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Appellate Court Date: 2017.04.27
08:33:59 -05'00'
Doe 1 v. Board of Education of the City of Chicago, 2017 IL App (1st) 150109
Appellate Court JOHN DOE 1, a Minor, by His Mother and Next Friend, Jane Doe;
Caption JANE DOE, Individually; JOHN DOE 2, a Minor, by His Father and
Next Friend, John Doe 3; and JOHN DOE 3, Individually, Plaintiffs-
Appellants, v. THE BOARD OF EDUCATION OF THE CITY OF
CHICAGO, a Body Politic and Corporate; EDISON PARK
ELEMENTARY SCHOOL, a Chicago Public School; ARLENE
UCHIZONO, as Agent of the Board of Education of the City of
Chicago and Edison Park Elementary School; and V.Z., a Minor, by
and Through His Father, John Doe 4, Defendants-Appellees.
District & No. First District, Fifth Division
Docket No. 1-15-0109
Rule 23 order filed December 30, 2016
Rule 23 order
withdrawn February 7, 2017
Opinion filed February 10, 2017
Decision Under Appeal from the Circuit Court of Cook County, No. 12-L-3953; the
Review Hon. William Gomolinski, Judge, presiding.
Judgment Affirmed.
Counsel on George Argionis and Lisa DeLeon, of Argionis & Associates, of
Appeal Chicago, for appellants.
John F. Grady and Lauren F. Catlin, of Grady Bell LLP, and Robert T.
Shannon, Jennifer M. Ballard, and Gretchen Harris Sperry, of
Hinshaw & Culbertson, LLP, both of Chicago, for appellees.
Panel JUSTICE HALL delivered the judgment of the court, with opinion.
Presiding Justice Gordon and Justice Reyes concurred in the judgment
and opinion.
OPINION
¶1 This is an interlocutory appeal brought pursuant to Illinois Supreme Court Rule 304(b)(5)
(eff. Feb. 26, 2010) seeking review of a contempt order and the discovery order denying
plaintiffs’ motion for a protective order.
¶2 BACKGROUND
¶3 Plaintiffs, John Doe 1 and 2, filed their initial complaint against the Board of Education of
the City of Chicago (Board) and Edison Park Elementary School (School) on April 13, 2012.
In it, they alleged that, between April 2011 and February 2012, the School employees failed to
properly supervise the students during recess and that, as a result, the minor plaintiffs, John
Doe 1 and 2, and minor defendant, V.Z., engaged in sexual contact among themselves in the
school bathroom. Plaintiffs later amended their complaint on June 4, 2012, to add Arlene
Uchizono, a kindergarten teacher, as a defendant and again on March 21, 2013, adding claims
of battery against V.Z. and his father, John Doe 4.
¶4 During discovery, plaintiffs Jane Doe and John Doe 3 sat for depositions in which they
stated that their knowledge of the alleged incidents was limited to the information they
received from their children and that they had no personal knowledge of the incidents. They
testified that they were told that the incidents occurred during the period from kindergarten to
first grade. Neither parent could provide specific dates of when the alleged incidents occurred,
nor could they testify to the specific number of times the alleged sexual contact occurred. Jane
Doe testified that she was told that the incidents occurred more than 10 times whereas John
Doe 3 testified that there were multiple incidents. Further, Jane Doe testified that she did not
know whether her son suffered from any physical injuries resulting from the alleged incidents.
John Doe 3 also stated that he never observed any signs of physical injury to his son and denied
having any knowledge of some of the specific sexual acts alleged in the plaintiffs’ complaint.
¶5 John Doe 2’s mother, K.L., was also deposed, and she testified that she had no personal
knowledge of the incidents. She stated that John Doe 2 never told her exactly what occurred in
the bathroom. She also stated that the alleged incidents only occurred in kindergarten and not
in the first grade.
¶6 Following the depositions of the plaintiffs’ parents, defendants sought to depose John Doe
1 and 2. In response, plaintiffs filed a motion for a protective order which requested that the
court require the use of forensic interviews in lieu of attorney-conducted depositions. Plaintiffs
argued that a conventional deposition could “reinvest the trauma and cause reinjury to all the
children.” In support of their argument, plaintiffs attached a letter from John Doe 1’s mental
health physician, Dr. Tamara Garrity, which recommended that John Doe 1 not be deposed. At
the time of the protective order’s filing, John Doe 2 was no longer seeing a therapist and had
not done so for at least a year and a half.
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¶7 The defendants objected to plaintiffs’ motion for a protective order, and the parties
appeared before Judge Gomolinski to argue the merits of granting or denying the order. After
hearing the parties’ arguments, the court declined to enter the protective order requiring the use
of forensic interviews and instead concluded that the minor plaintiffs would undergo an
independent medical examination (IME) to determine whether the minor plaintiffs were
capable of sitting for deposition. The parties agreed that the minor plaintiffs would be
evaluated by child psychiatrists, and the court stated the parties were to select and agree on the
doctors provided by the court.
¶8 The parties selected Dr. Thomas Owley and Dr. Rachel Loftin to serve as independent
medical examiners. On October 16, 2014, the parties received the IME reports on the minor
plaintiffs. John Doe 1 declined to participate in the interview on two separate occasions. The
doctors noted that John Doe 1 was anxious and that retelling the experiences at school would
create undue stress on him and would exacerbate his symptoms of anxiety. The doctors also
stated that it was highly unlikely that John Doe 1 would provide adequate answers to questions
because of his anxiety and tendency to shut down when distressed.
¶9 In regard to John Doe 2, the doctors noted that he displayed some symptoms of anxiety but
not to the extent that it significantly impacted his functioning. They stated he was pleasant and
interactive throughout the interview. The doctors also found that his skill in telling a narrative
was below average, and they opined that his deficits in providing a narrative would make it
difficult to answer questions in a fashion that would aid in the proceedings.
¶ 10 Ultimately, the doctors recommended that the children not be exposed to a conventional
deposition due to the likelihood of causing them stress. They proposed three different
alternatives and provided several considerations for the court that could aid the children during
their depositions.
¶ 11 On October 30, 2014, the court ruled that the minor plaintiffs would sit for attorney
conducted depositions, but the depositions were to be conducted consistent with the doctors’
considerations. Plaintiffs filed a motion to reconsider, which was denied. The court entered a
protective order adopting the defendants’ protocol, which included the following terms: (1) the
depositions were to take place at the doctor’s office or another agreed location; (2) the witness,
two relatives, one treating physician, a court reporter, and one attorney for each party would be
allowed in the deposition room; (3) the treating physician could only advise the witness’s
counsel and had no authority to object or suspend the deposition; (4) other parties, attorneys,
and consultants/experts would view the deposition in a nearby room with a live feed with the
parties splitting the cost of technology; (5) all participants were required to wear informal
clothes as recommended by Dr. Owley; (6) furniture in the deposition room would be
child-sized as recommended by Dr. Owley; (7) frequent breaks would be permitted as
recommended by Dr. Owley; (8) the ordinary rules and procedures governing depositions
would otherwise apply; (9) depositions were to proceed in three, 60-minute sessions; and (10)
all participants agreed to be bound by the terms of the order.
¶ 12 On December 15, 2014, plaintiffs’ representatives refused to present the minor plaintiffs
for deposition as ordered by the court. As a result, on December 19, 2014, the court held them
in friendly contempt and fined them $1. On January 7, 2015, plaintiffs appealed.
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¶ 13 ANALYSIS
¶ 14 The primary issue on appeal is plaintiffs’ disagreement with the circuit court’s discovery
order denying plaintiffs’ motion for protective order. Because discovery orders are not final
orders, they are not ordinarily appealable. Norskog v. Pfiel, 197 Ill. 2d 60, 69 (2001). However,
it is well-settled that the correctness of a discovery order may be tested through contempt
proceedings. Id. When an individual appeals contempt sanctions imposed for violating, or
threatening to violate, a pretrial discovery order, the discovery order is subject to review. Id.
Where the circuit court’s ruling on a discovery matter is subject to review and does not involve
a question of law, it is reviewed for an abuse of discretion. Reda v. Advocate Health Care, 199
Ill. 2d 47, 54 (2002).
¶ 15 An abuse of discretion exists where the trial court’s decision is arbitrary, fanciful, or
unreasonable, such that no reasonable person would take the view adopted by the trial court.
People v. Schlott, 2015 IL App (3d) 130725, ¶ 24. Plaintiffs argue that the trial court abused its
discretion when it failed to consider the serious harm they would suffer if they were forced to
give their depositions. They claim that Illinois Supreme Court Rule 201(c)(1) requires the trial
court to weigh a party’s need for the information against the harm incurred by the person
providing it. Ill. S. Ct. R. 201(c) (eff. July 1, 2014). Plaintiffs maintain that, in this case, the
potential for psychological harm is so great that the circuit court should not have ordered the
plaintiffs to sit for attorney-conducted depositions in lieu of forensic interviews. We disagree.
¶ 16 The object of discovery procedures is disclosure, and the right of any party to a discovery
deposition is “basic and fundamental.” Slatten v. City of Chicago, 12 Ill. App. 3d 808, 813
(1973). The powers vested in the trial court require a careful exercise of its discretion to
balance the needs of seeking the truth against the needless harassment of a party litigant.
Cedric Spring & Associates, Inc. v. N.E.I. Corp., 81 Ill. App. 3d 1031, 1034 (1980). Illinois
Supreme Court Rule 201 gives a trial court the authority to supervise all or any part of any
discovery procedure. Ill. S. Ct. R. 201(c)(2) (eff. July 1, 2014). The rule makes it clear that
discovery procedures were designed to be flexible and adaptable to the infinite variety of cases
and circumstances appearing before the trial court. Atwood v. Warner Electric Brake & Clutch
Co., 239 Ill. App. 3d 81, 88 (1992). To that end, Rule 201(c)(1) permits the court to issue a
protective order as justice requires. Ill. S. Ct. R. 201(c)(1) (eff. July 1, 2014). Specifically, the
rule provides: “[t]he court may at any time on its own initiative, or on motion of any party or
witness, make a protective order as justice requires, denying, limiting, conditioning, or
regulating discovery to prevent unreasonable annoyance, expense, embarrassment,
disadvantage, or oppression.” Id.
¶ 17 Plaintiffs argue the trial court abused its discretion by refusing to protect the minor
plaintiffs by ordering the plaintiffs undergo forensic interviews in lieu of attorney-conducted
depositions. In support of their contention, plaintiffs cite to the decision in Zimmerman v.
Village of Skokie, 174 Ill. App. 3d 1001, 1008 (1988), where the reviewing court stated that
“[d]isabled persons, as well as minors, are to be given special protection by the courts to
protect their interests.” We find plaintiffs’ reliance on Zimmerman is misplaced.
¶ 18 In Zimmerman, the plaintiff was an adjudicated mentally disabled person, and his
representatives refused to comply with the circuit court’s discovery order requiring that he
appear and sit for deposition. Id. at 1004. In response, the defendant filed a motion to dismiss
for failure to comply with the discovery request. Id. Plaintiff’s counsel neither filed a response
to the motion nor appeared at the hearing. Id. at 1005. As a result, the circuit court dismissed
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plaintiff’s cause of action with prejudice. Id. Plaintiff did not appeal the dismissal within 30
days and later, through new counsel, filed a petition pursuant to section 2-1401 of the Code of
Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, ¶ 2-1401). Zimmerman, 174 Ill. App. 3d at 1005.
The trial court denied plaintiff’s petition finding that he was not diligent in presenting his claim
prior to the entry of the dismissal order. Id. On appeal, the reviewing court was tasked with
determining, within the context of a section 2-1401 petition, whether an adjudicated mentally
disabled person should be strictly held to the lack of due diligence or negligence of his
representatives when seeking section 2-1401 relief. See id. at 1007-08. The reviewing court
answered that question in the negative and found that principles of equity required the court to
protect the plaintiff’s interests where such interests may have not been protected by his former
attorney or guardian. Id. at 1008. Consequently, the reviewing court vacated the denial of
plaintiff’s section 2-1401 petition and remanded the case with instructions that plaintiff be
allowed to show that his deposition should not be taken. Id.
¶ 19 In the present case, the crux of plaintiffs’ argument is that the word “interests,” as used in
Zimmerman, includes a minor’s mental health; however, Zimmerman dealt with the specific
issue of a minor or mentally disabled person’s legal rights being protected by the court under
circumstances where his or her guardian or counsel has neglected to do so. See id. In support of
its conclusion, the reviewing court cited the holding in Brandon v. DeBusk, 85 Ill. App. 3d 645
(1980), where the court held that it was in the interest of substantial justice that the minors in
that case receive special protection by the courts so that their rights were protected from the
neglect of their representatives. Zimmerman, 174 Ill. App. 3d at 1008. In the present case,
neither the parties nor the court are disputing whether plaintiffs’ guardians or counsel are
adequately protecting the minors’ rights. Therefore, the holding in Zimmerman is inapplicable
to this case and does not support the conclusion that the circuit court abused its discretion.
¶ 20 In further support of their argument, plaintiffs also cite to Burton v. Estrada, 149 Ill. App.
3d 965, 976 (1986), where the reviewing court recognized that the plaintiff’s minor status
made her a ward of the court when involved in litigation and that the court has a duty and broad
discretion to protect her interests. Similar to Zimmerman, the Burton court addressed a
scenario where courts have a duty and discretion to protect a minor plaintiff’s legal rights.
Burton, 149 Ill. App. 3d at 976 (citing Mastroianni v. Curtis, 78 Ill. App. 3d 97, 99-100
(1979)). In Burton, the reviewing court interpreted a provision of the Probate Act of 1975 (Ill.
Rev. Stat. 1985, ch. 110½, ¶ 19-8) and determined that the provision was designed to substitute
a judicial determination for the guardian’s personal discretion in order to provide additional
protection to minor plaintiffs who enter into settlement agreements. Burton, 149 Ill. App. 3d at
976. At issue in this case is not whether the circuit court had a duty to act as an additional layer
of protection against the discretion of plaintiffs’ representatives but rather whether any
reasonable person would have implemented the protections utilized in the circuit court’s
discovery order. Schlott, 2015 IL App (3d) 130725, ¶ 24. Thus, the decision in Burton is
inapplicable to the present case.
¶ 21 Next, plaintiffs cite to In re A.W., 397 Ill. App. 3d 868 (2010), for the proposition that a
child need not testify where such testimony would cause psychological harm. However, we
find the facts in that case are distinguishable from those before this Court. In A.W., the
respondent appealed the circuit court’s decision barring her from calling her son as a witness at
a best interest hearing and argued that the circuit court’s decision violated her due process
rights under the Juvenile Court Act of 1987 (Act) (705 ILCS 405/1-5 (West 2008)). A.W., 397
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Ill. App. 3d at 872. In rejecting the respondent’s contention, the reviewing court noted that
proceedings under the Act are not intended to be adversarial in character and that the primary
concern under the Act is the best interest and welfare of the child. Id. The court also noted that
the child’s testimony was unnecessary because it would be cumulative and would not have any
additional material relevance to the court’s best interest determination. Id. at 873.
¶ 22 Unlike in A.W., the nature of the present case is adversarial; plaintiffs are seeking monetary
damages from the defendants rather than terminating the custodial rights of an abusive parent.
Further, the minor plaintiffs’ testimony could not be categorized as cumulative or irrelevant as
none of the witness testimony gathered thus far comes from an individual possessing personal
knowledge of the facts giving rise to plaintiffs’ causes of action. Plaintiffs’ parents have
repeatedly admitted their inability to provide specific facts related to who, what, when, and
where. These facts are necessary for the plaintiffs to prove their cause of action and for the
defendants to establish their defense. Therefore, the reviewing court’s reasoning in A.W. is
inapplicable to the facts before this Court.
¶ 23 After reviewing the record, we find that the circuit court did not abuse its discretion in
ordering that the depositions proceed in the manner instructed. Trial courts have discretion to
determine whether justice requires a protective order and what the parameters of the order
should be. Payne v. Hall, 2013 IL App (1st) 113519, ¶ 12. In this case, the circuit court sought
input from the parties on how to effectuate discovery in a manner that would protect the minor
plaintiffs from harm while not hamstringing the defense. When the parties could not agree, the
circuit court appointed mental health physicians to determine whether the minor plaintiffs
could sit for depositions and to provide recommendations to the court. The circuit court
adopted some of the recommendations and declined to follow others. Plaintiffs have argued
that the circuit court should have adopted one of the recommendations that employed the use of
a forensic interviewer; however, on appeal they have not demonstrated that the circuit court
acted without the employment of conscious judgment by exceeding the bounds of reason and
by ignoring recognized principles of law. Id. Therefore, plaintiffs have not met their burden to
demonstrate that the circuit court abused its discretion. People v. Wiatr, 119 Ill. App. 3d 468,
473 (1983) (the party asserting the existence of an abuse of discretion bears the burden of
proof). The rules of discovery provide for the trial court to supervise the process, and the
circuit court here properly did so.
¶ 24 CONCLUSION
¶ 25 For the foregoing reasons, we affirm the decision of the circuit court.
¶ 26 Affirmed.
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