Parties and witnesses may experience additional mental distress by being required to testify about underlying traumatic events and by being confronted with opposing and conflicting allegations or information. This concern is heightened in the case of a child witness. Generally speaking, a child party did not independently decide to file a civil action and may not fully understand the requirements imposed on a party in litigation. Thus, the questions become (1) are the depositions of minor child parties/witnesses allowed and (2) what limitations, if any, are placed on the deposition process? As has been seen throughout the numerous jurisdictions, and as was recently held by the Discovery Commissioner in a matter pending before the Eighth Judicial District Court of Nevada, depositions of minors, whether a party or a witness, are rarely denied, but rather limited in scope and duration.
In Arassi v. Weber-Stephen Products LLC, 2014 U.S. Dist. LEXIS 49032, 2014 WL 1385336 (E.D.Wis. 2014), husband and wife plaintiffs brought an action for personal injury damages that the husband suffered while attempting to assemble a gas grill. The defendant sought to take plaintiffs’ 14- and 10-year-old daughters’ depositions because they were present in the house when the accident occurred. Plaintiffs opposed the taking of the daughters’ depositions on the grounds that it would be detrimental to their mental health and because the defendant could obtain the information through alternative means. The court considered the fact that the daughters were receiving mental health treatment and that their therapist had written a letter regarding the potential harm that would occur if they were required to testify. The court also noted that “litigation can be anxiety-inducing for laypersons, especially for children of a young age.” The court nevertheless concluded:
“In the end, however, I am not persuaded that the plaintiffs have shown with specificity that deposing the children would be irreparably harmful to them. The cursory (perhaps, understandably so) and conclusory letters from the two mental health providers disclose very little on which I can make a specific finding of harm. . . . In other words, I am not persuaded that measures and limitations cannot be fashioned to protect the children from any irreparable harm.”
The court also noted that “[t]hough young, the children are fact-witnesses as they were at home on the day of the accident,” and “may also possess information on changes in their home life which plaintiffs have asserted as part of their claim. Although other witnesses have been deposed as to both matters, the children may possess different facts and perspectives.”
Likewise, in Graham v. City of New York, 2010 U.S. Dist. LEXIS 78184, 2010 WL 3034618 (E.D.N.Y. 2010), the plaintiff father filed suit on behalf of himself and his son against the city and its police officers who allegedly forcibly removed the plaintiff from his vehicle, handcuffed him, and placed him in a police vehicle. The plaintiff child, who was four years old at the time of the incident, was in the vehicle. In overruling a magistrate judge’s order barring the plaintiff child’s deposition, the court stated that defendants were entitled to discover the child’s “testimony on the critical and very meaningful issue of [his] consciousness of confinement, an element of [his] false arrest claim.” The court stated that the child’s testimony, including his lack of memory, could provide support for the defendants’ summary judgment motion. The child’s testimony was also relevant to the assessment of damages. The court stated that plaintiffs’ assertion that the child would be traumatized by a deposition was unsupported. The court also relied on the assurances of the defendant’s counsel that he would proceed cautiously and sensitively in questioning the child.
Similarly, in Kuyper v. Board of County Com’rs of Weld County, 2010 U.S. Dist. LEXIS 112835, 2010 WL 4038831 (D.Colo. 2010), the court denied a motion to quash the deposition of a seven-year-old minor plaintiff. The plaintiff’s mother alleged that defendants were negligent in placing the child, then three years old, in a foster home where the child was sexually assaulted.
In Galbreath v. Braley, 318 Ga. App. 111, 733 S.E.2d 412 (Ga.App. 2012), the court overruled a trial court’s protective order in a child custody matter, barring the deposition of a 13-year-old female whom the defendant was accused of molesting. The plaintiff, who was defendant’s ex-wife, alleged that defendant’s conduct warranted the suspension of his visitation rights with his son. The trial court granted the protective order even though it found that the 13-year-old female’s testimony was both relevant and highly important to defendant’s defense to the allegations against him. The appellate court remanded the case to the trial court to consider whether and to what extent the deposition of the witness could be taken without exacerbating the psychological harm that might have occurred due to the alleged molestation.
The above rulings demonstrate that only in rare circumstances will the court preclude a defendant from taking the deposition of a minor party or witness. However, it is expected that the parties will proceed forward with minor party or witness depositions cautiously and professionally, and that such depositions will be limited in time and, potentially, scope.