Galbreath v. Braley

In this custody modification proceeding, James Galbreath appeals from the trial court’s order granting a motion to quash and issuing a protective order prohibiting him from deposing K. W., a 13-year-old female child that he was accused of molesting. Finding that the trial court should consider other alternatives before prohibiting entirely the deposition from going forward, we vacate the protective order and remand this case for further consideration by the trial court.1

The record shows that following a divorce in March 2011, Gal-breath and Amy Braley were granted joint legal custody of their son, with the mother having primary physical custody. In October 2011, the mother filed a petition for modification of the custody agreement and for an emergency suspension of Galbreath’s visitation rights, alleging that “while [his son] was present for visitation with [Gal-breath] , [Galbreath] kissed, fondled and touched a female minor child [K. W.j who was staying at a sleepover at [his] home.” Galbreath sought to take a videotaped deposition of K. W. in connection with these allegations, but K. W.’s parents, as nonparties, filed a motion to quash and for a protective order.

In support of their motion, K. W.’s parents filed the affidavit of Krista L. Barker, a licensed clinical social worker who had treated K. W. during several trauma-focused therapy sessions. In the affidavit, Barker states that K. W. had a history of mistreatment during her early childhood, that she was frail, and that she exhibited symptoms of post-traumatic stress disorder, depression, and age regression dissociative behavior. Because of these symptoms, Barker opined that K. W. “is at extreme risk for her psychological and emotional safety if exposed to any significant stressor” and that K. W. had “specifically identified James Galbreath as a trigger for psychological distress and physiological reactivity.”

*112In its order granting the motions to quash and for a protective order, the trial court correctly found that there is no Georgia case law addressing whether a minor child must, in a civil case in which she is not a party, submit to a deposition despite expert testimony indicating that the child could be harmed by the taking of the deposition. The trial court then turned to case law from other jurisdictions, finding that when considering whether a protective order should be granted in similar situations, other jurisdictions have “balanced the relevance and importance of the child’s testimony with the potential that the child will be harmed.” The foreign jurisdictions declined to grant the requested protective order, instead imposing restrictions on the deposition in order to limit harm to the child.2

The trial court in the instant case, however, while performing a balancing test, decided to grant the requested protective order instead of imposing restrictions on the deposition. The trial court specifically found that although K. W.’s testimony was both “relevant and highly important” to Galbreath in his efforts to defend against the allegations of his ex-wife in the custody case, the potential harm that K. W. might suffer by submitting to a deposition scheduled only two weeks after the alleged abuse, and the fact that neither K. W. nor her parents were parties to the instant litigation, outweighed Galbreath’s interest in her testimony.

In his sole enumeration of error, Galbreath contends that the trial court abused its discretion in granting the motion for a protective order, thereby prohibiting the deposition of K. W. under any circumstance. We agree.

Neither the trial court’s order nor the appellee has pointed to, and we have not been able to locate, a case where a litigant was prohibited entirely from conducting a deposition aimed at seeking *113information necessary to a party’s case.3 It is well settled that parties to a lawsuit “may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.”4 Further, “the courts of this State have long recognized the overriding policy of liberally construing the application of the discovery law. To hold otherwise would be to give every litigant an effective veto of his adversaries’ attempts at discovery.”5

Regarding protective orders, OCGA § 9-11-26 (c) authorizes the trial court “[u]pon motion by a party or by the person from whom discovery is sought and for good cause shown,... [to] make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” The statute then provides for several remedies available to the movant, including, inter alia, that the discovery be limited in certain ways or that the discovery may not be had.6 Although “[t]he issuance of a protective order is a recognition of the fact that in some circumstances the interest in gathering information must yield to the interest in protecting a party,”7 protective orders should not be awarded “when the effect is to frustrate and prevent legitimate discovery.”8 Further, this Court has held that “protective orders are intended to be protective — not prohibitive — and, until such time as the court is satisfied by substantial evidence that bad faith or harassment motivates the discoveror’s action, the court should not intervene to limit or prohibit the scope of pretrial discovery.”9

In the present case, the trial court found, as do we, that K. W.’s testimony is clearly relevant to Galbreath’s efforts to defend against his ex-wife’s allegations and to protect his substantial interest in maintaining his rights of visitation. Georgia “has a strong policy in favor of allowing a divorced parent continuing contact with his or her child so long as the parent has demonstrated the ability to act in the *114child’s best interest.”10 Accordingly, Georgia courts “will not deny a parent all visitation rights absent exceptional circumstances in which there is reasonable probative evidence that the parent is morally unfit.”* 11 We can assume that allegations of sexual abuse would strongly weigh in favor of a potential finding that Galbreath is morally unfit to continue to have visitation rights with his child. Therefore, we find premature the trial court’s award of a protective order preventing, now and forever, the deposition of K. W. in any form from going forward, such that it prevents and frustrates Galbreath’s legitimate discovery requests.

Accordingly, we vacate the protective order and remand the case to the trial court so that it might reconsider whether and to what extent the deposition of K. W. may go forward without exacerbating any psychological harm that might have occurred due to the alleged molestation. Specifically, the trial court should consider allowing the deposition while imposing reasonable restrictions upon the method by which she might be deposed.12 In addition to the protective measures outlined in OCGA § 9-11-26 (c) (2)-(6),13 the trial court should consider the following factors when imposing restrictions on how the deposition might proceed: (1) where the deposition is held; (2) the length of the deposition; (3) who shall be present at the deposition (e.g., K. W.’s mother or counselor); (4) the possibility of breaks as necessary to accommodate K. W.’s reasonable needs; (5) the option to suspend the deposition in the event of an emergency; (6) previewing the questions to be asked at the deposition; and (7) the taking of K. W.’s deposition remotely via audio visual means.

Further, as to the trial court’s conclusion that a material distinction exists between this case and others insofar as neither K. W. nor her parents are parties to the instant action, we disagree. This Court has expressly declined to recognize any distinction in the scope of *115discovery between parties and nonparties, so long as the discovery sought is specifically related to the cause of action.14

Judgment vacated and case remanded with direction.