Jackson v. Deen et al
ORDER granting 133 Motion to Withdraw; granting 134 Motion to Withdraw; granting in part and denying in part 135 Motion for Reconsideration; denying 140 Motion for Reconsideration; denying 140 Motion for Sanctions; granting in part and denying in part 141 Motion for Sanctions; granting in part and denying in part 144 Motion to Continue; denying 157 Motion for Leave to File; granting in part and denying in part 163 Motion for Sanctions; denying 147 redaction motion. The Clerk is directed to unseal 132 and 147 . Signed by Magistrate Judge G. R. Smith on 5/8/13. (bcw)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
LISA T. JACKSON,
Case No. CV412-139
PAULA DEEN ENTERPRISES, LLC,
THE LADY & SONS, LLC,
THE LADY ENTERPRISES, INC.,
UNCLE BUBBA'S SEAFOOD AND
OYSTER HOUSE, INC., and
EARL W. HIERS,
In this employment-discrimination case against celebrity chef
Paula Deen, her brother Earl W. Hiers, and their corporate entities, the
Court temporarily sealed its last order and directed the parties to show
why it and other documents should not be unsealed. Doc. 132 at 45-46. 1
In response, plaintiff Lisa T. Jackson moves to keep some documents
sealed. Doc. 144. Hiers wants all of the documents unsealed. Doc. 147
The Court is citing to the page numbers created by its electronic docketing
software. They may not always line up with the actual, printed-page numbers.
at 2. But he also wants to “redact” (hence, seal) currently unsealed
references to his past medical treatment, including ten words in that
order. Id. The remaining defendants have not responded and thus do
not object to any unsealing. Both sides, meanwhile, move to compel
discovery. Docs. 140 & 141. The defendants move to withdraw a
“reserved” defense. Docs. 133 & 134. They also move for
reconsideration of parts of the April 3rd order. Doc. 135.
A. Sealed Records
1. The April 3, 2013 Order
The April 3, 2013 order quoted from sealed records. Rather than
issue it with parts redacted, the Court tentatively sealed it, cited
transparency precedent, then directed the parties to show why the order
and various other sealed filings should not be unsealed. 2 Doc. 132 at 43-
Pursuant to Fed. R. Civ. P. 5.2(d), a court “may order that a filing be made under
seal without redaction,” but “may later unseal the filing. . . .”
46. In that no one objects, 3 the Clerk is DIRECTED to unseal that
2. Other Filings
Jackson wants the Court to continue sealing -- at least “until this
case is resolved” -- the defendants’ disqualification filings and other
matters located at docs. 101, 109, 117, 129, & 130. Doc. 144 at 3. Some
background: The defendants moved to disqualify Matthew Billips, one of
Jackson’s two lawyers, because of internet comments (“Twitter tweets”) 4
he made about, inter alia, Paula Deen and this case. They filed their
motion “on 3/1/2013 at 5:20 PM EST,” doc. 101, thus after the Clerk’s
office closed on a Friday afternoon, which meant that Jackson had to
wait until Monday, March 4, 2013 to file “Plaintiff’s Emergency Motion
to Seal and Request for Immediate Conference,” doc. 102 in which
defendants declined to join. Doc. 102-1 at 2-3.
By separate motion, Hiers would like the Court to redact part of one sentence
within that Order, doc. 147 at 3 (citing doc. 132 at 36), but the Court is denying that
motion. See infra Part I(A)(3).
“Twitter is an online social networking service and microblogging service that
enables its users to send and read text-based messages of up to 140 characters,
known as ‘tweets.’” http://en.wikipedia.org/wiki/Twitter (site last visited May 8,
2013). “Unregistered users can read tweets, while registered users can post tweets
through the website interface.” Id.
In his motion requesting further sealing, Billips did not invoke his
own privacy interest but instead cited the disqualification motion’s
reliance on a substantial amount of his own, internet-retrievable
communications with others about matters both related and unrelated to
the case. 5 That was so prejudicial, he contended, that it should be sealed
to protect against "any possibility that this proceeding may be materially
prejudiced, either as a result of the conduct of counsel for both Plaintiff
or Defendants." Doc. 102 at 3. Hence, fear of jury-pool taint constituted
the sole ground for the sealing motion.
In ruling on the disqualification motion, the Court reminded the
parties of the public’s presumptive right of access to all judicial records
and documents. 6 Doc. 104 at 1 n. 1.
Vasquez v. City of New York , 2012
At a hearing days later, Billips represented that he had shut down his “Twitter”
account and that these communications would no longer be internet-retrievable (i.e.,
“permanently deleted”) within 30 days of account deactivation. Doc. 149 at 29. The
defendants have not shown otherwise.
As the Eleventh Circuit explains:
The common-law right of access “establish[es] a general presumption that
criminal and civil actions should be conducted publicly” and “includes the
right to inspect and copy public records and documents.” Chi. Tribune Co. v.
Bridgestone/Firestone, Inc ., 263 F.3d 1304, 1311 (11th Cir. 2001) (per curiam).
It is “an essential component of our system of justice” and “is instrumental in
securing the integrity of the process.” Id .
WL 4377774 at * 3 (S.D.N.Y. Sep. 24, 2012) (“access to written
documents filed in connection with pretrial motions is particularly
important in the situation . . . where no hearing is held and the court's
ruling is based solely on the motion papers.”) (quotes, alteration and cite
omitted); Local Rule 79.7 (parties cannot “self-seal” documents filed with
this Court but must first seek permission). Given the disqualification
F.T.C. v. AbbVie Products LLC , ___ F.3d ___, 2013 WL 1149311 at * 5 (11th Cir. Mar.
21, 2013). “The consent of the parties is not a valid basis to justify sealing, as the
rights involved are the rights of the public.” Dandong v. Pinnacle Performance Ltd. ,
2012 WL 6217646 at * 2 (S.D.N.Y. Dec. 3, 2012) (quotes and cite omitted). “[C]ivil
proceedings cannot effectively operate if huge swaths of judicial opinion and hearing
transcripts are subject to redaction; ... [i]n order for the courts to ‘talk’ to litigants
and for the public to fully understand a court's precedent courts need to disclose the
information, even if confidential, that is [the] subject of the adjudication.” Carnegie
Mellon University v. Marvell Technology Group, Ltd ., 2013 WL 1674190 at * 2 n. 3
(W.D. Pa. Apr. 17, 2013) (quotes and cite omitted). “The publicity of a trial and the
release of information therein is the price paid for open trials.” Id. at * 4.
Finally, where sealing is warranted, redaction should be deployed first, and sealing
of entire documents second. Vision Bank v. Horizon Holdings USA, LLC , 2011 WL
4478772 at * 5 n. 11 (S.D. Ala. Sep. 27, 2011) (“If the privileged information that
might have justified the filing of the invoices under seal has been redacted, then
there is no discernable need for sealing those exhibits, particularly given the vital
importance of the public's right of access to judicial proceedings.”); see also In re:
Alexander Grant & Co. Litigation , 820 F.2d 352, 357 (11th Cir. 1987) (“Efficiency
should never be allowed to deny public access to court files or material of record
unless there has been an appropriate predicate established.”).
motion’s sheer density, polemical contents, and filing circumstances, 7 the
Court tentatively sealed it:
[E]ven though it has been E-filed and is now on the Court's publicly
accessible docket ("PACER"), the Clerk informs the Court that
docketing emails announcing its existence have been sent only to
the parties. There is a reasonable chance that the media has not yet
seen the motion. Out of an abundance of caution, the Court
GRANTS the motion (doe. 102) pending further briefing.
The Court further noted that personal embarrassment and general,
reputation-damaging information typically do not justify sealing. Doc.
132 at 46 n. 21 (collecting cases); see also Oberstein v. United States , 2013
WL 951354 at * 2 (Fed. Cl. Mar. 12, 2013) (“The mere fact that the
production of records may lead to a litigant's embarrassment,
Defendants have repeatedly complained about plaintiff’s exploitation of the media
(see, e.g. , doc. 101 at 2-4; doc. 130 at 20), yet, as noted above, they themselves filed an
attention-getting motion after hours on a Friday night, insisting that they were only
trying to protect their client and the court system itself from abusive attorney
conduct. They then refused plaintiff’s request to join in sealing their motion, doc.
102-1, despite the risk that, until it was sealed, anyone on the planet could view the
motion’s “[e]xplosive and disturbing assertions” (doc. 103 at 2) through the Court’s
public access docket system, “PACER.” But see doc. 155 at 3-4 (defendants insists
that “[t]he timing of the motion was purely coincidental. . . .”). Meanwhile,
defendants evidently have not filed a complaint with the state bar, nor sought Fed. R.
Civ. P. 11 or any other litigation-misconduct sanction. And their motion in fact did
embarrass Billips with tweets he later claimed he never expected would surface here.
See doc. 149 at 12 (“Your Honor, I am thoroughly embarrassed to be standing here
under these circumstances, I want there to be no mistake about that.”).
incrimination, or exposure to further litigation will not, without more,
compel the court to seal its records.”) (quotes and cite omitted). 8
In Jackson’s latest brief Billips cites his personal embarrassment,
but his raison d’etre for continued sealing of doc. 101 (defendant’s
motion to sanction and disqualify Billips), doc. 117 (plaintiff’s response
brief), doc. 129 (plaintiff’s supplemental brief in opposition to
defendants’ disqualification brief) and 130 (defendants’ reply brief),
remains the possibility of jury tainting: “The public disclosure of these
records could only engender the very publicity which Defendants
themselves claim would have a substantial likelihood of materially
prejudicing an adjudicative proceeding in this matter.” Doc. 144 at 3
See also Romero v. Drummond Co., Inc. , 480 F.3d 1234, 1246-47 (11th Cir. 2007);
Huntington Nat. Bank v. Greenwood Place, LP , 2012 WL 692601 at * 3 (S.D. Ind.
Mar. 2, 2012) (“potential embarrassment to a stakeholder in a lawsuit does not
warrant maintaining information under seal.”); United States v. Sattar , 471 F. Supp.
2d 380, 385 (S.D.N.Y. 2006) (letter from defendant's counsel transmitting psychiatric
report concerning defendant, as well as report itself, were “judicial documents,” to
which common-law presumption of public access attached, notwithstanding that
court did not find such documents to be useful and did not rely on them, where they
were submitted to court to provide information with respect to crucial judicial
function of sentencing).
Of course, the taint of those tweets must be viewed in context of
what is already public and internet-retrievable by any potential juror
summoned for jury selection in this case. Even a casual internet search
immediately reveals that the jury-taint horse has already left the barn.
First, there has been plenty of media coverage of plaintiff’s original and
amended complaint against Hiers about his alleged drunken behavior,
racist remarks, and sexual harassment, in addition to management’s
(hence, Paula Deen’s) alleged failure to stop it. Those documents remain
public on this Court’s docket. 9 Doc. 1-1 at 86-132, as amended , doc. 47.
Also unsealed for the past two months is this brief:
sampling of her amended complaint’s allegations: She started out at Uncle
Bubba’s as a hostess but within six months was promoted to General Manager (GM),
and remained in that position until she quit. Doc. 47 at 6 ¶ 20. The previous GM had
allegedly been having sexual relationships with subordinates (servers), “a matter
disregarded by Bubba Hiers” but rectified by Paula Deen, who fired the GM and gave
Jackson the job. Deen gave her six months to turn the restaurant from a failure to a
success. Id. at 7 ¶ 21. After Jackson succeeded in doing that, Hiers referred to her as
“my little Jew girl,” and company CPA Karl Schumacher 9 referred to her as “almost
Jewish.” Id . at 7 ¶ 25. Bubba Hiers frequented porn sites on the internet and left
viewable porn on his computer screen in a shared work area for plaintiff and others
to see. And, he frequently demanded that she watch it with him. Plus the email
address that the two shared fetched porn emails. Id. ¶ 49; see also doc. 120-1 at 4-5.
And there are plenty of other embarrassing if not disturbing matters. See, e.g.,
doc. 143-3 at 3-4 (unsealed deposition excerpt showing defendant Hiers admitting
that he viewed pornography on a computer inside his restaurant). The exposure has
been so intense that law firms are using summarizations of the complaint’s
allegations while advertising employment-discrimination legal services.
Mr. Hiers has now admitted his offensive and derogatory use of the
word "nigger" in the work place (Exhibit K: Hiers Dep., p. 52),
conduct which he stated he has only begun to regret during this
lawsuit ( Id ., p. 190). Mr. Hiers admitted telling a “joke” in which
he referred to the President of the United States as a “nigger”; he
has admitted watching pornography on several different computers
at work (and at home) and letting kitchen employees take the fall
on at least one occasion ( Id ., pp. 62-66); he has admitted that
viewing pornography was sometimes the first thing he did when he
got to work in the morning ( Id ., pp. 161-162); he has both admitted
and denied his alcohol addiction, testifying that he spent 30 days in
rehabilitation for alcohol and cocaine addiction, yet denying that he
has ever believed that he had an alcohol problem. ( Id ., p. 10-13).
Mr. Hiers has admitted his extraordinary present consumption of
alcohol, with his home consumption constituting a gallon and a half
of Jack Daniels every month, in addition to what he drinks in the
restaurant. ( Id ., pp., 14, 19-20). He has admitted to being a thief,
stealing $30,000 from his own sister, a theft which he had no
intention of revealing, until he got caught by Ms. Jackson, who
reported it to the corporate CPA, Karl Schumacher. ( Id ., pp. 85-87).
Doc. 111 at 10-11 (emphasis added).
There is more. As the Court itself found on its own “Paula Deen
Video” Google search, doc. 132 at 33, anyone can watch her engaging in
mock oral sex with an éclair and uttering a crude comment involving
female genitalia. For that matter, the April 3, 2013 Order illuminates
facts about plaintiff which she may find embarrassing. Unsealing Billips’
http://www.employeerights.net/blog/2013/03 celebrity-paula deen-hit-with-sexualharassment-lawsuit.shtml (site last visited May 8, 2013); http://www.employmentlawyer-blog.com/race-discrimination/ (site last visited May 7, 2013).
case-related tweets and the parties’ sanctions motions, then, at worst will
add an indistinguishable squirt of black ink into already blackened, juryprejudice waters. So, the “jury-taint” rationale fails.
Nevertheless, defendants filed other Billips’ tweets that are simply
not related to this case. By any objective measure, those filings were
aimed at simply embarrassing Billips under the pretense of enforcing an
ethics rule in a motion denied (on April 5, 2013) by this Court. Under
the First Amendment and common law standards applicable to judicial
records, 10 those unrelated “tweets” warrant different treatment.
In that regard, the right of the public to have access “to judicial
records is not absolute. Every court has supervisory power over its own
records and files, and access has been denied where court files might
have become a vehicle for improper purposes.” Nixon v. Warner
Communications, Inc ., 435 U.S. 589, 598 (1978). The Nixon Court drew
no line here, but noted that sealing has long been a matter of judicial
discretion, then cited examples where lower courts sealed records after,
for instance, a party filed something to “gratify private spite or promote
See generally 8 F ED . P ROC ., L. E D . § 20:240 (Mar. 2013).
public scandal through the publication of the painful and sometimes
disgusting details of a divorce case.” Id . at 598 (quotes and cite omitted);
see also Allergan, Inc. v. Apotex Inc ., 2013 WL 1750757 at * 6 (M.D.N.C.
Apr. 23, 2013).
The Court has sifted the filings and GRANTS in part and
DENIES in part plaintiff’s continued-sealing motion. Doc. 144.
Applying the above standards, the Court is unsealing the Billips tweets
that directly and arguably relate to this lawsuit (hence, where Billips
references the defendants personally and this case generally). Those
statements were the legitimate subject of a disqualification motion under
the rules of professional conduct, which prohibit extrajudicial statements
by a lawyer who reasonably believes that his comments will be made
public and are likely to materially prejudice an adjudicative proceeding.
Ga. Rule of Prof’l Conduct 3.6(a); LR 11.2. At the public hearing on the
disqualification motion, the Court referenced these tweets 11 and found
that they constituted improper comment about the merits of pending
Billups had commented to his limited number of Twitter followers that he was
engaged in the “good fight” against “evil sexism and racism” by Paula Deen and her
brother, that Deen had herself engaged in “racist behavior toward employees,” that
Billips planned on “doing” and “undressing” her during discovery, and that suing her
was a “real hoot.”
litigation -- essentially stating as fact what his client was alleging . While
the Court noted that the ethics code presumes that such demeaning
comments tend to prejudice the proceedings, it determined that the
disqualification of counsel was not an appropriate sanction under the
circumstances of this case. But because the Court analyzed Billips’
extrajudicial comments about this case in assessing the merits of a
nonfrivolous motion to disqualify him due to their improper nature, and
because defendants have never sought to have those comments shielded
from public view, the Court finds that they should no longer be sealed. A
further relevant consideration: Mr. Billips’ comments add little, if
anything, to the rather incendiary allegations set out in plaintiff’s
amended complaint, a document already a part of the public record.
That no doubt explains why defendants not only never sought to seal
these extrajudicial statements, but, after discovering their existence,
themselves placed the tweets in the record of these proceedings.
Billips’ tweets about matters entirely unrelated to this case (or any
other litigation) rest on a very different footing. The Court is satisfied
that those tweets were filed simply to embarrass Billips, and for no other
purpose. Those tweets reveal that Mr. Billips frequently uses profane,
obscene, bawdy, and racially-charged language when conversing with his
Twitter followers. Unable to find any rule of professional conduct that
condemned such use of language by a lawyer in his private life, defense
counsel fixed upon the oath of admission to practice before this Court,
which required Billips to swear that he would “demean [himself]
uprightly and according to the law and the recognized standards of ethics
of the legal profession.” LR 83.3(c). The Court challenged defendants to
point to any case in the last 200 years that has relied upon this, or
similar language, to disqualify or otherwise sanction a lawyer because of
his profanity, coarseness, or crudity in his non-case-related
communications, be they public or private. Defendants conceded that
they had found no such case. As the Supreme Court noted in In re
Snyder , 472 U.S. 634 (1985), in order to sanction a lawyer for “conduct
unbecoming a member of the bar” -- language very akin to this Court’s
admission oath -- a court must look to “case law, applicable court rules,
and the ‘lore of the profession,’ as embodied in codes of professional
Id . at 645 (emphasis added). The Eleventh Circuit has
interpreted Snyder as standing for the proposition that courts can’t
sanction lawyers for violating some “transcendental code of conduct”
that exists only in the subjective opinion of the court and is divorced
from the specific guidance provided by case law, rule, or ethics code. In
re Finklestein , 901 F.2d 1560, 1565 (11th Cir. 1990) (“the conduct
prohibited must be ascertainable”). Defendants’ disqualification brief is
devoid of any such reference. Had defendants consulted these
authorities, they could not in good faith have sought Billips’
disqualification on the ground that his use of profane and lewd language
in a non-litigation context violated some transcendental obligation to
demean himself uprightly, an obligation unmoored from any law or rule
specifically proscribing the particular conduct deemed to be
The motion to disqualify Billips on this theory was baseless, and
thus the defendants used this record as a mere garbage dump for
material designed to embarrass opposing counsel. Such materials do not
constitute legitimate judicial records.
See In re Policy Management
Systems Corp. , 677 F.3d 296, 1995 WL 541623 (4th Cir. Sept. 13, 1995)
(unpublished) (“we hold that the mere filing of a document with a court
does not render the document judicial. [It] becomes a judicial document
when a court uses it in determining litigants’ substantive rights . . . . [A]
document must play a relevant and useful role in the adjudication
process” before the public’s right of access attaches.). The documents
foisted by defendants into this record bear no relation to any issue in this
case, and the normal presumption of public access to judicial records does
not apply in this context. Accordingly, the Court declines to unseal these
The Clerk therefore is DIRECTED to leave doc. 101 sealed but
print it out, then file all of it unsealed in a new docket entry, except for
the following portions of it: doc. 101-21 (Exh. U) (Billips’ tweet with a
third party that has no arguable connection to this case); doc. 101-22
(Exh. V) (same); doc. 101-23 (Exh. W) (same); doc. 101-24 (Exh. X)
(same); doc. 101-25 (Exh. Y) (same); doc. 101-26 (Exh. Z) (same); doc.
101-27 (Exh. AA) (same); doc. 101-28 (Exh. BB) (same); doc. 101-29 (Exh.
CC) (same); doc. 101-30 (Exh. DD) (same); doc. 101-31 (Exh. EE) (same);
doc. 101-32 (Exh. FF) (same); doc. 101-33 (Exh. GG) (same); doc. 101-34
(Exh. HH) (same); doc. 101-35 (Exh. II) (same); doc. 101-36 (Exh. JJ)
(same); doc. 101-37 (Exh. KK) (same); doc. 101-38 (Exh. LL) (same); doc.
101-39 (Exh. MM) (same); doc. 101-40 (Exh. NN) (same); doc. 101-41
(Exh. OO) (same); doc. 101-42 (Exh. PP) (same); doc. 101-43 (Exh. QQ)
(same); doc. 101-44 (Exh. RR) (same); doc. 101-45 (Exh. SS) (same); doc.
101-46 (Exh. TT (same); doc. 101-47 (Exh. UU) (same); doc. 101-48 (Exh.
VV) (same); doc. 101-49 (Exh. WW) (same).
The following portions of doc. 101 shall also be re-filed unsealed :
doc. 101-1 (Jackson’s deposition, as re-filed at docs. 145 & 146, which
shall also be unsealed); doc. 101-2 (Exh. B) (Jackson’s May 27, 2010
letter to Paula Deen); doc. 101-3 (Exh. C) (defendants’ internetdownloaded articles and statements about Deen and this lawsuit); doc.
101-4 (Exh. D) (defense counsel’s communication to the state court
judge); doc. 101-5 (Exh. E) (Billips’ tweet touting his employment-lawyer
reputation); doc. 101-5 (Exh. F) (Billips’ tweet bragging about his
aggressive advocacy in this case); doc. 101-6 (Exh. F) (same); doc. 101-7
(Exh. G) (same); doc. 101-8 (Exh. H) (same); doc. 101-9 (Exh. I) (same);
doc. 101-10 (Exh. J) (same); doc. 101-11 (Exh. K) (same); doc. 101-12
(Exh. L) (same); doc. 101-13 (Exh. M) (same); doc. 101-14 (Exh. N)
(same); doc. 101-15 (Exh. O) (vacant deposition transcript cite); doc.
101-16 (Exh. P) (same); doc. 101-17 (Exh. Q) (McCurry deposition
transcript); doc. 101-18 (Exh. R) (vacant deposition cite), see also doc.
154; doc. 101-19 (Exh. S) (same); doc. 101-20 (Exh. T) (“duty to confer”
Next, the Court is re-filing, unsealed, the disqualification
motion/brief itself (doc. 101), but is redacting the portions which align
with the “still-sealed” matters set forth above. Those redacted portions,
along with the sealed matters denoted above, shall remain sealed
pending further order of this Court.
Citing the same twitter account matters, plaintiff also asks the
Court to continue sealing defendants’ response brief (doc. 109) on the
“blooper reel” controversy resolved by the April 3, 2013 order, see doc.
132 at 27-3, wherein defendants illuminate plaintiff’s pre-filing
settlement demand letter. Doc. 144 at 2. She also notes defendants’
“improper commentary and use of settlement communications” that
“may have already caused such prejudice,” and so “further prejudice may
require the Court to consider ameliorative measures.” Id. at 3.
That motion is denied. While it is true that doc. 109 gratuitously
illuminates plaintiff’s pre-lawsuit settlement demand letter to the
defendants, doc. 109 at 12, that horse likewise has left the barn, as the
local media prominently reported on that letter, and it remains easily
accessible on the internet.
07/former-manager-sues-paula-deen-brother-workplace-abuse# (site last
visited May 8, 2013). The response brief also describes some of Billips’
“tweets,” doc. 109 at 15-16, and even reproduces some as attachments,
doc. 109-15; doc. 109-16; doc. 109-17; doc. 109-18; doc. 109-19; doc. 10920; doc. 109-20; doc. 109-21; doc. 109-23, but they are only the “caserelated” tweets to be unsealed above. Accordingly, the Clerk is
DIRECTED to unseal all of the defendants’ response brief (doc. 109),
including all of its attachments.
Next, plaintiff wants to continue the sealing of her own
disqualification motion response brief (doc. 117) for the same (jury taint,
embarrass Billips) reasons, but nothing up to page 10 of that document
spills over the lines drawn in the foregoing sealing/unsealing analysis.
So that much therefore will be unsealed. In contrast, all of “Part 5”
(pages 10-14) of that brief (doc. 117) shall be redacted, as that portion
conveys Billips’ defense against the above discussed, unrelated tweets
that shall remain under seal. The remainder of the brief -- which,
incidentally, assisted Billips in winning the disqualification motion --
shall be unsealed, along with the brief’s exhibits, doc. 117-1 & 117-2.
The Clerk will re-file the brief (doc. 117) with “Part 5” redacted.
Plaintiff also wants her own supplemental brief -- aimed at
vindicating counsel Wesley Wolf’s integrity -- sealed for the same juryprejudice and embarrassment reasons. Doc. 144 at 3. The same “leftthe-barn” reasoning applies here. This brief shall also be unsealed
directly by the Clerk, as no partial redaction is warranted.
Finally, plaintiff requests -- also for the same two reasons -- that
defendants’ reply brief (doc. 130) remain sealed. Doc. 144 at 3. The
Clerk shall re-file that brief unsealed, except that the first paragraph of
page 16 will be redacted because it discusses the “unrelated” tweets. The
brief’s attachment, doc. 130-1, however, shall be unsealed, as it consists
of a law review article and matters freely accessible on the internet.
To enable plaintiff to invoke her Fed. R. Civ. P. 72(a) objection
rights, however, the Court STAYS this particular ruling for 14 days
from the date this Order is served. Should plaintiff timely object, this
STAY will continue pending disposition of the objection by the district
judge. Absent any timely filed objection, the unsealings shall be made.
But the Court’s April 3, 2013 order shall be unsealed now , irrespective of
any Rule 72(a) objection.
Defendants, meanwhile, filed an Fed. R. Civ. P. 72(a) objection to
this Court’s disqualification ruling, doc. 148, and they filed it under seal
after this Court’s April 3rd show-cause order. That they filed it under
seal, despite the Court’s unsealing, show-cause order, is understandable
because the Court had not yet ruled on the unsealing of the
disqualification matters, so the latest filing (doc. 148) was simply
honoring the sealing protocol to that point. 12
That objection (doc. 148) is now subject to this unsealing ruling -plaintiff has filed no request to keep it sealed and defendants favor
unsealing all currently sealed matters. So if plaintiff files the aforementioned, Rule 72(a) objection or a separate motion to seal, then doc.
148, too, shall remain under seal pending the district judge’s ruling. If
not, then it shall be unsealed after 14 days have elapsed.
3. Hiers’ Redaction Request
Note that no one is seeking to seal the transcript of the hearing that preceded that
ruling. See doc. 149 (“Release of Transcript Restriction set for 7/18/2013”).
In an unsealed brief filed February 25, 2013, plaintiff cited to
Hiers’ deposition, where he “has both admitted and denied his alcohol
addiction, testifying that he spent 30 days in rehabilitation for alcohol
and cocaine addiction, yet denying that he has ever believed he had an
alcohol problem. (Hiers Dep., p. 10-13).” Doc. 94 at 4-5. In March 2013,
defense counsel asked plaintiff’s counsel “to redact the reference to the
drug and alcohol treatment from [plaintiff’s] pleadings” and he agreed,
but the matter was “overlooked by both counsel” due to “the press of
work.” Doc. 147 at 3. Hence, the Court was unaware of that agreement
when it cited to that line in its April 3, 2013 ruling. Doc. 132 at 36.
Now -- in a sealed motion, doc. 147 -- Hiers wants the Court to go
back and redact (hence, seal) every “reference to the drug and alcohol
treatment” from the following still-public records: Doc. 94 at 4; doc. 111
at 10 & doc. 116 at 7. Doc. 147 at 3. He would also like it redacted from
the April 3rd order. Id. He cites state and federal privilege law in that
regard. Id. at 3-5; see also Hopson v. Kennestone Hosp., Inc ., 241 Ga.
App. 829, 829 (1999) (“Communications between a patient and
psychiatrist are absolutely privileged and not discoverable unless the
patient affirmatively waives the privilege.”) (footnote omitted).
The motion, though unopposed, 13 must be denied as baseless
because that horse also has left the barn. First, no one moves to seal
what has remained unsealed for over two months: Hiers’ deposition,
where he freely details his 1986 alcohol and cocaine treatment. Doc. 94-1
at 5-6. Second, it is highly likely that his inebriation history will be
explored and thus fully exposed at trial, upon the reasonable assumption
that he will deny many if not all of Jackson’s charges 14 and thus invite
cross-examination of any memory-eroding, substance abuse behavior. In
that respect, ample grounds exist to admit decades of substance abuse as
substantive evidence of impeachment. (Jackson is pressing a case in no
small part built on alleged drunken behavior that fueled legally
actionable racism and sexism.)
For that matter, the time for Hiers to block discovery of this aspect
of his medical past was before (or at least at) his deposition, not months
As noted above, this Court has an independent duty to keep its records open to the
public. To that end, the Court promulgated Local Rule 79.7 to uphold the
presumption of public access as articulated by, inter alia, the Nixon court. Nixon ,
435 U.S. at 597-98. Thus, under Local Rule 79.7, parties may neither self-seal
documents nor consent to same. See supra, n. 6. Instead, all must affirmatively seek
the Court’s approval to file a record under seal.
During his deposition, for example, he denied ever going to work under the
influence of alcohol. Doc. 94-1 at 4. It appears highly likely that plaintiff will cite
layers of evidence showing otherwise in cross-examining him on that point.
later, when bits of it began to routinely surface in public filings that have
remained unsealed for months. Cf. Scruggs v. Int’l Paper Co, 278 F.R.D.
698, 700 (S.D. Ga. 2012) (when a party fails to timely object to discovery
efforts, his objections are deemed waived, and he may waive any general
privileges in this manner). At best he has been unpardonably lax in
seeking to retroactively redact (hence, partially seal) public records
through a motion filed after: (a) plaintiff thrice cited that medical history
in public filings, and did so over the course of several weeks; and (b) this
Court cited it. That laxity speaks volumes, if not his recognition that
this particular revelation constitutes but another dark, yet
inconsequential, squirt in a deeply blackened well.
Hiers thus patently fails to meet his burden to “articulate a real
and substantial interest that justifies depriving the public of access to the
records that inform [a court’s] decision-making process.”
Kansas , 656 F.3d 1277, 1292 (10th Cir. 2011); see also Carnegie Mellon
University v. Marvell Technology Group, Ltd., 2013 WL 1336204 at * 4
(W.D. Pa. Mar. 29, 2013) (“Generally, a party wishing to seal a judicial
record must demonstrate that good cause exists for the sealing. Good
cause can be established by showing that disclosure will work a clearly
defined and serious injury to the party seeking closure”) (quotes and cite
omitted). Because he has failed to show a substantial interest, much less
good cause, his redaction motion (doc. 147) is DENIED , and the Clerk
shall likewise unseal it.
4. Directions to the Clerk
To summarize thus far, the Clerk shall unseal docs. 132 & 147 now .
But the Court STAYS its remaining unsealing directives (Part I(A)(2))
to enable plaintiff to invoke her Fed. R. Civ. P. 72(a) objection rights.
Absent any timely filed objection, the foregoing unsealings shall be made
the day after the 14-day objection period. Finally, there shall be no
further filings under seal absent compliance with Local Rule 79.7.
B. Ellerth/Faragher Defense
As the Court’s April 3rd Order noted, defendants’ invocation of the
Ellerth/Faragher defense 15 rendered discoverable information about how
The “defense comprises two necessary elements: (1) that the employer exercised
reasonable care to prevent and promptly correct harassing behavior and (2) that the
plaintiff employee unreasonably failed to take advantage of any preventative or
corrective opportunities provided by the employer, or to otherwise avoid harm.”
Faragher v. City of Boca Raton , 524 U.S. 775, 807 (1998), interpreting Burlington
Indus., Inc. v. Ellerth , 524 U.S. 742 (1998) (requiring a significant change in
management handled employee complaints against harassment. Doc.
132 at 18-27. Defendants argued, however, that plaintiff went too far by
subpoenaing records from and questioning (during a deposition) the
corporate defendants’ outside counsel, James P. Gerard. Doc. 132 at 1827. The Court for the most part ruled in favor of plaintiff to the extent
defendants had fused Gerard’s counsel role with a management
(“Human Resources” or “HR”) function. Also, to the extent Gerard had
communicated with third parties in the process, he waived any attorneyclient and work-product privileges. Id. 16
Specifically, the Court granted plaintiff’s motion to compel (doc. 111) to this
Gerard may be re-deposed, and prior to his re-deposition defendants
shall comply with Jackson’s written discovery requests. Jackson is free
to depose Gerard on these areas: (1) to rebut Jackson’s claims that she
complained to him or others in management about her claims of
discrimination and sexual harassment; (2) to testify about complaints of
four EEOC claimants in early 2009 who allegedly directed complaints
toward Jackson, not Hiers; (3) to speak to any meetings held with
Jackson, Hiers, and Schumacher (one following the 2009 EEOC
mediations and one in 2010); and (4) to address any other instances
involving Gerard, including discrimination complaints from other
employees, so long as they are related to his “in the loop” role in
application of the defendants’ Ellerth-Faragher defense machinery .
Exempted from this is any portion of any document containing Gerard’s
legal opinion in anticipation of EEOC administrative action or litigation,
and any of Gerard’s testimony relating to same.
Doc. 132 at 26 (emphasis added).
In response, the defendants move to withdraw their
Ellerth/Faragher defense, docs. 133 & 134, which is unopposed by
operation of Local Rule 7.5 (“Failure to respond within the applicable
time period shall indicate that there is no opposition to a motion.”), and
thus is GRANTED . As will be seen below, that withdrawal is strategic.
With such withdrawal defendants now contend that plaintiff’s quest for
Gerard’s communications must now be barred as privileged.
1. Attorney-Client Privilege
In their motion for clarification and reconsideration (doc. 135),
defendants request that, since they withdrew their Ellerth/Faragher
defense, they be relieved from producing Gerard’s testimony plus
“documents related to ‘4) . . . address any other instances involving
Gerard, including discrimination complaints from other employees, so
long as they are related to his ‘in the loop’ role in application of the
Defendants’ Ellerth/Faragher defense machinery’ as set forth in the
Court’s Order. (Doc. 132, p. 26-27).” Doc. 135 at 8; see also supra n. 16.
In their follow-up brief they clarify that they want all of Gerard’s
communications blocked: “Gerard should not be exposed to time
consuming discovery and depositions concerning his attorney-client
relationship 17 with Defendants. Plaintiff has stated no valid reason for
her continuing to pursue these communications now that the
Faragher/Ellerthdefense has been withdrawn.” Doc. 153 at 12 (footnote
Plaintiff correctly responds that her discovery of Gerard’s
communications is not terminated by the Ellerth/Faragher defense
withdrawal. Doc. 143 at 12-13. As the Court’s last Order spelled out,
plaintiff advances non -Title VII claims, including negligence, which by
definition involves scrutiny of management’s response (e.g., how
appropriately it responded to Jackson’s complaints about Hiers). Doc.
To invoke attorney-client privilege, a claimant must establish:
(1) the asserted holder of the privilege is or sought to become a client; (2) the
person to whom the communication was made (a) is [the] member of a bar of a
court, or his subordinate and (b) in connection with this communication is
acting as a lawyer; (3) the communication relates to a fact of which the
attorney was informed (a) by his client (b) without the presence of strangers (c)
for the purpose of securing primarily either (i) an opinion on law or (ii) legal
services or (iii) assistance in some legal proceeding, and not (d) for the purpose
of committing a crime or tort; and (4) the privilege has been (a) claimed and
(b) not waived by the client.
United States v. Noriega , 917 F.2d 1543, 1550 (11th Cir. 1990) (emphasis added). The
privilege is construed narrowly and those invoking it must prove its applicability. In
re Vioxx Products Liability Litigation , 501 F. Supp. 2d 789, 799 (E.D. La. 2007).
132 at 31. Under the liberal discovery (as opposed to trial) standard,
Gerard’s testimony is relevant to the extent the employer corporation, as
co-owned by Deen and Hiers, had notice of the alleged tortious acts
(negligence, battery, etc.), and what efforts it made to interdict them.
That figures into the core essence of such claims.
In reply, defendants offer to stipulate away Gerard’s trial
testimony. Doc. 153 at 11. That dog won’t hunt, however, since this
case is not at the trial, but discovery stage, and his testimony is not in
issue. What is in issue is what information can come from Gerard that
may reasonably lead to evidence helpful to Jackson’s case. She points
out, in that regard, that defendants have cited to things like her May
2010 letter to Paula Deen -- to imply that she is fabricating or
exaggerating her claims. See doc. 56 at 13-14 ¶ 102; doc. 109-4 at 1-2.
Hence, discovering what Gerard -- in his HR management role -- did to
address plaintiff’s complaints before and after that letter is relevant to
her interest in proving that she in fact is not fabricating or exaggerating
In that respect, Jackson and her partner have testified that
Jackson had multiple workplace-grievance conversations with Gerard, so
it is not unreasonable to suppose he investigated her complaints. 18 His
testimony on that is relevant and discoverable, 19 as it is entirely plausible
She testified that she complained to Gerard about Hiers’ misconduct “multiple
times” because “the chain of command was to go through [company CPA] Karl
[Schumacher],” doc. 146-2 at 66, then to Gerard, who “would call [plaintiff] every
week and ask me how things were.” Id.
Q. And Mr. Gerard when calling you, you were talking to him about racially
discriminatory conduct of Mr. Hiers?
A. That and the sexual conduct and the hostile environment.
Id. at 67; see also id. at 68 (she remembers no emails to him but “[p]robably
around five” phone calls to him); see also doc. 146-4 at 16 (Jackson’s domestic
partner recalled being present for “more than five” Jackson/Gerard phone
conversations wherein Jackson complained about Hiers’ misconduct to Gerard).
That is enough evidence, despite Gerard’s denials, doc. 153 at 8-9, to show that
he maintained a “fused” lawyer/H.R. role, so the Court reaffirms the attorneyclient and work-product privilege waiver analysis set forth in its April 3, 2013
Order, doc. 132 at 18-27, even with the Ellerth/Faragherdefense gone from the
case. Diligence (to rebut the negligence charge) and denial-based defenses
remain, and it is clear that the defendant employer intends to use those defenses
(e.g., claim that its management properly addressed Jackson’s complaints) at
trial. Assuming the district judge does not rule the negligence claim out of this
case, see doc. 132 at 29 n. 14, that opens to discovery the sufficiency of counsel’s
investigation in refuting plaintiff’s claims.
What is determinative here is not a particular defense like Ellerth/Faragher but a
range of defenses. Boiled down, the defenses raised here range from: (1) the offensive
conduct never occurred (hence, plaintiff is lying or exaggerating about it); (2) if it did,
plaintiff never complained about it to management; (3) it did occur and plaintiff
complained but management non-negligently addressed it; or (4) it did occur but
supports no recovery because, for example, it crossed no legal line. Doc. 56 (Answer);
doc. 101 at 8-9 (“The defendants have strongly disputed Jackson’s claims. . . .”).
But to raise those defenses, of course, is to engage in a subject-matter waiver, as
the cited record evidence ( see, e.g. , doc. 143-3 at 2; doc. 116 at 10-11, 14-15) shows
that he compiled his factual findings, which in turn could be provided to
another defense witness to testify at trial in defense against Jackson’s
claims. Hence, his fact -investigation efforts (including his discussions
with Hiers and Deen about Hiers’ behavior) would be discoverable, even
if (as will be further discussed infra) deemed work product. And if
Gerard denies such conversations occurred or did not involve any of
Jackson’s harassment complaints, then that factual conflict in and of
itself is discoverable: Jackson has the right to try and prove that he is
misremembering or being untruthful as to this matter.
Next, Gerard waived the attorney-client privileges for any emails
sent beyond his client. 20 United States v. Martha Stewart , 287 F. Supp.
that Gerard reasonably likely was involved in the actions supporting defenses (2) &
(3). That, in turn, waives the privilege. See Cox , 17 F.3d at 1422 (“The subjectmatter waiver doctrine provides that a party who injects into the case an issue that in
fairness requires an examination of communications otherwise protected by the
attorney-client privilege loses that privilege.”), quoted in Belmont Holdings , 2012 WL
6430598 at * 4. Here the defendants deny negligence and even cite to Jackson’s
above-mentioned letter to Deen in insisting that they created no hostile environment.
By definition, they injected into this case all of their HR responses, including
Gerard’s to the extent it is shown (and two witnesses say it occurred) he wore an
“HR hat” in addition to an outside-counsel hat.
To reiterate, the Court ruled that,
unless any such individual was a direct employee (hence, not a mere
independent contractor “consultant”) of a defendant or attorney Gerard, their
presence waived the privilege asserted, and discovery shall therefore proceed
2d 461, 464 (S.D.N.Y. 2003) (Stewart, charged with securities fraud,
waived her attorney-client privilege by sending her daughter a copy of an
e-mail earlier sent to her attorney, giving details regarding the sale of
stock which was central to the fraud charge against her). Whether
Gerard’s “client” extended beyond corporate management and employees
to outside agents is addressed in the next section of this Order.
Work product21 may be shared within a tight circle without causing
waiver. Stewart , 287 F. Supp. 2d at 468 (Stewart did not waive work
accordingly ( i.e. , defendants shall produce all requested paper-based discovery
and provide deposition answers heretofore blocked by objection). Jackson has
also shown enough evidence that Gerard acted as management as much as he
did corporate counsel when it came time to address employee complaints
(Jackson’s, primarily) about Hiers’ conduct. See doc. 116 at 10-11, 14-15.
Doc. 132 at 25 n. 12.
As another court explains:
A privilege against disclosure also exists for attorney-work product. See
Cox v. Adm'r U.S. Steel & Carnegie , 17 F.3d 1386, 1421 (11th Cir. 1994).
Materials prepared by a party's representative, including his or her
designated agent, to aid in anticipated or pending litigation will be
protected from disclosure unless the privilege is waived or the party
seeking discovery shows substantial need for the materials and cannot
acquire a substantial equivalent without undue hardship. See Fed. R.
Evid. 502; Fed. R. Civ. P. 26(b)(3)(A); Hickman v. Taylor, 329 U.S. 495,
511, 67 S. Ct. 385, 91 L. Ed. 451 (1947). For the work-product doctrine
to apply, a party “must show that the documents were prepared for
product privilege by sending copy of e-mail addressed to her attorneys,
detailing sale of securities which was allegedly fraudulent, to her
daughter; there was close personal relationship between family members,
shareholder could be sure confidentiality would be preserved, and
disclosure did not affect interests of either side); see also Schanfield v.
Sojitz Corp. of America , 258 F.R.D. 211, 216 (S.D.N.Y. 2009) (e-mail
litigation purposes and not merely in the ordinary course of business.”
St. Joe Co. v. Liberty Mut. Ins. Co. , No. 3:05–cv–1266–J–25MCR, 2006
WL 3391208, at *8 (M.D. Fla. Nov. 22, 2006) (holding that a defendant
insurance company failed to provide evidentiary proof of objective facts,
via affidavits or deposition testimony, that reasonable anticipation of
litigation existed at the time the documents were produced or that the
documents were prepared for the purpose of litigation). The workproduct doctrine protects documents “prepared by the party or his
representative because of the prospect of litigation.” Joiner v. Hercules.
Inc .. 169 F.R.D. 695, 698 (S.D. Ga. 1996) (quoting Shipes v. BIC Corp. ,
154 F.R.D. 301 (M.D. Ga. 1994)); see also Fed. R. Civ. P. 26(b)(3).
Belmont Holdings Corp. v. Suntrust Banks, Inc ., 2012 WL 6430598 at * 3 (N.D.
Ga. Nov. 19, 2012). “A party must anticipate litigation at the time the documents
were drafted for these protections to apply. Materials or documents drafted in the
ordinary course of business are not protected. Ordinarily, therefore, one must
focus on when the document was created, and why it was created.” Kallas v.
Carnival Corp., 2008 WL 2222152 at * 3 (S.D. Fla. May 27, 2008) (quotes and cites
omitted); accord Fulton DeKalb Hosp. Authority v. Miller & Billips , 293 Ga. App.
601, 603-04 (2008) (no work product protection for hospital authority’s legal
department’ investigation, since it commenced it not in response to any claim or
threat of litigation, but because it received several anonymous complaints, and
those complaints contained pleas for help rather than references to litigation).
Finally, “[l]ike the attorney-client privilege, the party invoking the protections
provided by the work-product doctrine bears the burden of establishing its
applicability.” Belmont Holdings, 2012 WL 6430598 at * 3.
communications between managerial employee and family members who
were attorneys, located on employee's personal computer, were protected
by work product doctrine; first set of communications shared underlying
facts of employee's racial discrimination lawsuit against former employer
and initial ideas about legal strategy and then sought advice from family
members, while second set sought assistance with negotiating
engagement agreement with current counsel).
The Stewart and Schanfield courts applied what may be thought of
as a “common interest doctrine,” under which “privileged
communications may be disclosed without waiver if the party claiming an
exception to waiver demonstrates that the parties communicating (1)
have a common legal, rather than commercial, interest; and (2) the
disclosures are made in the course of formulating a common legal
strategy.” 1 R ECORDS RETENTION § 1:37 (Nov. 2012) (quotes and cite
omitted; emphasis added).
3. Third-Party Waiver
Jackson argues that defendants must turn over to her, despite any
attorney-client privilege or work product claim, all Gerard emails and
communications which included in the communications loop Paula Deen
assistants Barry Weiner, Lucie Salhany, and Jeff Rose. Doc. 143 at 2.
Those assistants constitute third parties with commercial interests, she
contends, and they formed no such “tight circle.”
Opposing, the defendants rely on Paula Deen’s affidavit. Doc. 135
at 6. She attests that Barry Weiner is her “agent and business
adviser.” 22 Doc. 135-1 at 1 ¶ 3. Lucie Salhany is “a business consultant
for” Paula Deen Enterprises, LLC (PDE)), id. at 2 ¶ 8, and she works
“with designated PDE personnel on staffing and salary issues, and the
improvement of hiring practices,” plus marketing and public relations
functions. Id. ¶ 9. She is “an integral person in a group dealing with
issues that are completely intertwined with PDE’s litigation and legal
strategies.” Id. ¶ 11. And Jeff Rose is affiliated with “The Rose Group,”
which is a “brands relation agency.” Id. at 3 ¶ 13. That group provides
“marketing and public relations services for PDE.” Id. Rose thus is an
integral part of the Weiner-Salhany-Rose cluster that gathers “to discuss
litigation and legal strategies.”
Id. ¶ 16. Rose, then, “must hear the
advice of legal counsel regarding these matters.” Id. ¶ 16.
In his deposition Weiner testified: “We negotiate television contracts. We secure
licensing deals. We do personal appearances.” Doc. 143-1 at 2-3.
Those three contractors, Deen concludes, “are indistinguishable
from my employees because each, in their individual capacity, acts for me
and my business entities and possesses the information needed by
attorneys in rendering legal advice.” Id. ¶ 18. Defendants thus contend
that those three individuals “bore the relationship necessary to fall
within the umbrella of the attorney-client privilege,” and thus Gerard’s
work product. Doc. 135 at 7.
Plaintiff insists that the documents Gerard copied to them are
discoverable because Deen’s affidavit at most speaks of her general
reliance on them, while they themselves have not provided affidavits
showing they possess sufficient, specific knowledge of this case to place
them within that protection zone. Doc. 143 at 2-3; doc. 157-1 at 4.
Jackson cites, for example, Weiner’s deposition testimony showing that
he owns “Artist Agency,” and performs only work “related to [Paula
Deen’s] career.” Doc. 143 at 3-4.
Hence, plaintiff concludes, Weiner is basically a general outside
agent, not the functional equivalent of an employee. Id. at 4. He in no
way influences HR matters. Id. And Weiner himself, plaintiff reminds,
testified that he was not hired for the purpose of preparing a litigation
Id. at 8-9. Emails sent by these people to Gerard were
evidently sent, Jackson concludes, “as an effort to manufacture a basis
for claiming the attorney client privilege.” Id. at 9.
Jackson prevails here. It is true that there is no per se rule
restricting a corporation’s assertion of its attorney-client based privilege
to employees, as it is common to seek legal assistance from third parties
who are neither employees nor lawyers.
See, e.g. , In re Application
Pursuant to 28 U.S.C. Section 1782, Etc., 249 F.R.D. 96, 101 (S.D.N.Y.
2008) (to avoid waiver of the attorney-client privilege by the voluntary
disclosure of otherwise privileged material to a third party, the
proponent of the privilege must show that: (1) the client had a
reasonable expectation of confidentiality in the disclosure of the material
to the third party, and (2) that disclosure to the third party was
necessary for the client to obtain informed legal advice); see also id.
(attorney-client privilege was waived with respect to emails and
attachments which reflected legal advice by law firm which represented
buyer of sculpture when they were disclosed to art broker).
Those third parties, however, must be nearly indispensable to that
effort. Allied Irish Banks v. Bank of America, N.A ., 240 F.R.D. 96, 103
(S.D.N.Y. 2007) (“[T]he involvement of the third party [must] be nearly
indispensable or serve some specialized purpose in facilitating the
attorney-client communications.”). General, conclusory assertions will
not suffice. See, e.g. , Freiermuth v. PPG Industries, Inc., 218 F.R.D. 694,
699 (N.D. Ala. 2003) (affidavit containing mere conclusory statements
that document was prepared for purpose of obtaining legal advice will
not suffice in meeting proponent's burden of establishing applicability of
Significant here is what the defendants do not say. They do not
supply: (a) any affidavit from any of the agents showing what specific
role they have played with respect to this case; and (b) what
communications in fact were sent to them and for what purpose. There
is a difference, for example, between helping to formulate and factually
support a legal strategy versus damage control-based,
management -- a patently commercial endeavor. 23
It is undisputed that (a) long before this case began, Paula Deen “branded” her
name and thus commercialized it; and (b) she has used these individuals to
accomplish that end. Merely attesting in a general sense that she relies on them for
their advice is not the same as claiming that using them “was necessary for the client
to obtain informed legal advice.” In re Application , 249 F.R.D at 101.
Deen’s affidavit, meanwhile, speaks only in general terms. Nothing
approaching the “nearly indispensable role” is described.
Banks 240 F.R.D. at 103. Her affidavit fails to meet defendants’ burden.
And as Jackson points out, Weiner’s deposition testimony shows that he
has had almost no involvement with this lawsuit, was only vaguely aware
of the allegations, and was simply kept in the loop. 24 Doc. 143-1 at 8-9,
14-16. Neither of the other two agents say anything to place them
beyond that realm, either. In fact, they say nothing (again, no affidavits
have been tendered by them).
Waiver thus has occurred, so defendants must disclose all of
Gerard’s communications regarding Jackson’s complaints, where these
Plaintiff argues that all the defendants are trying to do here is conceal their public
relations efforts. Doc. 143 at 12. And she “strongly suspects that the emails in
question will show that the ‘public relations’ campaign has crossed over into an effort
which may well violate [Georgia Bar] Rule of Professional Conduct 3.6. There is no
basis upon which to withhold these emails from Plaintiff and there is every reason to
require their production.” Doc. 143 at 12 (emphasis added).
The Court need not pass on that suspicion, for it has now ruled on what
documents are discoverable. But both sides, having now flown the ethics-code flag,
see doc. 101, are free to file a bar complaint. See GA . R. BAR RULE 4-102, RPC Rule
8.3(a) (“A lawyer having knowledge that another lawyer has committed a violation of
the Georgia Rules of Professional Conduct that raises a substantial question as to
that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, should
inform the appropriate professional authority.”). And if they do not then that says
something, as ethics accusations should never be used as a litigation tactic.
individuals were in the loop. See Chubb Integrated Systems, Ltd. v. Nat’l
Bank of Washington, D.C ., 103 F.R.D. 52, 66 (D.C.D.C. 1984) ( Upjohn
Co. v. United States , 449 U.S. 383 (1981), which limited an attorney’s
“corporate client” to employees of corporation, did not apply to
independent contractors; foreign patent agent was not an employee of
the corporation, but was more akin to independent contractor, so his
communications with principal's United States counsel were not covered
by attorney-client privilege).
Defendants’ clarification/reconsideration motion (doc. 135),
then, is DENIED on those grounds. Defendants shall produce to
plaintiff all recorded Gerard communications to any Deen defendant
except those containing legal advice to management only (i.e., not to
management plus privilege-neutralizing third parties) directly relating
to Jackson’s EEOC proceedings and, of course, the instant
proceedings. Plaintiffs are free to re-depose Gerard accordingly.
Because, as plaintiff points out, doc. 157-1 at 4 n. 2, the Court
does not have the defendants’ privilege log and withheld documents
before it, it will provide some additional guidance: Also exempt from
disclosure, and thus plaintiff’s inquiry of Gerard upon re-deposition,
are any (oral or written) communications from Gerard to all HR
management level employees after Jackson initiated this litigation
(first by EEOC proceedings, and second by filing this case), but only if
those communications were not “third-party-waived” as described
above. See, e.g. , Edelen v. Campbell Soup Co ., 265 F.R.D. 676, 682-83
(N.D. Ga. 2010) (documents concerning e-mail communications
between employer's in-house counsel and human resources
management level employees were protected by the attorney-client
privilege or work product doctrine in employment discrimination
lawsuit, where each of the communications were made for the purpose
of rendering sought legal advice), cited in 24 WRIGHT & MILLER :
F EDERAL P RAC . & P ROC . § 5483 ("Representative of the Client ") (2013). 25
This is a spongy area of law to say the least. Corporations can only act through
human beings, and thus it is easy for a corporation to claim that a broad range of
individuals are protected by the attorney-client privilege it has with its counsel. But
courts, an encyclopedist warns, should
be alert to the possibilities of “papering-up the privilege”; this will insure that
decisions on the scope of the privilege reflect some institutional reality and are
not based upon some bureaucratic Potempkin village. [Also,] the corporation
should be required to be consistent in ascription of status to its employees. It
should not be permitted to claim that the person in question is a corporate
“representative” for the purpose of the privilege, then turn around and claim
the same or a similar employee is not authorized to speak on behalf of the
corporation when the issue is the admissibility of his hearsay statements
Likewise exempt from the subject matter waiver discussed supra
(but not the third-party waiver) is any of Gerard’s communications
bearing pure opinion work product, as opposed to factual-investigation
matters. “[A] subject matter waiver of the attorney-client privilege or
work-product doctrine does not extend to opinion work product, which
is defined as material that reflects an attorney's mental impressions,
conclusions, opinions, or legal theories.”’ Belmont Holdings , 2012 WL
6430598 at * 4 (quotes and cites omitted; emphasis added); see also
Cox , 17 F.3d at 1422.26 By way of example, if Jackson complained to
under the admissions doctrine. Finally, care must be taken in the procedures
used to adjudicate claims of corporate privilege. For example, the corporation
should not be permitted to use a claim of privilege to prevent access to facts
bearing on the existence of the privilege.
24 WRIGHT & MILLER: FEDERAL PRAC. & PROC. § 5483 (footnotes omitted).
As one encyclopedist explains:
If a showing is made that the material must be provided despite its being trial
preparation material, then the court must nevertheless protect against the
disclosure of mental impressions, conclusions, opinions, or legal theories.
Included among the mental impressions, etc., which must be protected when
discovery is allowed are an attorney's legal strategy, intended lines of proof,
evaluation of the case's strengths and weaknesses, and the inferences drawn
from interviews of witnesses.
Ga. Civil Discovery § 6:4 (6th ed. Nov. 2012) (footnotes omitted). Again, “[t]he
information is protected if reasonable grounds exist to believe that litigation is
probable, or even that a claim may be filed. For example, statements of witnesses
Gerard about Hiers’ abusive conduct and Gerard made a file note
about the complaint, then that is discoverable, but if he researched
discrimination law and jotted down on that same note his legal advice
to Paula Deen about how to address potential legal exposure, then
that advice shall be redacted from the note prior to disclosure. In
contrast, 100% of that communication must be disclosed if it was
emailed to any or all of the third-party agents or any other third
D. The Blooper Reel
The Court GRANTS defendants’ clarification motion (doc 135; see
also doc. 153 at 12-13) to this extent: plaintiff is directed to return to
Paula Deen or destroy the “blooper reel” at the conclusion of this
litigation, including all appeals. See doc. 132 at 34 (prior Order directing
Deen to turn over a copy to plaintiff but forbidding plaintiff from
disclosing or filing it absent further Court order). The Court agrees with
taken immediately after the incident can be protected if a showing can be made that
litigation was obvious at that time. However, accident reports prepared in the
regular course of business are not considered to be prepared in “anticipation of
litigation,” and therefore are not protected. Id. (footnotes omitted). “Nor does the
direct supervision of an attorney demand the investigation's classification as work
the defendants (doc. 153 at 12-13) that plaintiff has shown no valid
reason to retain a copy beyond that point.
Plaintiff complains that defendants “have steadfastly refused to
obey this Court’s [April 3, 2013] Order and produce the video, even after
Plaintiff agreed to return or destroy the video unless it is admitted into
evidence.” Doc. 157-1 at 3. In fact, she moves for contempt and
sanctions. Doc. 163. The Court ORDERS defendants to promptly
deliver a copy of the blooper reel to plaintiff’s counsel, who are entrusted
with its confidentiality (hence, they may use it only in this litigation,
such as during depositions, at trial, or on appeal) and are also
DIRECTED to return or destroy any copy left in their possession after
the conclusion of all appeals. 27 To that extent only, Jackson’s
contempt/sanctions motion is GRANTED . Doc. 167.
Emphasizing the fact that defendants have been on notice of her
claims since she filed her EEOC charge on October 8, 2010, doc. 141 at 2,
Jackson moves to compel and sanction them for “losing” pornographic
Should a copy be admitted at trial and a disk copy is filed in the record, then it will
be up to the district judge, upon the defendants’ appropriate motion, to decide
whether to retain it as a court record or destroy it. See Local Rule 79.4.
emails collected on her ex-employer’s computers. Doc. 141. Referencing
her sexual harassment claims and allegations that Hiers received
pornographic emails on his restaurant’s computer(s), she says that she in
due course sought access to stored emails through discovery, and that
defendants agreed to provide her with some after initially objecting based
on what would turn out to be an exaggerated production cost. Id. at 1-2.
But “[u]pon reviewing [them], Plaintiff noticed that none of the
pornographic emails were produced.” Doc. 141 at 2. In “well over 50,000
documents produced, not one such email is to be found. Id. She pressed
further and received 13 pornographic images but “no indication that they
were part of an email.” Id. at 3. And Hiers admitted in his deposition
“that the emails in question were still on his computer some time during
‘the past year.’”
Id. Defense counsel claims his own search proved
fruitless. Id. Possibly, he says, they were destroyed in 2011. Id . While
Jackson does not question his word on that subject, “the fact is that
these emails were destroyed after [she] gave notice of her intent to
pursue a claim against Defendants in part based on these emails and
after she filed her EEOC Charge.” Id.
Concluding “that Defendants destroyed these emails, deleting them
from the computers in question after notice of this litigation, or, possibly,
while litigation was pending,” id. , she wants an order directing their
production or granting her spoliation relief. Doc. 141 at 4-5. She cites,
inter alia, Scruggs v. Int’l Paper Co. , 2012 WL 1899414 at * 1 (S.D. Ga.
May 24, 2012) (spoliation “sanctions extend to negligent, reckless, and
intentional evidence destruction”).
Id. at 5. She points out that
“Defendants’ counsel have refused to state whether or when a ‘litigation
hold’ was communicated to Defendants.” Id. at 6; see also doc. 160 at 1.
That, she insists, authorizes this Court to find that the emails’
destruction was in bad faith, “particularly in light of Mr. Hiers’
unrebutted testimony that the emails existed within the last year, i.e.,
2012.” Doc. 141 at 9; see also doc. 160 at 2 (citing Hiers and defense
witness Stephanie Strong’s testimony “that there were multiple emails
containing pornographic emails, none of which have been produced .”); id.
at 4 (citing non-party witness’ testimony about “multiple emails
containing pornographic images”); id. at 6 (same). She seeks sanctions.
Doc. 141 at 10-11.
Defendants insist that (a) only one email is in issue here, and it
apparently transmitted the 13 pornographic images that have otherwise
been provided to plaintiff; (b) innocuous reasons exist for the actual,
transmitting email’s loss, doc. 150-1 at 3-5; and (c) Hiers concedes the
images were pornographic, concedes he viewed them, and concedes they
were in the workplace. Doc. 150 at 1-20.
So, defendants conclude, even assuming plaintiff’s claim is true
(defendants deny this) -- that the transmitting email was intentionally or
recklessly or negligently destroyed -- “she, in fact, has the stuff that
informs her charge of being exposed to pornography -- the actual images
themselves,” which another employee has since placed on her own
computer. Doc. 150 at 20. That is, she has 100% of the information she
would otherwise glean from the email itself. They in effect insist that,
other than the emotional impact of being able to wave the paper version
of the transmitting email at the jury -- a benefit too consequential to
warrant the extraordinary sanction she seeks -- plaintiff has lost nothing
here, in contrast to the spoliation cases set forth supra.
In a typical spoliation-sanction case there is a clear showing that
the matter lost was material and likely would have assisted someone’s
case. See e.g ., E.E.O.C. v. Ventura Corp. Ltd. , 2013 WL 550550 at * 7-8
(D.P.R. Feb. 12, 2013) (spoliation sanction, which may be imposed even if
such evidence was mishandled through simple carelessness, applied to
employer who destroyed email accounts that contained relevant
information to the employee's claims of gender discrimination); E.E.O.C.
v. JP Morgan Chase Bank, N.A ., ___ F.R.D. ___, 2013 WL 765593 at * 7
(S.D. Ohio Feb. 28, 2013) (spoliation sanction imposed for employer’s
“routine purge” of electronic records after being placed on notice to
preserve by plaintiff’s pleadings).
In a sense that has been shown here, but mitigating factors exist.
First, Jackson’s October 8, 2010 EEOC charge said: “Beginning in
September 2005, I was sexually harassed and subjected to a hostile Work
environment by Earl (Bubba) Hiers. This harassment includes, but is
not limited to: unwarranted criticism about my physical appearance, and
interference with my management duties.” Doc. 47 at 54. She never
mentioned any emails, and did not file this case until after they were
deleted in what defendants have shown to be more or less the normal
course of business. Under these circumstances, it was not reckless of
counsel to fail to “place a litigation hold” on them.
Furthermore, Hiers admits that he received porn-mails on the
computer shared with plaintiff, so she is free to super-illuminate that
fact at trial. Still, since pornography in its different strains (soft core,
hard core, etc.) is often in the eye of the beholder, the evidentiary impact
of being able to show the jury exactly what Jackson was forced to endure
is worth something. Subject to a contrary ruling by the district judge at
trial, Jackson therefore is free to testify about how graphic and pervasive
the emails were, and that the defendants do not deny that they failed to
preserve them after she quit and EEOC-charged them with maintaining
a hostile sexual environment. Her motion, then, is GRANTED in part
and DENIED in part. Doc. 141.
F. Text and Social Media Messages
Defendants previously moved to compel Jackson to produce certain
text messages in her possession. Doc. 110. During her deposition
Jackson testified that she had had contact with defendants’ employees
since she quit. Doc. 110-4 (deposition excerpts from her full deposition at
doc. 101-1). Defendants sent her written discovery requests aimed at
preserving and obtaining copies of those communications, including any
electronic text messages. Doc. 110 at 1-2. Jackson responded by
invoking the attorney client privilege and otherwise asserting that the
request is, inter alia, overbroad. Id. at 2. Subject to those objections, she
insisted that she had no documents not already produced. Id.
Still, plaintiff also stood on her overbroad objection, contending
that defendants’ “request is unlimited in time” and “subject matter.”
Doc. 127 at 3. It would cover, she claimed, “over 500 employees.”
Plus defendants’ request was not qualified “regarding relevance to the
harassment or relevance to the emotional or other damages [plaintiff]
suffered as a result of the conduct alleged by her.” Id. at 3-4.
The Court agreed that defendants’ request was overbroad. Doc.
132 at 39-42. It also agreed that discovery “is not so liberal as to allow a
party to roam in the shadow zones of relevancy and to explore a matter
which does not presently appear germane on the theory that it might
conceivably become so.” Collins v. Worley Catastrophe Response, LLC ,
2012 WL 1447592 at * 2 (M.D. Fla. Apr. 26, 2012) (quotes and cite
omitted). Id. at 41. A request so broad could easily ensnare information
that is simply not relevant to Jackson’s claims.
So, the Court denied the motion but ruled that, within 7 days the
defendants could more narrowly re-request the documents consistent
with the foregoing parameters, and that Jackson should respond within 7
days. And, in an effort to curtail further discovery disputes, the Court
provided additional guidance in formulating discovery requests in this
area. Doc. 132 at 41-42.
As Jackson now points out, “Defendants did recast their discovery
request but, without waiting on Ms. Jackson’s response, Defendants ask
the Court for reconsideration of its Order and to impose sanctions on Ms.
Jackson.” Doc. 151 at 1 (emphasis added). She represents that
defendants have complied with this Court’s guidance and she “will
appropriately respond.” Id. at 3.
Defendants’ motion is both premature and unaccompanied by a
“duty to confer” certification. 28 And defendants’ tactic of also calling
their motion a “motion for reconsideration” (evidently to skirt the
“confer” requirement) is just that: a tactic. Their motion (doc. 140) is
The duty to confer is mandatory and must be meaningful. Scruggs v. International
Paper Co., 2012 WL 1899405 at *1 (S.D. Ga. May 24, 2012).
Plaintiff Lisa T. Jackson’s “continued sealing” motion (doc. 144) is
GRANTED in part and DENIED in part. Defendant Hiers’ redaction
motion (doc. 147) is DENIED . The Clerk shall unseal doc. 132 now and
annotate doc. 132’s docket entry to reflect that it was originally filed
under seal but has been unsealed by this Order. The Clerk shall also
unseal doc. 147 now. Should no Rule 72(a) objection be filed within 14
days of the date this Order is served, then the Clerk implement the
remaining unsealing directives set forth in Part I(A)(4) above. Otherwise
those directives are STAYED pending resolution of the Rule 72(a)
Next, the defendants’ motions to withdraw their Ellerth/Faragher
defense is GRANTED . Docs. 133 & 134. Their reconsideration motion
is GRANTED in part and DENIED in part. Doc. 135.
The Court GRANTS in part and DENIES in part plaintiff’s
contempt/sanctions motion, doc. 163, by DIRECTING defendants to
immediately provide a copy of the disputed “blooper reel” to plaintiff,
who shall either destroy or return it after the conclusion (through any
appeal) of this litigation. The Court DENIES defendants’ motion for
reconsideration and for sanctions. Doc. 140. But it GRANTS in part
and DENIES in part plaintiff’s motion to compel and for sanctions. Doc.
Jackson’s motion (doc. 157) for “Leave to File Surreply to Reply” is
DENIED as moot because the parties may file as many reply briefs as
they want.” Podger v. Gulfstream Aerospace Corp. , 212 F.R.D. 609, 609
(S.D.Ga. 2003); see also S.D.GA .L OC .C IV .R. 7.6 (authorizing reply briefs
but imposing notice requirements and time limits).
Finally, substantial portions of this Court’s record have been
sealed. An enormous amount of Court resources have been consumed on
preserving the public’s common law and First Amendment right to
access this Court’s records. There shall be no further filings under seal
absent compliance with Local Rule 79.7, or by Order of this Court.
Nevertheless, after the Court’s April 3, 2013 Order directed the
parties to show cause why that order and prior filings should not be
unsealed, defendants filed (and sealed) a Rule 72(a) Objection (doc. 148)
to this Court’s disqualification ruling. Plaintiff responded, doc., 162, also
under seal. The parties shall therefore show, within 14 days of the date
this Order is served, why those documents should not be unsealed.
SO ORDERED this 8th day of May, 2013.
UNITED STATES MAGISTRATE ILJDGE
SOUTHERN DISTRICT OF GEORGIA
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