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Yelland v. Abington Heights School District

United States District Court, M.D. Pennsylvania

September 18, 2017




         Presently before the court is plaintiff's brief in support of his request to conduct the deposition of a minor non-party fact witness, Student C, against his parents' permission and to seek the court's authorization to serve subpoenas on Student C. (Doc. 31). The defendants have not taken any position regarding plaintiff's request. The plaintiff's request will be GRANTED and Student C will be compelled to testify at his deposition and to comply with the subpoenas.[1]

         On October 14, 2016, plaintiff, William H. Yelland, filed this civil rights action pursuant to 42 U.S.C. §1983. (Doc. 1). Named as defendants were Abington Heights School District, Eduardo Antonetti, the Board of Directors for the Abington Heights School District, Michael Elia, and Michael Mahon. Yelland was a former science teacher at Abington Heights Middle School. On April 8, 2015, Student A and the student's parents reported to Principal Elia and Vice Principal Antonetti that Yelland assaulted Student A during class. Yelland was suspended without pay and later terminated. Subsequently, Yelland was acquitted of state criminal charges stemming from the incident. In the instant action, Yelland essentially alleges that his 14th Amendment procedural due process rights were violated with respect to his suspension and termination.

         On February 9, 2017, the court issued a memorandum and order, (Doc. 18, Doc. 19), and granted in part and denied in part defendants' motion to dismiss, (Doc. 6), plaintiff's complaint, (Doc. 1). Yelland was permitted to proceed with his 14th Amendment pre-deprivation procedural due process claim contained in Count I of his complaint as well as his state law malicious prosecution claim contained in Count III. Defendant AHSD Board of Directors was dismissed from this case with prejudice.

         Remaining defendants filed their answer to the remaining claims in Yelland's complaint. (Doc. 20). Discovery then ensued. Yelland sought to subpoena Student C to take his deposition and to produce documents. However, Student C's father objected and prevented service of the subpoenas on his son. (Doc. 31-2). Yelland now seeks the court's assistance to have his subpoenas served on Student C so that he can be deposed.

         Yelland seeks to depose Student C, who was a student in the middle school in AHSD during the time Yelland taught there, as a fact witness, regarding his statements to defendants, alleging that Yelland physically abused him, which defendants claim he made during their internal investigation into the assault allegations Student A asserted against Yelland. Student C is a minor still enrolled in AHSD and he is not a party in this case. On May 2, 2017, Student C's father refused to allow his son to testify at a deposition and he ejected Yelland's process server from his property who was attempting to serve Yelland's deposition and document production subpoenas on Student C. (Doc. 31-2). On May 12, 2017, the court conducted a discovery dispute telephone conference with counsel for the parties regarding, in part, the incident in trying to serve the subpoenas on Student C and Yelland's request for the court's permission to depose Student C. (Doc. 26). The court directed Yelland to file a brief regarding his request to depose Student C. Defendants did not take any position regarding Yelland's request.

         On June 2, 2017, Yelland filed his brief regarding the deposition of Student C with exhibits. (Doc. 31). Yelland attached redacted versions of the subpoenas directed to Student C as Exhibits B and C. (Doc. 31-3, Doc. 31-4). Defendants did not file a responsive brief. The issue is whether the court will compel a minor non-party witness to be deposed against his parents' consent and permission.

         Yelland's subpoenas to depose Student C was issued under Fed.R.Civ.P. 45. The court in Highland Tank & Mfg. Co. v. PS Intern., Inc., 277 F.R.D. 374, 379 (W.D. Pa. 2005), stated:

Generally, Federal Rule of Civil Procedure 45 authorizes the issuance of a subpoena commanding a person to whom it is directed to attend and give testimony, or to produce and permit the inspection of designated documents. [footnote omitted]. Rule 45(a)(1)(C). Rule 45 is the only discovery method whereby information may be obtained from a nonparty to the suit. See Adv. Comm. Note on 1991 Amendments to Fed.R.Civ.P. 45.

         The Federal Rules of Civil Procedure do not distinguish minors from adults for depositions. Rule 30(a)(1) provides, “[a] party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2).” Even if a parent objects to the deposition of a non-party minor child, courts have allowed the testimony provided it is: (a) relevant; (b) not unreasonably duplicative; and (c) unlikely to cause the minor irreparable harm. Arassi v. Weber-Stephen Products LLC, 2014 WL 1385336 (E.D.Wis. Apr. 9, 2014); Flanagan v. Wyndham Intern. Inc., 231 F.R.D. 98 (D.D.C. 2005).

         First, the court considers whether Student C's testimony is relevant to this case. During defendants' investigation into the assault allegations made against Yelland by Student A, Yelland states that defendants also found some alleged incidents between himself and Student C. Thus, in the May 7, 2015 Notice of Dismissal that the School District sent Yelland, it contained seven grounds for termination, including the following grounds regarding Student C:

d. In recent weeks, Yelland pushed Student C into a table and began to wrestle him. Yelland swept the student's feet out from under him, throwing the student onto his back on the floor.
e. In recent weeks, Yelland grabbed Student C by the head and forced him to the floor. While holding the student down, Yelland demanded that the student “lick the floor.” In spite of being held down forcefully, the student refused. In response Yelland grabbed the student by the head and pulled Student C's sweatshirt around his neck until he could not breathe. The student licked the floor in order to end Yelland's assault.
f. On April 17, 2015 Yelland attempted to stab Student C with a pen, causing the student to “get away.” Later that same day, Yelland forcefully stuck his thumb into the student's jaw at a “pressure point” in order to cause pain. Yelland attempted to ...

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