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W.S. v. Daniels

United States District Court, D. South Carolina

February 1, 2018

W.S., Plaintiff,
v.
Cassandra Daniels, Ursula Best, South Carolina Department of Social Services, Defendants.

          ORDER

          Donald C. Coggins, Jr., United States District Judge

         This matter is before the Court on Plaintiff's Motion to Compel, filed November 3, 2017. ECF No. 79. Defendants filed a Response in Opposition and Plaintiff filed a Reply. On January 11, 2018, a hearing was held in front of the Honorable Donald C. Coggins, Jr., United States District Judge for the District of South Carolina. ECF No. 96. The parties were directed to attempt to reach a resolution within 10 days and inform the Court if there were any topics upon which they could not agree. On January 26, 2018, the parties emailed chambers that they had resolved most of the pending issues; however, they had not reached an agreement on every issue.

         Defendant South Carolina Department of Social Services (“SCDSS”) contends that it is unable to produce the requested documents without an order of this Court following an in-camera review of the documents.[1] Plaintiff opposes an in-camera review as unnecessary. As explained in the Honorable Mary Geiger Lewis's Order Denying Defendant's Motion to Quash Subpoena, ECF No. 69, in considering the Children's Code and Rule 26 of the Federal Rules of Civil Procedure, it becomes apparent that a party may seek the protection of sensitive but relevant information by either (1) arguing the information is protected by privilege or (2) by petitioning the court for a protective order limiting discovery in accordance with Rule 26(c). If there is no privilege, however, then the Court need not follow the in-camera review requirement set forth in the Children's Code.

         All privileges asserted in federal court are governed by Rule 501 of the Federal Rules of Evidence, which provides “[t]he common law-as interpreted by United States courts in the light of reason and experience-governs a claim of privilege unless any of the following provides otherwise: the United States Constitution; a federal statute; or rules prescribed by the Supreme Court.” Fed.R.Evid. 501. In a civil case, though, “state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.” Id.

         This case involves both federal and state law claims, and the evidence in dispute appears to be relevant to both the state and the federal claims. The Fourth Circuit Court of Appeals has held that “in a case involving both federal and state law claims, the federal law of privilege applies.” Virmani v. Novant Health Inc., 259 F.3d 284, 293 n.3 (4th Cir. 2001). Therefore, for resolution of the present discovery dispute, concerning material relevant to both federal and state law claims, the Court will apply federal privilege law.

         The Court has been unable to find any federal appellate decisions that have, as a matter of federal common law, recognized privileges of the sort contemplated by the Children's Code. Thus, the Court must determine, granting due respect to South Carolina's protections in the Children's Code, whether the third-party privacy privilege “apparently sought by Defendants ‘promotes sufficiently important interests to outweigh the need for probative evidence, ' where the need for probative evidence is viewed as a very weighty consideration indeed-to the extent that only the strongest considerations on the other side of the scale are capable of outweighing it.” See Pearson, 211 F.3d at 69 (quoting Trammel v. United States, 445 U.S. 40, 51 (1980)).

         Here, the issue is whether federal law should recognize a privilege directed at the interests of third parties-the children whose records are sought-whose interests may be affected by the release of the information here in dispute. It is uncontested these interests hold substantial weight due to the importance of South Carolina's activities directed at the welfare of children. Nevertheless, the Court is persuaded, as other courts have held, these third-party interests are poor candidates for the protection of a Rule 501 privilege, particularly when considering the novelty of the third-party privacy privilege sought by Defendants. See, e.g., id. at 70-72 (declining to recognize a privilege under the Federal Rules of Evidence based on the confidentiality provisions of state statutes). The Court holds these interests can be more appropriately protected by the Court's issuing a protective order limiting discovery in accordance with Rule 26(c). Therefore, the Court holds the Confidentiality Order already entered in the case and the provisions of this Order sufficiently protect the interests of these third-party children. The Court finds an in-camera review of the records at issue is not required by federal law.

         Based on the foregoing, the Court finds the following information, properly redacted, is necessary and relevant to a determination of the merits of this case and, therefore, orders its production subject to the Confidentiality Order in this case.

         A. Individual Files

         The Court finds that the disclosure of certain portions of the SCDSS files of the children identified by Plaintiff that he alleges he engaged in sexual activity with, either as the victim or the perpetrator, should be released to Plaintiff. The children are identified as C.I, M.M., K.A., D.H., K.W., J.F., D.A, D.S., B.P., A.V, D.C. and B.S. ECF No. 77 at 17. While SCDSS continues to object to the release of any portion of these children's files, the parties have agreed that that production of documents that fall into the following categories is relevant and the Court directs SCDSS to produce the portions of the subject children's files pertaining to:

1. acting out in sexually inappropriate ways with other children, toys, or objects;
2. forcing someone into sexual activity;
3. rape;
4. sharing ...

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