LESER v. INDIANAPOLIS PUBLIC SCHOOLS et al

Filing 228

ORDER granting in part and denying in part Plaintiff's 220 Motion to Compel. See Order. The Defendants shall have until Tuesday, May 14, 2019 by which to file a supplemental brief that demonstrates, with specificity, the good cause necessary to maintain the remaining challenged documents as confidential. If the Defendants choose not to file a brief, the confidential designation will be removed from documents listed in Exhibit 1 to the Plaintiff's Motion that have not already been produced as non-confidential. Signed by Magistrate Judge Doris L. Pryor on 5/10/2019. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DEBORAH L LESER,
Plaintiff,
v.
INDIANAPOLIS PUBLIC SCHOOLS,
BOARD OF SCHOOL COMMISSIONERS
FOR THE CITY OF INDIANAPOLIS,
MARY ANN SULLIVAN, Individually and
in her Official Capacity,
SAM ODLE, Individually and in his Official
Capacity,
LANIER ECHOLS, Individually and in her
Official Capacity,
MICHAEL O'CONNOR, Individually and in
his Official Capacity,
GAYLE COSBY, Individually and in her
Official Capacity,
KELLY BENTLEY, Individually and in her
Official Capacity,
DIANE ARNOLD, Individually and in her
Official Capacity,
LEWIS D. FEREBEE, Individually and in
his Official Capacity,
LE BOLER, Individually and in her Official
Capacity,
WANDA LEGRAND, Individually and in
her Official Capacity,
LELA TINA HESTER, Individually and in
her Official Capacity,
Defendants.

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No. 1:16-cv-02044-TWP-DLP

ORDER
This matter comes before the Court on the Plaintiff’s Motion to Compel the
Removal of Confidentiality Designation from Specific Documents Under the

Protective Order (Dkt. 220) 1. The motion was referred to the Undersigned for ruling
and, for the reasons that follow, is hereby GRANTED IN PART and DENIED IN
PART.
I.

Background
For the purposes of this Order, the Court assumes familiarity with the

underlying facts of this case. On April 24, 2019, the parties participated in a
telephonic status conference with the Undersigned. During this call, the Plaintiff
expressed concerns that the Defendants were improperly designating certain
documents as confidential, and the Defendants expressed concerns that the Plaintiff
was improperly withholding certain documents from production. With the discovery
deadline fast approaching, the Court discussed an expedited briefing schedule for
the parties’ imminent motions to compel. The Plaintiff and Defendants filed their
respective Motions to Compel on April 26, 2019, their responses on May 1, 2019,
and their replies on May 3, 2019.
In the Plaintiff’s instant Motion to Compel, she requests that the Court
compel the Defendants to remove the confidential designation from certain
documents because, she argues, the documents are not actually confidential. She
also requests her reasonable attorneys’ fees for having to pursue this motion. The
Defendants’ Motion to Compel [Dkt. 214] will be discussed via separate order.

The parties submitted identical briefing in the instant case and in the related case, Jensen v.
Indianapolis Public Schools, et al, 1:16-cv-2047-TWP-DLP. The Court will primarily address the
Leser filings in this Order.
1

II.

Legal Standard
Even when a governing protective order provides for confidentiality of certain

documents, the party who desires the secrecy has the burden of continually showing
“good cause” to maintain such confidentiality when the confidential nature of the
information is challenged. In re Bank One Sec. Litig., 222 F.R.D. 582, 586 (N.D. Ill.
2004) (citing Union Oil Co. of Cal. v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000)).
Establishing good cause requires a party to present “a particular and specific
demonstration of fact, as distinguished from stereotyped and conclusory
statements.” Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 (1981).
If good cause is shown, a court then must balance the public's interest in
access to the record against the interest of the party seeking confidentiality to
determine whether to seal the record. In re Matter of Cont'l Ill. Secs. Litig., 732 F.2d
at 1313. If a party does not show good cause to justify the ongoing concealment of
certain information, the protective order may be dissolved or modified to unseal
that information. Id.; see also Jepson, Inc. v. Makita Elec. Works, 30 F.3d 854, 861
(7th Cir. 1994). If a party does identify specific genuine confidential material within
documents concealed by the protective order, a court nevertheless may place the
documents in the public record following redaction of the confidential material.
Methodist Hosps., Inc. v. Sullivan, 91 F.3d 1026, 1032 (7th Cir. 1996).
III.

Discussion

The Court approved the parties’ protective order on April 27, 2018. [Dkt. 97.]
The protective order provides that “[a]ny party or non-party who produces protected

information in this action may designate is at “Confidential” consistent with the
terms of this Order.” [Dkt. 97 at 2.] The protective order also lays out the process for
challenging designated information as follows:
In the event that a Receiving Party disagrees at any time with any
designation(s) made by the Designating Party, the Receiving Party
must first try to resolve such challenge in good faith on an informal
basis with the Designating Party pursuant to S.D. Ind. L.R. 37-1. The
Receiving Party must provide written notice of the challenge and the
grounds therefor to the Designating Party, who must respond in
writing to the challenge within 15 days. At all times, the Designating
Party carries the burden of establishing the propriety of the
designation and protection level. Unless and until the challenge is
resolved by the parties or ruled upon by the Court, the designated
information will remain protected under this Order.
Based on the parties’ briefing, the Plaintiff challenges the confidential
designation of three categories of documents: 1) documents already produced in
discovery without the confidential designation; 2) documents authored by and in the
control of the Defendants; and 3) documents produced in the Shana Taylor criminal
matter. The Court will address each in turn.
1) Documents Already Produced
The Plaintiff requests that the Court compel the Defendants to remove the
confidential designation from various documents that were already produced in
discovery in this case. The Defendants claim that this is a “non-issue,” while the
Plaintiff maintains that all documents that have been produced should have the
confidential designation removed. This issue could have (and should have) been
easily resolved by the parties themselves, without court intervention. Nevertheless,

it is the Court’s opinion that any documents that were produced without a
confidential designation can be used in this litigation. Therefore, there is no need
for the Defendants to remove the confidential designation from any document that
was already produced elsewhere in discovery without the confidential designation.
2) IPS Authored Documents
Next, the Plaintiff asserts that the Defendants should produce the documents
listed that were either authored by or are presently controlled by the Defendants. In
response, the Defendants argue that all such documents are encompassed by the
Protective Order in this case and, thus, should retain the confidential designation.
As noted above, once a document’s confidentiality designation has been challenged,
the party seeking to retain confidentiality must demonstrate “good cause.” The
Defendants, however, do not cite a single statute, rule, or opinion, but rather rely on
bare assertions and conclusory statements. 2 Defendants barely set forth any
argument or explanation as to why the challenged documents are confidential, and
assuredly cite no legal support for any argument that they did make.
In Exhibit 5 to their response brief, the Defendants did include their reasons
for withholding the various “IPS Authored 3” documents, but that justification was
merely that the documents were “subject to the Protective Order in this case as it
relates to the discipline of a non-party.” [Dkt. 224-5.] The Defendants do not explain

It should be noted that neither the Plaintiff nor the Defendants provided the Court with the
necessary, or any, authority in their briefing, which required the Court to endeavor to research the
appropriate authority on its own.
3 The Plaintiff refers to this category of designated documents as “IPS Authored.”
2

or identify the various documents, their relevance, or why they should be subject to
confidentiality. Instead, they simply attempt to refute the Plaintiff’s argument for
revoking confidentiality. The burden, however, is not on the Plaintiff to disprove
confidentiality, but rather on the Defendants to demonstrate good cause for
maintaining confidentiality. Similar to the Court’s problem with analyzing the
Defendants’ privilege log in prior motion practice, the Defendants have again failed
to meet their burden of providing good cause for maintaining the confidentiality
designations of the challenged documents.
3) Public Record Documents
Lastly, the Plaintiff argues that various documents that the Defendants
designated confidential include public records, such as documents from the
underlying criminal matter file (e.g. voluntary witness statements), which cannot
and should not be confidential in the present case. The Defendants assert that the
documents were not made public in the underlying criminal matter and that they
remain subject to the Protective Order here. In Exhibit 5 to their response brief, the
Defendants cited their reason for maintaining all “Public Record 4” documents
confidential as “this document remains subject to the Protective Order in this case
and in the A.H. matter 5.” [Dkt. 224-5.] The Defendants again cite no statute, rule,
or opinion to support their assertion that these documents are subject to both
The Plaintiff refers to this category of documents as “Public Record.”
The A.H. matter is a related civil case, A.H. v. The Board of School Commissioners for the City of
Indianapolis, et al, No. 1:17-cv-4153-RLY-DML. Various documents related to the underlying Shana
Taylor criminal matter were produced in the A.H. matter. A protective order governs the A.H.
matter. Based on the Defendants’ briefing here (Dkt. 224), the Plaintiff agreed to be bound not only
by the protective order in the instant matter, but also by the protective order in the A.H. matter.
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protective orders; at the very least, the Defendants should have addressed, as the
Plaintiff did, each document’s confidentiality individually. Based on the bare
briefing, mostly devoid of fact and entirely devoid of law, the Court is not satisfied
that the Defendants have demonstrated “good cause” for continuing to maintain the
confidential designation of these documents.
IV.

Conclusion
Accordingly, Plaintiff’s Motion to Compel the Removal of Confidentiality

Designation from Specific Documents Under the Protective Order (Dkt. 220) is
hereby GRANTED IN PART and DENIED IN PART. The confidential
designation does not need to be removed from documents that have been produced
as non-confidential in discovery, as outlined above.
Additionally, the Defendants shall have until Tuesday, May 14, 2019 by
which to file a supplemental brief that demonstrates, with specificity, the good
cause necessary to maintain the remaining challenged documents as confidential. If
the Defendants choose not to file a brief, the confidential designation will be
removed from documents listed in Exhibit 1 to the Plaintiff’s Motion that have not
already been produced as non-confidential.
So ORDERED.
Date: 5/10/2019

Distribution:
All ECF-registered counsel of record via email