Ajibade et al v. Harris et al
ORDERED that within 21 days from the date this Order is served, the parties should confer and attempt to agree to a protective order that will allow plaintiffs' counsel to conduct discovery. This includes taking Riner's testimony, while preventing Riner or Corizon from forfeiting the benefit of their bargained-for protection from public disclosure. Signed by Magistrate Judge G. R. Smith on 7/19/17. (loh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
AJIBADE, et al.,
JOHN WILCHER, in his official
capacity as Chatham County
Sheriff, et al.,
This case involves civil claims arising from Mathew Ajibade’s death
while in the custody of the Chatham County, Georgia Sheriff. See doc. 21
Plaintiffs move to compel further deposition
testimony from non-party Betty Riner.1
Riner is a nurse
formerly employed by defendant Corizon Health, Inc., which was
contracted to provide medical services at Chatham County Detention
Defendant Corizon argues that plaintiffs’ motion to compel her appearance at a
second deposition is not ripe because they have not sought leave to conduct a second
deposition. Doc. 131 at 17-18. Corizon is correct that a second deposition of the same
deponent requires leave. See Fed. R. Civ. P. 30(a)(2)(A)(ii). But the situation is not
as simple as Corizon’s argument suggests. Rule 29 permits parties to stipulate to
changes in the ordinary deposition procedure. See Fed. R. Civ. P. 29(a) (allowing
stipulation that “a deposition may be taken before any person, at any time or on any
notice, and in the manner specified -- in which event it may be used in the same way
as any other deposition . . . .”). Riner, as discussed below, is willing to testify. Thus,
once the confidentiality issue is resolved, there seems to be no need to compel her
Center. See doc. 131 at 3. Corizon opposes plaintiffs’ motion, asserting
that Riner’s testimony is precluded or limited by a settlement agreement
between them. See id. at 10-17. Riner responds that she is “willing and
eager to fully comply with her obligation to give truthful testimony,” but
“[a]bsent a court order, her Settlement Agreement with Corizon
prohibits her from offering [the requested] testimony.” Doc. 130 at 7-8.
None of the parties has produced the settlement agreement at issue
-- plaintiffs don’t have it, and Riner and Corizon protest that the
agreement itself is confidential, offering to produce it only for in camera
review. See doc. 130 at 6; doc. 131 at 18; doc. 137 at 3. The lack of any
indication by either protesting party about how and why it bars Riner’s
testimony obstructs judicial interpretation of it. See doc. 130 at 7-8. The
parties’ arguments about the relevance of Riner’s testimony2 are also
Corizon argues that plaintiffs have not shown that Riner’s testimony would be
relevant. See doc. 131 at 10-16. Plaintiff’s counter that Corizon lacks standing to
object to the relevance of discovery from a third party. See doc. 137 at 4-6. Even if it
did have standing, and despite the likelihood that Riner does not have knowledge of
Ajibade’s detention, they contend that she could illuminate what the Sheriff and
Corizon knew about the general quality of medical care provided to inmates. See id.
at 6-7. They also contend that her testimony is relevant to corroborate or refute the
testimony of defendant Brown. Id. at 7. Those relevancy claims are not obviously
specious, and, after all, relevance is not a demanding standard. United States v.
Tinco, 304 F.3d 1088, 1120 (11th Cir. 2002) (“The standard for what constitutes
relevant evidence is a low one.”); Republic of Equador v. Hinchee, 741 F.3d 1185,
1189 (11th Cir. 2013) (explaining Federal Rules of Civil Procedure “favor full
discovery whenever possible”) (quotes and cite omitted)). Since Riner hasn’t
obscured by her refusal to answer many of the questions posed at her
deposition, including apparently innocuous ones.3 Left in the dark on the
facts, the Court must rely on the law for light.
Regardless of the contract’s specific terms, “[t]he public policy of
Georgia does not ‘permit parties to contract privately for the
confidentiality of documents [or testimony], and [thereby] foreclose
others from obtaining, in the course of litigation, materials that are
relevant to their efforts to vindicate a legal position. To hold otherwise
would clearly not serve the truth-seeking function of discovery in [civil]
litigation.’” Barger v. Garden Way, Inc., 231 Ga. App. 723, 725 (1998)
(alterations in original) (quoting Grumman Aerospace Corp. v. Titanium
Metals Corp. of America, 91 F.R.D. 84, 87–88 (E.D.N.Y.1981)). To
effectuate that policy, a provision allowing the contracting party to
“testify or otherwise comply with a subpoena, court order, or applicable
answered even basic questions, see note 3 infra, it’s not clear what the content of her
testimony is likely to be. Riner does not assert that her testimony is irrelevant, but
only seeks assurance that testifying will not subject her to liability. See generally
For example, Riner’s counsel advised her not to answer questions about the
identity of Corizon’s “medical director” and whether that person, whoever it was,
was her immediate supervisor. Doc. 125-1 at 39-40. It is difficult to fathom what
possible interest Corizon could have in keeping that information confidential.
However, the Court will not second-guess Riner’s counsel’s caution in protecting his
client against possible liability for breach of the settlement.
law,” is implied in every confidential settlement agreement. Id. at 72526.
Federal law takes a similarly skeptical view of such agreements’
power to limit discovery.
See In re Enron Corp. Sec., Derivative &
ERISA Litig., 623 F. Supp. 2d 798, 838 (S.D. Tex. 2009) (citing, inter
alia, “Griffin v. Mashariki, . . . ,1997 WL 756914, *2 (S.D.N.Y. Dec. 8,
1997) (‘[T]he mere fact that settling parties agreed to maintain the
confidentiality of part of the settlement ... cannot serve to shield that
statement from discovery’); Tribune Co. v. Purcigliotti, . . . , 1996 WL
337277, *3 (S.D.N.Y. June 19, 1996) (same proposition); Magnaleasing,
Inc. v. Staten Island Mall, 76 F.R.D. 559, 562 (S.D.N.Y.1977)
(confidentiality clause does not bar discovery of relevant portions of a
settlement agreement)”). The legal authority is, thus, unequivocal that
the agreement between Corizon and Riner cannot bar plaintiffs’
Assuming that Georgia law governs the settlement agreement -- the Court assumes
that it does because Corizon cites to Georgia case-law, including Barger, in its brief,
see doc. 131 at 10-11 -- Barger’s implied caveat allows that someone subject to a
confidentiality agreement “may nevertheless testify or otherwise comply with a
subpoena.” 231 Ga. App. at 725 (emphasis added). Thus, whatever the “significant
confidentiality requirements” the parties’ agreement “purports” to impose, doc. 130
at 2, they would be subject to Barger’s caveat. Since Fed. R. Civ. P. 45 does not
require a subpoena to enumerate the subjects upon which testimony is sought, and
Weighing against the plaintiffs’ discovery interest is the disputeresolution efficiency promoted by settlements, which are only as
attractive as they are enforceable. See Harrison v. Bankers Standard
Ins. Co., 2015 WL 3617108 at * (S.D. Cal. June 9, 2015) (quoting
MedImuune, L.L.C. v. PDL BioPharma, Inc., 2010 WL 3636211 at * 2
(N.D. Cal. 2010)) (“Courts ‘must balance [one party’s] interest in the
discovery of potentially relevant information against [another party’s]
interest in protecting a settlement negotiated with the expectation of
confidentiality.”); cf. Bennett v. Behring Corp., 737 F.2d 982, 986 (11th
Cir. 1984) (referring to “the strong judicial policy favoring settlement”).
Thus, “[w]here private parties, represented by counsel, contract for
confidentiality of the settlement agreement terms, courts should be
loathe to interfere.”
In re Enron, 623 F. Supp. 2d at 837 (citing
Centillion Data Sys., Inc. v. Ameritech Corp., 193 F.R.D. 550, 551-52
(S.D. Ind. 1999); EEOC v. Rush Prudential Health Plans, 1998 WL
156718 at * 5 (N.D. Ill. Mar. 31, 1998)). That reticence is compounded in
Riner does not contend that the subpoena imposes and undue burden, nor move the
Court to quash or modify it, it is not clear what she means by requesting the Court
“clarify the scope of the subpoena.” Doc. 131 at 2. However, the Court expects that
Riner, the parties, and their respective counsels will all appreciate Barger’s
this case by Corizon’s insistence that Riner’s evidence would be merely
cumulative. See doc. 131 at 16-17.
Given the importance of the interests on both sides of this dispute,
and the relative lack of factual specificity, the parties should attempt a
compromise solution, before the Court takes more drastic action.5
Within 21 days from the date this Order is served, the parties should
confer and attempt to agree to a protective order that will allow
plaintiffs’ counsel to conduct discovery, including taking Riner’s
The extent of the parties’ conference prior to the deposition and instant motion is,
like the other facts involved, murky.
Plaintiffs’ motion attaches email
correspondence with Riner’s counsel, and includes a boilerplate certification of
conference. See doc. 125 at 22; doc. 125-6 (emails from Riner’s counsel); doc. 125-7
(emails from plaintiffs’ counsel).
Corizon does not address the conference
requirement at all. See generally doc. 131. Riner explains that the conference among
the parties was limited, but should suffice to satisfy the Federal Rules and this
Court’s Local Rules. See doc. 130 at 5.
What is not clear is whether the parties discussed the possibility of an agreement,
possibly memorialized in an Order, protecting any fact Riner reveals from public
disclosure, while allowing plaintiffs, or at least their counsel, to hear that testimony
and evaluate its relevance. Assuming that any of her testimony is later sought to be
introduced in a subsequent motion or at trial, the parties and the Court would have
the benefit of a fully-developed factual record in evaluating those arguments.
In that regard, a protective order is a meat-and-potatoes item often produced by
meaningful, pre-compel motion conferences. Local Rule 26.5(c), for that matter,
reminds attorneys “that Fed. R. Civ. P. 26(c) and 37(a)(2) require a party seeking a
protective order or moving to compel discovery to certify that a good faith effort has
been made to resolve the dispute before coming to court. “That rule is enforced.”
Hernandez v. Hendrix Produce, Inc., 2014 WL 953503 at * 1 (S.D. Ga. Mar. 10, 2014).
And the conference must be meaningful. Hernandez v. Hendrix Produce, Inc., 297
F.R.D. 538, 540 (S.D. Ga. 2014); State Farm Mut. Auto. Ins. Co. v. Howard, 296
F.R.D. 692, 697 (S.D. Ga. 2013).
testimony, while preventing Riner or Corizon from forfeiting the benefit
of their bargained-for protection from public disclosure. If, after a goodfaith conference, they cannot reach a mutually satisfactory agreement,
the parties should explain specifically the impediments, including their
respective proposals for resolution.6
The Court authorizes the filing,
under seal and for in camera review, the confidential settlement
agreement in question.
And if any party contends that they cannot
provide or support such an explanation on the Court’s public docket,
they are free to move the Court to seal relevant filings under Local Rule
SO ORDERED, this 19th
day of July, 2017.
If plaintiffs wish to maintain the portion of their motion seeking to recover the
costs of the Riner’s testimony, they are free to do so after attempting to negotiate a
mutually satisfactory agreement. Hopefully, if they chose proceed, they and the
Court will have the benefit of a full understanding of the limitations allegedly
imposed by the settlement agreement to inform an evaluation of counsels’ conduct at
her first deposition.
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