Six v. Henry, Civ-91-1879-A.

Decision Date22 June 1992
Docket NumberNo. Civ-91-1879-A.,Civ-91-1879-A.
PartiesKim SIX, Rose Marie Bouska, Carolyn L. Mobley, Shannon J. Martin, Kathy R. Givens, Vanda S. Wall, Carol Leann Demos, and Brenda G. Curry, Plaintiffs, v. Claudette HENRY, individually and in her official capacity as Treasurer of the State of Oklahoma, Defendant.
CourtU.S. District Court — Western District of Oklahoma

Charles J. Watts, Mark S. Cooper, Looney Nichols Johnson & Hayes, Rosemary M. Rogers, Shadid & Pipes, Oklahoma City, Okl., for plaintiffs.

Guy L. Hurst, Robert M. Anthony, Susan B. Loving, Office of the Attorney General, Oklahoma City, Okl., Kevin R. McLean, Belli Bolli Brown Monzione Fabbro & Zakaria, San Francisco, Cal., for defendant.

ORDER

ALLEY, District Judge.

On 29 May 1992, this Court entered an Order denying plaintiffs' Motion to Compel the Continued Deposition of Defendant and finding that defendant's Motion to Continue Deposition was moot. This Order is intended to amplify the Court's view on the improper conduct of Mr. Charles Watts, who represents plaintiffs, during the deposition of defendant on 11 May 1992.

The nature of this case is that plaintiffs allege an impermissible separation from public employment in the state treasurer's office due to their politics. The portions of Fed.R.Civ.P. 26 that are pertinent to this Order are as follows:

(b) Discovery Scope and Limits.
Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.... 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.
The frequency or extent of use of the discovery methods set forth in subdivision (a) shall be limited by the court if it determines that: ... (iii) the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation. The Court may act upon its own initiative after reasonable notice or pursuant to a motion under subdivision (c) (emphasis added).

A number of courts have interpreted the language of Fed.R.Civ.P. 26 in a general manner and as it applies to the facts of a particular case. No general rule of thumb can be devised for what subject matter will be considered "relevant" in discovery, because the boundaries of relevance are necessarily vague. See, Mallinckrodt Chemical Works v. Goldman, Sachs & Co., 58 F.R.D. 348, 353 (S.D.N.Y.1973); United States v. Kohler Co., 9 F.R.D. 289, 291 (E.D.Pa.1949).

Nevertheless, the scope of discovery, including limitations on depositions and the use of protective orders, is clearly within the discretion of the trial judge. See, Chemical & Indus. Corp. v. Druffel, 301 F.2d 126, 129 (6th Cir.1962); State of Maryland v. Pan-American Bus Lines, Inc., 1 F.R.D. 213, 214 (D.Md.1940). Further, if protection of a party is necessary, it can be provided more effectively by the discretionary powers of the court under Fed.R.Civ.P. 26(c) than by a constrictive concept of relevance. See, Cox v. E.I. DuPont De Nemours & Co., 38 F.R.D. 396, 398 (D.S.C.1965).

Despite the relatively permissive view of relevance by the courts, it is axiomatic that discovery should not be allowed of information that has no conceivable bearing on the case. See, In re Fontaine, 402 F.Supp. 1219, 1221 (E.D.N.Y.1975); In re Surety Ass'n of Am., 388 F.2d 412, 414 (2d Cir. 1967). See also, 8 Wright & Miller, Federal Practice & Procedure, § 2008 at 45-51 & § 2036 at 268.

As illustrated by the discussion above, the bounds of discovery, including depositions, may extend not only to admissible evidence, but also to evidence that is potentially relevant to the issues involved in the case. No principle of relevance or potential relevance, however, can justify the probes by Mr. Watts into the defendant's personal life. In fact, the Court finds that Mr. Watts' questioning was appalling. Questions that the Court finds objectionable are quoted below.

"Q. Ms. Henry, as you know, I'm Charles Watts. I represent the plaintiffs in this lawsuit. My intention today is to find out some about you and your personal background, kind of who you are and what your background is. And additionally, to find out what testimony you might be able to give that would be relevant to the allegations made in this lawsuit. (Henry Dep. at 4, 1.22-25 & 5, 1.1-3)

"Q. Were you married previous to Mr. Henry?

"A. I don't think I want to answer any questions that pertain to my personal life if it doesn't apply to this situation.

"Q. Well, as I explained to you at the outset, part of what we intend to do today is to find out about you personally. And if you —

"A. Public information, you're welcome to. My personal life, you're not welcome to.

"Q. My question is: Were you married previous to Mr. Henry?

"A. I do not care to discuss anything about my personal life.

"Q. Do you refuse to answer that question?

"A. I do. Absolutely.

"Q. I'll state on the record what I intend to do, I don't intend to call Judge Alley after each question that you refuse to answer, but I do intend to make a record on any questions that you refuse to answer, and I do intend to bring that up to the court. And if he should direct that those questions be answered, then we intend to also seek with that the cost of presenting that to the court.

"A. Well, I will remind you one more time, my personal family life has nothing to do with this and I am not going to get into it.

"Q. What was your previous husband's name?

"A. I am not going to answer.

"Q. You refuse to answer that question?

"A. Absolutely.

"Q. Have you previously been divorced?

"A. I am not going to answer any of this line of questioning.

"Q. Do you have children?

"A. I'm not going to answer any more questions on my personal life.

"Q. What are the names and ages of your children?

"A. I am not going to answer.

"(Id. at 8, 1.4-25 & 9, 1.1-15)

"Q. Where did you live when you went to the University of Oklahoma?

"A. In Oklahoma City.

"Q. Were you still living at home with your parents at that time?

"A. No.

"Q. How old were you?

"A. Probably late thirties, mid thirties, somewhere.

"Q. Did you just go for one semester?

"A. I believe — I believe it was two semesters concurrently.

"Q. Would that have been one full school year?

"A. Uh-huh. Yes.

"Q. So each semester you would have only taken, oh, six to seven and a half hours?

"A. Something like that.

"Q. Do you know what your grades were?

"A. Seems like I had around a three point.

"(Id. at 12, 1.18-25 & 13, 1.1-10)

"Q. And when did you attend Rose State?

"A. Various and sundry periods over probably a ten-year period.

"Q. From when to when, roughly?

"A. I would say maybe between '72 and '80, somewhere in that vicinity.

"Q. And what were you studying there?

"A. I was enrolled in business administration, so I took the general courses that were involved in that particular area.

"Q. Were you going to school while you were working?

"A. Yes.

"Q. What was your overall GPA?

"A. It was somewhere three point one or two. Somewhere in that range.

"Q. And at OSU Tech?

"A. I don't know, probably around — I would say around three point. It's been a long time. I don't remember for sure.

"(Id. at 15, 1.1-19)

"Q. What was your job?

"A. I was secretary to the vice-president.

"Q. Who was that?

"A. ... V ....

"Q. Is he a friend?

"A. He was my employer back then.

"Q. I understand. My question is, is he a friend?

"A. Is he a friend — I mean, have we kept up with an acquaintanceship?

"Q. Yes, ma'am.

"A. Is that what you're asking me?

"Q. Yes, ma'am.

"A. No, we've not kept up any acquaintanceship.

"Q. Did you have any relationship with ... V ... at that time other than his secretary?

"A. No.

"(Id. at 20, 1.7-22)

"Q. What was your next employment — one other question. Did you have a supervisor at Stifel other than ... V ...?

"A. No.

"Q. Were you married during that time when you worked at Stifel Nicolaus?

"A. I will not discuss any of my personal live sic.

"Q. You refuse to answer that?

"A. I do.

"(Id. at 22, 1.6-14)

"Q. Thank you. Were you living alone?

"A. I was supporting myself.

"Q. Were you living alone, is my question?

"A. No, not at that time.

"Q. Who were you living with?

"A. Is that relevant to anything, Guy?

"MR. HURST: Do you want to restate the question?

"MR. WATTS: Yes.

"BY MR. WATTS:

"Q. Who were you living with?

"MR. HURST: We'd object to the question, relevancy ground, not tending to lead to any matters relative to this case, or discovery of any matters relative to this case.

"MR. WATTS: Are you instructing her not to answer?

"MR. HURST: Yeah. Well, explain to me what the purpose of the question is?

"MR. WATTS: I want to know her background. And thus far, she's refused to answer a number of questions and we're just preserving those and this is part of knowing her background.

"(Id. at 26, 1.3-25)

"Q. While you were living — or while you were working for the Secret Service, who were you living with?

"Q. While you were working for New York Life, who were you living with?

"(Id. at 33, 1.12-13 & 1.22-23)

"Q. While you were working for the IRS, who were you living with?

"(Id. at 34, 1. 5-6)

"Q. Your husband was an IRS employee?

"A. Uh-huh.

"Q. What did he do?

"A. Criminal investigator.

"Q. From when to when?

"A. He was with the treasury department some 29 years, I believe.

"Q. Did you meet him at the IRS?

"A. No.

"Q. Did you meet him before or after you went to work for the IRS?

"(Id. at 40, 1.3-13)

"Q. How long were you in the...

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