Those present at the deposition normally include the parties (who have a right to attend all depositions), the parties’ attorneys, and the person being deposed. A court reporter is also present to administer an oath and make a written transcript. If a non-party is the person being deposed, they may also have their attorney present.

Most depositions have two purposes. One purpose is to learn what knowledge a party or non-party witness possesses about your case and to explore anticipated testimony in advance of a hearing or trial. Another purpose of conducting a deposition is to preserve a witness’ testimony so that it can be used later to attack the witness’ credibility at trial if they are not truthful.

Even if you do not anticipate that your case will go to trial, depositions can be a valuable tool for obtaining information that could help to facilitate settlement negotiations or enhance your bargaining position.

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Fayette Circuit Court

After a banquet for a business fraternity to which Nathaniel Parish (“Parish”) and Kaitlynn Patrice Petter (“Petter”) belonged, Parish and Petter attended an after-party at an apartment complex. Petter then invited some people from the after-party to her home. At Petter’s home, she went into a room to retrieve some playing cards, and Parish followed her into the room, stood between her and the door, and exposed himself to her while propositioning her for sex. Petter ran from the room into another room and attempted to close the door, but Parish forced himself into the room. A struggle occurred during which Parish sexually assaulted Petter until Petter was able to escape the room with the help of her friends. The Lexington Police Department (hereinafter “LFUCG” as the named party to the appeal) responded to the scene. They were reportedly wearing bodycams to record the investigation. No arrest was made.

Later, Petter petitioned for an interpersonal protective order (“IPO”) against Parish, and Family Court entered a temporary IPO. A hearing was scheduled. Parish made an open records request (“ORR”) to LFUCG, requesting the incident report and bodycam footage associated with the incident. LFUCG refused to provide the bodycam footage, citing KRS 61.878(1)(h), which exempts records of ongoing law enforcement investigations from disclosure. Later, Parish sent a notice to take the deposition duces tecum of the records custody for LFUCG, requesting the bodycam footage with the notice. LFUCG responded via letter that it was not a party to the action, would treat the subpoena as an ORR, and would not produce the bodycam footage absent a court order. Parish  filed a motion requesting that Family Court compel LFUCG to produce the bodycam footage. LFUCG objected on the basis that Parish did not follow the statutory procedure to challenge an ORR denial and used a subpoena to circumvent the statutory requirements of the Open Records Act (“ORA”). Family Court denied Parish’s motion to compel, holding that the proper procedure for challenging the denial of an ORR is contained within the ORA, and not through the case in which LFUCG was “not a party and lack[ed] standing.”

Petter’s petition for an IPO was later heard. Petter testified regarding the incident. She also called a witness who helped Petter during the incident. Both witnesses were cross-examined. Parish did not testify and did not call any witnesses. Family Court granted the IPO. Parish appealed.

 The Kentucky Court of Appeals held that the processes under the ORA and the Civil Rules are not mutually exclusive, and a party may seek public records from a nonparty public agency through discovery requests and/or the ORA. There is no authority to suggest that the election of one remedy excludes resort to the other. A nonparty public agency has standing to file a motion to quash a subpoena or for a protective order when served with a subpoena, allowing the nonparty public agency the ability the fully defend its rights. Allowing a party to litigation to elect to use the Civil Rules rather than the ORA to obtain information from a nonparty public agency will not necessarily circumvent the safeguards provided by the ORA, because the nonparty public agency can request a protective order limiting the release of bodycam footage. Thus, Family Court erred in ruling that the ORA was the only available remedy to Parish.

 The Court of Appeals also held that said error was harmless, because Parish was given a meaningful opportunity to be heard and had a full evidentiary hearing, which satisfied his due process rights. Furthermore, even if the bodycam footage were produced, the Court did not find a substantial possibility that the result of the hearing would have been any different.

 Digested by Nathan R. Hardymon

The post Discovery May Be Pursued from a Nonparty Public Agency Through the Open Records Act or the Rules of Civil Procedure – Published Opinion from Ky. Court of Appeals appeared first on Goldberg Simpson - Family Law Group.

Spousal team Sharon D. Nelson and John Simek of Sensei gave a great presentation at the AAML annual meeting in Chicago last week. I had been following Sharon’s blog, Ride The Lightning for a few weeks, so I was surprised and delighted to meet her and learn forensic electronic evidence tips from them. If you check out her blog, please note that the colorful and shameful stories about the wayward lawyer disciplined are NOT about one of our members!

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Miller v. McGinty, ___S.W.3d___(Ky. App. 2007)

Ex-husband appealed order of TC requiring him, pursuant to KRS 403.220 and CR 37, to pay $8,500 of attorney fees to Ex-wife, claiming that TC failed to consider the financial resources of both parties as required by KRS 403.320 and that CR 37 and the holding of Lampton v. Lampton, 721 S.W.2d 736, 739 (Ky. App. 1986) were inapplicable to the facts of his case.

When Ex-Wife initially filed her Petition for Dissolution, she was unaware of Ex-Husband’s address. She therefore attempted service through a Warning Order attorney. Darren resided in Utah, was a member of the Air National Guard, and unknown to Ex-Wife, was stationed in Iraq at the time she filed for divorce. The Warning Order Attorney filed his report and, subsequently, a default hearing was held, resulting in TC’s issuance of findings of fact, conclusions of law, and decree of divorce. Ex-Husband then filed a Motion to Alter, Amend or Vacate this Order on the basis that Ex-Husband had not been properly served. TC granted the motion, Ex-Wife served Ex-Husband through Secretary of State, and new trial was held. TC divided property and debts and ordered Husband to pay $8,500 of Ex-Wife’s attorney fees.

Ex-Husband first contended that TC failed to consider the financial resources of the parties before awarding attorney’s fees to Ex-Wife. CA noted that although a trial court is not required to make specific findings on the parties’ financial resources, TC must consider the financial resources of the parties before ordering an award of attorney’s fees. Further, KRS 403.220 requires a showing of an imbalance in the financial resources of the respective parties. In this case, TC expressly stated that no evidence was submitted concerning the parties’ financial resources, requiring the court to make assumptions from evidence submitted regarding the financial circumstances at the time of the marriage as to the status of their financial resources at the time of trial, though the parties had been separated for over 3 years and divorced for 2 years. CA held that the financial situations of the parties during their marriage were too remote in time for the court to make such a finding based on this evidence, and TC abused its discretion in making award of attorney fees without first considering the parties’ financial resources at the time that the court entered its order. CA vacated attorney fee award under KRS 403.220 and remanded issue to TC.

Ex-Husband next asserted that TC erred by basing the attorney fee award on the case law of Lampton and CR 37, as they are inapplicable to a party’s failure to voluntarily submit to personal jurisdiction. CR 37, which is titled “Failure to Make Discovery; Sanctions,” permits a court to award attorney’s fees as a sanction against a party who fails to conduct discovery or abide by discovery rules. In Lampton, CA implied that an award of attorney’s fees under CR 37 is appropriate if the award is motivated by the party’s obstruction of and refusal to cooperate with discovery. In this case, TC provided that an award of attorney’s fees under CR 37 was appropriate due to Ex-Husband’s irresponsibility with regard to the parties’ financial matters. CA held that this reasoning had no connection to discovery proceedings in the case. Furthermore, Ex-Husband’s failure to submit to TC’s jurisdiction despite his knowledge of the case also held no connection to CR 37 nor merited an award of attorney fees under any rule or statute, as there is no requirement in Kentucky that a defendant submit to the court’s jurisdiction once he gains knowledge of the action. CA reversed any portion of the attorney fee award based on CR 37.

Ex-Husband also alleged that if TC had the authority to award attorney’s fees in this case, the reasonableness of the fees awarded was improperly analyzed by TC. CA held this claim to be moot as it had vacated the award.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.

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While we are posting about depositions, check out Deposition Misbehavior from The Law Profs Blog. It could get you suspended.

The post Deposition Misbehavior appeared first on Goldberg Simpson - Family Law Group.