to the trial court for further proceedings.
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2010-IA-00882-SCT
KELLY FINN BLOSSOM
v.
MICHAEL BLOSSOM
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
05/10/2010
HON. JOHN S. GRANT, III
RANKIN COUNTY CHANCERY COURT
J. EDWARD RAINER
GARY LEE WILLIAMS
CHRISTOPHER PAUL PALMER
MICHAEL A. BOLAND
FRANK D. EDENS
CRAIG LAWSON SLAY
CIVIL - DOMESTIC RELATIONS
REVERSED AND REMANDED - 07/21/2011
EN BANC.
PIERCE, JUSTICE, FOR THE COURT:
¶1.
This matter is an interlocutory appeal by Kelly Blossom (“Kelly”) regarding the
issuance of a protective order by the Rankin County Chancery Court denying her attempt to
take the deposition of two witnesses in her pending divorce case. One of the witnesses was
a minor victim in a criminal case (“C.B.”) in which Kelly eventually pleaded guilty to having
committed sexual battery. The other potential deponent, a minor named R.W., was identified
by Kelly as having knowledge about “the rape” in the criminal case. At the time the trial
court issued the protective order, Kelly was being prosecuted for sexual battery in the Rankin
County Circuit Court and was represented by the same counsel for both the criminal
prosecution and the divorce proceeding.
STATEMENT OF THE ISSUES
Did the chancellor err in entering a protective order enjoining and
preventing taking the deposition of C.B. and of R.W.?
FACTS
¶2.
On September 25, 2009, Michael Blossom (“Michael”) filed a complaint and obtained
a temporary restraining order, preliminary injunction, and permanent injunction against
Kelly, enjoining her from having any contact with their children. Michael’s complaint for
the temporary restraining order was based on the fact that Kelly previously had been arrested
and charged with ten counts of sexual battery against a minor, C.B., in the city of Flowood,
Mississippi.
¶3.
On December 8, 2009, Kelly filed her Answer and Defenses to the complaint for the
temporary restraining order, preliminary injunction, and permanent injunction. Included in
her Answer and Defenses, Kelly filed a Counterclaim for a Temporary Restraining Order
and for Divorce and for Other Relief.
¶4.
In her complaint for divorce, Kelly alleged that she was entitled to a divorce from
Michael on the grounds of habitual cruel and inhuman treatment and sought custody of their
minor children and possession of all marital property. On February 10, 2010, Michael filed
his responses to Kelly’s First Set of Interrogatories, and, within the responses, he denied that
Kelly was entitled to a divorce. He did not assert any grounds for divorce against her.
2
¶5.
On April 21, 2010, Kelly issued deposition subpoenas for C.B. and R.W., both of
whom were to be deposed on May 5, 2010. At the time, C.B. was the alleged victim in the
sexual-battery charges pending against Kelly in Rankin County Circuit Court.1
¶6.
On April 26, 2010, Kelly responded to Michael’s First Set of Interrogatories and
Request for Production of Documents, identifying numerous witnesses whom she intended
to call at trial who had relevant knowledge in the matter. In her response to Michael’s
interrogatories, Kelly did not mention C.B., but she included R.W. as an intended witness.
¶7.
On May 4, 2010, Michael filed a Motion for a Protective Order to prevent the
depositions of C.B. and R.W. The district attorney’s office sought to intervene with a
Motion to Quash Deposition Subpoena with prejudice, requesting
an ore tenus motion on behalf of the State of Mississippi that the Rankin
County District Attorney’s Office may be heard in this case . . . due to the fact
that one of the persons who has been subpoenaed to be deposed is a victim in
a criminal matter in which [the] defendant is also a criminal defendant in the
Circuit Court of Rankin County.
The chancellor barred the State of Mississippi from proceeding on its motion, stating that
Kelly’s counsel was “entitled to more notice.” On May 10, 2010, after giving consideration
to the pleadings and the arguments of the parties’ counsel, the trial court entered an order
prohibiting the depositions of C.B. and R. W.
¶8.
Kelly appeals the chancellor’s decision prohibiting her from deposing C.B. and R.W.
and this Court granted interlocutory appeal pursuant to Mississippi Rule of Appellate
Procedure 5.
STANDARD OF REVIEW
1
Kelly has since pleaded guilty to one count of sexual battery against C.B.
3
¶9.
When reviewing matters relating to discovery, this Court has used an abuse-of-
discretion standard. “In regard to matters relating to discovery, the chancellor has
considerable discretion. This Court will not disturb discovery orders unless there has been
an abuse of discretion.” Electronic Data Sys. Corp. v. Miss. Div. of Medicaid, 853 So. 2d
1192, 1209 (Miss. 2003).2
ANALYSIS
¶10.
This Court has a history of applying strict standards for interlocutory appeals as they
relate to discovery matters. In fact, “as a general rule, this Court has declared that it ‘is not
about to become involved in the wholesale granting of interlocutory appeals of civil
discovery disputes. Pre-trial discovery is governed by flexible rules well within the
administrative capacity of our trial courts.’” Haynes v. Anderson, 597 So. 2d 615, 617 (Miss.
1992) (citing In Re Knapp, 536 So. 2d 1330, 1333 (Miss. 1988)).
The standards for
interlocutory appeal have been set out to the point that “[r]arely will we entertain an
interlocutory appeal regarding a discovery matter.” Miss. State Bar v. Attorney L, 511 So.
2d 119, 121 (Miss. 1987).
¶11.
Both parties stipulate that the issue of this appeal is whether the chancellor in the
lower court erred by entering a protective order, enjoining and preventing Kelly from taking
the deposition of both C.B. and R.W. To properly address these issues, this Court must
examine the proper rules and the reasoning used by the chancellor when he granted the
protective orders. Rule 26(d) of the Mississippi Rules of Civil Procedure sets out the
2
See Dawkins v. Redd Pest Control, Inc., 607 So. 2d 1232, 1235 (Miss. 1992).
4
guidelines and requirements of a protective order.3 Michael argued that the deposition of
C.B. and R.W. “exceeds the scope of permissible discovery as governed by Miss. R. Civ. P.
26.” 4 Kelly argued that, pursuant to Rule 30(a) of the Mississippi Rules of Civil Procedure,
“C.B. and R.W. are persons . . . subject to being deposed for relevant information they may
have that involves this action.”
3
Mississippi Rule of Civil Procedure 26(d) reads:
Protective Orders. Upon motion by a party or by the person from whom discovery
is sought, and for good cause shown, the court in which the action is pending, or in
the case of a deposition the court that issued a subpoena therefor, 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:
(1) that the discovery not be had;
(2) that the discovery may be had only on specified terms and conditions, including
a designation of the time or place;
(3) that the discovery may be had only by a method of discovery other than that
selected by the party seeking discovery;
(4) that certain matters not be inquired into, or that the scope of the discovery be
limited to certain matters;
(5) that discovery be conducted with no one present except persons designated by the
court;
(6) that a deposition after being sealed to be opened only by order of the court;
(7) that a trade secret or other confidential research, development, or commercial
information not be disclosed or be disclosed only in a designated way;
(8) that the parties simultaneously file specified documents or information enclosed
in sealed envelopes to be opened as directed by the court;
(9) the court may make any other order which justice requires to protect the party or
witness from annoyance, embarrassment, oppression or undue burden or expense,
including provision for payment of expenses attendant upon such deposition or other
discovery device by the party seeking same.
If the motion for a protective order is denied in whole or in part, the court may, on
such terms and conditions as are just, order that any party or person provide or
permit discovery. Rule 37(a)(4) applies to the award of expenses incurred in relation
to the motion.
4
Mississippi Rule of Civil Procedure 26(d)(4) states: (4) “that certain matters not be
inquired into, or that the scope of the discovery be limited to certain matters;”
5
¶12.
After reviewing the record herein, this Court finds that the chancellor erred by
granting the protective orders without meeting the requirements set out in Rule 26(d). The
fact that a witness is an “alleged minor victim of a crime” 5 alone, does not constitute
sufficient grounds to deny a party the right to depose that witness. The trial court is not
precluded from granting the issuance of the protective orders, but further explanation
regarding the issues and requirements set out in the rules is necessary to warrant the issuance
of a protective order.
CONCLUSION
¶13.
We reverse the decision of the chancellor and remand this matter to the trial court for
a disposition consistent with this opinion.
¶14.
REVERSED AND REMANDED.
WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH,
KITCHENS, CHANDLER AND KING, JJ., CONCUR. LAMAR, J., DISSENTS
WITH SEPARATE WRITTEN OPINION.
LAMAR, JUSTICE, DISSENTING:
¶15.
Because the chancellor did not abuse his discretion in entering the protective orders,
I respectfully dissent.
¶16.
As an initial matter, I find this case inappropriate for interlocutory review. Although
the majority correctly notes that this Court has stated that it is “not about to become involved
in the wholesale granting of interlocutory appeals of discovery disputes,” it fails to explain
why it is doing so in this case. (Maj. Op. ¶10). As this Court stated in American Electric
5
Id.
6
v. Singarayar, 530 So. 2d 1319, 1322 (Miss. 1988), “Indeed, the language of Rule 5(a)
naturally suggests an opposition between a question of law and a question of fact or matter
for the discretion of the trial court. Common sense suggests matters of the latter category –
acts of discretion – least eligible for interlocutory review.”
¶17.
I also disagree with the majority’s cursory finding that the chancellor erred in granting
the protective orders. The standard of review in discovery matters is abuse of discretion.
Electronic Data Sys. Corp. v. Miss. Div. of Medicaid, 853 So. 2d 1192, 1209 (Miss. 2003).
In fact, this Court has stated that in “matters relating to discovery, the chancellor has
considerable discretion.” Id. (emphasis added).
¶18.
A party may obtain discovery “regarding any matter, not privileged, which is relevant
to the issues raised by the claims or defenses of any party.” Miss. R. Civ. P. 26(b)(1)
(emphasis added). But a trial judge may enter a protective order “upon motion by a party
. . . and for good cause shown . . . to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense . . . .” Miss. R. Civ. P. 26(d)
(emphasis added).
¶19.
Here, Michael Blossom filed a motion for a protective order to prevent Kelly Blossom
from deposing C.B. and R.W. Michael argued that Kelly was seeking to “use the divorce
case to conduct discovery for the criminal cases which would otherwise be unavailable to her
within the criminal cases themselves” and that C.B. and R.W. “clearly [had] absolutely no
relevance to the parties’ pending divorce case . . . . ” The chancellor agreed and entered the
protective orders, finding that any information C.B. possessed was “beyond the scope of
7
discovery” in the divorce proceeding, and that any knowledge R.W. had was “not relevant
to [the] divorce proceeding.”
¶20.
I find no abuse of the chancellor’s “considerable” discretion in this case. A chancellor
may issue a protective order “for good cause shown.” Here, C.B. was the minor victim of
a crime committed by Kelly, the person seeking the deposition. And R.W. had information
– according to Kelly – only about “the rape” in the criminal case. I believe the chancellor
was within his discretion to find that C.B. and R.W. had no information relevant to the
divorce action.
¶21.
As discussed above, I find this case inappropriate for interlocutory review. But
because this Court has decided to address the issues on the merits, I would affirm the
chancellor’s ruling.
8
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