Dunn et al v. Thomas et al

Filing 3275

ORDER: it is ORDERED that: (1) The psychological autopsies will be considered confidential and subject to the court's 266 protective order; (2) The court will determine on a case-by-case basis whether documents related to or underlying the psychological autopsies contain self-critical analysis and should be treated as confidential; (3) Tomorrow morning, the court plans to take up the question of whether the exhibits about which dfts have already raised an objection (Plfs' Exhibits 3267 and 4119) should be treated as confidential; The parties should be prepared to discuss whether each exhibit contains self-critical analysis. Signed by Honorable Judge Myron H. Thompson on 6/8/2021. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
EDWARD BRAGGS, et al.,
Plaintiffs,
v.
JEFFERSON S. DUNN, in his
official capacity as
Commissioner of
the Alabama Department of
Corrections, et al.,
Defendants.

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CIVIL ACTION NO.
2:14cv601-MHT
(WO)

ORDER
Now before the court is the question of whether two
distinct categories of documents should be treated as
confidential and be made subject to the court’s standing
protective
autopsies

order

(Doc.

produced

266):

regarding

(1)

the

inmates

psychological
who

committed

suicide while in ADOC custody and (2) documents related
to and potentially underlying those autopsies, including
internal emails and notes compiled by Dr. Edward Kern,
ADOC’s Director of Psychiatry.

The plaintiffs have represented to the court that
they

do

not

object

to

autopsies as confidential.

treating

the

psychological

See Pls.’ Response Regarding

Psychological Autopsies (Doc. 3265).

The court also

notes that the rationale underlying its prior decision
to treat quality-assurance documents produced by ADOC’s
previous mental-health provider as confidential would
apply squarely to the psychological autopsies, which are
very similar.
(2016).

See Dunn v. Dunn, 163 F. Supp. 3d 1196

Therefore,

the

court

will

treat

the

psychological autopsies as confidential.
The parties disagree, however, about whether other
documents, including internal emails and notes, should
be treated as confidential.

See State’s Summary of

Arguments Regarding Applicability of Protective Order
(Doc.

3269);

Pls.’

Response

Regarding

Documents

Underlying Psychological Autopsies (Doc. 3270).
plaintiffs

acknowledge

that

interview

The
notes,

transcripts, and other documents that contain the kind
of

self-critical

analysis
2

typically

found

in

a

psychological autopsy should also be deemed confidential.
See Pls.’ Response (Doc. 3270) at 3.

However, they argue

that any factual statements contained in such documents,
as well as any other documents that may be related to or
underly the psychological autopsies but do not contain
such analysis, should be made part of the public record.
See

id.

The

containing

defendants

self-critical

agree

that

analysis

any

should

document
be

kept

confidential, but they define that category more broadly
to include not only psychological autopsies and other
quality assessments but also “notes or emails authored
by

mental-health

care

providers

ADOC’s Office of Health Services.”

and/or

employees

of

State’s Summary of

Arguments (Doc. 3269) at 4.
The

court

self-critical

agrees
analysis

that
should

any

document

remain

containing

confidential

to

ensure that individuals will be candid during the review.
However, the court cannot find that this concern applies
with the same force to every note or email authored by a
mental-health care provider or member of ADOC staff.
3

While purely factual statements or things written in the
regular course of business may be used as part of a
self-critical review process, the concern about ensuring
candidness

is

less

applicable

to

them.

The

court

concludes that the confidentiality concerns that apply
to these sorts of materials are outweighed by the vital
interest of the people of Alabama in learning about the
operations of their Department of Corrections. Moreover,
the court remains concerned about the lack of a limiting
principle.

The defendants’ definition of ‘self-critical

analysis’

is

very

documents

should

broad,

finding

such

sweeping in almost any document produced by ADOC.

Thus,

will

introduced

to

assess

these

determine

self-critical analysis.

as

all

risks

court

treated

that

confidential

the

be

and

documents
whether

as
they

they

are

contain

Any document that the court

determines does not contain such analysis will not be
treated as confidential.
***
Accordingly, it is ORDERED that:
4

(1) The psychological autopsies will be considered
confidential and subject to the court’s protective order
(Doc. 266).
(2) The court will determine on a case-by-case basis
whether

documents

related

to

or

underlying

the

psychological autopsies contain self-critical analysis
and should be treated as confidential.
(3) Tomorrow morning, the court plans to take up the
question of whether the exhibits about which defendants
have already raised an objection (Plaintiffs’ Exhibits
3267 and 4119) should be treated as confidential.
parties

should

be

prepared

to

discuss

whether

The
each

exhibit contains self-critical analysis.
DONE, this the 8th day of June, 2021.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

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