Hale v. Emporia State University et al

Filing 99

MEMORANDUM AND ORDER granting in part and denying in part 88 Defendants' Emergency Motion to Enforce Court Order and for Order to Show Cause Why Plaintiff Should Not Be Held in Contempt; granting in part and denying in part 91 Defendants 9; Motion to Stay Deadlines. The Court will impose a monetary sanction on Plaintiff for her violation of the Protective Order and improper attacks on defense counsel in the amount of $150. Plaintiff shall deliver payment of this monetary sancti on to the Clerk of the United States District Court for the District of Kansas, and payable to the District of Kansas Bench Bar Fund on or before 6/29/2018. Court Trial continued to 1/8/2019 at 09:00 AM in Topeka Courtroom 401 (DDC) before District Judge Daniel D. Crabtree. Signed by Magistrate Judge Teresa J. James on 4/26/2018.(Paper copy of order mailed to pro se plaintiff by regular mail.) (byk)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ANGELICA HALE,

)
)
Plaintiff,
)
)
v.
)
)
EMPORIA STATE UNIVERSITY (ESU), )
GWEN ALEXANDER, PH.D.,
)
DAVID CORDLE, PH.D.,
)
JACKIE VIETTI, PH.D.,
)
)
Defendants.
)

Case No: 16-cv-4182-DDC-TJJ

MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Emergency Motion to Enforce Court
Order and for Order to Show Cause Why Plaintiff Should Not Be Held in Contempt (ECF No.
88) (hereafter “Motion to Enforce”) and Defendants’ Motion to Stay (ECF No. 91). After
expediting the briefing on the motions, the Court held a telephone motion hearing on April 16,
2018. Plaintiff Angelica Hale appeared at the telephone motion hearing pro se. Defendants
appeared through counsel, Carrie Barney, Rachael Longhofer, and Dennis Depew. This Order
memorializes and supplements the Court’s rulings made during the motion hearing.
I.

Defendants’ Motion to Enforce Protective Order (ECF No. 88)
Defendants request the Court enter an order enforcing the provisions of the Protective

Order entered in this case (ECF No. 42). Defendants allege Plaintiff violated the Protective Order
by publicly filing pages from Defendant ESU’s investigation report, which have been marked as
“Confidential Information,” as Exhibit DD to the Memorandum in support of her Motion for
Summary Judgment (ECF No. 86) (hereinafter “Exhibit DD”) and posting Exhibit DD on the
www.marchonemporia.com website with links to it on multiple social media accounts, despite

the Protective Order restriction limiting the disclosure and use of designated confidential
information to prosecution of this litigation.
Plaintiff does not deny Defendants’ allegations that she publicly filed and posted Exhibit
DD to the internet website and social media. Rather, Plaintiff contends she has not violated the
Protective Order because Exhibit DD was improperly designated by Defendants as confidential,
arguing that various sections of ESU’s investigation report have been in the public domain for
over two years. Plaintiff also argues that Defendants’ counsel should be sanctioned for altering
documents and spoliation by adding the words “Confidential Information” to the bottom of every
page of ESU’s investigation report.
A.

Whether Plaintiff Violated the Terms of the Protective Order

Based upon a review of the motions, briefing, statements made during the motion
hearing, and document submitted by Plaintiff after the hearing,1 the Court finds that Plaintiff
violated the terms of the Protective Order in this case by filing Exhibit DD without taking any of
the actions required under Section 7 of the Protective Order to ensure designated confidential
information was protected from public disclosure. The Court also finds Plaintiff violated the
Protective Order by publicly posting and thereby disclosing designated confidential information,
specifically Exhibit DD, to the www.marchonemporia.com website, and by making it accessible
via a link on the @marchonemporia Twitter account.
Even after Defendants filed their Motion to Enforce claiming Plaintiff violated the
Protective Order by publicly filing Exhibit DD, posting it on a website, and making it accessible

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On April 17, 2018, in accordance with the Court’s instructions from the hearing,
Plaintiff submitted to the Court via email attachment a copy of the 15-page document Plaintiff
claims she received from her former attorney, Mr. Trevino, prior to the filing of this case.
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via links on social media accounts, Plaintiff did not remove Exhibit DD from the website or links
to it posted on social media. Instead, Plaintiff filed her objection to the Motion to Enforce,
arguing that Exhibit DD is not confidential because it is already in the public domain.2 At the
hearing, however, Plaintiff admitted she did not receive Exhibit DD until Defendants produced it
to her with the confidential designation. Moreover, the document Plaintiff claims she received
prior to the filing of her lawsuit (and argued was already in the public domain) is not the same
document as Exhibit DD. Plaintiff therefore had no basis for her contention that Exhibit DD was
already in the public domain and was improperly designated confidential by Defendants. Further,
even if she believed that Exhibit DD was improperly designated as confidential, Plaintiff was
well aware of the Protective Order3 and should have complied with the procedures set out in
Sections 7 and 8 of the Protective Order, respectively, for the filing of a document containing
designated confidential information4 and for challenging its confidential designation before
placing Exhibit DD in the public domain.5 She failed to do so, in violation of the Protective
Order.
The Court finds Plaintiff’s accusations of spoliation, tampering, and obstruction of justice
against Defendants’ counsel with regard to Exhibit DD are unsupported and without merit.
Defense counsels’ marking or placing the word “Confidential” on those documents is
specifically contemplated by the Protective Order to show that the marked documents are being

2

Pl.’s Objection, ECF No. 94, at 6.

3

See Sept. 12, 2017 Order, ECF No. 41 (memorializing the Court’s rulings at the
September 12, 2017 telephone conference regarding the parties’ disputes over the protective
order terms).
4

See Protective Order § 7, ECF No. 42 (setting out the requirements for filing a
document containing confidential information).
5

See Protective Order § 8 (setting out the procedure for challenging a confidential
designation).
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designated as confidential.6 The Protective Order also provides that “[b]y marking a designated
document as confidential, the designating attorney or party appearing pro se thereby certifies that
the document contains Confidential Information as defined in this Order.”7
At the April 16 motion hearing and based upon the above findings, the Court ordered
Plaintiff to immediately remove Exhibit DD from the www.marchonemporia.com website and
from all other Internet postings or links to Exhibit DD via the @marchonemporia Twitter
account, Dr. Melvin Hale’s Twitter account, or any other social media. Plaintiff was further
ordered to refrain from posting Exhibit DD or any other material or documents designated as
confidential under the Protective Order to any social media or website, and to otherwise refrain
from disclosing or making available designated confidential information to anyone other than
those individuals specifically listed in Section 6(b)(1)–(10) of the Protective Order. Plaintiff
must ensure that no designated confidential information in this case is disclosed on or accessible
via her husband’s Twitter or other social media accounts. Plaintiff is further ordered to abide by
the terms of the Protective Order and ensure that designated confidential information is used or
disclosed solely for purposes of prosecuting this lawsuit, including any appeals, as specifically
provided in Section 6(a) of the Protective Order.
With respect to the designated confidential information Plaintiff has already filed in this
case, the Court directed the Clerk’s Office to place under seal Exhibit DD, as well as Exhibits A
through C to Plaintiff’s Objection to Defendants’ Emergency Motion to Enforce (ECF No. 94).

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See Protective Order at §3 (“The producing party may designate documents as
containing Confidential Information and therefore subject to protection under this Order by
marking or placing the words “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER”
(hereinafter ‘the marking’) on the document and on all copies in a manner that will not interfere
with the legibility of the document.”).
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Id.
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If, in the future, Plaintiff intends to file any document that contains designated confidential
information, Plaintiff must file a motion requesting leave to file under seal the specific document
containing the confidential information, as required by Section 7 of the Protective Order and D.
Kan. Rule 5.4.6.
B.

Defendants’ Requested Relief for Plaintiff’s Violation of the Protective Order

Defendants include several requests for relief in their Motion to Enforce, which include
striking Plaintiff’s entire Memorandum in Support of her Motion for Summary Judgment,
ordering Plaintiff to remove the confidential material from the website and social media
accounts, imposing a coercive fine, prohibiting all future use of Defendant ESU’s investigation
report, and granting Defendants their attorneys’ fees in bringing the Motion to Enforce.8 In their
Reply (ECF No. 95), Defendants request dismissal of this case with prejudice. The Court will
address each request in turn.
Defendants request that Plaintiff’s Memorandum in Support of Motion for Summary
Judgment be stricken from the record, and that the Memorandum and any references to it be
removed from the Internet and from any website or social media account that references or
contains a link to the document. The Court denies Defendants’ request to strike from the record
Plaintiff’s entire Memorandum in Support of her Motion for Summary Judgment as
disproportionate to the violation of the Protective Order at issue. Plaintiff attached 190 pages of
exhibits (Exhibits A through NN) to her 37-page Memorandum, but only the four-pages of

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To the extent Defendants request sanctions against Plaintiff, the Court notes that
although the Protective Order itself is silent on what sanctions are available for a violation of its
provisions, it has a blank attachment Acknowledgment and Agreement to be Bound form that
states the person signing it “acknowledges that violation of the Protective Order may result in
penalties for contempt of court.” ECF No. 42 at 11.
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Exhibit DD were marked as confidential. With the exception of two paragraphs, Plaintiff’s
Memorandum does not expressly quote or discuss designated confidential information contained
within Exhibit DD. As to those two paragraphs, the Court grants Defendants’ relief and orders
the Clerk to redact them.9 In addition, the Court has already granted relief insofar as it has
ordered the Clerk to place Exhibit DD under seal and Plaintiff to remove Exhibit DD from the
Internet and social media sites as set out above.
Defendants also request that Plaintiff be prohibited from any future use of Defendant
ESU’s investigation report. The Court denies this request as disproportionate to the Protective
Order violation at issue here. Plaintiff may use ESU’s investigation report to the extent proper in
the prosecution of this case, and any appeals, so long as she does so in accordance with the terms
of the Protective Order.
Defendants also seek dismissal of the case with prejudice as a sanction. The Court denies
the request. “[D]ismissal is a severe sanction and is not ordinarily warranted if lesser sanctions
would be effective.”10 Dismissal with prejudice should be used as a “weapon of last, rather than
first, resort” because it defeats altogether a litigant’s right to access to the courts.11 Plaintiff’s
violation of the Protective Order does not warrant the extreme sanction of dismissal of her case.
Finally, Defendants request that the Court impose sanctions against Plaintiff by requiring
her to pay a coercive fine for each day that she fails to withdraw the designated confidential
material, as well as pay their attorneys’ fees and expenses for bringing the motion. Violation of a

9

Specifically, the Clerk is directed to file a redacted version of Plaintiff’s Memorandum,
ECF No. 86, redacting paragraph 20 on ECF numbered page 13 and paragraph 52 on ECF
numbered pages 23–24.
10

Jones v. Thompson, 996 F.2d 261, 265 (10th Cir. 1993).

11

Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992)(internal citations omitted).
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protective order is a serious matter. The Court is troubled both by Plaintiff’s disregard for the
provisions of the Protective Order and, perhaps even more so, by the unprofessional and
unfounded personal attacks in her response on Defendants’ counsel. The Court is cognizant that
Plaintiff is not an attorney and is proceeding in this case without the assistance of legal counsel.
The Court also notes, however, that Plaintiff has actively prosecuted this case and appears
competent and capable of following the rules and representing her interests in this case.
Therefore, the Court admonishes Plaintiff that any future violations of the Protective Order or
other misconduct in this case are likely to result in significant sanctions that could include any of
those requested by Defendants herein or others fashioned by the Court. Additionally, although
the Court declines to award Defendants their attorneys’ fees and expenses in bringing this
motion, the Court will impose a monetary sanction on Plaintiff for her violation of the Protective
Order and improper attacks on defense counsel in the amount of $150. Plaintiff shall deliver
payment of this monetary sanction to the Clerk of the United States District Court for the District
of Kansas, and payable to the District of Kansas Bench Bar Fund on or before June 29, 2018.
II.

Defendants’ Motion to Stay (ECF No. 91)
Defendants also filed a motion seeking to stay the April 9, 2018 dispositive motion

deadline pending the outcome of their Motion to Enforce. At the motion hearing, Defendants
requested a two-week extension of their April 23 deadline for filing a response to Plaintiff’s
pending motion for summary judgment and a 30-day extension of the April 9 deadline to file
their motion for summary judgment. Plaintiff objected to the requested extensions. After further
consideration, the Court extends Defendants’ deadline for filing their response to Plaintiff's
Motion for Summary Judgment (ECF No. 85) to May 7, 2018, but the deadline for Defendants to
file their motion for summary judgment is only extended to April 30, 2018. After consultation

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with the District Judge, the court trial is continued to January 8, 2019 at 9:00 AM (central time)
in Topeka Courtroom 401 before District Judge Daniel D. Crabtree.
IT IS THEREFORE ORDERED THAT Defendants’ Emergency Motion to Enforce
Court Order and for Order to Show Cause Why Plaintiff Should Not Be Held in Contempt (ECF
No. 88) is granted in part and denied in part.
IT IS FURTHER ORDERED THAT Defendants’ Motion to Stay (ECF No. 91) is
granted in part and denied in part.
IT IS SO ORDERED.
Dated April 26, 2018, at Kansas City, Kansas.

Teresa J. James
U. S. Magistrate Judge

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