June 10, 2019




                                                                    Supreme Court

                                                                    No. 2017-309-M.P.
                                                                    (KC 16-1239)


          Estate of Brian Chen et al.          :

                        v.                     :

                Lingting Ye et al.             :




                 NOTICE: This opinion is subject to formal revision before publication in
                 the Rhode Island Reporter. Readers are requested to notify the Opinion
                 Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence,
                 Rhode Island 02903, at Tel. 222-3258 of any typographical or other
                 formal errors in order that corrections may be made before the opinion is
                 published.
                                                                   Supreme Court

                                                                   No. 2017-309-M.P.
                                                                   (KC 16-1239)


         Estate of Brian Chen et al.            :

                      v.                        :

             Lingting Ye et al.                 :


              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                           OPINION

       Justice Flaherty, for the Court. The plaintiffs, Brooke Chen, Wei Chen, Yifan Shuai,

and the Estate of Brian Chen, seek review of an order entered in the Superior Court that quashed

the oral deposition of M.Y., the minor daughter of the defendants, Lingting Ye and Yan Sun. 1

Before this Court, the plaintiffs argue, inter alia, that the hearing justice erred because, instead of

prohibiting the oral deposition outright, he should have allowed it to continue under reasonable

restrictions that would limit any potential harm to the minor child, who suffers from generalized

anxiety, while still preserving the plaintiffs’ right to relevant discovery. For the reasons set forth

in this opinion, we quash the order of the Superior Court.

                                                    I

                                         Facts and Travel

       On June 18, 2016, in East Greenwich, Rhode Island, seven-year-old Brian Chen

tragically drowned in a swimming pool while he was attending a party at defendants’ home.


1
  We have referred to the defendants’ two minor children by their initials, M.Y. and C.Y., in an
effort to protect their privacy.


                                                 -1-
Although the parties agree that there were several adult guests present at the time, it is in dispute

whether any adult was present outside near the pool area when the young boy drowned. The

defendants point to decedent’s father’s deposition testimony that that there were ten to fifteen

adults in the backyard and at least one child swimming in the pool when decedent’s father left

Brian in the backyard. The defendants further allege that there has been no evidence presented

that would indicate that there were any children in the pool at the time when the young boy was

found floating in the water. On the other hand, although plaintiffs agree that there were several

adult guests present on the premises, they nonetheless contend that none of them were near the

pool when the drowning incident occurred. Rather, they allege that defendants’ then ten-year-

old daughter, M.Y., and Brian were both in the pool area when the tragedy transpired.

         In December 2016, plaintiffs filed a wrongful death action in Kent County Superior Court

against defendants. 2 In their complaint, plaintiffs alleged that defendants’ negligence caused the

death of their son based on theories of attractive nuisance, failure to warn, failure to supervise,

failure to secure the pool area, and premises liability. In addition to damages for wrongful death,

plaintiffs also sought damages for negligent infliction of emotional distress, loss of consortium

on their own behalf, and loss of consortium on their daughter’s behalf.

         In June 2017, plaintiffs sought to depose M.Y., defendants’ minor daughter.            The

defendants filed a motion to quash the notice of deposition, arguing that M.Y. had mental health

issues that both preceded and were as a result of her friend’s death, and that she was actively in

treatment for her mental health issues. To support their motion, defendants attached a letter from

M.Y.’s psychotherapist, Aleta Johnson, LICSW, who indicated that M.Y. had been in treatment

for generalized anxiety for several years, and that, since decedent’s death, her symptoms had



2
    The plaintiffs filed an amended complaint in May 2017.


                                                -2-
become exacerbated. Ms. Johnson also reported that, following Brian’s death, M.Y. had “begun

to also show signs of depression, [her] emotional regulation has been more difficult, and her

distress has been more pronounced.” The therapist recommended that M.Y. not be deposed

because it would “certainly worsen her mental health, and may have negative and lasting

consequences to her condition.” The defendants further claimed that there was no reason to

depose M.Y. because there were other guests at the party who were outside at the time of the

incident.

       The plaintiffs objected to defendants’ motion to quash, arguing that M.Y. may well have

been the sole eyewitness to the tragedy and that they “should be allowed to seek deposition

testimony from what they consider a material witness who possesses information that is

reasonably calculated to lead to relevant and discoverable evidence.” The plaintiffs believed that

M.Y.’s testimony would be important, noting that Brian’s father had testified at his deposition

that M.Y. had shouted “I’m sorry” immediately after the incident.

       A justice of the Superior Court conducted a hearing on the discovery motion. After

hearing arguments from both parties, the hearing justice at first decided that he would not stop

the deposition from going forward or quash the subpoena, but “reserve[d] to the defendant[s] the

right to stop the deposition from going forward at any time[.]” The defendants then suggested

that the deposition be accomplished by means of written questions because, according to

defendants, this would be less traumatizing for the child “instead of having the child go to a law

office, sit down with a stenographer, with lawyers all around her.”

       The plaintiffs did not agree. They argued that the answers would not be prepared by the

child and the “honesty and that spontaneity that the youth tend to deliver” would be lost through

“interrogatories which will be guided by adults and by counsel[.]” The hearing justice observed




                                               -3-
that “written deposition questions are provided for under the rule[,]” but he nonetheless reserved

his decision.

       After the parties filed post-hearing memoranda, the hearing justice issued a written order.

The hearing justice first noted that “[a] mental health professional [h]as indicated the deposition

would worsen the mental health of the child[,]” and he therefore ordered that the notice of oral

deposition be quashed. The court also ordered that a deposition on written questions was

“allowed in accord with the rules of civil procedure[,]” and required counsel to “draft age

appropriate questions and avoid questions designed to ‘ramp up’ the emotions.” Furthermore,

the order stated that “[t]he witness shall not be asked about her counseling or any mental health

treatment at this time[,]” and he required defense counsel to submit, every six months from the

date of the order until the case resolved, a statement from a mental health professional indicating

whether M.Y. was fit to be deposed. The court also reserved the right to review any questions to

which objections were raised and to modify the order at any time.

       The plaintiffs filed a petition for issuance of a writ of certiorari with this Court in August

2017; that petition was granted by this Court in December 2017. 3 In February 2018, plaintiffs

filed a motion with this Court for a limited remand to depose C.Y., who is M.Y.’s younger

brother; the limited remand was granted. The defendants then objected in Superior Court to

C.Y.’s deposition based on another report by Ms. Johnson, eerily consistent with her report




3
  In the order granting plaintiffs’ petition for issuance of a writ of certiorari, this Court permitted
the parties to continue with discovery. In addition, before they filed their petition with this
Court, plaintiffs had filed a notice of appeal from the hearing justice’s order granting defendants’
motion to quash. In this Court’s order granting plaintiffs’ petition in the present case, we also
granted plaintiffs’ motion to dismiss that appeal as procedurally inappropriate.


                                                 -4-
regarding M.Y., that C.Y. should not be deposed because he was also being treated and that his

condition might be compromised by a deposition. 4

       In their briefs to this Court, plaintiffs contend that, in July 2018, they deposed the mother

of C.Y. and M.Y. and, according to plaintiffs, she testified that both C.Y. and M.Y. had been in

the pool with Brian and some other minor children. The plaintiffs also aver that she also testified

that, shortly thereafter, the children left Brian unattended at or in the pool just before he

drowned. In that same month, plaintiffs issued a deposition subpoena duces tecum for Ms.

Johnson, requiring her to appear and produce all records pertaining to the treatment of several of

her patients, including C.Y. and M.Y. Not surprisingly, defendants filed a motion to quash that

subpoena as well, and that motion was granted by the Superior Court, without prejudice, subject

to our decision on the petition before us at this time.

                                                  II

                                        Standard of Review

       “It is well settled that ‘our review of a case on certiorari is limited to an examination of

the record to determine if an error of law has been committed.’” Sandy Point Farms, Inc. v.

Sandy Point Village, LLC, 200 A.3d 659, 662 (R.I. 2019) (brackets omitted) (quoting DeCurtis v.

Visconti, Boren & Campbell, Ltd., 152 A.3d 413, 420-21 (R.I. 2017)). “In conducting such a

review we do not weigh the evidence on certiorari, but only conduct our review to examine

questions of law raised in the petition.” Id. (brackets omitted) (quoting Cashman Equipment

Corporation, Inc. v. Cardi Corporation, Inc., 139 A.3d 379, 381 (R.I. 2016)). “Like questions of

statutory construction, the interpretation of court rules of procedure is a legal question for the

court.” Plante v. Stack, 109 A.3d 846, 853 (R.I. 2015) (quoting McDonough v. McDonough, 962


4
  The record appears to reflect that plaintiffs’ efforts to compel the deposition of C.Y. were
passed in the Superior Court.


                                                 -5-
A.2d 47, 54 (R.I. 2009)). “However, ‘in granting or denying discovery motions, a Superior

Court justice has broad discretion,’ which ‘this Court will not disturb save for an abuse of that

discretion.’” State v. Lead Industries Association, Inc., 64 A.3d 1183, 1191 (R.I. 2013) (brackets

and deletion omitted) (quoting Colvin v. Lekas, 731 A.2d 718, 720 (R.I. 1999)).

                                                  III

                                            Discussion

       Before this Court, plaintiffs argue that M.Y. may be a percipient witness, perhaps the sole

percipient witness, to the drowning incident and that the order of the Superior Court prohibiting

her oral deposition is in error. The plaintiffs contend that the hearing justice erred when he

quashed the oral deposition of M.Y., arguing that: (1) he ignored the jurisprudence of other

courts, in situations similar to that before us, in which restrictions have been imposed to limit

harm to a child being deposed while still protecting plaintiffs’ right to relevant discovery; (2) he

failed to make any findings in line with the criteria set forth in Rule 26(c) of the Superior Court

Rules of Civil Procedure; (3) he failed to make a specific and documented factual showing that a

deposition would be threatening to the deponent’s life and health, as defined by caselaw

interpreting Rule 26(c); (4) there was no showing that Ms. Johnson conducted a forensic

psychiatric evaluation or that she had the training necessary to conduct a proper forensic

psychiatric evaluation; and (5) he violated plaintiffs’ “right to a fair hearing, fair procedure, and

a fair trial,” which prevented plaintiffs from obtaining discovery from a material witness in a

timely fashion. 5

        Rule 26(c) provides, in pertinent part:


5
 The defendants attached Ms. Johnson’s letter to their motion to quash the deposition of M.Y.
That letter was discussed at the hearing on the motion and, although plaintiffs challenged the
weight that should have been ascribed to the letter, the record does not reflect that plaintiffs
objected to the letter being considered by the hearing justice.


                                                  -6-
                “Upon motion by a party or by the person from whom discovery is
               sought, accompanied by a certification that the movant has in good
               faith conferred or attempted to confer with other affected parties in
               an effort to resolve the dispute without court action, and for good
               cause shown, the court in which the action is pending * * * may
               make any order which justice requires to protect a party or person
               from annoyance, embarrassment, oppression, or undue burden or
               expense, including one or more of the following:

                       “(1) That the disclosure or discovery not be had;

                       “(2) That the disclosure or discovery may be had only on
                       specified terms and conditions, including a designation of
                       the time or place;

                       “(3) That the discovery may be had only by a method of
                       discovery other than that selected by the party seeking
                       discovery;

                       “(4) That certain matters not be inquired into, or that the
                       scope of the disclosure or discovery be limited to certain
                       matters;

                       “(5) That discovery be conducted with no one present
                       except persons designated by the court;

                       “* * *.

               “In ruling on a motion for a protective order the court may, on such
               terms and conditions as are just, order that any party or other
               person provide or permit discovery.” 6

This Court has yet to define “good cause” as set forth under Rule 26(c). However, we previously

have held that “where the federal rule and our state rule of procedure are substantially similar,



6
  We observe that, in their motion to quash M.Y.’s notice of deposition, defendants indicated that
they informed plaintiffs of the reasons as to why they contested the deposition, but that plaintiffs
“noticed the deposition nonetheless.” Although we express concern that that interaction may not
have satisfied the prerequisite in Rule 26(c) of the Superior Court Rules of Civil Procedure that
the movant must provide a certification that he or she “has in good faith conferred or attempted
to confer with other affected parties in an effort to resolve the dispute without court action,” none
of the parties addressed that issue in the lower court or before this Court, and the hearing justice
proceeded to address the arguments as to whether good cause had been shown to enforce a
protective order.


                                                -7-
we will look to the federal courts for guidance or interpretation of our own rule.” 7 Sandy Point

Farms, Inc., 200 A.3d at 664 n.5 (quoting Crowe Countryside Realty Associates, Co., LLC v.

Novare Engineers, Inc., 891 A.2d 838, 840 (R.I. 2006)). The United States Court of Appeals for

the First Circuit has held that “[a] finding of good cause must be based on a particular factual

demonstration of potential harm, not on conclusory statements.” Anderson v. Cryovac, Inc., 805

F.2d 1, 7 (1st Cir. 1986). Other circuits have come to a similar conclusion, and we agree. See In

re Roman Catholic Archbishop of Portland in Oregon, 661 F.3d 417, 424 (9th Cir. 2011)


7
 Rule 26(c) of the Superior Court Rules of Civil Procedure nearly mirrors the language of Rule
26(c) of the Federal Rules of Civil Procedure, which provides, in pertinent part:

              “(1) In General. A party or any person from whom discovery is
              sought may move for a protective order in the court where the
              action is pending * * *. The motion must include a certification
              that the movant has in good faith conferred or attempted to confer
              with other affected parties in an effort to resolve the dispute
              without court action. The court may, for good cause, issue an
              order to protect a party or person from annoyance, embarrassment,
              oppression, or undue burden or expense, including one or more of
              the following:

                      “(A) forbidding the disclosure or discovery;

                      “(B) specifying terms, including time and place or the
                      allocation of expenses, for the disclosure or discovery;

                      “(C) prescribing a discovery method other than the one
                      selected by the party seeking discovery;

                      “(D) forbidding inquiry into certain matters, or limiting the
                      scope of disclosure or discovery to certain matters;

                      “(E) designating the persons who may be present while the
                      discovery is conducted;

                      “* * *.

              “(2) Ordering Discovery. If a motion for a protective order is
              wholly or partly denied, the court may, on just terms, order that
              any party or person provide or permit discovery.”


                                              -8-
(“‘[G]ood cause’ * * * requires a showing ‘that specific prejudice or harm will result’ if the

protective order is not granted.”) (quoting Foltz v. State Farm Mutual Automobile Insurance

Company, 331 F.3d 1122, 1130 (9th Cir. 2003)); Cipollone v. Liggett Group, Inc., 785 F.2d

1108, 1121 (3d Cir. 1986) (“[T]he party seeking the protective order must show good cause by

demonstrating a particular need for protection. Broad allegations of harm, unsubstantiated by

specific examples of articulated reasoning, do not satisfy the Rule 26(c) test.”). The movant has

the burden to make a specific demonstration of necessity for the protective order. Anderson, 805

F.2d at 7 (citing General Dynamics Corporation v. Selb Manufacturing Company, 481 F.2d

1204, 1212 (8th Cir. 1973)); see also In re Deutsche Bank Trust Company Americas, 605 F.3d

1373, 1378 (Fed. Cir. 2010) (“A party seeking a protective order carries the burden of showing

good cause for its issuance.”).

       We also have the benefit of the jurisprudence of our sister states. In Galbreath v. Braley,

733 S.E.2d 412 (Ga. Ct. App. 2012), the Court of Appeals of Georgia vacated a protective order

prohibiting the petitioner from deposing a thirteen-year-old girl who was not a party to the case.

Galbreath, 733 S.E.2d at 413. The parties were divorced and had been granted joint custody of

their son. Id. The respondent filed suit and argued that the petitioner’s visitation rights to his son

should be suspended on the grounds that the petitioner allegedly had molested the thirteen-year-

old girl. Id. The girl’s parents moved for a protective order to prevent the petitioner from

deposing their daughter, and they submitted an affidavit from the girl’s therapist which said that

the girl’s psychological and emotional safety were “at extreme risk” if she were exposed to “any

significant stressor[.]” Id. The therapist further attested that the girl “specifically identified [the

petitioner] as a trigger for psychological distress and physiological reactivity.” Id. Although the

trial court recognized the importance of the girl’s testimony, it nonetheless granted the protective




                                                 -9-
order, entirely prohibiting the deposition. Id. at 414. The court of appeals vacated the order and

remanded the case to the trial court to determine whether and how the deposition could proceed

without exacerbating the child’s psychological harm. Id. at 415. The court suggested that the

trial court consider imposing reasonable restrictions on the deposition, such as the venue of the

deposition, its length, the possibility of recesses, those who might attend, and the ability to

suspend the deposition in the event of an emergency. Id.

       Similarly, in In re Transit Management of Southeast Louisiana, Inc., 761 So. 2d 1270

(La. 2000), the plaintiffs brought suit against the defendant transit company after their minor

daughter was injured when she fell from a window of a streetcar. In re Transit Management of

Southeast Louisiana, Inc., 761 So. 2d at 1271. The defendant sought to depose a non-party, a

seven-year-old boy, who had witnessed the accident. Id. The headmaster and chaplain at the

witness’s school, as well as the witness’s pediatrician and psychologist, all filed affidavits with

the court, attesting that, if the child were to be deposed, he could suffer considerable mental

stress as a consequence. Id. In response, the trial court issued a protective order prohibiting the

defendant from deposing the child. Id. The Louisiana Supreme Court vacated the protective

order, holding that, because the witness’s testimony was relevant and not privileged in any way,

it was therefore discoverable and that, on remand, the trial court “may consider alternative

methods to reduce the level of stress to the child while at the same time preserving [the

defendant’s] right to obtain information necessary to its defense.” 8 Id.



8
  We also note the following unpublished opinions, which we do not cite for precedential value,
but which are nonetheless illustrative of the way in which courts have dealt with this issue.
Arassi v. Weber-Stephen Products LLC, 2014 WL 1385336, at *2, *3 (E.D. Wis. 2014)
(permitting defendant to depose plaintiffs’ non-party minor daughters, despite a letter written by
the daughters’ therapist indicating the potential harm to their mental health if deposed, but
imposing subject and time restrictions on the depositions); Graham v. City of New York, 2010
WL 3034618, at *5 (E.D.N.Y. 2010) (reversing trial court’s protective order prohibiting the


                                                - 10 -
         Because it was defendants who filed a motion to quash plaintiffs’ notice of M.Y.’s

deposition, it was their burden to prove that good cause existed. Courts in the foregoing cases

were required, as we must do here, to balance the competing interests between a party’s right to

discover relevant and nonprivileged information that may be pertinent to his or her case or

defense and the harm that may be caused to the deponent if such a deposition were to take place.

Nonetheless, a review of the relevant caselaw makes it very clear that “[i]t is very unusual for a

court to prohibit the taking of a deposition altogether and absent extraordinary circumstances,

such an order would likely be in error.” Salter v. Upjohn Company, 593 F.2d 649, 651 (5th Cir.

1979).    Instead, courts tend to allow the deposition to go forward, but impose reasonable

restrictions to minimize harm to the deponent while preserving a party’s right to relevant

discovery.

         Here, the hearing justice did not completely quash M.Y.’s deposition; instead, he

disallowed an oral deposition, but permitted plaintiffs to depose M.Y. via written questions “in

accord with the rules of civil procedure.” The hearing justice also required defense counsel to

submit a statement from a mental health professional every six months indicating whether M.Y.

was fit to be deposed orally. The question before us, then, is whether that restriction imposed on

plaintiffs’ efforts to depose M.Y. is reasonable. In our opinion, it is not.

         At the outset, it cannot be denied that “an oral deposition has the advantage of allowing

cross-examination of an evasive, recalcitrant, or hostile witness.” 8A Wright & Miller, Federal


deposition of a seven-year-old non-party because the contention that the child would become
“unnecessarily upset” if deposed was speculative and defense counsel had assured the court that
he would depose the child “cautiously and sensitively”); Kuyper v. Board of County
Commissioners of Weld County, 2010 WL 4038831, at *2 (D. Colo. 2010) (allowing defendants
to depose a seven-year-old plaintiff about alleged sexual abuse that she sustained while in foster
care, notwithstanding expert testimony indicating that such questioning could cause substantial
harm to the child, so long as there were reasonable restrictions on the manner in which the child
was deposed).


                                                - 11 -
Practice and Procedure: Civil § 2039 at 190 (2010); see also Alliance to End Repression v.

Rochford, 75 F.R.D. 428, 429 (N.D. Ill. 1976) (“Without doubt, oral deposition is preferable to

written interrogatories when dealing with a recalcitrant or hostile witness.”). We agree with

plaintiffs that an oral deposition also provides the party conducting the deposition with the

opportunity to not only ask questions of the deponent in person, but to evaluate the deponent’s

credibility, spontaneity, and demeanor when he or she provides responses. Such opportunities

may be lost when a party is required to conduct a written deposition. See In re Subpoena Issued

to Dennis Friedman, 350 F.3d 65, 69 n.2 (2d Cir. 2003) (“District courts have also typically

treated oral depositions as a means of obtaining discoverable information that is preferable to

written interrogatories.”); National Life Insurance Company v. Hartford Accident and Indemnity

Company, 615 F.2d 595, 600 n.5 (3d Cir. 1980) (“[T]here are strong reasons why a party will

select to proceed by oral deposition rather than alternate means, most significantly the

spontaneity of the responses.”); Zito v. Leasecomm Corporation, 233 F.R.D. 395, 397 (S.D.N.Y.

2006) (“Written questions are rarely an adequate substitute for oral depositions both because it is

difficult to pose follow-up questions and because the involvement of counsel in the drafting

process prevents the spontaneity of direct interrogation.”); Mill-Run Tours, Inc. v. Khashoggi,

124 F.R.D. 547, 549-50 (S.D.N.Y. 1989) (noting “several reasons why oral depositions should

not be routinely replaced by written questions[,]” including the ability to ask follow-up

questions, “observe the demeanor of the witness and evaluate his [or her] credibility in

anticipation of trial[,]” and to avoid the “opportunity for counsel to assist the witness in

providing answers so carefully tailored that they are likely to generate additional discovery

disputes”).




                                              - 12 -
       We are of the opinion that good cause was not demonstrated to a sufficient degree in this

case for the hearing justice to impose such a drastic restriction on plaintiffs’ right to depose M.Y.

In quashing the oral deposition, but allowing the witness to be examined through the use of

written questions, the hearing justice appears to have relied heavily upon Ms. Johnson’s letter.

That correspondence, addressed to one of M.Y.’s parents, says in its entirety:

               “Dear Yan,

                      “This letter comes to you to document the mental health of
               your daughter, [M.Y.], and as it is being provided directly to you,
               you may share it at your discretion.

                        “Your daughter [M.Y.] has been in treatment with me for
               Generalized Anxiety for the past several years. Since last summer,
               following the loss of the family friend, symptoms have been
               exacerbated. She has begun to also show signs of depression,
               emotional regulation has been more difficult, and her distress has
               been more pronounced. In learning that [M.Y.] may be deposed
               for the legal proceedings around the incident, I am providing this
               letter, to recommend that [M.Y.] not be deposed. Deposing [M.Y.]
               will certainly worsen her mental health, and may have negative
               and lasting consequences to her condition.

                       “Sincerely,

                       “Aleta Johnson, LICSW”

It is true that Ms. Johnson’s letter contains specific statements about M.Y.’s mental health both

before and after decedent’s death. However, the letter is conclusory with respect to the potential

harm that could result if M.Y. were to be deposed. Specifically, the only reference to potential

harm that Ms. Johnson reports is “[d]eposing [M.Y.] will certainly worsen her mental health, and

may have negative and lasting consequences to her condition.” (Emphasis added.) That finding

does not provide “a particular factual demonstration of potential harm” to M.Y. if she were to be

deposed. Anderson, 805 F.2d at 7; see Campos v. Webb County Texas, 288 F.R.D. 134, 135, 136,

137 (S.D. Tex. 2012) (holding that doctor’s statement was conclusory when he averred that, by



                                               - 13 -
participating in a deposition, plaintiff, who suffered from major depression, post-traumatic stress

disorder, and was mildly developmentally disabled, would “very likely * * * decompensate into

a full blown psychotic regression”); Jennings v. Family Management, 201 F.R.D. 272, 275

(D.D.C. 2001) (holding that psychologist’s report, which stated that plaintiff “faces a ‘danger of

exacerbating her symptoms of dementia and depression’ if she is made to testify,” was

conclusory because it “[did] not state with specificity how or why this [would] happen” and did

not specify how her health would be threatened by the adversarial process). 9

       The defendants cite to four cases that they maintain support their proposition that the oral

deposition was appropriately quashed because the proposed deponent was not a party to the case.

See Fonner v. Fairfax County, Virginia, 415 F.3d 325 (4th Cir. 2005); Dunford v. Rolly Marine

Service Co., 233 F.R.D. 635 (S.D. Fla. 2005); Frideres v. Schiltz, 150 F.R.D. 153 (S.D. Iowa

1993); In re McCorhill Publishing, Inc., 91 B.R. 223 (Bankr. S.D.N.Y. 1988). Although we

agree that those cases, like the one before us, pertain to deposing non-party witnesses, a review

of those cases reveals that the deponents were subject to life-threatening or other serious



9
  It deserves mention that, in cases where a motion to quash a deposition had been filed based on
the potential harm that it could cause to the deponent, the deponent’s evidence of potential harm
was presented to the court either by affidavit or sworn testimony. See, e.g., Campos v. Webb
County Texas, 288 F.R.D. 134, 135 (S.D. Tex. 2012) (deponent’s treating psychiatrist filed an
affidavit); Galbreath v. Braley, 733 S.E.2d 412, 413 (Ga. Ct. App. 2012) (treating licensed
clinical social worker filed an affidavit); In re Transit Management of Southeast Louisiana, Inc.,
761 So. 2d 1270, 1271 (La. 2000) (headmaster and chaplain at deponent’s school and deponent’s
pediatrician and clinical psychologist filed affidavits); In re Toyota Motor Corporation, 191
S.W.3d 498, 501 (Tex. App. 2006) (treating psychiatrist testified at a hearing on a motion to
quash deposition notices). Here, Ms. Johnson did not testify at the hearing on the motion to
quash M.Y.’s deposition notice, and her statement is an unsworn letter addressed to one of
M.Y.’s parents. Significantly, however, although plaintiffs challenge the weight that should be
ascribed to the letter, it was attached to defendants’ motion to quash the deposition of M.Y. and
discussed at the hearing on that motion, but the propriety of the hearing justice’s consideration of
the document was never challenged. But see Dunford v. Rolly Marine Service Co., 233 F.R.D.
635, 636 (S.D. Fla. 2005) (“A ‘doctor’s note’ was clearly not sufficient to support the very heavy
burden on [the movant] and Defendant to prevent a deposition from taking place altogether.”).


                                               - 14 -
conditions that would have been significantly exacerbated had the deposition not been quashed.

See Fonner, 415 F.3d at 327, 331 (deponent was developmentally disabled, his “opinions and

beliefs could be changed by the suggestion of others[,]” and a deposition would cause deponent

to become “emotionally over-whelmed and traumatized[,] * * * would likely trigger a relapse of

previous symptoms and problematic behaviors[,]” and would “greatly interfere with [deponent’s]

functioning in daily life”); Dunford, 233 F.R.D. at 636, 637 (deponent “suffer[ed] from a

potentially life-threatening and severely disabling brain disorder”; deponent had “remained in

intensive care at the hospital for some time”; and had “the medical condition in question [been]

only general and non-acute, then the heavy good cause requirement may not have been

established”); Frideres, 150 F.R.D. at 155 (deponent suffered from a “life-threatening

hemorrhage” and was diagnosed with inflammatory bowel disease, which could have been

aggravated by emotional distress from a deposition); In re McCorhill Publishing, Inc., 91 B.R. at

224 (deponent suffered from severe degenerative arthritis, renal disease, senile dementia, and

Alzheimer’s disease, his “mental condition had deteriorated rapidly and [he] was unable to

function independently in his activities of daily living[,]” had suffered heart failure during the

proceedings, and a doctor said that a deposition “could cause further heart failure which could

threaten [his] life”). 10

        We conclude that those cases are factually inapposite to the case at bar because, unlike

those cases, where it was clear that life-threatening or other serious conditions would satisfy the


10
   Consistent with footnote 9, supra, in those four cases cited by defendants, affidavits or
testimony were presented to the courts to support a finding of potential harm to the deponents if
the motions to quash the deposition notices were denied. See Fonner v. Fairfax County, Virginia,
415 F.3d 325, 331 (4th Cir. 2005) (treating psychologist filed an affidavit); Dunford, 233 F.R.D.
at 636 (treating physician filed an affidavit); Frideres v. Schiltz, 150 F.R.D. 153, 155 (S.D. Iowa
1993) (physician filed an affidavit); In re McCorhill Publishing, Inc., 91 B.R. 223, 224 (Bankr.
S.D.N.Y. 1988) (attending physician filed an affidavit and testified before the court at the
hearing on the motion to quash the deposition notice).


                                              - 15 -
good cause requirement under Rule 26(c), here, the evidence of potential harm to M.Y. was

speculative and conclusory.      In our view, defendants have not overcome their burden to

demonstrate good cause as required under Rule 26(c). Therefore, it is our opinion that the

hearing justice erred when he quashed M.Y.’s oral deposition and required plaintiffs to depose

M.Y. via written questions “in accord with the rules of civil procedure.” This case is therefore

remanded to the Superior Court so that plaintiffs may conduct an oral deposition of M.Y.

However, the hearing justice may impose reasonable restrictions on the oral deposition, such as

setting a time limit on the deposition, allowing frequent recesses, and/or permitting a parent of

M.Y. to be present during the deposition. See Galbreath, 733 S.E.2d at 415. 11

                                                 IV

                                            Conclusion

       For the foregoing reasons, we quash the order of the Superior Court and remand the

papers in this case to that court for further proceedings consistent with this opinion.




11
   Because we quash the order of the Superior Court on these grounds, we need not, and do not,
reach plaintiffs’ arguments that the hearing justice failed to make findings in line with the criteria
set forth in Rule 26(c), that the hearing justice failed to make a specific and factual showing that
the deposition was threatening to the deponent’s life and health, that there was no showing that
Ms. Johnson conducted a forensic psychiatric evaluation or that she had the training necessary to
conduct such an evaluation, and that the hearing justice violated plaintiffs’ rights to “a fair
hearing, fair procedure, and fair trial[.]”


                                                - 16 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        Estate of Brian Chen et al. v. Lingting Ye et al.
                                     No. 2017-309-M.P.
Case Number
                                     (KC 16-1239)
                                     June 10, 2019
Date Opinion Filed
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.

Written By                           Associate Justice Francis X. Flaherty

                                     Kent County Superior Court
Source of Appeal

Judicial Officer From Lower Court    Associate Justice Jeffrey A. Lanphear
                                     For Plaintiffs:

                                     Ronald J. Resmini, Esq.
Attorney(s) on Appeal                Andrew O. Resmini, Esq.
                                     For Defendants:

                                     Mark P. Dolan, Esq.
                                     Mark P. Dolan, Jr.




SU‐CMS‐02A (revised June 2016)
