Doe et al v. USD 237, the Smith Center School District et al

Filing 100

MEMORANDUM AND ORDER denying 96 Plaintiffs' Motion for Leave to File Confidential Exhibits to Plaintiffs' Motion to Compel Under Seal; denying 98 Defendants' Motion for Leave to File Under Seal; denying 99 Plaintiffs' Motio n for Leave to File Plaintiffs' Response to Defendants' Motion for Protective Order Under Seal. IT IS FURTHER ORDERED that the parties are directed to file their motions and exhibits, with the redactions discussed in this order, within seven (7) days of the date of this order. See order for details. Signed by Magistrate Judge Teresa J. James on 2/19/2019. (mn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JANE DOE, and ANGELA HARRISON,
Plaintiffs,
v.
USD No. 237, THE SMITH CENTER
SCHOOL DISTRICT, et al.,
Defendants.

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Case No. 16-2801-JWL-TJJ

MEMORANDUM AND ORDER
Before the Court are Plaintiffs’ Motion for Leave to File Confidential Exhibits to
Plaintiffs’ Motion to Compel Under Seal (ECF No. 96), Defendants’ Motion for Leave to File
Under Seal (ECF No. 98), and Plaintiffs’ Motion for Leave to File Plaintiffs’ Response to
Defendants’ Motion for Protective Order Under Seal (ECF No. 99). For the reasons discussed
below, the Court denies the motions.
I.

Legal Standard
The Supreme Court has recognized a “general right to inspect and copy public records

and documents, including judicial records and documents.”1 That is also true in this district. “It is
well settled that federal courts recognize a common-law right of access to judicial records.”2 The
public’s right of access is not absolute, and whether to allow access to records is within the
district court’s discretion.3 Courts must consider “the relevant facts and circumstances of the case
and balance the public’s right of access, which is presumed paramount, with the parties’ interests

1

Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978).

2

MGP Ingredients, Inc. v. Mars, Inc., No. 06-2318-JWL-DJW, 2007 WL 710126, at *1 (D. Kan. Mar. 5, 2007)
(citations omitted).
3

Id.

in sealing the record or a portion thereof. Documents should be sealed only on the basis of
articulable facts known to the court, not on the basis of unsupported hypothesis or conjecture.”4
The fact that the parties agree that a document should be sealed is not sufficient to justify the
sealing of the document.5 Rather, to rebut the presumption of access to judicial records, a party
must demonstrate that “countervailing interests heavily outweigh the public interests in access.”6
Additionally, that the document is “confidential” within the meaning of the parties’ protective
order has no bearing on whether the document should be filed under seal.7 As Judge Crabtree
explained recently:
“[T]he court is mindful that taxpayers fund the cost of court
operations. They thus hold a substantial stake in what happens in
our courtrooms and the decisions that judges make there. Also, the
public’s faith in court rulings is important to the rule of law.
Having access to court decisions, and the reasoning and facts that
produce them, helps inspire such faith. While both of these factors
favor access and transparency, our law also recognizes that some
exceptions exist. When a piece of information or a data point
qualifies for restricted access, the court should make that
restriction no greater than necessary to serve the interest deserving
protection.”8
II.

Analysis
This case involves allegations of sexual harassment and related inappropriate conduct by

Defendant Brock Hutchinson, a teacher and coach at USD No. 237, Smith Center School
District. Among other things, the complaint sets out multiple incidents of alleged sexual

4

Id. (quotation omitted).

5

Id.

6

Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007) (quoting Rushford v. New Yorker Magazine, Inc., 846
F.2d 249, 253 (4th Cir. 1988)).
7

Dryden v. City of Hays, Kan., No. 11-1354-KHV, 2012 WL 966170, at *1 (D. Kan. Mar. 21, 2012) (citation
omitted).
8

In re EpiPen, 17-md-2785-DDC-TJJ, 2018 U.S. Dist. LEXIS 212618, at *14–15 (D. Kan. Dec. 17, 2018).

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harassment and related inappropriate conduct by Hutchinson toward Plaintiff Jane Doe, while
she was a minor high school student, as well as an alleged inappropriate romantic relationship
between Hutchinson and another minor high school student. This second student has been
deposed in this case and she is referenced throughout the parties’ briefing as Jane Doe Witness.
Plaintiffs request to file their entire Motion to Compel and 11 of 13 exhibits to the motion
under seal. The exhibits at issue are: third-party Jane Doe Witness’s deposition, a declaration of
Jane Doe Witness’s father, a declaration of a former Smith Center cheerleading sponsor, a
declaration of a former Smith Center teacher, a declaration of a former Smith Center student, a
declaration of a former Smith Center student’s parent, and Defendants’ responses and objections
to Plaintiffs’ various discovery requests.
In their motion, Plaintiffs’ very broad request for a sealed filing does not articulate any
facts upon which the Court may base a finding of a public or private harm that would overcome
the public’s right of access. Instead, Plaintiffs argue the exhibits risk revealing third-party Jane
Doe Witness’s identity and the identities of the witnesses who provided declarations, but
Plaintiffs never explain why it is essential to protect the identities of all these witnesses or what
harm there would be if the identities were revealed. Indeed, the Court finds the public interest in
having access to information significant in this case, which involves allegations that a
teacher/coach has been inappropriate with at least one, if not multiple, minor high school
students, and yet the school district has failed to take any disciplinary action. But Plaintiffs make
no attempt to balance any potential harm of identifying these witnesses against the public’s right
of access.
In addition, the Amended Complaint consists of 169 numbered paragraphs which recount
in some detail a number of specific instances of alleged inappropriate conduct by Hutchinson

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involving minor high school students, and include details such as the names of the school district
superintendent, principal and a school counselor at times material to the allegations. Much of the
information that the parties now request to have sealed is already in the court record and
available to the public, as it should be.
The Court is mindful that it has previously entered an order allowing Plaintiff Jane Doe,
who was a minor at the time this case was filed, to continue to proceed in the case by pseudonym
after she turned eighteen years old.9 The Court found compelling Plaintiffs’ arguments, in their
memorandum in support of the motion requesting that Jane Doe be allowed to proceed by
pseudonym,10 regarding the potential harm to Jane Doe if her identity were revealed in this
lawsuit. However, in its order the Court stressed the importance of maintaining open court
records and limited its ruling to the specific and unique facts of the case, namely: “The
allegations [concerning Jane Doe] involve matters of a highly sensitive and personal nature,
which occurred while Doe was a minor high school student.”11
Applying similar reasoning, the Court finds that references to Jane Doe Witness in
documents and filings in this case should also be under a pseudonym. Like the plaintiff, Jane
Doe Witness was a minor at all times material to the allegations regarding her in the complaint.
The allegations concerning Jane Doe Witness involve matters of a highly sensitive and personal
nature, which occurred while Jane Doe Witness was a minor high school student.12 Additionally,
consistent with this Court’s prior ruling, the names of all witnesses who were minor high school

9

ECF No. 41.

10

ECF No. 37.

11

ECF No. 41 at 23.

12

Id.

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students at the time of the allegations at issue in the complaint shall be redacted. Jane Doe
Witness’s father’s name shall also be redacted to further protect his daughter’s identity.13
Plaintiffs do not articulate any explanation for why redacting these names in the exhibits
to their motion would not be feasible or sufficient to protect the identities of Jane Doe, Jane Doe
Witness, or other witnesses who were minor students at the time of the allegations in the
complaint. For the declaration of Jane Doe Witness’s father, Plaintiffs state redaction “risks
rendering it unintelligible” but provide no support for this statement. The Court does not agree
that redaction of names would render the document “unintelligible.” Plaintiffs also state
redaction of Defendants’ discovery responses “may hinder the court’s ability to consider the
merits of Plaintiffs’ motion,” again with no support. The Court again does not agree that
redaction would hinder its ability to consider the merits of Plaintiffs’ motion.
As to the motion itself, it is twenty pages and consists primarily of legal arguments and
authorities as well as other information already in the public record in this case. Plaintiffs make
no argument as to why the motion itself should be filed under seal except that it “contains
necessary context that would potentially identify witnesses whose information is protected
pursuant to the Agreed Protective Order.”14 But this has no bearing on whether the motion

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Plaintiffs say the declarations of the cheerleading sponsor and former teacher risk identifying Jane Doe Witness. It
is not readily apparent how their declarations would identify Jane Doe Witness, and Plaintiffs provide no factual
support for their assertion. The public record in this case already reveals the names of the school district
superintendent, school principal and a school counselor, as well as the time frame(s) of the alleged incidents of
inappropriate conduct. The Court is not persuaded that revealing the identities of other adult teacher-witnesses and
sponsor-witnesses is any more likely to reveal the identities of Jane Doe and Jane Doe Witness than are the identities
of those adults already identified in the record. The only redactions that shall be allowed are the names of witnesses
who were minor students at the time of the allegations and any parent of such a minor student whose name would
identify their son/daughter minor student.
14

ECF No. 96 at 3.

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should be filed under seal.15 Plaintiffs have not met their burden to overcome the presumption in
favor of public access to their motion.
“When a piece of information or a data point qualifies for restricted access, the court
should make that restriction no greater than necessary to serve the interest deserving
protection.”16 Plaintiffs (and Defendants in their motion discussed below) make no showing to
justify their very broad requests for sealing, or any restriction on public access in this case aside
from the redactions allowed by this order as set out above. Therefore, Plaintiffs’ Motion for
Leave to File Confidential Exhibits to Plaintiffs’ Motion to Compel Under Seal is denied, but
Plaintiffs shall file their motion and supporting exhibits with redactions as discussed herein.
Similar to Plaintiffs, Defendants seek a very broad order sealing their entire
Memorandum in Support of Motion for Protective Order and all 12 supporting exhibits.17 The
basis for the request again is keeping confidential the identity of the Jane Doe Witness. The only
authority Defendants cite is Garcia v. Tyson Foods, Inc.,18 yet in that case, Judge Waxse found
that the party requesting leave to file under seal “failed to articulate any facts upon which the
Court may base a finding of a public or private harm that would overcome the public’s right of
access.”19 That is also true in this case. Defendants do not articulate any facts or reason that
redaction of Jane Doe Witness’s name is not sufficient to protect her identity. Further,
Defendants rely on the Protective Order entered in this case, which again is not sufficient to

15

See Dryden v. City of Hays, Kan., No. 11-1354-KHV, 2012 WL 966170, at *1 (D. Kan. Mar. 21, 2012).

16

In re EpiPen, 17-md-2785-DDC-TJJ, 2018 U.S. Dist. LEXIS 212618, at *15 (D. Kan. Dec. 17, 2018).

Defendants seek to file even Plaintiffs’ requests for production to the Defendants, without responses, under seal.
Defendants’ broad request to seal now is in stark contrast to their earlier opposition to Plaintiffs’ motion for Jane
Doe to proceed under her pseudonym (ECF No. 39).
17

18

No. 06-2198-JWL-DJW, 2010 WL 3584462 (D. Kan. Sept. 13, 2010).

19

Id. at *2.

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justify filing documents under seal. Many of the proposed exhibits in Defendants’ motion are the
same as the proposed exhibits in Plaintiffs’ motion and, as previously discussed, the Court finds
redaction to be sufficient. As for Defendants’ memorandum itself, the Court finds sealing is not
warranted for the same reasons the Court is refusing Plaintiffs’ request to seal their entire
motion. The Court denies Defendants’ request to seal based upon the same legal analysis
discussed above with regard to Plaintiffs motion and exhibits, and likewise will require the same
redactions in Defendants’ filings as in Plaintiffs’ filings.
Finally, Plaintiffs’ Motion for Leave to File Plaintiffs’ Response to Defendants’ Motion
for Protective Order Under Seal is denied. Plaintiffs seem to have only filed this motion “out of
an abundance of caution” because Defendants’ have sought to seal their Memorandum in
Support for Protective Order. Plaintiffs fail to provide any other justification for their request.
There does not appear to be any mention of the Jane Doe Witness by name in Plaintiffs’
response, and Plaintiffs do not suggest that anything in their response should be redacted.
Therefore, Plaintiffs’ Motion for Leave to File Plaintiffs’ Response to Defendants’ Motion for
Protective Order Under Seal is denied
IT IS THEREFORE ORDERED BY THE COURT that Plaintiffs’ Motion for Leave
to File Confidential Exhibits to Plaintiffs’ Motion to Compel Under Seal (ECF No. 96) is denied.
IT IS FURTHER ORDERED that Defendants’ Motion for Leave to File Under Seal
(ECF No. 98) is denied.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Leave to File Plaintiffs’
Response to Defendants’ Motion for Protective Order Under Seal (ECF No. 99) is denied.
IT IS FURTHER ORDERED that the parties are directed to file their motions and
exhibits, with the redactions discussed herein, within seven (7) days of the date of this order.

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IT IS SO ORDERED.
Dated February 19, 2019, at Kansas City, Kansas.

Teresa J. James
U. S. Magistrate Judge

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