Buck v. Indian Mountain School, Inc.

Filing 56

RULING granting in large part (Dkt. #46) Motion for Protective Order, and granting in large part (Dkt. #49) Motion to Quash (see attached). Signed by Judge Joan G. Margolis on 7/20/2016. (Watson, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
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:
PETER J. BUCK, JR.
:
:
v.
:
:
INDIAN MOUNTAIN SCHOOL, INC.
:
:
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3:15 CV 123 (JBA)

DATE: JULY 20, 2016

RULING ON DEFENDANT'S MOTION FOR PROTECTIVE ORDER AND ON NON-PARTIES'
MOTION TO QUASH SUBPOENA DUCES TECUM AND FOR PROTECTIVE ORDER
On January 29, 2015, plaintiff, who had been a student at defendant Indian Mountain
School, Inc. ["IMS"] from 1982 through 1984, when he was fourteen and fifteen years old,
filed this lawsuit, alleging horrific and repeated sexual abuse by various school employees,
including by English teacher Christopher Simonds, about which Headmaster Peter Carleton,
Assistant Headmaster Steven Carter, and multiple other faculty members and staff, and
members of the Board of Trustees, knew or should have known; allegations of sexual abuse
and/or misconduct are also alleged against teacher Windsor Copeland, Headmaster Carleton,
Carleton's wife, Kitty Carleton, and an employee Jim Hickey. (Dkt. #1). The Complaint
raises five counts: negligence (First Claim), recklessness (Second Claim), negligent infliction
of emotional distress (Third Claim), intentional infliction of emotional distress (Fourth Claim),
and breach of fiduciary duty (Fifth Claim). (Id.). On February 23, 2015, defendant filed its
Answer and Affirmative Defenses. (Dkt. #11).

Under the latest scheduling order, all

discovery (including expert discovery) is to be completed by August 1, 2016. (Dkts. ##4344; see also Dkts. ##17, 34, 47).
On June 14, 2016, defendant filed the pending Motion for Protective Order, with

respect to a subpoena served upon Attorney Perley Grimes. (Dkt. #46).1 Two weeks later,
on June 28, 2016, Attorney Grimes and his law firm, Cramer & Anderson LLP, filed their own
Motion to Quash Subpoena Duces Tecum and for Protective Order, with regard to this same
subpoena. (Dkt. #49).2 On July 5, 2016, plaintiff filed his brief and affidavit of counsel in
opposition to both motions. (Dkts. ##51-52).3 Six days later, defendant filed its reply brief.
(Dkt. #54).
On June 29, 2016, U.S. District Judge Janet Bond Arterton referred both of these
motions to this Magistrate Judge. (Dkt. #50). For the reasons stated below, defendant's
Motion for Protective Order (Dkt. #46) and the non-parties' Motion to Quash and for
Protective Order (Dkt. #49) are granted in large part.
I. DISCUSSION
As set forth in both pending motions, Attorney Grimes represented former IMS
students who had brought lawsuits against the school during the 1990s; the subpoena at

1

Attached as Exh. A is a copy of the Subpoena to Produce Documents, Information or
Objects or to Permit Inspection of Premises in a Civil Action, served upon Attorney Grimes, dated
June 8, 2016; a copy of a letter from plaintiff's counsel to Attorney Grimes, also dated June 8, 2016
is attached as Exh. B.
2

Attached as Exh. A are copies of the June 8, 2016 letter and subpoena.

3

The following eleven exhibits are attached to counsel's affidavit (Dkt. #52): copy of
redacted Settlement, Confidentiality and General Release Agreement in Doe v. The Indian
Mountain School, Inc., Dkt. No. UWY-CV14-6025377-S, filed in the Connecticut Superior Court in
Waterbury, dated February 17, 2015 (Exh. A); redacted excerpts of transcript from court
proceeding in Brownville v. Indian Mountain School, Inc., 14 CV 1472 (JBA), on November 12, 2015
(Exh. B); redacted cover sheet of deposition transcript in Doe 55 v. Indian Mountain School, Inc.
(Exh. C); copies of correspondence between counsel, dated January 19, June 9, and June 10, 2016
(Exhs. D, J-K); copies of emails between counsel, dated March 5 and October 1-2, 2015 (Exhs. E,
G); copy of Defendant's Revised and Supplemental Compliance with Plaintiff's First Request for
Production of Documents, dated September 30, 2015, in the Brownville case (Exh. F); copy of
redacted letter from defense counsel, dated February 19, 2016, with redacted Subpoena to Testify
at a Deposition in a Civil Action, also dated February 19, 2016 attached (Exh. H); and redacted
excerpts of a deposition transcript, taken on May 25, 2016 (Exh. I).

2

issue had sought production of
[e]very document in [Attorney Grimes'] possession, custody or control
concerning or relating to sexual abuse perpetuated at Indian Mountain
School, specifically including documents created and produced in the course
of lawsuits brought by victims of sexual abuse against the school and other
parties, such as deposition transcripts, exhibits, and other documents
produced in discovery by the defendants.
(Dkt. #46, at 1-2 & Exh. A; Dkt. #49, at 1 & Exh. A).

In his letter to Attorney Grimes,

plaintiff's counsel specifically exempted production of documents protected by the attorneyclient privilege or the work product doctrine, but further added that to the extent that any
of his clients had signed confidentiality agreements precluding the disclosure of discovery
materials, then "the attached subpoena is a lawful order overriding any such [a]greement,
subjecting the recipient to contempt for failure to comply pursuant to Fed. R. Civ. P. 45(g)."
(Dkt. #46, at 2 & Exh. B; Dkt. #49, Exh. A).
According to defendant, plaintiff's subpoena "seeks to invalidate" an order entered
by U.S. Magistrate Judge William I. Garfinkel, upon agreement of counsel, on November 12,
2015, in the related case of Brownville v. Indian Mountain School, Inc., 14 CV 1472 (JBA);
both plaintiffs are represented by the same law firm. (Dkt. #46, at 2-3, 4-5; see also Dkt.
#52, Exh. B; see also Brownville, Dkts. ##48-49, 99, 105). Defendant further represents
that it produced nineteen redacted deposition transcripts in accordance with the order and
agreement reached before Judge Garfinkel. (Dkt. #46, at 3; see also Dkt. #49, at 4).

In

their brief, the non-parties argue that they are barred by Rule 1.6 of the Rules of Professional
Responsibility from disclosing any confidential client information, particularly when the
lawsuits filed in the 1990s "have long been concluded." (Dkt. #49, at 1-4).

3

Plaintiff's arguments in opposition are four-fold.

First, plaintiff argues that

defendant's insistence upon confidentiality as a condition of settling all other plaintiffs' sexual
abuse cases against it is an attempt "to hide relevant and admissible evidence from the
plaintiffs, the Court and the jury," all in violation of Rules 3.4(6) and 3.4(1) of the Rules of
Professional Conduct. (Dkt. #51, at 1-3; Dkt. #52, Exh. A). Second, plaintiff argues that
defense counsel, who "has represented [defendant] IMS in every child sexual abuse case
brought against the school, from the early 1990's to the present time[,]" has lost or
destroyed deposition transcripts, deposition exhibits, and other relevant documents. (Dkt.
#51, at 3-5). Specifically, plaintiff represents that at least fifty-five children have been
identified by defendant with "Doe" pseudonyms, of whom plaintiff believes that
approximately twelve have come forward, have been deposed and have settled their claims,
but only six victim depositions have been produced in this case; of these six, some are
incomplete – Vol. II of Doe 1's transcript and Doe 3's transcript were not produced, and
plaintiff is unable to ascertain how many additional transcripts may exist. (Dkt. #51, at 3;
Dkt. #52, Exhs. C-D). Plaintiff further identifies two other deposition transcripts that are
missing – those of Headmaster Richard Rouse and Teacher Michelle Nemiroff. (Dkt. #51,
at 4). Defense counsel has acknowledged his "files from the 1990s are far from perfect. Not
all of the transcripts are complete." (Dkt. #51, at 3-4; Dkt. #52, Exh. E; see also Dkt. #52,
Exh B, at 12-13, Exh. F).
Third, plaintiff complains that defendant has not only redacted out the names and
identifying information of all previous sex abuse victims who settled their claims against
defendant, as agreed to before Judge Garfinkel at the November 12, 2015 hearing, but in
fifteen of the deposition transcripts, including that of Simonds, also redacted the names and

4

identifying information of approximately fifty other children who were not victimized, never
filed or threatened suit, never entered into a confidentiality agreement with defendant, and
are not covered by Judge Garfinkel's order. (Dkt. #51, at 5-7; Dkt. #52, Exh. D; Exh. B, at
6-9, 15). And fourth, on February 19, 2016, defendant served a subpoena for a second
deposition upon one of the plaintiffs who was deposed before, but whose case settled; the
deposition was held on May 25, 2016 in Los Angeles. (Dkt. #51, at 7-12; Dkt. #52, Exh. I).
During the deposition, the deponent was asked a question he could not answer without
violating the confidentiality agreement, and defendant cross-examined the deponent using
his previous deposition testimony. (Dkt. #51, at 7-12; Dkt. #52, Exh. I, at 6, 7, 15-17, 2225, 30-33). Plaintiff contends that "it is unduly prejudicial for . . . defendant's lawyers to
have the possession and use of unredacted transcripts, while tying the hands of plaintiff['s]
counsel with redacted ones[,]" and "it was profoundly improper for defense counsel to
depose a settling plaintiff without first releasing him from [defendant's] mandatory
confidentiality agreement." (Dkt. #51, at 11).
Thus, plaintiff asks that both motions be denied (Dkt. #51, at 13-16), defendant
should be precluded from using the former plaintiff's May 25, 2016 deposition testimony for
any purpose (id. at 16), defendant should be compelled to re-produce all deposition
transcripts without any redactions (id. at 16-17), and defendant should be compelled to
perform a thorough search for the missing documents "from all sources, including court
reporters, court files, counsel for co-defendants, school archives, defense law firm archives,
and every other location where the documents may be found." (Id. at 17-18; Dkt. #52, Exhs.
J-K).
In its reply brief, defendant argues that plaintiff has incorrectly interpreted the Rules

5

of Professional Conduct (Dkt. #54, at 2-3), that defendant has made "extensive
production[,]" including deposition transcripts of former Trustees, employees and students,
all in accordance with Judge Garfinkel's order in Brownville (id. at 3-4), that plaintiff's counsel
had suggested, and thus agreed to, production of transcripts in defendant's possession with
the names of prior plaintiffs and/or potential plaintiffs redacted in order to protect their
privacy, and that such redaction should apply to all transcripts, including those in Attorney
Grimes' possession (id. at 4-6), and that defendant has not engaged in any discovery
misconduct and has no duty to seek documents from third parties, such as courts, court
reporters, counsel for co-defendants, and defense law firm archives. (Id. at 6-7). With
respect to defendant's deposition of one of the unnamed plaintiffs, defendant asserts that
such deposition was not improper in that the deponent had been identified during plaintiff's
deposition, taken on December 16, 2015, as plaintiff's former roommate who had witnessed
several alleged acts of sexual abuse, and according to defense counsel, this unnamed
plaintiff had been released from his confidentiality order with respect to the questions posed
at his recent deposition, and defense counsel asked only one question based upon the
deponent's prior deposition testimony and there was one objection about the witness's
independent recollection. (Id. at 7-9).
A. PRIOR SETTLEMENT AND CONFIDENTIALITY AGREEMENTS
The sample Settlement, Confidentiality, and General Release Agreement presented
to the Court, negotiated between the settling plaintiffs and defendant, provided that each
plaintiff agreed "that, except . . . if required by law, he will not provide or disclose any
discovery materials from the Lawsuit, or any information obtained during any investigation
conducted by him or on his behalf (either before or after suit was commenced) to any person

6

or entity." (Dkt. #52, Exh. A, ¶ 9). The paragraph continues that plaintiff's attorneys are
also bound by "the same restrictions . . . , and [plaintiff] further agrees that such instruction
cannot subsequently be revoked by him." (Id.).4
Contrary to plaintiff's arguments, last year, a federal court held that Rule 3.4(f) of the
Missouri Rules of Professional Conduct, which bars a lawyer from "request[ing] a person
other than a client to refrain from voluntarily giving relevant information to another party .
. .[,]" does not apply to confidentiality agreements that are negotiated, and executed, as part
of a settlement agreement. See, e.g., Timber Point Props. III, LLC v. Bank of Am., N.A., No.
13-3449-CV-S-DGK, 2015 WL 4426223, at *3-4 (W.D. Mo. July 20, 2015):
[The paragraph at issue] does not violate Rule 3.4(f). No "lawyer" is
"request[ing]" any party to refrain from divulging information here. The
parties themselves negotiated and agreed to a mutual confidentiality
provision, as reflected by the parties' signatures of the Memorandum of
Settlement. The attorneys presumably counseled the parties in making this
decision, but such was not unlawful; Rule 3.4(f) proscribes only requests to
person "other than a client."
Id. at *3.
B. AGREEMENT REACHED BEFORE AND ORDERED BY JUDGE GARFINKEL
As both parties acknowledge, many of the issues raised in these two motions already
were addressed, extensively, in an oral argument before Judge Garfinkel on November 12,
2015 in the Brownville matter, which lasted nearly one hour. (Brownville, Dkts. ##99, 105,
at 3, 37; see also Dkt. #52, Exh. B). When Judge Garfinkel inquired whether either counsel
had communicated with the attorneys who previously represented the former plaintiffs in the
1990s lawsuits, defense counsel expressed that the two prior attorneys had been contacted,
and both indicated that the former plaintiffs "vehemently do not want to be contacted." (Id.

4

Paragraphs 9a and 9b contain exemptions not relevant here.

7

at 5-6). According to defense counsel, one of the two attorneys represented that his clients
do not "want anyone to know what they said[,]" particularly because some of the
statements, including informal "depositions" with court reporters, were given to defense
counsel "pre-suit, . . . with the understanding that this was for [defense counsel] to analyze
the case, for [him] to evaluate the case, and if possible, to settle the case. That was done.
A confidentiality agreement was entered into. And his client[s do not] want to hear from
anyone." (Id. at 6-7). The other attorney responded that he would not "even dare to go
back and talk to [his] client[s] about this[,]" because they would be "so angry" and "furious"
if their names, depositions, and information were to be released. (Id. at 7-8). One of the
attorneys "made it very clear to [defense counsel] that when [defense counsel] settle[s] one
of his cases, that's the end of it. He wants . . . the transcripts destroyed, returned to him,
or just never see the light of day again, because he feels that's what his clients are expecting
of him." (Id. at 15).
After discussing the impossibility of returning to state court for permission to amend
court orders that had been issued in the mid-1990s by one state court judge who is no
longer on the bench and one who is deceased (id. at 8-12), defense counsel acknowledged
that "a lot of stuff has passed away – has gone[,]" but "some," perhaps five or six,
deposition transcripts were still available. (Id. at 12-13). Judge Garfinkel then inquired of
plaintiff's counsel as to his thoughts regarding "the best way . . . [to] handle these deposition
transcripts to give [plaintiff's counsel] the maximum amount of information without intruding
upon the rights or at least, at a minimum, the legitimate interests of [the prior settling
plaintiffs] who aren't a part of this litigation?" (Id. at 18).
responded, eloquently:

8

Plaintiff's counsel then

I think that's really the question. . . . I don't have any intention of
publicizing anybody's names.
...
And I certainly respect the confidentiality and privacy of victims. And
if it's their choice not to want to talk to me, or to have their names in any
filing or known to people outside of that litigation, I understand that, and I
don't have any intention to breach it.
I don't think that's required here, though, because there's multiple
ways that the deposition transcripts can be produced by the defendant I think
consistent with those interests, and all subject to a protective order in this
case, which would prevent any use beyond the parameters of this litigation,
and then could have a provision that would involve their destruction or
returning them to the defendant at the end of the case.
I think if the transcripts are redacted, as they have been so far, so the
defendants have produced to me in this litigation thus far about a half dozen
transcripts, and all of those, I think contain some redactions, and they're
redactions of victims' names. And so I cannot tell from those transcripts who
the victims are, although I do get the information that I need, which is
information about the abusers and the conduct of the school in response to
the abuser or in advance of the abuser being found out.
So the information I want is really not victim-specific. The information
I want is what the school did and what it knew and when it knew it and those
kinds of things.
So some of these are victims' depositions. . . . [T]he one I'm most
interested in seeing . . . is Christopher Simonds' deposition. . . .
He's the one I really want to see.
...
Now, if he mentions in his transcript, or if there is a question that
mentions in that transcript, one of the victims who filed suit, and there's a
confidentiality agreement in that case, I have no trouble at all with that name
being redacted.
...
And if there's identifying information: a name, address, a birthday,
something like that, having that redacted, I have no objection to that either.

9

...
But that information is central to this case.
...
It's central to the liability of the school and to my allegations that I
need to prove. And so there may or may not be a confidentiality agreement
that protects the victims' identities, but that would not prevent the disclosure
of Mr. Simonds' deposition, for example.
...
So I think to back up to Your Honor's question, I think the way to do
it is, allow the defendants to redact the names. I know the names of many
of the victims already. . .
...
So it's incumbent upon me, if I want to find out more, to locate their
lawyers – and I have spoken to some of them – and to ask whether there's
any objection. And obviously if there's an objection, I won't do anything. But
I don't need the deposition transcripts to identify the victims.
...
The victim's identity is out there already, and everybody knows who
they are. But I think that everybody's interests can be protected if the names
are redacted and there's a protective order in this case that has very strict
provisions about with whom I can share the transcripts and what use I can
ma[ke] of them.
(Id. at 18-21). At Judge Garfinkel's suggestion, counsel agreed to identify the victims as
John Doe #1, John Doe #2, etc., to avoid confusion regarding the "multiple alleged victims,"
and estimated that there only "four or five victims' deposition transcripts" that plaintiff would
want to review, along with one from Simonds. (Id. at 22-23).

Plaintiff's counsel then

repeated the agreement that for the Simonds deposition transcript, defense counsel would
redact the names of the victims, using John Doe numbers, and the same would be done with
respect to the victims' deposition transcripts. (Id. at 26; see also id. at 29-33, 35-37).

10

Defense counsel cautioned, once again, that they were uncertain of how many of the
deposition transcripts they could locate, "given how old the litigation is and the number of
people it has spanned[.]" (Id. at 27). Later that day, Judge Garfinkel granted plaintiff's
Motion to Compel in part, "pursuant to the procedure agreed upon by counsel at the hearing
and subject to the protective order as discussed in court." (Brownville, Dkt. #48).
By January 19, 2016, defendant had produced twenty-four volumes of transcripts
from sixteen different deponents, from May 1994 through August 1997 (two are undated),
and plaintiff had produced five volumes of transcripts from two deponents, from October
1995 through August 2013. (Dkt. #52, Exh. D).
Given that virtually all of the deposition transcripts are at least twenty years old, it
is not surprising at all that defense counsel has been unable to locate all the transcripts,
particularly when there is such a modern push to "go paperless" and dispose of old files that
linger in a law firm's archives. Defense counsel raised that possibility, twice, during the oral
argument before Judge Garfinkel. Contrary to plaintiff's position, there was no misconduct
on the part of defense counsel under these circumstances.5
C. CALIFORNIA DEPOSITION
As previously indicated, plaintiff requests that the Court preclude defendant from
utilizing the deposition of a plaintiff who has settled his case. As discussed above, this
plaintiff's deposition was taken on May 25, 2016 in Los Angeles, at which the deponent twice
answered that he was uncertain how he was supposed to answer the questions because of
the confidentiality agreement he had signed when he settled his lawsuit against defendant.
(Dkt. #51, at 7-12, 16; Dkt. #52, Exhs. H-I). And as previously indicated, defendant

5

The redaction of the names of non-victims will be addressed in Section I.D. infra.

11

contends that taking this deposition was not improper. (Dkt. #54, at 7-9).
This issue of preclusion is best addressed in a Motion in Limine, to be considered by
Judge Arterton, as the case advances toward trial.
D. ADDITIONAL DISCOVERY
Under the unusual circumstances presented in this case, and giving appropriate
deference to the legitimate concern of non-parties who may not want to be contacted by
counsel and hence be forced to relive understandably horrible experiences during their
adolescence some twenty years ago (to which plaintiff's counsel himself expressed sympathy
during the November 12, 2015 oral argument before Judge Garfinkel in Brownville), the most
equitable manner in which to proceed is as follows:
(1) On or before August 26, 2016, defendant shall conduct a thorough search of
its own archives, and defense counsel shall conduct a thorough search of his law firm's
archives, to determine if there are any additional deposition transcripts available which have
not already been produced to plaintiff's counsel, including but not limited to Volume II of
John Doe 1, Volume II of John Doe 3, of Headmaster Rouse and Teacher Nemiroff, and of
John Does 6-55. Similarly, on or before August 26, 2016, defense counsel shall confer
with Attorney Grimes and all other attorneys who previously represented clients in similar
claims against defendant,6 to determine if such attorneys still have within their possession
any additional deposition transcripts not previously produced to plaintiff, including but not
limited to Volume II of John Doe 1, Volume II of John Doe 3, of Headmaster Rouse and
Teacher Nemiroff, and of John Does 6-55;
(2) To the extent any additional deposition transcripts are located, on or before
6

As indicated in Dkt. #52, Exh. I and in Dkts. ##99 & 105, at 15, at least one of the
plaintiffs who has settled was represented by Attorney Kenny.

12

September 23, 2016, defense counsel shall provide copies to plaintiff's counsel, in which
he redacts the names of any alleged victims, to the extent required by, and consistent with,
all the provisions agreed upon by counsel and ordered by Judge Garfinkel in Brownville;
(3) On or before September 30, 2016, defense counsel shall file an affidavit
which outlines the efforts he took with respect to ¶¶ 1-2 supra;
(4) Regarding the fifteen deposition transcripts (including that of Simonds) where
defendant apparently redacted the names and identifying information of fifty other students
who were not victims, on or before October 28, 2016, defendant shall provide
unredacted pages of such transcripts, in which the non-victim students are identified, unless
defense counsel has knowledge that any of them, were in fact, victims, or unless a nonvictim has revealed that he or she will suffer psychological difficulties from being identified
in this litigation;7
(5) If, after review of all transcripts, plaintiff can articulate a compelling reason for
defendant to identify the names of a limited and discrete number of settling plaintiffs-victims,
the Magistrate Judge will reconsider in the future whether unredacted portions of the
deposition transcripts can be produced;8 and
(6) In light of the additional discovery that has been ordered in this Ruling, counsel
shall submit to this Magistrate Judge a proposed Scheduling Order, which extends the
discovery deadline beyond August 1, 2016. (See Dkts. ##43-44).

7

If need be, this Magistrate Judge is willing to perform an in camera review of limited
portions of these depositions, as needed.
8

See note 7 supra.

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II. CONCLUSION
Accordingly, for the reasons stated above, defendant's Motion for Protective Order
(Dkt. #46) and the non-parties' Motion to Quash and for Protective Order (Dkt. #49) are
granted in large part to the extent set forth in Section I.D. supra.
This is not a Recommended Ruling, but a ruling on a non-dispositive motion, the
standard of review of which is specified in 28 U.S.C. § 636; FED. R. CIV. P. 6(a) & 72; and
Rule 72.2 of the Local Rules for United States Magistrate Judges. As such, it is an order of
the Court unless reversed or modified by the District Judge upon timely made objection.
See 28 U.S.C. § 636(b)(written objections to ruling must be filed within
fourteen calendar days after service of same); FED. R. CIV. P. 6(a) & 72; Rule 72.2 of
the Local Rules for United States Magistrate Judges, United States District Court for the
District of Connecticut; Small v. Secretary, H&HS, 892 F.2d. 15, 16 (2d Cir. 1989)(failure
to file timely objection to Magistrate Judge’s recommended ruling may preclude
further appeal to Second Circuit).
Dated at New Haven, Connecticut, this 20th day of July, 2016.

/s/ Joan G. Margolis, USMJ
Joan Glazer Margolis
U.S. Magistrate Judge

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