Metropolitan News-Enterprise


Wednesday, November 23, 2011


Page 3


C.A. Upholds Sanctions Against Swim Federation in Molestation Suit


By a MetNews Staff Writer


The Sixth District Court of Appeal has upheld an award of monetary sanctions against the governing body of competitive swimming in the United States.

The justices Monday affirmed an award of more than $5,000 to attorneys for a swimmer who claims she was molested more than 100 times by her coach. The coach, Andrew King, is serving 40 years in prison; there was testimony at trial that he’d had sexual relations with numerous underage swimmers whom he had coached during a lengthy career.

King is one of about three dozen coaches whom United States Swimming, Inc., more popularly known as USA Swimming, has banned in the last 10 years or so for improper conduct of a sexual nature. A number of plaintiffs have sued USA Swimming, along with its regional affiliates and individual coaches, as a result of the improprieties.

In the case considered by the court on Monday, the plaintiff, identified as Jane Doe, claims she was molested at age 15 and that USA Swimming and Pacific Swimming failed to supervise King and had covered up complaints of abuse. Santa Clara Superior Court Judge James Kleinberg ruled last year that U.S. Swimming and its lawyers lacked “substantial justification” for redacting virtually the entire contents of documents it produced in response to discovery, by which the plaintiff’s lawyers sought to discover other complaints.

He ordered that the documents be reproduced, with any redactions “limited to the name, address, telephone number and other specific identifying number of the person making the complaint (and his or her parents) and the person (i.e. coach) subject to the complaint.” He also imposed sanctions of $5,250, reportedly the largest of eight sanctions awards to the plaintiff.

U.S. Swimming appealed the order, claiming that the judge abused his discretion by ruling without an in camera review that the defendant claimed would have proved that the redactions were justified.

Justice Franklin Elia, writing for the Court of Appeal, rejected USA Swimming’s contention that the judge should have examined the documents in camera in order to determine whether the redactions were consistent with a previous protective order in the case. USA Swimming claimed that the redactions were necessary to protect the privacy of both complainants and subjects.

The justice noted that the protective order was limited to protection of the identities of complainants and coaches, and not of other USA Swimming employees whose identities were redacted. “If U.S. Swimming wished to protect the privacy interests of persons other than accused coaches and complainants, it should have sought a broader protective order,” the jurist wrote.

He similarly rejected the argument that disclosure of such information as the names and addresses of local swim clubs where incidents might have taken place, or the names of non-coaches working for such clubs, might lead to inadvertent discovery of complainants’ or coaches’ identities.  Defense counsel should have raised those concerns by moving to broaden the protective order, not by unreasonably interpreting it as allowing redaction of the information, the justice insisted.

The case is Doe v. United States Swimming, Inc., 11 S.O.S. 6253.


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