Case: 25CI1:13-cv-00931-JAW

Document #: 50

Filed: 01/31/2014

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IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI FIRST JUDICIAL DISTRICT PRECIOUS MARTIN, SR. and CRYSTAL MARTIN VS. SAINT ANDREWS EPISCOPAL SCHOOL, GEORGE PENICK, INDIVIDUALLY and IN HIS CAPACITY AS HEAD OF SCHOOL and LEANNA RANGE OWENS, INDIVIDUALLY and IN HER CAPACITY AS HEAD OF THE ST. ANDREWS EPISCOPAL LOWER SCHOOL DEFENDANTS MOTION FOR PROTECTIVE ORDER Defendant, Saint Andrews Episcopal School, Leanna Range Owens, and George Penick, by and through counsel, pursuant to Miss. R. Civ. P. 26, files this Motion for Protective Order regarding the upcoming 30(b)(6) deposition of St. Andrews, individual depositions of Owens and Penick, as well as some written discovery requests. In support of this Motion, the Defendants submit as follows: INTRODUCTION 1. The Defendants file this Motion for Protective Order to prohibit and/or limit the

PLAINTIFFS Cause No. 251-13-931-CIV

DEFENDANTS

Plaintiffs from questioning the Defendants and their representatives on irrelevant and confidential matters related to minor students at St. Andrews for whom Plaintiffs are not the legal parent or guardian. The Defendants also seek a Protective Order regarding similar requests in written discovery. Further, other potential areas of inquiry are also irrelevant and overly broad and will be addressed herein. BACKGROUND 2. This lawsuit arises from the Plaintiffs claims against the Defendants for

essentially alleged breach of contract. [Dkt. 1 Complaint]. 1

Case: 25CI1:13-cv-00931-JAW

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3.

The Plaintiffs allege that one of their minor children had a minor, isolated incident

with a fellow student at St. Andrews Lower Elementary School. Id. The Plaintiffs allege that on September 3, 2013, one of their children was kicked and called names at the school. Id. 4. The day after the alleged isolated incident, and based solely on that one single

incident, rather than report anything to the school administration, the Plaintiffs then pressed criminal charges against a young child for an alleged kick and name calling. Id. Ultimately, after discussing their inappropriate actions with the school, the Plaintiffs then dropped the charges and withdrew all of their children from St. Andrews. Id. 5. The Plaintiffs contend that the Defendants breached the Martins contract by

threatening them with dismissal of their children from the school if the Plaintiffs did not drop the charges against the fellow student. Id. 6. Under the Plaintiffs theory, the issue is whether the Defendants can breach the

contract when the Plaintiffs voluntarily removed their children from the school. On the best day for the Plaintiffs, the issue in this case is whether the Plaintiffs contract with St. Andrews gave the Defendants the power to remove students for parental conduct or if the Defendants are powerless to remove students when their parents fail to act in a manner consistent with the beliefs of the school community and essentially side step the entire disciplinary process. 7. The Martins contract provided in pertinent part as follows:

Removal of Student: St. Andrews reserves the right to remove a student at any time if, in the judgment of the Head of School, the students diligence, progress, conduct or influence on or off campus is not in keeping with the schools standards, or if parent conduct is deemed inappropriate by the schools standards. In such event, there will be no refund of tuition, fees or other charges and any unpaid balance of the annual tuition, fees, and other charges shall be immediately due and payable. ****

Case: 25CI1:13-cv-00931-JAW

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We agree that any privileges of attendance at the School may be withdrawn from the student for academic reasons, for failure to abide by the rules and regulations of the School, for failure to pay monetary amounts due under this Contract, and for parental conduct which is deemed inappropriate.See Dkt. 6-1. 8. Under the Plaintiffs theory (assuming arguendo that the Plaintiffs children were

removed by the school as opposed to withdrawn by Plaintiffs), the issue is whether under the contract the school had the right to require the Plaintiffs to dismiss the charges and first allow the schools procedures to be engaged if the Plaintiffs wished for their family to remain at St. Andrews. The school had the absolute contractual authority to ask the family to leave if the school determined that pressing criminal charges in this case was inappropriate behavior under all the circumstances and the family persisted. In this case the school did not ask the Martins to leave, it simply made clear that if they could not dismiss the charges and work first through the processes of the school then they would be asked to leave. 9. Ultimately, Plaintiffs decided to withdraw the charges and also leave St.

Andrews. Thus, the family was not removed from the school instead they simply left after realizing St. Andrews would not bend to intimidation of another minor child by another parent or attempts to strong arm and intimidate the school itself to remove another student. 10. The most disturbing thing about this entire case is that Plaintiffs are licensed

attorneys. Plaintiffs, more so than lay persons, should understand that resort to the courts is adversarial and creates a controversy rather than seeking a solution for all concerned. The school environment is one in which the children must learn to live together and work out differences as they grow and mature. In most aspects of life, but particularly one where the parties are of tender age and still maturing and learning, resort to the courts should be a last resort, not a first resort, and certainly not for an alleged grade school incident.

Case: 25CI1:13-cv-00931-JAW

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11.

It should be noted that the Plaintiffs minor child is not a party, is not making a

tort claim, and one is not being made on the childs behalf. Again, this is a claim for a breach of contract between the Martins and St. Andrews, and has nothing to do with the conduct of other students, the Plaintiffs children, or the how the school addresses bullying. PROTECTIVE ORDER 12. discovery. 13. During the course of discovery, it has become clear that the Plaintiffs are seeking Against this backdrop, the Defendants seek a protective order limiting the areas of

irrelevant and confidential, personal information regarding other minor students. Indeed, it seems that the Plaintiffs motivation for filing this suit is to obtain information regarding other minor children at St. Andrews. As such, Defendants believe that the Plaintiffs will likely attempt to question St. Andrews 30(b)(6) representative, and Owens and Penick, individually, on matters related to the fellow student including any complaints against that student by other students and parents, discipline actions taken, private interactions with the student and the students family, discussions with the family and any other steps the school was taking as a result of the alleged issues. 14. Discovery is limited to any matter, not privileged which is relevant to the issues

raised by the claims or defenses. M.R.C.P. 26(b)(1). The comments to the rules note that sweeping and abusive discovery was encouraged under the language of the statute previously governing discovery. The comments note that the rules were adopted and are designed to limit discovery only to the issues involved, not the more broad subject matter of the dispute. M.R.C.P. 26(b)(1) is intended to favor limitations, rather than expansions, on permissible discovery. Comment to M.R.C.P. 26(b)(1).

Case: 25CI1:13-cv-00931-JAW

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15.

Information and documentation pertaining to other minor children has no

relevance to the Plaintiffs claim that the Defendants breached a contract with the Plaintiffs. 16. Trial courts have considerable discretion in discovery matters, including

protective orders. Barnes v. Confidential Party, 628 So. 2d 283, 290 (Miss. 1993)(affirming issuance of protective order limiting discovery to exclude sensitive matters). Additionally, the Court has expressed authority under the Mississippi Rules of Civil Procedure to control the extent of discovery and its breadth via Protective Order: (d) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending, or in the case of a deposition the court that issued a subpoena therefor, may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; ... (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; ... (9) the court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, oppression or undue burden or expense, including provision for payment of expenses attendant upon such deposition or other discovery device by the party seeking same. Miss. R. Civ. P. 26(d). 17. Pursuant to M.R.C.P. 26(d), a protective order is necessary to protect the

Defendants and their students from annoyance, embarrassment, oppression . . . . Furthermore, the Court has the authority to limit the scope of discovery and should do so where minor children are involved and information related to those children is confidential and protected. Id.1

See, e.g., Miss. Code Ann. 37-15-3 (providing privacy protection to student records in public schools); 20 U.S.C. 1232(g)(Family Educational Rights and Privacy Act providing privacy protection to student records to covered

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18.

The educational, social, personal, and any disciplinary history of fellow students

wholly exceeds the scope of discovery in this matter as it has no relevance whatsoever to the viability or lack thereof of the Plaintiffs claims for alleged breach of contract. The Plaintiffs are not only seeking the information as to a specific minor child, who was the victim Plaintiffs improper affidavit, they are seeking it on every child who has ever had a complaint raised against another child at St. Andrews. 19. Moreover, the Plaintiffs have not and cannot show information regarding the

fellow student is relevant to the Plaintiffs claims, much less those of all the other students. 20. Accordingly, a protective order is appropriate limiting the scope of discovery to

exclude matters related to the fellow student and the remainder of the student body. 21. In addition to the above area specific to the minor student, the Plaintiffs have filed

a Notice of 30(b)(6) deposition in which they have outlined areas of inquiry. St. Andrews has objected to some of those areas of inquiry. [Dkt. 49]. Those objections are adopted and incorporated by reference herein. 22. For instance, the Plaintiffs seek to have a St. Andrews representative testify as to

the personnel files of Penick and Owens. St. Andrews has admitted that they were employees at the time of the incident and were acting within the course of scope of their employment. What possible relevance could the personnel files of Penick and Owens have to the Plaintiffs claims of breach of contract beyond the Plaintiffs personal curiosity? 23. In addition to the areas of inquiry there are three document requests associated

with the Notice of 30(b)(6) deposition. Those three document request are overbroad and impossible to answer as they essentially request Defense counsel to produce everything believed
schools). St. Andrews does not technically fall under either of these statutes, but St. Andrews strives to protect the confidentiality and privacy of its students as public schools and private schools that receive federal aid are statutorily required.

Case: 25CI1:13-cv-00931-JAW

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to be relevant to the claim in any way, shape or form. Specifically, Plaintiffs three document requests state: a. Every communication between you and any of the defendants or their agents, representatives or predecessors in interest, which relate to any of the causes of actions as alleged, setting forth specifically the substance of each communication and the persons involved. b. Your entire file relating to the subject incident. c. All documents referred to, reviewed, or materials not already produced to Plaintiffs that were used in response to the above subject areas. 24. These three requests fail to meet the requirements of Rule 34 and are so overbroad

they cannot be answered. Miss. R. Civ. P. 34 requires a request for production to specify the document or category of documents. These requests simply ask for everything and leave it to Defense counsel to figure out what is and is not responsive to the overbroad request. The Court should relieve Defendants from the obligation of responding. 25. Accordingly, St. Andrews, Penick and Owens also request the Court grant a

protective order as to the other areas to which objections have been raised based on the reasons outlined in the Designation of 30(b)(6) representative(s) and apply that protective order to St. Andrews and also to testimony sought from Penick and Owens. 26. Further, in addition to the depositions that are set for February 11, 2014,

Defendants seek a protective order in regarding to the Plaintiffs recent Interrogatories, Requests for Production and Request for Admissions. The Plaintiffs recently sent a good faith letter seeking supplementation to the following requests: Request to St. Andrews Request for Production No. 7: Please produce any and all documents generated by you by way of investigation, incident report or otherwise, or any other document

Case: 25CI1:13-cv-00931-JAW

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which tends to show the results of any investigation of the incidents comprising the details surrounding the Plaintiffs son, D.M.2 Request for Production No. 9: Please produce copies of any memorandums, memoranda, correspondence, letters, etc. regarding incidents and complaints of bullying/intimidation on the premises and procedures for teachers and/or administration to handle bullying/intimidation incidents. 3 Request for Production No. 13: Please produce the student file for the minor, M.K., including but not limited to, conduct/disciplinary actions, academics, attendance, etc. Request for Admission No. 6: Admit that Saint Andrews Episcopal school was provided complaints regarding the minor, M.K.s behavior on more than one occasion prior to the 2013-2014 academic school year. Request for Admission No. 7: Admit that Saint Andrews Episcopal school was provided complaints regarding the minor, M.K.s behavior on more than one occasion prior to September 3, 2013. Request to Penick and Owens Request for Production No. 6: Please produce copies of all incidents involving a student being expelled and/or removed from the school premises because the students and/ or their parents took actions without regard to the values of the school, the competence of the teachers to manage the procedures in place, the ability of the administration to deal with situations fairly and effectively, or without the spirit of the St. Andrews community in mind, including but not limited to, the date and actions that the students and/or parents took. Request for Production No. 9: Please produce copies of any memorandums, memoranda, correspondence, letters, etc. regarding incidents and complaints of bullying/intimidation on the premises and procedures for teachers and/or administration to handle bullying/intimidation incident. Request for Production No. 13: Please produce the student file for the minor, M.K., including but not limited to, conduct/disciplinary actions, academics, attendance, etc.

The Defendants are providing their discovery responses to the Court for an in-camera review with this motion but for obvious reasons are not filing this information online with the clerk as an exhibit for public inspection.
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In addition to being irrelevant to the Plaintiffs claims, some of the documents and informa tion requested may be protected or privileged medical information under Miss. Code Ann. 13-1-21, M.R.E. 503, and the Health Insurance Portability and Accountability Act of 1996, PL104-191 and corresponding federal regulations. While Defendants have not endeavored to check all student files regarding bullying/intimidation, information in those files may be protected medical information.

Case: 25CI1:13-cv-00931-JAW

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27.

These requests are nothing but the Plaintiffs attempt to annoy, harass, and

embarrass St. Andrews, other students and their families. The Rules of Civil Procedure are designed to allow a decision on the merits of a case and avoid trial by ambush. APAC Mississippi, Inc. v. Johnson, 15 So. 3d 465 (Miss. 2009). However, the discovery rules are not intended to be abused and satisfy a partys curiosity into personal and confidential matters of other children. See, e.g., Williamson ex rel. Williamson v. Keith, 786 So. 3d 390 (Miss. 2001)(abuse of process is the misuse of a legal process to accomplish some a purpose not lawfully warranted). 28. A protective order is necessary and appropriate to protect the Defendants, their

students (current and former), and their students families from harassment, annoyance, embarrassment, and oppression, and limit the discovery to that which is relevant. Defendants request the Court enter an order affirming the objections stated and precluding discovery of the information request in the discovery listed in paragraph 24. CONCLUSION 29. This lawsuit boils down to whether St. Andrews had the contractual and legal

authority to ask the Plaintiffs to dismiss the criminal charges against a young child or remove their children from the school if they did not. 30. The Plaintiffs attempt to pry into the personal history of other students is wholly

improper and outside the scope of discovery. Further, not even the files and history of the one child involved in the alleged incident is relevant to whether the Defendants had a right to require the dismissal of the charges under the contract or if the contract even applies since the Martins simply left.

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Filed: 01/31/2014

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31.

Accordingly, a protective order should be entered precluding the Plaintiffs from

seeking information regarding other students, the student at issue, as well as the personnel files of the Defendants. Further, the Court should limit inquiry during the depositions to exclude these matters as well. WHEREFORE, PREMISES CONSIDERED, Defendants respectfully request a protective order be entered to limit the scope of discovery. The Defendants also request any other relief appropriate under the circumstances. This the 31st day of January, 2014. Respectfully submitted, SAINT ANDREWS EPISCOPAL SCHOOL GEORGE PENICK AND LEANNA RANGE OWENS By Its Attorneys Dunbar Monroe, P.A. /s/ Clark Monroe Clark Monroe

OF COUNSEL: G. Clark Monroe II (MSB #9810) gcmonroe@dunbarmonroe.com Eric R. Price (MSB #102274) eprice@dunbarmonroe.com DunbarMonroe, P.A. 270 Trace Colony Park, Suite A Ridgeland, Mississippi 39157 (601)898-2073 Phone (601)898-2074 Facsimile

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Case: 25CI1:13-cv-00931-JAW

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Filed: 01/31/2014

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CERTIFICATE OF SERVICE I, the undersigned counsel, do hereby certify that I have filed the above and foregoing document with the Courts electronic case filing system, which sent notification to the following interested parties: Precious Martin, Sr. PRECIOUS MARTIN, SR. & ASSOCIATES, PLLC 821 North Congress Street Post Office Box 373 Jackson, Mississippi 39205 Graham P. Carner, Esq. Graham P. Carner, PLLC 771 N. Congress Street Jackson, MS 39202 This, this 31st day of January, 2014.

/s/ Clark Monroe Clark Monroe

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