8/25/09 – TG: DHS, Alamo lawyers volley motions on records
Texarkana Gazette
August 25, 2009
By: Lynn LaRowe
DHS, lawyers volley motions on records
Accusations abound between lawyers in a civil lawsuit accusing Arkansas Department of Human Services administrators of using a child abuse investigation to break apart Tony Alamo Christian Ministries.
Motions filed this week and last concern the church’s desire to acquire documents related to DHS child welfare investigations concerning the children of ministry loyalists.
If the case is to continue, the lawyer representing the ministry and two fathers with children in foster care will have to show DHS has acted with “bad faith.”
If bad faith isn’t demonstrated, U.S. District Judge Harry Barnes of the Texarkana Division of the Western District of Arkansas is likely to dismiss the case because federal courts won’t meddle in state court actions like custody cases except in rare circumstances.
Barnes gave ministry lawyer Phillip Kuhn of Florida until Sept. 15 to conduct “limited discovery” on the bad faith issue.
Kuhn issued subpoenas earlier this month compelling the administrators named as defendants in the suit to appear for depositions today and Monday in Little Rock.
But Kuhn’s desire to have documents produced at the depositions has been met with resistance from DHS lawyers.
During a deposition, individuals believed to possess information relevant to a case are questioned in a private setting by attorneys for both sides. Discovery refers to the exchange of information and evidence between parties in a case.
In a motion filed Sunday, Kuhn accused DHS of using “a hypersensitive application of modern discovery rules” to “obstruct the plaintiff’s inquiry in the defendant’s prohibited conduct.”
DHS filed a motion Friday asserting the agency has 30 days to hand over documents. If so, Kuhn can’t get the records he wants until the second week of September, shortly before his court-imposed deadline.
“The defendants’ unfair and unwarranted manipulation of the discovery rules has created an unfair advantage that operates to the prejudice of the plaintiffs and will deny them the fundamental fairness implicit in due process of law,” Kuhn’s Sunday motion said.
Kuhn’s motion also said that during conversations Aug. 11, the defense consented to the production of some records, but a response filed Monday by DHS denies such an agreement existed.
The opposing sides also differ regarding an account of attempts at telephone communication.
Kuhn accuses DHS lawyers of simply leaving voice messages at his Florida office without trying to contact him via cell phone.
DHS stated in its Monday motion that both Kuhn’s cell and office have been tried.
DHS also notes Kuhn could have filed his request for the documents much earlier, calling his failure to do so “puzzling and unexplained.”
“Though Mr. Alamo’s criminal trial was concluded by July 24, 2009, plaintiffs waited until Aug. 13, 2009,” said the DHS motion filed Monday.
DHS also claims Kuhn is asking for more information than that to which the ministry is entitled and that some of the records are protected as part of custody matters under law.
Kuhn’s motion said he has no intention of violating the privacy of juveniles and will file any questionable documents under seal.
Kuhn is asking for documents dating to 2003.
DHS contends they are only entitled to those generated since a raid on ministry property in Fouke, Ark., Sept. 20, 2008, to the present because that is when the state began removing children from Alamo devotees.