Co-Victim Protective Order Transcript

Revelations from the Transcript of a Hearing for a Protective Order from Deposition of a Co-Victim

The following transcript from August 21, 2013 reveals an admission by the attorney representing a second abuse victim (John Doe B) who had been subpoenaed by John Doe A for a deposition. In it, the attorney for John Doe B made a statement that his client was sexually abused by the Defendant, Thomas M. Goerner. This section is formatted in bold and underlined below. John Doe A is representing himself pro se in the matter. Mr. Klonis is attorney for Defendant. Mr. Feeney is attorney for John Doe B.

In the Court of Common Pleas of Berks County, Pennsylvania Civil Action – Law No. 13-1483 JOHN DOE A, Plaintiff vs. THOMAS M. GOERNER, Defendant 6 7              COLLOQUY Wednesday, August 21, 2013 8              Reading, Pennsylvania 9 Before THE HONORABLE JEFFREY K. SPRECHER, Judge 10 (Reading, Pennsylvania, Wednesday, August 21, 2013, at 10:032 2 a.m.) 3              (The Defendant is present.) 4              (REPORTER’S NOTE: At the direction of the Trial 5 Judge, this transcript shall be considered as containing an 6 exception to every ruling by the Court.) 7              THE COURT: who’s here in the first matter? Is there 8 any testimony in this? 9              MR. FEENEY: I can provide testimony if the court 10 would like.  I think I’ll make my argument and if the Court 11 decides he’d like to hear the testimony, or the plaintiff, I 12 can put that on the record. 13           THE COURT: Go ahead. 14           MR. FEENEY:  Your Honor, there’s really two rules, 15 which are 4011 and 4012 of the Rules of Civil Procedure. The 16 first is it does permit us as a person who’s being deposed to 17 seek a protective order. If the court looks at the complaint 18 filed in this matter, the civil complaint, what they’re 19 alleging –what the plaintiff is alleging is that he was 20 sexually assaulted in the late 1970’s, early 1980’s by the 21 defendant. And the charge — I believe one of the counts is 22 sexual abuse of a minor.  And my client, Your Honor – – – 23           THE COURT: Mr. Klonis, I saw your name in this case. 24           MR. KLONIS:  Yes, Your Honor. We do not oppose the 25 motion. THE COURT: Okay.
  1. KLONIS: Just wanted to let the court know.
THE COURT: well, that was short and sweet, Mr. 4 Klonis. Thank you. okay. So what we had happen is alleged in the ’70s 6 and ’80s. 7              MR. FEENEY:  The pro se plaintiff has filed a 8 complaint against the defendant. The plaintiff has filed a 9 notice of deposition to take my client’s deposition. And we 10 believe that the basis for that is that my client was also 11 abused as a teenager by the defendant in this matter. 12           our position is, though, to take a deposition of my 13 client about being sexually assaulted as a juvenile, as a 14 minor, by the defendant, who was an adult at the time, number 15 one, would cause severe embarrassment to my client, make him 16 relive ultimately what would have been a crime victim back 17 even in the 1970’s we submit, but would require my client to 18 relive incidents that he has long since forgotten, more than 19 30 years ago would be the late ’70s, 25 years ago if it 20 occurred in the early ’80s. So we submit that that requires 21 emotional  burden to my client, Your Honor. 22           second point is if it is a deposition — and a 23 deposition, as the court knows, can go into great many 24 details, including my client’s name, identification, and if 25 there’s no protective order all of this could be made public. 1 My client — the plaintiff may talk to other individuals   4 2 about statements my client has made, which could cause my 3 client to be embarrassed by his standing in the community, 4 people would find out maybe incidents that occurred many 5 years ago. And we submit that that’s also a source of 6 embarrassment for my client, Your Honor, that these incidents 7 would get out or be public and that the plaintiff would talk 8 to other individuals about statements my client may make in 9  his deposition. 10           The third point, Your Honor, is annoyance. we submit 11 that really, the statute of limitations, I think — and even 12 the plaintiff addresses that in his complaint, which I think 13 the plaintiff is acknowledging that that’s going to be a 14  problem in this case.  The plaintiff, I think, has a statute 15  of limitations problem in this case. 16           These incidents occurred 25 to 30 years ago and they 17 were only filed, this civil lawsuit, in 2013. The annoyance 18 being that we submit that the real purpose of this deposition 19 is to force the defendant to participate in a deposition 20 involving people that he may have abused long since before. 21 And then ultimately deposition to be taken and then the 22 matter get thrown out because of a statute of limitations 23 problem.  But we submit that the real burden on this is to 24 have the defendant participate in depositions involving men 25 who were — you know, put this out of their mind years ago. 1 And we submit that whether there’s a lawsuit or not, the — 5 2 the statute of limitations is going to resolve whether this 3 case goes on. 4              My first request, I think, Your Honor, is just to 5 prohibit my client’s deposition, enter the protective order, 6 and then I know the court would require full argument and 7 briefing.  And I am not really participating in the statute 8 of limitations, I’m just addressing that as a legal issue. 9              THE COURT: I understand. 10           MR. FEENEY:  I think the defendant’s — the plaintiff, 11 by putting it in his complaint, acknowledges that that will 12 be a legal issue. But it’s really not ours to raise.  I know 13 the court would require closing of discovery before any sort 14 of summary judgments, but why not have a protective order 15 that prevents my client’s deposition from being taken, allow 16 the discovery to close, see what happens in summary judgment. 17 If this case does make it through summary judgment, if the 18 plaintiff is successful – – – 19           THE COURT: I certainly understand your argument. 20           And Mr. Klonis, for the record, you agree? You agree 21          with this motion for protective order? 22           MR. KLONIS:  Absolutely, Your Honor. 23           THE COURT: I just – – – 24           MR. KLONIS:  And the statute of limitation is quite 25 clear. We will be filing a motion for summary judgment as 1 counsel  in the case. 2              THE COURT: That’s fine. Thank you. Just want to 3 know what you were agreeing to. 4              Okay.  so I’ll address you as John Doe A. 5              JOHN DOE A: Yes, Your Honor. 6              THE COURT: Go ahead. 7              JOHN DOE A: If I may object to Mr. Klonis’s last 8 comment about filing a motion for summary judgment. This is 9 not — this is not a motion for a summary judgment. 10           THE COURT: Right. 11           JOHN DOE A: I agree — if I may talk in the first 12 person.  I agree that some protections are — should be 13 continued to be provided to this witness or other witnesses 14  that have been abused. There are mechanisms for making it 15  anonymous. To my knowledge, those have been used fully and 16  completely to this point. The witness’s name, true identity, 17 has not been used by me or anyone else in connection with 18 this case. And so I was expecting that the burden of proof 19 was on the side making the motion to show some actual harm 20 or, you know, more specifics about why this is embarrassing. 21 And – 22           THE COURT: I think they’ve made that point very 23 clearly. This court certainly understands the implications 24 and also understands from your point of view the — what you 25 believe the importance of this is.  And that’s the first 1 issue I’d like to deal with.  I’m not sure of the importance 2 at this time.  It certainly won’t affect the issue of statute 3 of limitations, if it’s raised in this case. It won’t affect 4 a judgment on the pleadings if that’s — if that comes out. 5              If — have you had answers to this? Are we at the 6  P.O. level, preliminary objection stage? 7              MR. KLONIS:  Preliminary objections were initially 8 submitted.  A subsequent complaint was filed by the plaintiff 9 which set forth greater specificity relative to the time when 10 these alleged incidents occurred. we have filed an Answer 11  with New Matter raising the statute of limitations. 12           THE COURT: So, I mean, whatever the issue is going to 13 be before this Court, if it’s only– if it’s only the issue 14 of statute of limitations, I don’t think it matters to bring 15  another person in. In other words, I’m weighing the risk 16 that there is, the damage that there is in accomplishing the 17  positive.  And I’m not sure that we’re accomplishing– 18 you’re accomplishing– I’m allowing you to accomplish 19  something very necessary. 20           I don’t want to take your case away. I never want to 21 do that.  But I think in light of the value at this point, 22 compared to the damage, significant damage, I don’t see any 23 reason to do it at this point. 24           Now, I don’t know– we’re not at that level, but, I 25 mean, it’s a different situation than if you feel that you 1 want to subpoena this person for trial, then we cross that 2 bridge when we get to it. I don’t know.  But at this point 3 to take his deposition I think is premature, and certainly 4 the damage — the prejudice outweighs the probative value, 5  the benefit of doing it. 6              Go ahead. 7              JOHN DOE A: Thank you, Your Honor. There was some 8  other parts to my argument that I’d like to make. 9              THE COURT: Yeah. 10           JOHN DOE A: I’m going to read. 11           THE COURT: sure. oo you want me to read that? 12           JOHN DOE A: well, I can give you a copy. I would 13 like to read it for the Court. 14           THE COURT: Okay. Do you want to — excuse me. Would 15 you come up here? 16           JOHN DOE A: Sure. 17           THE COURT: That way we don’t have any problem. And 18 actually, if you have a copy, why don’t you give it to our 19 court reporter. 20           JOHN DOE A: Now? 21           THE COURT: Do you have a copy? 22           JOHN DOE A: Yes, I do. 23           THE COURT: okay. I mean, you can have it back from 24 our court reporter then, but that will make it easier. 25           The other thing we can do is you can move for its 1 admission. Then we have it of record. I can read it. You 2 don’t have to read it. It doesn’t have to be brought out. 1 action and you feel you need — on some theory that you need 2 something else to corroborate, we can cross that bridge when 3    BUt – 4 JOHN DOE A: I’m going to highlight the major points. 3    we get to it. 4    that.  But at this point we’re not anywhere near 5              THE COURT: Do you want to have marked — I assume 6 that there’s some confidentiality issues here. 7              JOHN DOE A: Not on my part.  I don’t feel that’s 8   necessary. 9              THE COURT: Okay.  So I don’t — maybe I could just 10 look at what you’re presenting at this point and then we’ll 11  go from there. 12           JOHN DOE A: Sure. 13           (Whereupon, the document was submitted to the court.) 14           THE COURT: You haven’t seen this, lr. Feeney? 15           MR. FEENEY:  I have not, Your Honor. 16           (Brief pause.) 17           THE COURT: Yeah, I assume — again, this may — I 18 just don’t know, in weighing the benefit to you, the 19 necessity of this compared to the damage, the significant 20 risk of damage at this point. It may be, again, at a –when 21 it’s time to go to trial, if this case gets to trial, and you 22 want to subpoena, then that would be another issue that we’d 23 have to look at at that time. And frankly, I don’t even want 24 to touch that issue at this time. I believe that this issue 25    is an easy one for this court to resolve, basically the way 1 that I’m stating it.  But I’ll look at the rest of this. 2              (Brief pause.) 3              JOHN DOE A: May I comment, Your Honor? 4              THE COURT: obviously this witness would not be a 5 witness to anything that involved you personally. This would 6 be what involved the witness. 7              JOHN DOE A: No, Your Honor. There were — as I 8 discussed in here, I had a conversation two years ago, two 9 phone conversations with the witness at which time we talked 10 about abuse incidents that happened to both of us. 11           THE COURT: Yes.  so he could not testify as to what 12 happened to you. 13           JOHN DOE A: No.  Not outside of 14           THE COURT: That’s what I mean. So it doesn’t — 15 again, your case at this point, when we get to the issues, 16 the facts, the cause of action, supporting a cause of action, 17 your case at this point would stand very strongly on whatever 18 it is you put in the complaint. 19           JOHN DOE A: For him to corroborate events that 20 happened to both of us. 21           THE COURT: That– I don’t believe that’s necessary, 22 is what I’m saying. I mean, unless that issue comes up. And 23   when that issue comes up and you need corroboration, if that 24 issue does come up, that you feel — that I feel compelled to 25    dismiss this because you have failed to state a cause of 1 action and you feel you need — on some theory that you need 2 something else to corroborate, we can cross that bridge when 3    we get to it. 4    that. But at this point we’re not anywhere near 5              JOHN DOE A: That’s what I’m attempting to do. 6              THE COURT: I understand. And you have the right to 7 prepare your case. That’s for sure. Discovery is a very 8    effective tool. That’s why it’s allowed and encouraged. But 9 I don’t — I think it’s premature and perhaps maybe never 10 would be permitted.  Perhaps it would be. I don’t know. 11 Again, I don’t want to even deal with that at this point. 12           So I think that this is something that I would grant 13 the protective order at this point without prejudice to 14 refile if that — if it came to that. This is your proposed 15 order. So I’ll pass that back. 16           And then you have a proposed order here that you’ve 17 submitted, Mr. Feeney? 18           MR. FEENEY: Your Honor, I don’t believe I did. In 19    fact, I notice I have a sticky note on top of my file saying 20 prepare draft order but I don’t know that I ever did prepare 21 a draft order, Your Honor. 22           THE COURT:  so you can bring over your proposed order. 23   And then do you have a– since you’re representing yourself, 24 Mr. Feeney and Mr. Klonis are permitted to talk to you 25   directly. 1              JOHN DOE A:  Urn-hum. 2              THE COURT: so if you give them your fax number, he 3              can fax it to you or — I guess to – 4              MR. FEENEY:  E-mail plaintiff. THE COURT: Today we e-mail. okay. That’s right.  so 6              you can communicate and if you have any objection then you 7              can come in in court and state your objection, other than the 8              overall issues which you’ve raised now, which I have 9              certainly taken into consideration. 10           JOHN DOE A: well, Your Honor, that– it’s my 11           understanding that when — if you’re going to grant that, 12           it.s  – – – 13           THE COURT: Protective order. 14           JOHN DOE A:  – – – that it’s unreasonably 15           embarrassing, what has been the harm? I haven’t yet to hear 16           or state that the — the witness or his counsel state what 17           has been the harm.  If we had a conversation twice two years 18           ago, I’d like to know what the harm is that resulted from 19           that. 20           THE COURT:  Because of the confidentiality of this, 21           I’m willing, if it’s challenged, to support this in writing 22           in an opinion so-to-speak, although then it becomes public. 23           But obviously an issue — a number one issue is the rights of 24           this individual. And if this individual, who cooperated with 25           your phone call, if that’s correct, some time ago, but now 1 does not want to go public with it, well I certainly have to 2 at least consider his position and the potential damage that 3    could be — that could result from that. 4              Again, I don’t think at this point — I mean, I’m 5   repeating myself now. You understand what I’m saying.  You 6 appear to be an intelligent individual. 7              JOHN DOE A: Yes, Your Honor. 8              THE COURT: I mean, I’m just — at this point I don’t 9 see it as essential to your action. It may become essential 10 and I can assure you I’ll give you the opportunity to 11 re-raise this if it’s appropriate at some future time. 12           JOHN DOE A: Without any specific harm stated by the 13 witness or his counsel? 14           THE COURT: I don’t need any specific harm.  I mean, I 15 can see the potential for tremendous harm, tremendous 16 invasion of privacy and many other issues, which you know 17 yourself. I mean, that you allege. 18           JOHN DOE A: I have nothing but compassion for the 19   witness. 20           THE COURT: I understand that.  But I — I’m going to 21 protect this witness at this time who does not wish to 22 cooperate, protect this witness, and I’ll grant — I’ll sign 23 the order doing so without prejudice to the issue coming up 24 again in the future. 25           Okay. Anything further? 1              JOHN DOE A: NO, Your Honor. 2              THE COURT: All right. Then you’ll get that order 3   over to us this week sometime? 4              MR. FEENEY: I will, Your Honor. I’ll fax a copy to 5   the plaintiff — or I’ll e-mail a copy to the plaintiff and 6    I’11 fax a copy to Mr. Klonis. I did have a discussion with 7    the plaintiff. He did acknowledge that attorneys are 8    probably still the only people still using faxes. 9              THE COURT: Yeah. Mr. Klonis especially, I’m sure. 10 That’s probably not an insult since I’m in the same 11  situation. 12           MR. KLONIS:  Your Honor, I don’t even have a printer 13 — I have a computer but I don’t have a printer hooked up to 14 it. 15           THE COURT: we can go off the record. 16           (Discussion off the record.) 17           (whereupon, at 10:20 a.m., the proceeding was 18 conc1uded.) ##END OF TRANSCRIPTION## For more of the civil suit proceedings, see the John Doe A vs Thomas M. Goerner Case Update page.