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

Document #: 61

Filed: 02/14/2014

Page 1 of 11

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

PLAINTIFFS Cause No. 251-13-931-CIV

DEFENDANTS

DEFENDANTS RESPONSE TO MOTION TO COMPEL AND REBUTTAL TO PLAINTIFFS RESPONSE TO 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 Response to the Plaintiffs Motion to Compel and Rebuttal to the Plaintiffs Response to the Defendants Motion for Protective Order. In support of this combined Response and Rebuttal, the Defendants submit as follows: INTRODUCTION 1. On January 31, 2014, the Defendants filed a Motion for Protective Order to limit

the scope of discovery to only that which is relevant to the Plaintiffs claims and to protect confidential information related to minors. [Dkt. 50]. On February 3, 2014, the Defendants Noticed the Motion for Hearing on February 18, 2014. [Dkt. 51]. On February 13, 2014, the Plaintiffs filed a Response to the Motion for a Protective Order and a separate Motion to Compel [Dkt. 58 and 57, respectively]. Because the nature and substance of the Plaintiffs Response to the Motion for Protective Order and Motion to Compel are essentially the same, the Defendants file this combined Rebuttal/Response for the sake of brevity.

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

Document #: 61

Filed: 02/14/2014

Page 2 of 11

ALLEGATIONS IN AMENDED COMPLAINT AND PLAINTIFFS DISCOVERY RESPONSES 2. In the Plaintiffs Motion to Compel, Precious and Crystal Martin provide a

revisionist history of their Amended Complaint in an attempt to broaden the scope of discovery seeking to classify this lawsuit as one regarding bullying and the failure to prevent bullying. 3. A review of Plaintiffs Amended Complaint refutes the Plaintiffs claim in their

Motion to Compel that the issue in this lawsuit is St. Andrews alleged wholesale failure to address bullying. It is doubtful Plaintiffs would have standing for such a broad assertion in any event. While the Plaintiffs liberally and loosely use the term bullying in the Amended Complaint, the causes of action identified in the Amended Complaint and the Plaintiffs subsequent sworn discovery responses show that this case is about the Plaintiffs indignation that the school reacted in the manner it did when they filed criminal charges against a nine year old. 4. Plaintiffs never once voiced a concern about their sons safety prior to the

charges being filed on September 3, 2013. This lawsuit is not about their sons safety. This lawsuit is about the Plaintiffs shock the school did not pander to their demands. 5. Crystal Martin discusses the meeting after the charges were filed in her deposition

and states that I didnt anticipate that it was going to be a tense meeting, thats my whole point. C. Martin, Depo. at p. 56 to Plaintiffs Motion to Compel. Surely, Ms. Martin, a bar admitted attorney, understood they were walking into a meeting holding in their hand the explosive threat that if something was not done immediately to their liking a constable was going to handcuff and cart away a nine year old child. 6. In their sworn discovery, the Plaintiffs claim that their damages are the tuition

from St. Andrews for the breach of contract, the Plaintiffs emotional distress in the amount of $1,000,000.00 each, and punitive damages. See Plaintiffs Response to Interrogatory No. 2 2

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

Document #: 61

Filed: 02/14/2014

Page 3 of 11

attached as Exhibit F to the Plaintiffs Motion to Compel. Tellingly, there not any alleged damages related to bullying claimed by Plaintiffs son. 7. The Plaintiffs contend that St. Andrews breached the contract with them on

September 11, 2013, when the Plaintiffs alleged they were threatened to either drop the criminal charges against a 9 year old and work within the schools policies or find a new school. See Crystal Martin and Precious Martins Response to Interrogatory No. 13.1 Notably absent is an alleged breach of contract for bullying. Glaringly absent is any contractual language or provision that the Plaintiffs contend was breached. 8. The Plaintiffs claim that their $2,000,000.00 worth of emotional distress, for

which they have not sought treatment, arose not from bullying but from the alleged threat that the Plaintiffs needed to move their children to another school. See Plaintiffs Response to Interrogatory No. 3. Conspicuously missing is any purported emotional distress related to the alleged bullying of their son claimed by their son. 9. The punitive damages would have to flow from either the breach of contract or

the emotional distress as actual damages are required before punitive damages can be awarded. See, e.g., Kaplan v. Harco Nat. Ins. Co., 716 So 2d. 673 (Miss. Ct. App. 1998)(Without actual damages, punitive damages are not recoverable. [A] claimant has no right to maintain an action merely to inflict punishment upon some supposed wrongdoer. If he has no cause of action independent of a supposed right to recover exemplary damages, he has no cause of action at all.)

A copy of the Plaintiffs interrogatory responses are being submitted for an in camera review. Defendants ask the Courts leave again as the underlying documents are being submitted to the Court directly and not being filed in the public record. If the Court requires these discovery documents filed of record then Defendants request the Court seal this matter from public view on MEC.

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

Document #: 61

Filed: 02/14/2014

Page 4 of 11

10.

Thus, the only claims and alleged damages relate not to bullying, but the

Plaintiffs assertion their children were constructively expelled from St. Andrews when in reality Plaintiffs voluntarily left. Notwithstanding the Plaintiffs attempt to morph their own Amended Complaint, this case has nothing to do with bullying of their son. SCOPE OF DISCOVERY 11. The Plaintiffs contend in their Motion to Compel that conduct of other minors is

central to the Plaintiffs case. The question is why? Assuming for the sake of argument that Defendants did not satisfactorily address bullying, what cause of action is that to Precious and Crystal Martin? The party seeking discovery has the burden of showing its necessity. Freeman v. United States, 556 F. 3d 326, 341 (5th Cir. 2009); see also Dawkins v. Redd Pest Control, Inc., 607 So. 2d 1232, 1235 (Miss. 1992)(exercise of [the courts] discretion depends on the parties factual showings.) 12. 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). 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). 13. Trial courts have considerable discretion in discovery matters, including

protective orders. Electronic Data Systems Corp. v. Mississippi Div. of Medicaid, 853 So. 2d 1192 (Miss. 2003)(affirming entry of protective order precluding specific discovery on abuse of discretion standard); Barnes v. Confidential Party, 628 So. 2d 283 (Miss. 1993)(affirming entry of protective order precluding certain discovery on abuse of discretion standard). Mississippi Rule of Civil Procedure 26(d), addressed in the Defendants Motion for Protective Order, sets forth the various options available to the Court to limit the scope of discovery to that which is directly relevant.

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

Document #: 61

Filed: 02/14/2014

Page 5 of 11

14.

The Plaintiffs rely on Dawkins v. Redd Pest Control, Inc., 607 So. 2d 1232 (Miss.

1992). In that case, the Supreme Court noted that Discovery should be limited to the specific acts or practices that are in issue. Determining when discovery spills beyond issues and into the subject matter will not always be easy . . . . Accordingly, admissible evidence referred to in the last sentence of 26(b)(1) must be limited by the new relevancy which emerges from the term issues, rather than from the more sweeping term subject matter. Dawkins, 607 So. 2d at 1235, citing the Comments to Rule 26. According to the Amended Complaint, the act or practice at issue is the response of St. Andrews to the action taken by Plaintiffs in what they pass off as merely a report of bullying, not the bullying itself. 15. The Defendants acknowledge the general policy that discovery be encouraged

subject to the limitations of Mississippi Rule of Civil Procedure 26 to specific acts or practice at issue. Id. at 1236. In Dawkins, the Supreme Court noted that limitations on discovery should be respected. Id. The Supreme Court also noted that partial limitations on discovery are preferable to outright exclusions. Id. 16. That is exactly what the Defendants seek. The Defendants do not propose that the

Plaintiffs cannot depose them or that the Plaintiffs could not serve written discovery as discovery is generally encouraged. The Defendants have responded to written discovery related to the Plaintiffs claims and produced 275 pages of documents. However, the Defendants do seek to limit the scope of discovery to that which is relevant to the specific issues in accordance with M.R.C.P. 26 instead of an outright denial of discovery. 17. In Blossom v. Blossom, 66 So. 3d 124 (Miss. 2011), the Supreme Court reversed a

protective order where the trial court would not allow a minor to be deposed. The Supreme Court found that a protective order may be entered, but only consistent with M.R.C.P. 26(d) and

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

Document #: 61

Filed: 02/14/2014

Page 6 of 11

remanded for further consideration consistent with 26(d). The Supreme Court specifically cited M.R.C.P. 26(d)(4) that allows a judge to order that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters. Id. at 11. The Supreme Court stated such a limitation would be proper but only if the Court sufficiently explained its reasons for adopting such limitations. Id. at 12. 18. There are several classes of information sought in the Plaintiffs Motion to

Compel to which Defendants object: a. The file of the minor involved. Defendants contend this entire file is not relevant and could have been withheld but to show good faith it has produced information relevant to the minor involved limited to his specific interactions with Plaintiffs son only. The remainder of this minors file, even if it contains information as alleged by Plaintiff of other complaints, is not relevant to the question of whether Defendants breached the contract with Plaintiffs. Defendants seek an order precluding this discovery. b. The identity of other minors or their parents contained in documents that have been produced was redacted because the identity of the minor or their parent is not relevant to the issue before the Court. Defendants request an order precluding further disclosure of those identities and generally ordering the identity of any minor and their parent to be redacted in all future documents and questions during depositions to preclude the use of actual names. c. Files of other students and their parents named in the deposition of the Plaintiffs. See Crystal Martin Depo. at pp. 82-89. These files are also not likely to lead to discoverable information and should not be asked about during depositions as they have nothing to do with the Plaintiffs child or the other minors involved, do not relate even to the Fourth Grade class and would unduly lead to the annoyance and harassment of these individuals by Plaintiffs. d. The broad category of all other files and information related to bullying complaints at St. Andrews and questions about such incidents. This is perhaps the most overbroad and burdensome not to mention unrelated, discovery demand of Plaintiffs. This would not only be a breach of confidentiality obligations to these parents and students but it would be nearly impossible to adequately respond. St. Andrews does not have a bullying file or list of bullies and would have to review every file of every single student and determine if there exists any complaint that could be categorized as bullying. This does not even address how bullying would be defined in 6

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

Document #: 61

Filed: 02/14/2014

Page 7 of 11

such an overbroad search if one were ordered and how it could ever be relevant to what is currently before this Court. 19. In compliance with Supreme Court authority and M.R.C.P. 26(d), the Defendants

respectfully request the Court use its discretion to simply limit the scope of discovery to exclude irrelevant topics that also happen to involve confidential information related to minors and has been served only to provide annoyance, embarrassment, oppression or undue burden or expense to these Defendants.

AVAILABILITY OF PROTECTIVE ORDER COMPELING CONFIDENTIALITY 20. The Plaintiffs suggest that the Defendants concerns can be resolved via a

protective order granting the overbroad discovery but preventing disclosure of the information to the general public. This type of protective order is of no avail where the information is outside the scope of discovery on the issues before the Court in addition to being confidential. If it were, there would be no need to limit the scope of discovery to that which is relevant. The Rules of Civil Procedure would simply require parties to produce anything and everything, including irrelevant information and documentation subject to a protective order providing only for confidentiality. 21. The point in protective orders is not simply to limit the public at large from

seeing information, but in the right circumstances, the purpose is to limit the opposing party and their counsel from having the information. See Miss. R. Civ. P. 26(d). 22. The Defendants find it troublesome that in the Plaintiffs Motion indicating their

desire to enter a protective order they include as public pleadings and exhibits deposition excerpts and discovery responses, some of the very same information the Plaintiffs contend they would agree to make subject to a protective order. Accordingly, the cat is out of the bag due to 7

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

Document #: 61

Filed: 02/14/2014

Page 8 of 11

the Plaintiffs Motion to Compel (setting forth all the discovery answers) and exhibits showing an interest in punishing St. Andrews by public spectacle. 23. Startlingly, the Plaintiffs submit as an exhibit a link to Jackson Jambalaya blog

where the lawsuit has been discussed previously.2 So the Plaintiffs knew the information was not only going to be public record with the Court, but possibly broadcast on a well-known area blog, while contemporaneously suggesting they would be content with a protective order.3 24. Perhaps even more egregious is the Plaintiffs take the time to redact their own

childs initials from the Motion to Compel exhibits, but leave for public consumption and speculation the other childs initials. The Defendants cannot fathom any reason for this other than the Plaintiffs are seeking to annoy, harass, or embarrass the Defendants, the minor, or the minors family. CONCLUSION 25. The issue in this lawsuit, framed by the Plaintiffs, boils down to whether St.

Andrews had the contractual authority to ask the Plaintiffs to dismiss the criminal charges against a young child and comply with school policies first or remove their children from the school.

See www.kingfish1935.blogspot.com/2014/01/precious-sues-st-andrews-filed-charges.html (There are 135 comments on this blog post regarding this lawsuit). The comments are anonymous and could be posted by anyone and are nothing more than gossip. It is amazing that Plaintiffs cite to this blog and particularly its commentators. Many of the anonymous comments are offensive, and many directed both to the Plaintiffs and Defendants are overtly racist, and provide greater reason this should not become a public spectacle at the expense of non-party children and parents with no desire to be inserted into this matter.
3

The Defendants would note that in the first blog post about this lawsuit, Jackson Jambalaya/Kingfish posted a copy of the discovery served in this matter. At that time, the discovery had not been filed in Court and was not public record. The discovery was not provided by the Defendants. It appears that the Plaintiffs tact is to get this case in the public forum as much as possible.

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

Document #: 61

Filed: 02/14/2014

Page 9 of 11

26.

The Plaintiffs contend in their Motion to Compel that their claims are focused on

bullying of one of their children that was not appropriately addressed. The Plaintiffs child is not seeking damages for the bullying. 27. The Plaintiffs attempt to pry into the personal history of other students, most of

which are not even related to the minors involved in this suit, and are wholly improper and outside the scope of discovery. 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 contract claims. The Plaintiffs are not only seeking the information as to a specific minor child, who was the victim Plaintiffs improper criminal affidavit, they are seeking it on every child who has ever had a complaint raised against another child at St. Andrews. 28. 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. 29. 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. 30. 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 and further asking questions regarding same during the depositions of Defendants. Furthermore, the Plaintiffs Motion to Compel should be denied.

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

Document #: 61

Filed: 02/14/2014

Page 10 of 11

WHEREFORE, PREMISES CONSIDERED, Defendants respectfully request a protective order be entered to limit the scope of discovery and the Plaintiffs motion to compel be denied. The Defendants also request any other relief appropriate under the circumstances. This the 14th day of February, 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

10

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

Document #: 61

Filed: 02/14/2014

Page 11 of 11

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 the 14th day of February, 2014.

/s/ Clark Monroe Clark Monroe

11