Austin v. Fordham University

Background

Francis Austin sued Fordham University, alleging that Patrick Sweeney violently raped and sexually assaulted him in separate incidents in February 2011 and May 2012, when both were undergraduate students at Fordham. Austin also alleged that Fordham failed to protect him. Fordham brought Sweeney into the case as a third-party defendant. Sweeney denied assaulting Austin.

Austin alleged that the assaults caused physical, sexual, and psychological injuries, including post-traumatic stress disorder, major depressive disorder, alcohol abuse, and anorexia nervosa. He filed an emergency motion under Federal Rule of Civil Procedure 26(c) for a protective order preventing Sweeney from attending Austin’s July 2, 2024 deposition in person. Austin argued that sharing a conference room with Sweeney for the deposition would cause severe emotional distress, trigger symptoms, intimidate him, and interfere with his ability to testify.

Legal standard

Rule 26(c) allows a court, for good cause, to protect a person from annoyance, embarrassment, oppression, undue burden, or expense during discovery. The rule permits the court to designate who may be present during a deposition, including, in rare circumstances, excluding a party from appearing in person. The person seeking protection must show a particular need, generally through evidence of a clearly defined, specific, and serious injury. The court must also balance the competing interests involved.

Court’s analysis

The court recognized that a party whose lawyer is conducting a deposition ordinarily may attend. But it explained that this presumption is not absolute and that a foreseeable risk of emotional harm to the person being deposed can justify excluding another party from the room.

The court found persuasive several decisions allowing a person accused of assault or abuse to participate in a deposition remotely rather than in person. It concluded that Sweeney’s interests in observing Austin’s demeanor and assisting his counsel could be protected through live video and audio access and real-time consultation with counsel.

The court noted that Austin had not submitted medical evidence from a treating psychiatrist or another medical professional. Nevertheless, it found that the allegations in Austin’s amended complaint and the representations in his motion were sufficient to show good cause. The court also rejected the argument that granting the motion would improperly accept Austin’s allegations as true. It expressly made no finding about the credibility or accuracy of those allegations.

Disposition and conditions

The court granted Austin’s motion for a protective order preventing Sweeney from attending Austin’s deposition in person. Sweeney could remain in the same location as the deposition but had to stay in a different office. He could see and hear the deposition in real time through a one-way remote video feed. Sweeney’s counsel could consult with him during normal breaks and could leave the deposition room when consultation was necessary. Time used for those recesses would not count toward the seven-hour deposition limit, or any other period the parties had agreed upon for Sweeney’s counsel to question Austin.