Doe v. Kurn Hattin

7ermont Superior Court
Filed
Windhain Unit

VERMONT SUPERIOR COURT CIVIL DIVISION
Windham Unit Case No. 21-CV-01251
7 Court Street
Newfane VT 05345
802-365-7979
www.vermontjudiciary.org

John Doe v. New England Kurn Hattin Homes

ENTRY REGARDING MOTION
Title: Motion to Compel Deposition Testimony from Stephen Harrison (Motion: 55)
Filer: David J. Shlansky
Filed Date: December 20, 2024

The motion is GRANTED IN PART and DENIED IN PART.

The court extends the deposition of Mr. Harrison pursuant to V.R.C.P Rule 30(d)(2) on
the grounds that Plaintiff is entitled to answers to some of the questions that were not answered
at the deposition as more particularly described below. The scope of subject matter of the
extended deposition is limited to those questions posed and objected to at the time of the original
deposition and for which the court below grants the motion to compel, including followup to
those questions. No new subject areas may be introduced.

Mr. Harrison is required to respond to Plaintiff's questions regarding the Independent
Investigation and may only decline to answer specific questions that would require disclosure of
information protected by court rulings, personal privileges, and confidentiality agreements
Defendant has made with third parties, 1.e., agreements other than the parties' own
confidentiality agreement for this case. The fact that some information may be subject to the
confidentiality agreement in this case does not automatically make it privileged if no
confidentiality agreement with a third party or other privilege protects the information.
Mr. Harrison is required to answer questions about information he learned from the
Independent Investigation (subject to the terms above concerning confidentiality agreements
with third parties) including information provided by Plaintiff himself to the Investigator. He is
also required to answer questions from Kur Hattin's own files from prior to the Investigation
even if such records were provided to the Independent Investigator. Such files do not qualify as
attorney work product, and would be subject to discovery had there been no Independent
Investigation. However, Plaintiff is reminded that although he may obtain some information
about the Investigation and content of the Report in discovery as provided herein, he is
prohibited from making certain disclosures by the confidentiality agreement in this case and
from disclosing content of the Report to any third parties by the Order of January 17, 2025.

Entry Regarding Motion Page 1 of 3
21-CV-01251 John Doe v. New England Kurn Hattin Homes
Mr. Harrison must answer questions from the Independent Investigation about events or
documents from after 1974 only if there is some relation to John Doe’s experience prior to
leaving Kurn Hattin. See Page 3 of Order of December 16, 2024. “Some relation to John Doe’s
experience” means some action or event that affected Plaintiff directly or in which he was
involved. It does not include a pattern or practice, knowledge, credibility, or intent that took
place after 1974 unless Plaintiff was specifically involved personally or in a category of persons
who were affected prior to 1974. It is the witness who is testifying under oath, not Defendant’s
attorney, who is required to make any representation that a question calls for information that has
no relation to Plaintiff’s experience at Kurn Hattin.
No grounds have been shown for Mr. Harrison not to answer questions about statements
he or other Kurn Hattin personnel made publicly. However, regarding Plaintiff’s argument
related to DCF and Agency of Education investigations of Kurn Hattin, the deposition pages
attached show that such investigations took place decades after Plaintiff’s involvement with
Kurn Hattin and concerned incidents after Kurn Hattin’s conduct toward Plaintiff. Defendant’s
counsel objected on grounds of relevance as well as other grounds. Defendant’s objections on
relevance grounds to questions about investigations into occurrences that took place long after
the subject matter of this case were well-founded. Discovery may be obtained “regarding any
non-privileged matter that is relevant to any party’s claim or defense and proportional to the
needs of the case. . ..” V.R.C.P. 26 (b)(1).1 (Emphasis added.) Plaintiff’s claims are personal to
himself arising from his experience at Kurn Hattin from 1968-1974.2 Plaintiff’s request to
compel answers to questions about investigations into events that involved others and occurred
after that time period is denied.
Plaintiff seeks discovery about Defendant’s financial resources as relevant to his claim
for punitive damages. The court adopts the procedure described in rulings by Judges Katz,
Meaker, Cheever, and McCaffrey such that Defendant shall prepare a written affidavit with
responses to all of the deposition questions about Defendant’s financial resources plus followup
questions about financial resources that are asked at the extended deposition. The document shall
be held by Defendant’s counsel. Should the case go to trial, Defendant’s counsel shall bring the
document to court, and at such time, if any, that the Plaintiff makes a sufficient showing to
proceed on the punitive damages claim, the Plaintiff may request the court to order the document
to be disclosed to Plaintiff’s counsel.
The court declines Plaintiff’s request for attorneys’ fees for several reasons. While some
of Plaintiff’s requests to compel have been granted, some significant ones have not. Plaintiff
proceeded to take the deposition in November before Defendant’s Motion for a Protective Order
regarding the scope of the 30(b) deposition was ripe for resolution. Some of the disputes would
not have occurred if the deposition had taken place after the court’s ruling on that motion.

1 See Reporter’s Notes to 2017 Amendment: The amendment “significantly redefin[es] the scope of discovery under

the former Vermont rule. Discovery must now be relevant to any party’s claim or defense, as opposed to being
reasonably calculated to lead to the discovery of admissible evidence.. . .A proportionality requirement has been
added. . .”
2 Plaintiff’s claims are for gross negligence, breach of fiduciary duty, intentional infliction of emotional distress,

grossly negligent infliction of emotional distress, and battery. See Amended Complaint.
Entry Regarding Motion Page 2 of 3
21-CV-01251 John Doe v. New England Kurn Hattin Homes
Moreover, a motion to compel under Rule 37 requires an affidavit or certificate of compliance
with the ‘meet and confer’ requirement of Rule 26 (h). There is no such affidavit or certificate or
showing of compliance. Exhibit B attached to the Motion shows that Defendant’s counsel stated
“We think you have met your meet and confer obligations.” This is insufficient to show
compliance with what the meet and confer obligation requires, and the record itself does not
show that a serious interpersonal dialogue took place to sort out the issues raised in the motion.
Ordinarily the court would not address a motion to compel without meaningful 26 (h)
compliance. The court has made an exception in this instance because of the unusually
complicated issues presented by the history of the Investigation and in order to avoid further
delay in completing discovery. Finally, there were sufficient grounds for some of Defendant’s
objections at the deposition and opposition to some claims made in the motion. For these
reasons, pursuant to Rule 37(a)(4), the court declines to make an award of expenses.
The extended deposition shall be concluded no later than March 14, 2025.
Electronically signed February 7, 2025 pursuant to V.R.E.F. 9 (d).

Mary Miles Teachout
Superior Judge (Ret.), Specially Assigned

Entry Regarding Motion Page 3 of 3
21-CV-01251 John Doe v. New England Kurn Hattin Homes