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ORDER GRANTING IN PART PLAINTIFFS’ 

MOTION FOR A PROTECTIVE ORDER - 1 

HONORABLE RONALD B. LEIGHTON 

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON 

AT TACOMA 

WINDY PAYNE, individually and as 

guardian on behalf of D.P., a minor child, 

 Plaintiff, 

 v. 

PENINSULA SCHOOL DISTRICT, a 

municipal corporation; ARTONDALE 

ELEMENTARY SCHOOL, a municipal 

corporation; JODI COY, in her individual 

and official capacity; JAMES 

COOLICAN, in his individual and official 

capacity; JANE DOES 1-10; and JOHN 

DOES 1-10, 

 Defendant. 

CASE NO. 3:05-cv-05780-RBL 

ORDER GRANTING IN PART 

PLAINTIFFS’ MOTION FOR A 

PROTECTIVE ORDER 

THIS MATTER is before the Court on Plaintiff Windy Payne’s motion for a protective 

order. [Dkt. #131]. Plaintiffs argue that deposing Windy Payne would be cumulative because 

she already gave her complete testimony in her 2006 deposition, and that deposing D.P. would 

be futile because of his diminished communicative capacity, and would merely cause him trauma 

and anxiety. The Motion is GRANTED in part and DENIED in part. 

Case 3:05-cv-05780-RBL Document 139 Filed 07/03/13 Page 1 of 3
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ORDER GRANTING IN PART PLAINTIFFS’ 

MOTION FOR A PROTECTIVE ORDER - 2 

Defendants deposed Windy Payne for more than six hours on July 21, 2006. [Dkt #30-6]. 

On June 7, 2013, Defendants sent a deposition notice to Windy Payne, reasoning that they want 

to know of any new information that was not known at the time of her original deposition. 

Windy Payne seeks a protective order on the grounds that she has already given her complete 

testimony. 

Rule 30 requires that a party must obtain leave of the court to take a deposition of 

someone who has already been deposed in the case. Rule 30(a)(2)(A)(ii). Rule 26 grants courts 

broad discretion to limit discovery through protective orders “in order to protect a party or 

person from annoyance, embarrassment, oppression, or undue burden or expense...” Rule 26(c). 

While it is generally disfavored, multiple depositions are appropriate in certain circumstances, 

when a long time has passed during which new evidence may have come to light. Graebner v. 

James River Corp., 130 F.R.D. 440, 441 (N.D. Cal. 1989). Because seven years have passed 

since Windy Payne’s first deposition, and she possesses relevant information about the extent of 

D.P.’s damages that were not available at the time of her original deposition, the Motion for a 

protective order as to Windy Payne’s deposition is denied. However, the scope of the deposition 

will be strictly limited to facts and observations relevant to damages that have occurred since the 

2006 deposition. The Court will not impose a time restriction unless and until a party alerts the 

Court of unreasonable or out-of-scope questioning. 

Defendants also sent notice of deposition of D.P. Dec. of Vertetis at Ex. 2. Defendants 

now agree to forego his deposition provided that the Court enter an order prohibiting D.P. from 

testifying at trial or even appearing in front of the jury. [Dkt #136]. In the interest of protecting 

D.P. from undue burden and likely trauma and anxiety that would result from this deposition, 

Plaintiffs’ motion for a protective order as to D.P.’s deposition is granted. Plaintiffs have stated 

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ORDER GRANTING IN PART PLAINTIFFS’ 

MOTION FOR A PROTECTIVE ORDER - 3 

they do not intend to call D.P. as a witness at trial, and a Court order on this matter is 

unnecessary. [Dkt. #131]. Defendants also request that D.P. be prevented from being present in 

trial without first having a short meeting with Defendant’s counsel so they know how he will 

present. [Dkt. # 136]. An order on this matter is also unnecessary; Defendants already have 

knowledge of D.P.’s demeanor and presentation, as Plaintiffs consented to a forensic evaluation 

of D.P. by Defendant’s expert, Dr. Steven Sulzbacher, in April, 2013. [Dkt. #131]. Defendants 

can consult with their expert regarding D.P.’s presentation and demeanor. The Plaintiffs’ Motion 

for a Protective Order as to D.P.’s deposition IS GRANTED without the Defendant’s requested 

conditions. 

IT IS SO ORDERED

Dated this 3rd day of July, 2013. 

A

RONALD B. LEIGHTON 

UNITED STATES DISTRICT JUDGE 

Case 3:05-cv-05780-RBL Document 139 Filed 07/03/13 Page 3 of 3