The opinion of the court was delivered by: Karen E. Schreier Chief Judge
Plaintiff, Talia Wellenstein, filed suit against defendant, Renzo Capocci, claiming emotional damages stemming from her sexual molestation by Capocci. Capocci now moves for a protective order to prohibit Wellenstein from taking certain depositions. Wellenstein moves to strike a factual statement from Capocci's memorandum in support of the protective order. Wellenstein also moves to compel certain discovery from Capocci. Capocci's motion for a protective order is denied in part and granted in part. Wellenstein's motion to strike is denied as moot. Wellenstein's motion to compel is granted in part and denied in part.
The pertinent facts to these orders are as follows: On June 6, 2006, Wellenstein babysat for Capocci's children in Yankton County, South Dakota. While Wellenstein was baby-sitting, Capocci returned to the residence and engaged in improper sexual contact with Wellenstein, then 14 years old, without Wellenstein's consent. At the time of this incident, Capocci lived in southern Florida.
The state of South Dakota brought criminal charges against Capocci
under SDCL 22-22-7.4, which outlaws sexual contact with a person
capable of consenting, but whose consent was not obtained.*fn1
On October 11, 2006, Capocci pleaded guilty to the charge. On
October 10, 2006, Capocci appeared with David Hosmer, the attorney who
represented Capocci in the criminal matter, for the sentencing phase
of the trial. The Honorable Glen W. Eng for the First Judicial Circuit
in Yankton, South Dakota, sentenced Capocci to 365 days in the Yankton
County Jail, of which 275 days were suspended, and he placed Capocci
on probation for 2 years.
Wellenstein then brought a civil suit against Capocci for damages resulting from her severe anxiety, fear, and other emotional and physical pain that occurred after the sexual assault. The parties are in the discovery phase of this matter.
I. Motion for a Protective Order
Discovery is for the parties to work out by themselves and the court should only be involved if the parties have reached the conclusion that they are at an impasse. Krupp v. St. Louis Justice Cntr., No. 4:07-CV-882, 2007 WL 3232252, at *1-*2 (E.D. Mo. Oct. 29, 2007); see also Intermedics, Inc. v. Cardiac Pacemakers, Inc., No. 4-95-716, 1998 WL 35253490, at *17 n.17 (D. Minn. 1998) (noting that extensive discovery disputes occupy significant judicial resources). On both of the pending discovery motions, the parties have certified that they have again reached a stumbling point on discovery and require the court's intervention.
Wellenstein has notified Capocci that "she will be contacting his [Capocci's] employer and work colleagues, friends, family, his children's Boy Scout leaders, his children's schools and church members to discover whether Defendant has an alcohol problem and if he has committed any similar acts alleged in this lawsuit." Docket 41 at 2. Capocci seeks a protective order to prevent Wellenstein from completing this discovery.
"The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including . . . forbidding the disclosure or discovery . . . ." Fed. R. Civ. P. 26(c)(1)(A). Alternatively, the court can specify the terms of the discovery. Fed. R. Civ. P. 26(c)(1)(B). The party seeking the protective order "must show that specific prejudice or harm will result if no protective order is granted." Blair v. City of Omaha, No. 8:07CV295, 2011 WL 148120, at *3
A. Capocci's Alleged Alcohol Problems
Wellenstein seeks discovery on Capocci's alleged alcohol problems. In his criminal case, Capocci's attorney Hosmer stated the following at Capocci's sentencing hearing: "Renzo admits that he has a drinking problem and I think it's fair to say from the facts of this case that he has a drinking problem. . . . when he first - - this happened, he went to a psychologist in Florida. . . . She basically said his problem is that he's got an alcohol problem. . . . Right now he's in AA [Alcoholics Anonymous]." Docket 43-1 at 8. The sentencing court, relying on the Presentence Investigation report (PSI) and Hosmer's remarks, stated that [T]he problem that the court has with this is that when we have a situation like this particular one, the court cannot tell whether this is something that is limited to an alcohol induced behavior or whether it is something that is endemic in Mr. Capocci's character. . . . One thing with alcohol that I have seen and observed is that it only releases those inhibitions that a person has. It doesn't create a monster that wasn't there to begin with. So, if the behavior is brought on by alcohol, it is a behavior that is deeply ingrained within a person. The alcohol releases that because it releases inhibitions, and, so, what is masked in a person's life becomes a surface response.
In his deposition for the civil case, Capocci testified contrary to Hosmer's remarks at sentencing: "I don't have a drinking problem. Probably I had a problem with drinking that night. . . . That night of the incident." Docket 43-1 at 13. When Wellenstein's attorney asked further questions, Capocci asserted his Fifth Amendment rights. Docket 43-1 at 13. Wellenstein's attorney then asked about the evaluations that were done for the PSI:
Q: . . . Did you have an alcohol evaluation performed prior to the sentencing on October 10, 2006?
A: No, there was no alcohol evaluation.
Q: Were you following any recommendations from anyone relating to abstaining from alcohol?
Q: Whose recommendations?