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Tribe v. Hunnik

United States District Court, D. South Dakota, Western Division

January 28, 2016

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, Plaintiffs,
v.
LUANN VAN HUNNIK; MARK VARGO; HON. JEFF DAVIS; and LYNNE A. VALENTI, in their official capacities, Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO COMPEL

JEFFREY L. VIKEN CHIEF JUDGE.

INTRODUCTION

Plaintiffs filed 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 plaintiffs' motion in part and seek a protective order before producing the documents. (Docket 183). For the reasons stated below, plaintiffs' motion is granted in part and denied in part.

ANALYSIS

Plaintiffs seek documents used or created by the SDDSS Defendants after the conclusion of 48-hour hearings. The discovery requests are relevant to plaintiffs' claims regarding the adequacy of staff training by the SDDSS Defendants. Plaintiffs' requests for production of documents associated with the present motion to compel are contained in requests for production number 6 and number 7. (Docket 159 at p. 3). Those requests are:

Request for Production No. 6: Produce the entire Department of Social Services (DSS) file (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 following 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 for Production No. 7: Produce the entire Department of Social Services (DSS) file (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 following Seventh Judicial Circuit cases: A10-460; A10-773; A10-1116; A10-1238; A11-948; A11-954; A12-245; A13-298; A13-845; A14-47; A14-444; A14-446.

Id. at pp. 3-4 (bold and italics omitted). Plaintiffs submit the documents requested relate to thirty-five of the approximately four hundred case files associated with 48-hour hearing in Indian Child Welfare Act ("ICWA") cases in Pennington County, South Dakota, since 2010. Id. at p. 3.

Plaintiffs seek permission to allow plaintiffs' counsel to discuss individual files with the parents or guardians identified in DSS ICWA cases. Id. at p. 6.Plaintiffs argue these discussions are necessary because "these parents are members of the Plaintiff class." Id.

Plaintiffs also request that the SDDSS Defendants answer the following interrogatory.

Interrogatory No. 15: 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 specificity all evidence in the DSS case file that indicates that if DSS had returned the child(ren) fifteen days earlier, said child(ren) would have been at risk of imminent damage or harm.

Id. at p. 7 (bold omitted). Plaintiffs argue answers to this interrogatory are necessary to require the SDDSS Defendants to "point to any evidence in those files demonstrating that their staff complied with DSS training regarding § 1922." Id.

The SDDSS Defendants agree the documents requested by plaintiffs are discoverable but should be subject to a protective order. (Docket 183 at p. 2). Defendants claim the Child Abuse Prevention and Treatment Act, 42 U.S.C. § 5101 et seq., ("CAPTA") specifically prohibits them from making the disclosures sought by plaintiffs without a protective order in place. (Docket 183 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-13(1)-(10), which adopted the requirements of CAPTA, does not permit disclosure of the documents sought by ...


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