Ajibade et al v. Harris et al
ORDER granting in part and denying in part 125 Motion to Compel; granting in part and denying in part 145 Motion for Protective Order; granting in part and denying in part 146 Motion ; granting in part and denying in part 151 Motion for Protective Order; granting in part and denying in part 156 Motion to Compel. Signed by Magistrate Judge G. R. Smith on 11/9/17. (jrb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
AJIBADE, et al.,
JOHN WILCHER, in his official
capacity as Chatham County
Sheriff, et al.,
Scott L. Poff, Clerk
United States District Court
By James Burrell at 12:53 pm, Nov 09, 2017
Before the Court is the latest round in the dispute over the
deposition of Betty Riner. Plaintiffs moved to compel her testimony.
Riner responded that she was “willing and eager to fully
comply with her obligation to give full and truthful testimony,” but
expressed concern that her testimony would subject her to liability under
an (otherwise unrelated) settlement agreement between her and
defendant Corizon Health. Doc. 130 at 8 (emphasis added). Corizon also
opposed plaintiff’s motion, contending Riner’s testimony was both
precluded by the settlement agreement and irrelevant. Doc. 131. The
Court directed the parties to confer and try to formulate a protective
order that would assuage Riner’s liability concerns, protect Corizon’s
bargained-for confidentiality, and allow plaintiffs to take Riner’s
testimony. Doc. 141.
The Court’s hopes for a negotiated, mutually-agreeable solution
have not borne fruit. Corizon now moves for a protective order. Doc.
145. Plaintiffs seek an order compelling Riner to testify, without any
restriction, and awarding fees from Riner’s counsel and Corizon “as a
sanction for their conduct at the first deposition -- and now for Corizon’s
conduct during the meet-and-confer period.” Doc. 146 at 14; doc. 156.
Riner, for her part, asks the Court to issue a protective order excusing
her from testifying, now contending that her testimony is irrelevant and
cumulative, see doc. 151 at 5, and if the Court declines her request, for
“topic-specific guidance as to exactly what she must testify about
pursuant to Plaintiffs’ subpoena or a Court order and provide [her with]
protection from suit or liability instigated by Corizon under the
confidential Settlement Agreement related to any testimony she might
provide.” Id. at 11. Naturally, both Corizon and Riner oppose any award
of fees or the imposition of sanctions. See doc. 131 (Corizon’s opposition
to plaintiffs’ original motion requesting it be denied “in its entirety”);
doc. 151 at 11.
As the Court’s last Order explained, the private agreement between
Riner and Corizon1 cannot, under Georgia law, remove her obligation to
provide truthful testimony in response to plaintiffs’ subpoena.
Barger v. Garden Way, Inc., 231 Ga. App. 723, 725 (1998) (“The 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 could clearly
not serve the truth-seeking function of discovery in civil litigation.”
(quotes, alterations, and cite omitted)). The common law, too, embodies
the principle that “the public has a right to every man’s evidence.”2
United States v. Bryan, 339 U.S. 323, 331 (1950); Doe No. 1 v. United
States, 749 F.3d 999, 1009 (11th Cir. 2014) (declining to recognize a
The Court has reviewed the agreement. See doc. 144. Since it contains a provision
requiring that its terms remain confidential and, as explained below, its precise terms
are irrelevant to plaintiffs’ right to discovery, the Court will not discuss any
“Were the Prince of Wales, the Archbishop of Canterbury, and the Lord High
Chancellor, to be passing by in the same coach, while a chimney-sweeper and a
barrow-woman were in a dispute about a halfpennyworth of apples, and the chimneysweeper or the barrow-woman were to think proper to call upon them for their
evidence, could they refuse it? No, most certainly.” Branzburg v. Hayes, 408 U.S.
665, 668 n. 26 (1972) (quoting 4 THE WORKS OF JEREMY BENTHAM 320-21 (J. Bowring
common-law privilege for plea negotiations). If the testimony plaintiffs
seek is otherwise discoverable, Corizon and Riner’s agreement cannot
Under the Federal Rules, permissible discovery depends upon
relevance.3 See Fed. R. Civ. P. 26(b)(1) (“Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim
or defense”). Relevance, however, is not a high bar. See McCleod v.
Nat’l R.R. Passenger Corp., 2014 WL 1616414 at * 3 (S.D. Ga. Apr. 22,
2014) (“Rule 26, quite simply, sets forth a very low threshold for
relevancy . . . .” (quotes and cite omitted)).
Complaint includes a claim that Corizon and Sheriff Wilcher “knew, or
should have known, of a history, custom, propensity, and pattern for
Corizon employees and deputies, officers and employees at the CCDC to
fail or refuse to provide prompt and competent access to and delivery of
physical and mental health evaluation and treatment to detainees . . . .”
Recent amendments to Rule 26(b), although substantive and substantial, do not
change the definition of “relevance.” Instead, they emphasize requirements already
present in the Rules, like proportionality. See Fed. R. Civ. P. 26, advisory
committee’s note to 2015 amendment (“Restoring the proportionality calculation to
Rule 26(b)(1) does not change the existing responsibilities of the court and the parties
to consider proportionality . . . .”); Sibley v. Choice Hotels Int’l, 2015 WL 9413101 at
* 2 (E.D.N.Y. Dec. 22, 2015) (“While proportionality factors have now been
incorporated into the Rule 26(b)(1) definition, those factors were already a part of
Federal discovery standards, appearing in Rule 26(b)(2)(C)(iii).”).
Doc. 21 at 15, ¶ 99. Riner’s testimony is clearly relevant to that claim, at
least. Plaintiffs contend she “offers a totally unique view” as “the only
person . . . not in the management structure of the Sheriff or Corizon”
called to testify in this matter regarding a particular meeting at which
(plaintiffs contend) deficiencies in the medical services provided at CCDC
were discussed. Doc. 146.
Even if a party establishes that challenged discovery is relevant,
the Court may nevertheless disallow or limit it. See, e.g., Fed. R. Civ. P.
45(d)(3). The Federal Rules specifically direct courts to consider, among
other factors affecting the scope of discovery, “whether the burden or
expense of the proposed discovery outweighs its likely benefit.” Fed. R.
Civ. P. 26(b)(1).
Riner contends that the burden imposed by her
testifying, subject to the risk of litigation or liability, overwhelms its
likely benefit. See doc. 151 at 7 (“[T]he nature of the testimony [Riner] is
capable of providing does not justify the burden that testifying in this
case places upon her, nor does it justify the jeopardy that testifying
would subject her to.”); see also doc. 145 at 6 (“Corizon Health simply
cannot say in advance that Ms. Riner will not be in breach of the
settlement agreement [if she testifies] or that a breach, should it occur,
will be consequence-free.”). Plaintiffs have cited nothing that suggests
such burdens should not be weighed in the balancing the Rules require.4
The difficulty the Court faces, then, is to balance the risk that
Riner faces from testifying (slim as that may be) against the unknown
value of testimony she has not yet provided. Rather than attempt to
count the angels dancing on that pinhead, the Court will pursue a middle
Plaintiffs and Corizon agree that a protective order would
mitigate this difficulty, although they are unable to settle on terms
amongst themselves. See doc. 145 at 6 (Corizon seeks an order sealing
the deposition and only unsealing it “based on motion and after
presentation of what information could and should be disseminated into
Although Barger is clear that private agreements cannot preclude legitimate
discovery, the Court will not go so far as to decide, given the procedural posture of
the case, that any action for breach of such an agreement would be frivolous. See
doc. 151 at 7-8 (expressing concern that “[i]f a subpoena or court order only compels
a witness to offer discoverable testimony, and Riner offers testimony outside the
scope of this case’s permissible discovery, she might well subject herself to liability
even if the Settlement Agreement or prevailing law provides for her to testify
‘pursuant to a lawful subpoena’ or court order.”). Riner’s liability concerns, given
that Corizon does not contest that she may testify, seem attenuated. See doc. 145 at
6-7 (“What Corizon Health can say is that Plaintiffs should be able to take Ms.
Riner’s deposition, just like any other deposition, and Ms. Riner may answer, just like
any other depo[nent]. Should Ms. Riner breach the terms of her settlement
agreement, Corizon Health should be free to determine what to do in response.”).
Without deciding the issue, the Court is nevertheless skeptical that a suit for breach
of a confidentiality agreement, arising out of testimony given in response to a lawful
subpoena, could be successful (to say nothing of whether such a suit might give rise
to a counterclaim for tortious abuse of civil process).
the public record.”); doc. 146-4 (plaintiffs’ proposed order, including a 14day period in which the transcript would remain sealed.)
Court’s broad discretion in this area, it will impose some minimal
constraints on the dissemination of Riner’s testimony.
Plaintiffs and Corizon agree that some level of confidentiality for
Riner’s testimony will not undermine plaintiffs’ interest in hearing her
testimony and determining its value for themselves. Plaintiffs correctly
point out that the stringent confidentiality measures Corizon proposes
run afoul of the, law’s general disfavor of secret judicial proceedings and
records. See doc. 146 at 12; F.T.C. v. Abbvie Prods. LLC, 713 F.3d 54, 62
(11th Cir. 2013) (“The common-law right of access establishes a general
presumption that criminal and civil actions should be conducted publicly
. . . .” (quotes, alterations, and cite omitted)); see also, e.g., S.D. Ga. L.
Civ. R. 79.7(d) (noting the “presumption of openness [of court records] is
derived from the First Amendment”). Since the parties were unable to
resolve this difficulty on their own, the Court will do it for them.
The parties, and any person privy to the substance of Riner’s
testimony, are DIRECTED to maintain that information in confidence
until 14 days after the transcripts are served. If any party (or Riner)
objects that the testimony elicited is outside the scope of permissible
discovery (and thus subject to her confidentiality obligations), they may
move the Court to order that that portion of the transcript remain
confidential, and should the deposition be filed of record, that the
confidential portion be sealed, pursuant to Local Rule 79.7 (Sealed
If no party makes such a motion within 14 days, the
confidentiality obligations expire and the transcripts, if filed, shall be
unsealed. If such a motion is filed, the parties privy to that testimony
shall keep it confidential until further Order from the Court.
procedure will enable the Court to resolve any dispute about the
confidentiality of Riner’s testimony without its premature disclosure.5
The Court, however, can neither provide Riner with a definitive
interpretation of her agreement with Corizon nor indemnify her against
suit. The Court may not issue advisory opinions. See, e.g., Thigpen v.
Smith, 792 F.2d 1507, 1514 (11th Cir. 1986) (citation omitted)
The parties and Riner remain free to negotiate an alternative to the Court’s
protective order. The Court also notes that Corizon’s proposals include an
undertaking, when moving to seal portions of the deposition, to identify portions it
contends “would breach the terms of the settlement agreement.” See doc. 146-4 at 3.
The Court expects that any motion filed by Corizon or Riner to extend the limitations
on disclosure of Riner’s testimony transcript would include an explanation of why the
challenged portion(s) would not only breach the settlement agreement but disclose
matters not relevant to any parties’ claim or defense in this litigation. After all, any
such burden is directly linked to the possibility of a breach.
(Constitution’s limitation of federal court’s jurisdiction to “cases” and
“controversies” implies that they “have no authority to issue advisory or
hypothetical decisions.”). Riner’s request for an interpretation of her
own agreement and “protection” against a hypothetical future suit by
Corizon seeks nothing less. She doesn’t provide any authority, beyond
the Court’s broad discretion to control discovery, suggesting the Court
has the power to issue the order she’s requested in the context of a
discovery dispute.6 See doc. 151 at 3-4 (arguing “[t]he Court has wide
latitude to fashion any remedy it wishes.”). Whether a procedure exists
for her to seek a judicial determination of her potential liability is a
question for her counsel, but this isn’t it.7
Riner suggests that the Court can “define[ ] what the subpoena or Court order
actually compels her to testify about.” Doc. 151 at 9. However, there is no
requirement that a notice of deposition or a subpoena specify the topics counsel
intends to cover. See Fed. R. Civ. P. 30(b)(1) (“The notice must state the time and
place of the deposition and, if known, the deponent’s name and address.”); Fed. R.
Civ. P 45(a)(1) (listing the required contents of a subpoena, including “command
each person to whom it is directed to do the following at a specified time and place:
attend and testify . . . .). The Court cannot exhaustively identify, in advance, what
topics covered in a deposition are relevant, and thus discoverable. As discussed
above, the Court imposes a procedure whereby any such contentions can be
considered specifically, before the content of Riner’s testimony is made public.
To the extent that Riner is (as her brief puts it) on a “tightrope” it is one that she
walked onto when she undertook confidentiality obligations under the settlement
agreement. Her position may be precarious, but she received monetary consideration
to undertake it. In that regard, “[t]he possibility of being sued by those adversely
affected [by a decision] is an inherent risk faced by the decisionmakers. Needless to
Finally, the Court will not accede to plaintiffs’ request to recover
the fees they have incurred in this dispute from Riner’s counsel and
Corizon. See doc. 145 at 14-15. Although the Court cannot say that the
parties’ conduct has been entirely above reproach, it does appear that
there is a sufficient “genuine dispute” that shifting expenses is not
warranted. See, e.g., CHARLES ALAN WRIGHT, ARTHUR R. MILLER, et al.
8B FED. PRAC. & PROC. CIV. § 2288 (3d ed. 2017) (“Making a motion, or
opposing a motion, is ‘substantially justified’ if the motion raised an
issue about which reasonable people could genuinely differ on whether a
party was bound to comply with a discovery rule.”). Despite the Court’s
ultimate agreement with plaintiffs that the Settlement Agreement could
not preclude Riner’s testimony, Riner and Corizon have shown that
reasonable people might differ on whether that testimony should be
say, the decisionmakers would benefit greatly by having guidance as to the potential
legal ramifications of their decisions. Furnishing such guidance prior to the making
of the decision, however, is the role of counsel, not of the courts.” Hendrix v. Poonai,
662 F.2d 719, 722 (11th Cir. 1981) (emphasis added). Although 28 U.S.C. § 2201
creates a remedy whereby a party may obtain “a declaration [of the rights and other
legal relations of an interested party] . . . hav[ing] the force and effect of a final
judgment or decree,” a discovery dispute is not the context to seek it. The risk of
being sued (and thus the burden of that risk) is pervasive in our litigious age. That
risk does not and cannot, however, excuse anyone from their social and civic
subject to burden-limiting protections. That’s enough, in the Court’s
discretion, to avoid fee shifting.8
In summary, plaintiffs shall be allowed to subpoena Riner for a
second deposition. See Fed. R. Civ. P. 30(a)(2)(A)(ii) (requiring leave of
court before second deposition of the same deponent). Plaintiffs’ various
requests concerning Riner’s deposition (docs. 125, 146, & 156) are
GRANTED in part and DENIED in part. Corizon’s Motion for a
Protective Order (doc. 145) and Riner’s Motion for a Protective Order
(doc. 151) are also GRANTED in part and DENIED in part.
Finally, plaintiffs have expressed concern over the effect that the
prolonged dispute over Riner’s deposition has had on the schedule for
completing discovery in this case.
See doc. 156.
To assuage that
reasonable concern, the Court will proactively extend the close of expert
discovery and the civil motions deadline by 30 days. Accordingly, the
Court’s scheduling Order (doc. 155) is amended as follows:
The parties are advised, however, that the Court routinely imposes sanctions
against litigants, and/or their attorneys, for frivolous objections to relevant questions.
See Fed. R. Civ. P. 37; see also, e.g., Fed. R. Civ. P. 11(b)(1) (allowing sanctions to be
imposed for presenting an argument “for any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of litigation”). Briefly put,
the Court expects that all counsel will scrupulously abide by both the spirit and letter
of their professional obligation to cooperate fully in discovery, and avoid further
unnecessary delay or expense.
Close of Expert Discovery:
January 8, 2018
Last Day for Filing Civil Motions,
including Daubert motions but
excluding motions in limine:
February 21, 2018.
SO ORDERED, this 9th day of November, 2017.
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