DAVIS et al v. CARMEL CLAY SCHOOLS

Filing 83

ORDER denying Deft's 41 Motion for Protective Order (see Order). Signed by Magistrate Judge Mark J. Dinsmore on 4/9/2012. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

RICKEY L. DAVIS,
SHERONDA DAVIS,
Plaintiffs,
vs.
CARMEL CLAY SCHOOLS,
Defendant.

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) NO. 1:11-cv-00771-SEB-MJD
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ORDER ON MOTION FOR PROTECTIVE ORDER
This matter comes before the Court on Defendant Carmel Clay
School’s Motion For Protective Order Prohibiting Parties And
Their Counsel From Public Comment On The Issues Of This Case
[Dkt. 41].

For the following reasons, Defendant’s motion is

DENIED.
BACKGROUND
This case arises out of allegations that Plaintiffs’ child,
M.D., was subjected to bullying, harassment and assault by older
students while he was a student at Carmel High School, and that
Defendant, Carmel Clay Schools, knew or should have known about
the alleged incidents and failed to prevent or stop them.

The

four students involved were charged with and plead guilty to
misdemeanor charges in a related incident.

There has been

considerable media coverage of the incident during both the
criminal and civil proceedings, and the Plaintiffs, Plaintiffs’
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attorney, the Hamilton County Prosecutor, parents, school
officials, faculty, and others have all provided statements to
the media.
Defendants request that the Court enter a protective order
prohibiting the parties and their attorneys from making comments
about the merits of the case to the media.

Defendants argue

that permitting the Plaintiffs and their counsel to make
comments to the media would “present a substantial likelihood of
prejudice to the Defendant in the event that this matter
proceeds by a jury trial.” [Dkt. 42 at 2].

Plaintiffs argue

that such an order would impermissibly limit the Plaintiffs’ and
Plaintiffs’ counsel’s first amendment rights.
DISCUSSION
In the Seventh Circuit, a trial court can limit a party’s
and their attorney’s exercise of first amendment right of
freedom of speech only where the record contains sufficient
specific findings that the party’s and their attorney’s conduct
poses a “serious and imminent threat to the administration of
justice.”

Robson v. United States, 435 F.2d 1059, 1061 (7th

Cir. 1970) (quoting Craig v. Harney, 331 U.S. 367, 373 (1947)),
In re Oliver, 452 F.2d 111, 114 (7th Cir. 1971).

“A blanket

prohibition...against all comment in a case whether tried before
a judge or jury without regard to whether such comment is or
even could be prejudicial to the fair administration of justice
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cannot stand without making a mockery of the free speech
guarantee of the first amendment.”

Oliver, 452 F.2d at 114-15.

The prohibition must be one that prevents imminent harm, not
merely speculative harm.

The court in Robson found that seven

month old newspaper articles that formed the basis for the lower
court’s order prohibiting defendants and their attorneys from
making any public statements in relation to their pending
criminal case were not a sufficient basis for finding that the
risk of harm was imminent, and did not support the proposition
that the defendants’ future first amendment utterances, if any,
would interfere with the fair administration of the trial.
Robson, 435 F.2d at 1061.

Defendant asks the Court to apply the

lower “reasonable likelihood” standard utilized in the 5th
Circuit; however, Seventh Circuit case law is clear that this
circuit applies the more stringent “serious and imminent threat”
standard.
Defendant has not shown the requisite “serious and imminent
threat” such that judicial proscription or limitation of contact
with the media is warranted at this time.

The majority of the

media sources cited by Defendants in their brief are over a year
old and pre-date the filing of the civil lawsuit, which, based
on Robson, is insufficient to support a finding of an imminent
threat.

The Calabrese case cited by the Defendant is

distinguishable from this case in that it arose from statements
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made during the pendency of a criminal trial and involved
unauthorized disclosures of sealed information and a jury that
was not sequestered.

United States v. Calabrese, 02 CR 1050,

2007 WL 2075630 (N.D. Ill. July 13, 2007).

In addition, the

order in Calabrese was in response to media comments that had
already occurred during the early stages of the trial and was
meant to put a halt to additional prejudicial comments to the
media.

Id. at *4-5.

The need to limit Plaintiffs’ contact with

the media by means of a protective order is premature and would
impermissibly impede the exercise of Plaintiffs’ and Plaintiffs’
counsel’s first amendment rights.
In addition, Indiana Rule of Professional Conduct 3.6
(Trial Publicity)1 clearly sets out what lawyers may and may not
say in public communications regarding a case.

Under this rule,

a lawyer may not make public comments that will have “a
substantial likelihood of materially prejudicing an adjudicative
proceeding….” Ind. R. Professional Conduct 3.6(a).

However, the

rule also permits a lawyer to make statements to “protect a
client from the substantial undue prejudicial effect of recent
publicity not initiated by the lawyer or the lawyer’s client.”
Ind. R. Professional Conduct 3.6(c) (emphasis added).

Both

Plaintiffs’ and Defendant’s counsels are equally bound by the

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Attorneys appearing before this Court are bound by the Indiana Rules of
Professional Conduct under Local Rule 83-5(e).

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requirements of this rule and must act within its boundaries
when making statements to the media.

The Court finds that this

rule is sufficient to govern the conduct of counsel in this
case, and any potential future violations of this rule of
professional conduct may be addressed as the need arises.
CONCLUSION
For the foregoing reasons, Defendant’s motion is DENIED.

Dated: 04/09/2012
Mark J. Dinsmore
United States Magistrate Judge
Southern District of Indiana

Distribution:
Gregory P. Gadson
LEE FAIRMAN LLP
[e-mail]
Corinne T.W. Gilchrist
OFFICE OF THE INDIANA ATTORNEY GENERAL
[e-mail]
Nathaniel Lee
LEE FAIRMAN LLP
[e-mail]
Rick D. Meils
MEILS THOMPSON DIETZ & BERISH
[e-mail]
John W. Mervilde
MEILS THOMPSON DIETZ & BERISH
[e-mail]
Liberty L. Roberts
COLLIER MAGAR & ROBERTS
[e-mail]
Cari L. Sheehan
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LEE FAIRMAN LLP
[e-mail]
Robert B. Turner
LEE FAIRMAN LLP
[e-mail]

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