DAVIS et al v. CARMEL CLAY SCHOOLS

Filing 194

ORDER denying Pltf's 179 Motion for Sanctions (see Order). Signed by Magistrate Judge Mark J. Dinsmore on 9/10/2013. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

RICKEY L. DAVIS,
SHERONDA DAVIS next best friends of
M.D.,
Plaintiffs,
vs.
CARMEL CLAY SCHOOLS,
Defendant.

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No. 1:11-cv-00771-SEB-MJD

ORDER ON PLAINTIFF’S MOTION FOR SANCTIONS
This matter is before the Court on Plaintiff’s Motion for Sanctions Regarding
Defendant’s Violation of Protective Order. [Dkt. No. 179.] The Court being duly advised,
DENIES Plaintiff’s Motion.
I.

Background

On April 25, 2012, the Court approved a protective order that had been submitted for
approval by Plaintiffs and Nonparty The City of Carmel Police Department. [Dkt. 88, 95.] On
April 19, 2013, Defendant filed its Brief in Support of Motion to Limit the Testimony of Expert
Rebecca Hendricks; in that brief, Defendant included the full name of the Plaintiff, minor child,
M.D. as part of a quotation from Ms. Hendricks’ expert report. [Dkt. No. 175 at 5-6.] On May
7, 2013, Defendant moved to place Docket No. 175 under seal [Dkt. 181], which motion was
granted by the Court [Dkt. 182].
On May 6, 2013, Plaintiffs moved for sanctions, alleging that Defendant violated the
Court’s protective order when it filed its brief that identified M.D. [Dkt. 179.] Plaintiffs’ motion

begins by representing to the Court that “the parties’ [sic] entered into an Agreed Protective
Order. . .;” thereafter citing to the protective order at Docket No. 95. [Dkt. 179 at 1-2 (emphasis
added).] In fact, Defendant never joined in the motion seeking entry of the protective order at
Docket No. 95; rather, the protective order at Docket No. 95 was sought by Plaintiffs and a
nonparty to the case in order to facilitate the production of documents by that nonparty. [Dkts.
88, 95; see also Dkts. 68, 77, 84, 115.] Plaintiffs and Defendant did, however, agree to the entry
of the protective order at Docket No. 45. [Dkts. 40, 45.] The Court will address both protective
orders, as the result of the analysis is the same.
Plaintiffs argue that Defendant’s identification of M.D. in its brief fell within the
definition in paragraph 2 of the Docket No. 95 protective order, which provides as follows:
2. Definition of Confidential, Personal and/or Private Information. “Confidential,
Personal and/or Private Information” as used herein means the following
information produced in this matter: the identity of and the substance of any
interviews of or reports regarding any individual who was under eighteen years of
age at the time the report was prepared or the interview conducted; any
information subject to the provisions of the Family Educational Rights and
Privacy Act, 20 U.S.C. § 1232g; information which may disclose the investigative
techniques of any law enforcement agency; information which may disclose the
prosecutorial strategy of any prosecutor; Department of Child Services (“DCS”)
reports and records; Chaucie’s Place reports, interviews and records, as well as
minor child evaluations, minor child reports or other psychological and victim
reports or documents from child protective services and related governmental or
private agencies; and any confidential personal information, such as Social
Security numbers, otherwise protected from disclosure by law.
[Dkt. 95 at 1-2.] This provision was focused upon protecting information relating to interviews
of unrelated minor children who may have witnessed matters that were relevant to the
investigation conducted by The City of Carmel Police Department.
Likewise, paragraph 2 of the Docket No. 45 protective order provides as follows:
2. Definition of Confidential, Personal and Private Information. “Confidential,
Personal and Private Information” as used herein means any information which is
designated by the Defendant or the Plaintiffs to be confidential, personal and/or
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private information regarding a CCS employee, a former CCS employee, a CCS
student, or a former CCS student. This definition includes, but is not limited to,
any document that would be defined as a student record under the terms of the
Federal Educational Rights and Privacy Act (“FERPA”)1, including the student
records of M.D., the minor child at issue in this litigation, and/or any other current
or former CCS student. Disclosure of this information or documents would be
harmful to CCS’s current and former employees and students, and would put CCS
at risk of lawsuit from those employees and/or students. Information shall be
designated as confidential, personal and private information only upon good faith
belief that the information is confidential, personal and private, and subject to
protective under Federal Rule of Civil Procedure 26(c).
[Dkt. 45 at 1-2.]
The above provisions, even if broad enough to encompass Ms. Hendricks’ expert report,
required Plaintiffs to clearly designate that report as confidential before the protective order
might be invoked. [Dkt. 45 at 2; Dkt. 95 at 2.] A review of the copy of Ms. Hendricks’ expert
report submitted to the Court by the Plaintiffs demonstrates no evidence of such confidential
designation. [Dkt. 130-3.] Plaintiffs’ failure to designate Ms. Hendricks’ report as confidential
pursuant to either protective order when that report was provided to the Defendant relieved
Defendant of any obligation to treat the information therein as confidential. Additionally, even if
Plaintiffs had properly invoked the protective orders with respect to Ms. Hendricks’ expert
report, the excerpts of Ms. Hendricks’ expert report that refer to M.D. and were included in
Defendant’s brief do not fall within the definition of Confidential Personal and/or Private
Information set forth in either protective order. [See Dkt. 175 at 5-6.] Accordingly, the
identification of M.D. in Defendant’s brief was not a violation of the Court’s protective order as
alleged by Plaintiffs.
Plaintiffs next claim that Indiana law protects the identity of the alleged victims of rape
and sexual assault, such as M.D.. [Dkt. 179 at 2.] The Court notes that neither Plaintiffs’ motion,
nor Plaintiffs’ reply in support thereof, ever identifies the “Indiana law” that Defendant allegedly

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violated. In the event Plaintiffs seek to rely upon the Indiana Rape Shield Statute, Ind. Code §
35-37-4-4, that provision does not apply to protect the “identity” of an alleged victim. To the
extent Plaintiffs reference is to some other undefined “Indiana law,” that undeveloped argument
has been waived. See United States v. Dunkel, 927 F.2d 955 (7th Cir. 1991).
Other than the parties’ apparently unrecorded agreement not to use M.D.’s full name,
which the Court has honored, Plaintiffs point to nothing to prohibit the identification of M.D. by
name. In the absence of any violation, no sanction is appropriate. Accordingly, Plaintiff’s
Motion for Sanctions Regarding Defendant’s Violation of Protective Order is hereby DENIED.

Date: 09/10/2013
Distribution:
All Electronically Registered Counsel

Mark J. Dinsmore
United States Magistrate Judge
Southern District of Indiana

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