Discovery, Depositions, and Trial Considerations in Daycare Cases

As in most personal injury cases, the Georgia Civil Practice Act and the Rules of Evidence govern daycare negligence cases. There are, however, a number of special considerations for these types of cases.

1. Confidentiality

Judges and their staff attorneys appreciate being informed of the sensitive nature of discovery before an actual discovery dispute arises. The most egregious cases, such as those involving sexual abuse and molestation, may require the entry of a protective order.[i] A protective order may offer some peace of mind for parents deciding whether to move forward with a lawsuit. While some information—such as communication between a psychologist and a patient[ii]—is never discoverable, a protective order can further ensure that a permanent public record of the intimate factual allegations will not haunt a child. Another occasionally overlooked step to ensure privacy in these types of cases is simply referring to a child by his or her initials.

If there is a companion criminal case, the prosecutor’s investigative file may contain critical details about the incident. A pending investigation is not subject to an open records request.[iii] Similarly, records from the Department of Family and Children Services are usually confidential and exempt from disclosure.[iv] For pending investigations, the parties may be able to serve a subpoena duces tecum for these documents without having to wait for a final disposition of the criminal case. The government and the parties usually recognize that information about a child victim needs to limited to the respective cases. If there is an agreement, they can enter a stipulation in the civil case. Provisions in the stipulation oftentimes mirror language in a protective order, like agreeing not to release documents to the media or hold a press conference.

2. Child Witnesses

The United States Supreme Court wrestled with issues surrounding a child’s competency to testify as far back as 1895.[v] Georgia follows the general presumption that children who understand the nature of an oath are considered competent witnesses.[vi] An actual oath is not needed in Georgia.[vii] Assuming that a child is competent to testify, there are practical ways to ensure credible testimony in a relaxed environment. A deposition, for example, can take place in a ‘safe location,’ such as an interview room at a clinic, as opposed to a sterile office environment. Depositions are not endurance contests, especially with children, so taking breaks for a snack will help to alleviate stress during the deposition.

Along with these considerations, the questions themselves during a deposition or a trial are important for addressing memory issues. A useful strategy starts with exploring the basic topics of the child’s home, school, and family. These questions lay the foundation for a compelling testimony. Questions then can transition into more specific aspects about the daycare facility. For example, typical questions include the names of teachers and friends, which can be easily compared with the true facts. Eventually, the questions will flow into the incident itself, like “Did you see Ms. Smith in the room when it happened?” or “Were the big and little kids all playing together?” Courts may allow a more conversational and relaxed approach in contrast to an adult deposition.

3. Parents’ Participation

Since a parent or natural guardian brings daycare negligence claims on behalf of their child, they have a right to attend the deposition.[viii] An attorney as a counselor needs to weigh the dynamics in the individual case. In some situations, the presence of a parent helps a child feel comfortable and safe during a deposition. In other situations, a child may feel compelled by the parent to give the “right” answer to avoid getting into trouble. Additionally, a parent may feel offended by certain questions or topics, which will unnecessarily interject even more emotion into an already emotional case, potentially driving a wedge into meaningful future settlement discussions.

A concerted effort to move a case expeditiously to trial takes on particular importance in a daycare negligence case given the emotional implications coupled with the capabilities of young witnesses.

4. Current and Former Employees of the Daycare

An important category of witnesses is the current and former employees. They are likely to possess crucial knowledge about the common practices and procedures at the facility. A successful theme for the cross-examination of daycare employees can be rooted in a statement that everyone must agree with, for example: The safety of the child is the most important duty for a facility.

An employee will agree with this statement, of course. Along with general safety standards, DECAL’s regulations are meant to protect a child from harm. The failure to follow these standards needlessly exposes children to harm. Former employees can bolster this theme by offering testimony about a pattern of substandard care by the facility. In the end, the employees’ testimony may reveal that children and families in the community-at-large face mounting danger by virtue of the facility’s mistakes and omissions.

[i] O.C.G.A. § 9-11-26(c).

[ii] O.C.G.A. § 24-5-501(a)(5)-(8).

[iii] O.C.G.A. § 50-18-72(a)(4).

[iv] O.C.G.A. § 49-5-40(b).

[v] See Wheeler v. U.S., 159 U.S. 523, 524 (1895)(determining a child was competent to testify when he acknowledged that if he told a lie, then the ‘bad man’ was going to get him, and furthermore, if he told a lie to the court, then he would go to jail).

[vi] O.C.G.A. § 24-6-601 et seq.

[vii] See, e.g., Smallwood v. State, 165 Ga. App. 473, 473 (1983) (holding that a four-year-old child’s statement that “Jesus don’t like it [if] you don’t tell the truth” was sufficient to establish competency).

[viii] O.C.G.A. § 24-6-615.