Oglala Sioux Tribe et al v. Van Hunnik et al, No. 5:2013cv05020 - Document 215 (D.S.D. 2016)
Court Description: ORDER granting in part and denying in part 159 Motion to Compel; granting in part and denying in part [183 at p. 5] motion for a protective order; vacating 214 stay of discovery. Signed by Chief Judge Jeffrey L. Viken on 1/28/16. (SB)
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Oglala Sioux Tribe et al v. Van Hunnik et al Doc. 215 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION OGLALA SIOUX TRIBE and ROSEBUD SIOUX TRIBE, as parens patriae, to protect the rights of their tribal members; MADONNA PAPPAN, and LISA YOUNG, individually and on behalf of all other persons similarly situated, Plaintifs, CIV. 13-5020-JLV ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO COMPEL vs. LUANN VAN HUNNIK; MARK VARGO; HON. JEFF DAVIS; and LYNNE A. VALENTI, in their oicial capacities, Defendants. INTRODUCTION Plaintifs iled a motion to compel the defendants Ms. Van Hunnik and Ms. Valenti of the South Dakota Department of Social Services ("SDDSS Defendants") to produce certain documents.1 (Docket 159). The SDDSS Defendants oppose plaintifs' motion in part and seek a protective order beore producing the documents. (Docket 183). For the reasons stated below, plaintifs' motion is granted in part and denied in part. 1Ms. Van Hunnik retired after 30 plus years with the South Dakota Department of Social Services. (Docket 209 at p. 1 n.1). Ms. Lisa Fleming has been appointed as .the Regional Manager for Region 1. Id. A motion or substitution of party pursuant to Fed. R. Civ. P. 25(d) has not been iled due to a number of pending motions. Id. Dockets.Justia.com ANALYSIS Plaintifs seek documents used or created by the SDDSS Defendants after the conclusion of 48-hour hearings. The discovery requests are relevant to plaintifs' claims regarding the adequacy of staf training by the SDDSS Defendants. Plaintifs' requests or production of documents associated with the present motion to compel are contained in requests or production number 6 and number 7. (Docket 159 at p. 3). Those requests are: Request or Production No. 6: Produce the entire Department of Social Services (DSS) ile (including all court documents, case worker reports, case worker notes, narrative reports, risk assessment reports, visitation records, correspondence, interviews, and home studies) with respect to the ollowing Seventh Judicial Circuit cases: Al0-270; Al0-1119; Al0-1170; Al0-1191; All-497; Al1-645; Al1-1004; A12-219; A12-468; A12-839; A13-30; A13-49; A13-845; A13-616; A14-145. Request or Production No. 7: Produce the entire Department of Social Services (DSS) ile (including all court documents, case worker reports, case worker notes, narrative reports, risk assessment reports, visitation records, correspondence, interviews, and home studies) with respect to the ollowing Seventh Judicial Circuit cases: Al0-460; Al0-773; Al0-1116; Al0-1238; All-948; Al1-954; A12-245; A13-298; A13-845; A14-47; A14-444; A14-446. Plaintifs submit the documents Id. at pp. 3-4 (bold and italics omitted) . requested relate to thirty-ive of the approximately four hundred case iles associated with 48-hour hearing in Indian Child Welare Act ("ICWA") cases in Pennington Couny, South Dakota, since 2010. Id. at p. 3. Plaintifs seek permission to allow plaintifs' counsel to discuss individual iles with the parents or guardians identiied in DSS ICWA cases. 2 Id. at p. 6. Plaintifs argue these discussions are necessary because "these parents are members of the Plaintif class. " Id. Plaintifs also request that the SDDSS Defendants answer the ollowing interrogatory. Interrogatory No. 1 5: With respect to each case listed in RFP No. 6 above, state and describe in detail all of the reasons why the child(ren) in each case was (were) not returned to a parent fifteen days earlier than he/she/they was/were returned. In your response, identify with speciicity all evidence in the DSS case ile that indicates that if DSS had returned the child(ren) ifteen days earlier, said child(ren) would have been at risk of imminent damage or harm. Id. at p. 7 (bold omitted). Plaintifs argue answers to this interrogatoy are necessary to require the SDDSS Defendants to "point to any evidence in those iles demonstrating that their staf complied with DSS training regarding § 1 922. " Id. The SDDSS Defendants agree the documents requested by plaintifs are discoverable but should be subject to a protective order. (Docket 1 83 at p. 2). Defendants claim the Child Abuse Prevention and Treatment Act, 42 U.S. C. § 5101 et seq., ("CAPTA") speciically prohibits them rom making the disclosures sought by plaintifs without a protective order in place. (Docket 1 83 at p. 4). The SDDSS Defendants argue that even with a protective order in place "[t]he parent of an abused and neglected child is not one of the persons authorized to receive disclosure under the federal law." Id. (bold omitted). Similarly, the SDDSS Defendants argue that SDCL 26-8A- 1 3( 1 )-( 1 0), which adopted the requirements of CAPTA, does not permit disclosure of the documents sought by 3 plaintifs to the parents of an abused and neglected child. Id. For these reasons, the SDDSS Defendants assert the court should adopt the language of their proposed protective order. 2 Id. at p. 5. Regarding plaintifs' interrogatory number 1 5, the SDDSS Defendants argue: Ms. Van Hunnik has provided an Aidavit outlin[ing] the process undertaken by a DSS Family Services Specialists .. . once a child is placed in DSS custody by law enorcement. .. . upon completion of the IFA [Initial Family Assessment], if no impending danger is identiied, then the child is returned to custody of the parent(s), also known as reuniication.... If impending danger is identiied, then it is determined whether a Safety Plan can be ormulated to manage the impending danger. . . . Once the IFA process is completed, so long as impending danger exists, legal custody remains with DSS. If at the completion of the IFA process, it is determined that impending danger does not exist or can be alleviated through various means, legal custody is returned to the parent(s). Id. at p. 6. (internal references omitted). Defendants assert the plaintifs have been provided with the IFAs or each of the court iles sought by plaintifs and those documents "set orth the reasons why a child was or was not returned to custody of the parent." Id. For these reasons, the SDDSS Defendants ask the court to deny any further response to interrogatory number 15. Id. at p. 7. In response to the SDDSS Defendants' production of the IFAs and resistance to further inquiry concerning the determinations related to each IFA, plaintifs argue they have the "right to probe the validity of Van Hunnik's 2A proposed protective order accompanies the defendants' response. (Docket 184- 1 ). Plaintifs' objections and proposed amendments to defendants' proposed protective order also accompany defendants' response. (Docket 184-2). 4 testimonial disclaimer." (Docket 190 at p. 9). Plaintifs assert requiring the SDDSS Defendants to conduct an evaluation and identify the acts which demonstrate the appropriateness of retaining custody of the children or returning them to the custody of their parents in each of the thiry-ive cases identiied "is neither an onerous nor unreasonable request in a lawsuit of this nature. " Id. The court agrees in part with the SDDSS Defendants' analysis and will not permit the plaintifs to share the DSS ile materials with the parents or other people involved in those DSS iles. In the event the plaintifs wish to discuss any DSS ile disclosed under this order with the parents or other people identiied in each ile, plaintifs must make a particularized showing of need iled under seal. seal. Any response by the SDDSS Defendants shall also be iled under With this limitation, the court will grant plaintifs' motion to compel. The court agrees with the plaintifs' argument associated with defendants' response to interrogatory number 15. The court inds that requiring the SDDSS Defendants to review the thiry-ive cases identiied in request or production number 6 and to articulate the particularized acts which support the DSS decision in each IFA is a reasonable request and not onerous or overly burdensome to the SDDSS Defendants. The court approves the protective order language proposed by the SDDSS Defendants except as to that portion of Section 5.b.i on page ive which is objected to by plaintifs. See Docket 184-2 at p. 3. 5 That language is impossible to apply or enorce. The remainder of plaintifs' objections and proposed amendments to the defendants' proposed protective order are overruled. A protective order consistent with this order and the general practice of the court will be contemporaneously iled. An order quashing the subpoenas issued for the depositions of SDDSS Secretay Valenti, three ormer SDDSS employees and one present employee was entered on October 30, 2015. (Docket 214). With the resolution of plaintifs' motion to compel, it is appropriate to permit those depositions to proceed. ORDER In accord with the above analysis, it is ORDERED that plaintifs' motion to compel (Docket 159) is granted in part and denied in part. IT IS FURTHER ORDERED that the SDDSS Defendants' motion or a protective order (Docket 183 at p. 5) is granted in part and denied in part. IT IS FURTHER ORDERED that the SDDSS Defendants shall produce to plaintifs within twenty-eight (28) days of this order the discovery inormation sought under requests or production number 6 and number 7 and interrogatory number 15. IT IS FURTHER ORDERED that in the event the plaintifs wish to discuss any DSS ile disclosed under this order with the parents or other people identiied in each ile, plaintifs must make a particularized showing of need, iled under seal, with any SDDSS Defendants' response also iled under seal. 6 IT IS FURTHER ORDERED that the stay of discovery imposed by the October 30, 2015, order (Docket 214) is vacated. IT IS FURTHER ORDERED that the transcripts of the depositions of Ms. Valenti, Ms. Zellar, Ms. Brown, Ms. Shaw, and Ms. Furchner and all exhibits relating to those depositions shall not be iled in CM/ECF except under seal and shall remain restricted to use by the parties solely or purposes of this litigation. NOTICE IS FURTHER GIVEN that a protective order will be contemporaneously iled. Dated January 28, 20 16. BY THE COURT: CHIEF 7
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