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R.D. v. Shohola Camp Ground and Resort

United States District Court, M.D. Pennsylvania

July 10, 2019

R.D., Plaintiff


          Martin C. Carlson United States Magistrate Judge.

         I. Factual Background

         On June 3, 2016, plaintiff R.D. brought claims of battery, negligence and negligent hiring and supervision in connection with an episode of alleged sexual abuse, which occurred when the plaintiff participated in a camping excursion as a minor that was conducted by the defendant, Shohola Camp Ground and Resort. In the course of this excursion, it is alleged that another camper, identified as N.S., sexually assaulted the plaintiff, and may have had inappropriate sexual contact with two other minors who shared a tent with the plaintiff and N.S. during this excursion. The two other minors are identified in these proceedings as G.M. and E.J.

         For the past two years, the parties have been embroiled in a discovery dispute in this case relating to the defendant's motion to quash a subpoena to appear and testify at a deposition issued by the plaintiff to Gary Trobe, an investigator for the defendant. (Doc. 136.) This subpoena sought to schedule Trobe's deposition to inquire into alleged witness intimidation by Trobe of E.J. or G.M. The question of whether Trobe should be deposed, and the scope of any deposition, were issues addressed by the trial court, and more recently on April 24, 2019, by the Court of Appeals. As a result of this litigation, many matters that previously divided the parties have been resolved.

         At the outset the Court of Appeals held that:

We agree with Magistrate Judge Carlson's conclusion (affirmed by the District Court) that R.D. made a sufficient threshold showing that Trobe tried to influence E.J. E.J. testified that: Trobe informed him the police might contact him about the incident; he felt intimidated by Trobe; and he subsequently retained counsel after meeting with Trobe. While neither the Magistrate Judge nor the District Court cited the Appeal of Hughes standard, these statements meet the “reasonable basis” threshold because they provide “more than groundless suspicion” that Trobe might have engaged in misconduct. 633 F.2d at 291. So we will affirm the portion of the District Court's order allowing R.D. to depose Trobe on the narrow issue of whether he attempted to intimidate E.J. We leave it to the sound discretion of the District Court to determine how to oversee the conduct of Trobe's deposition to ensure that Shohola's attorney work product is protected to the fullest extent possible under the circumstances.

R.D. v. Shohola, Inc., 769 Fed.Appx. 73, 75-76 (3d Cir. 2019).

         However, to the extent that plaintiff's counsel wished to depose Trobe regarding his communications with a second witness, G.M., the appellate court found that:

[T]he allegation that Trobe tried to influence G.M. is weaker under this standard. Unlike E.J., G.M. did not testify he felt intimidated by Trobe. However, he said Trobe was persistent in arranging a meeting and tried to influence the wording of his statement. Because this evidence is not as strong as E.J.'s testimony and the District Court has not yet examined it under the Appeal of Hughes standard, we will vacate and remand the Court's determination that R.D. can question Trobe about potential misconduct involving G.M. On remand, the District Court should determine whether, consistent with Appeal of Hughes, Trobe can be asked about his interactions with G.M.

Id. at 76.

         Having authorized this deposition of Trobe relating to his communications with E.J., and instructed us to determine whether a sufficient showing has been made to permit the deposition of Trobe concerning his communications with G.M., the Court of Appeals went on to endorse our prior guidance to the parties that we could, in the exercise of our discretion, fashion means to protect privileged matters while permitting proper, limited questioning of Trobe. As the appellate court explained:

We conclude by recognizing the validity of Shohola's concern that a deposition narrowly tailored to witness intimidation could still reveal protected work product. As the District Court noted previously, it has various tools at its disposal to manage this situation. We endorse the District Court's decision to uphold several aspects of the Magistrate Judge's deposition order, such as reserving Shohola's right to file a later motion in limine for divulged work product and offering to hold the deposition in the courthouse to moderate disputes. The District Court might also require the parties to submit written questions, and it might choose to supervise the deposition. After the District Court makes a determination about Trobe's alleged misconduct with G.M., we leave to the District Court's discretion the task of policing the scope of protected work product during Trobe's deposition


         Having received this clarifying guidance from the Court of Appeals, we then afforded the parties the opportunity to submit briefs regarding the conduct of this deposition. (Doc. 250.) The parties have fully briefed this issue, (Docs. ...

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