Doe v. Anderson et al
ORDER granting in part and denying in part 71 Motion to Enforce Stipulation to Modify Deposition Procedure and denying 72 Motion to Modify Stipulated Protective Order - Signed by Magistrate Judge Mona K. Majzoub. (LBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
JOHN DOE 1, JOHN DOE 2, JOHN
DOE 3, JOHN DOE 4, JOHN DOE 5,
JOHN DOE 8, JOHN DOE 9, JOHN
DOE 10, and JOHN DOE 12,
DUSTIN ANDERSON, et al.,
CIVIL ACTION NO. 15-cv-13852
DISTRICT JUDGE ARTHUR J. TARNOW
MAGISTRATE JUDGE MONA K. MAJZOUB
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS’ MOTION TO ENFORCE STIPULATION TO MODIFY DEPOSITION
PROCEDURE  AND DENYING PLAINTIFFS’ MOTION TO MODIFY
STIPULATED PROTECTIVE ORDER 
Plaintiffs John Does 1-5, 8-10, and 12, current and former prisoners of the Michigan
Department of Corrections (MDOC), initiated this prisoner civil rights action in November 2015,
against Defendants, Corrections Officers Dustin Anderson, Scott Arp, Noah Beesley, Adam
Coburn, Conklin, Deschaine, Jason Erway, Charles Gollnast, Michael Hall, Hammer, Francis
Heyrman, Tami Hoogewind, Erik Jacobson, Edward Juranek, Joseph Martens, McLeod, Cody
Pennell, Aimee Rogers, Ross, Sherwood, Ronald Stambaugh, Gretchen Walters, Scott Schooley,
Gary Stump, and Matthew Ward, Deputy Director Kenneth McKee, Director Heidi Washington,
and the MDOC pursuant to 42 U.S.C. § 1983, alleging violations of their First Amendment
rights.1 (Docket nos. 1, 4, 22.) More specifically, Plaintiffs, who were housed in adult prisons
while under the age of eighteen, allege that Defendants retaliated against them for exercising
Several parties have since been dismissed from this matter. (See docket nos. 21, 84, 121.)
their First and Sixth Amendment rights to sue the MDOC and its employees for sexual abuse that
they endured during their incarceration. (See docket no. 22.)
This matter is currently before the Court on Plaintiffs’ Motion to Enforce Stipulation to
Modify Deposition Procedure (docket no. 71) and Plaintiffs’ Motion to Modify Stipulated
Protective Order Regarding Discovery Documents (docket no. 72). Defendants responded to
Plaintiffs’ Motions (docket nos. 77, 80), and Plaintiffs replied to Defendants’ Response to the
Motion to Enforce Stipulation (docket no. 78).
The Motions have been referred to the
undersigned for consideration. (Docket no. 74.) The Court has reviewed the pleadings and
dispenses with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f). The
Court did, however, hold a conference call with the parties on September 18, 2017 at 1:30 p.m.
to clarify the extent of the relief sought by Plaintiffs through their Motion to Enforce Stipulation.
The Court is now ready to rule pursuant to 28 U.S.C. § 636(b)(1)(A).
Motion to Enforce Stipulation to Modify Deposition Procedure 
In the instant Motion, Plaintiffs assert that the parties stipulated under Federal Rule of
Civil Procedure 29 to modify the deposition procedure in this matter to require that the court
reporter substitute Plaintiffs’ John Doe designations for their actual names (Plaintiffs’ actual
names were used on the record during cross examination) when transcribing the testimony.
(Docket no. 71 at 2.) Under Rule 29, the parties may stipulate that “a deposition may be taken
before any person, at any time or place, on any notice, and in the manner specified—in which
event it may be used in the same way as any other deposition.” Fed. R. Civ. P. 29(a). According
to Plaintiffs, the parties entered into a verbal Rule 29 stipulation on the record at four depositions
taken in this matter on October 14, 2016. (Docket no. 71 at 11-12.) For example, at Defendant
Stambaugh’s deposition, the following exchange occurred between Plaintiffs’ counsel, Sarah
Prescott, and Defendants’ counsel, Assistant Attorney General (AAG) Michael R. Dean:
MS. PRESCOTT: Okay. Okay. We have a set of codes we’re going to pass to
the court reporter to code the names of the inmates that are talked about, and we
will handle that as we have with prior depositions in this set of cases between
legal counsel. Does that make sense, and we’ll be changing out the names for the
John Doe names. Is that agreeable?
MR. DEAN: Yeah, that’s fine.
(Id. at 11; docket no. 71-2 at 4.) A similar exchange took place on the record between Ms.
Prescott, Mr. Dean, and AAG Adam L.S. Fracassi at Defendant Sherwood’s deposition:
MS. PRESCOTT: We also just spoke, prior to coming back on the record about
coding the transcript with the John Doe numbers in the case consistent with prior
practice, even though today, in fact, we’ve used particular inmates’ names, I’ll
supply the court reporter with their John Doe designations, and we’ve agreed that
we’ll do whatever coding has been consistent with prior practice. Does that make
MR. DEAN: That makes sense.
MS. PRESCOTT: That’s good with you guys?
MR. FRACASSI: Yes.
(Id. at 11-12; docket no. 71-3 at 4.) The same procedure was followed at Defendant Walters’
and Defendant Hall’s depositions, without objection from defense counsel. (Id. at 12; docket no.
71-4 at 4; docket no. 71-5 at 4.) Then, at the depositions of two defendants on October 21, 2016,
Defendants’ counsel, AAG Mark E. Donnelly, objected to the court reporter’s substitution of
Plaintiffs’ names for their John Doe designations in the transcript. (Docket no. 77 at 6.) In an
ensuing conversation, Plaintiffs’ counsel allegedly advised Mr. Donnelly that there was an
agreement to follow that procedure with regard to depositions taken in the state-court case, and
Mr. Donnelly countered that there was no such agreement. (Id.) Mr. Donnelly then instructed
the court reporter not to alter the transcript of the deposition testimony taken that day. (Id.)
Defendants continue to object to this procedure.
Plaintiffs assert that the stipulated procedure is necessary “to prevent the revelation of
Plaintiffs’ identities through disclosure or distribution of the deposition transcripts, thereby
minimizing Plaintiffs’ risk of further retaliation.” (Docket no. 71 at 2.) Plaintiffs therefore move
the Court to enforce the parties’ Rule 29 stipulation requiring the court reporter to substitute
Plaintiffs’ John Doe designations for their actual names in the deposition transcripts. (Id. at 15.)
In the alternative, Plaintiffs move the Court to enter a Rule 26(c) protective order either (1)
requiring the parties to follow the stated deposition procedure; or (2) “requiring, for all purposes
other than trial, the redaction of Plaintiffs’ names (and substitution with their John Doe
designations) in any transcript disseminated to anyone, except those provided to the parties or
filed under seal with the Court.” (Id.; docket no. 78 at 4.)
In their Response to Plaintiffs’ Motion, Defendants deny that they entered into a Rule 29
stipulation with Plaintiffs to modify the deposition procedure to require the court reporter to
substitute Plaintiffs’ John Doe designations for their actual names in the deposition transcripts.
(Docket no. 77 at 4.) Defendants assert that to the extent Plaintiffs obtained an agreement from
defense counsel to follow that procedure in certain depositions, it was due to a misunderstanding
or misrepresentation about what was agreed to in the state-court case. (Id. at 4-5.) Defendants
argue that there is no legal authority to permit official deposition transcripts to be altered or
modified. (Id. at 8.) Defendants also argue that it is a court reporter’s duty to maintain a
complete, accurate, and verbatim record of a proceeding, and the record should not be altered,
even upon the order of a judge. (Id. at 8-9 (citing Mich. State Court Admin. Office, Manual for
Court Reporters and Recorders, Sec. 1, Ch. 1, p. 1, and Sec. 5, Ch. 1, p. 1, available at
pdf).) Defendants further argue that modifying the official deposition transcripts in accordance
with the procedure at issue will create confusion and may lead to the possibility that a true,
accurate record will be unavailable. (Id. at 9.) Defendants assert that the proper solution is not
to alter the sworn deposition testimony taken in this matter by substituting Plaintiffs’ John Doe
designations for their names in the official transcripts, but to enter a protective order regarding
the dissemination of the transcripts, if necessary. (Id. at 4, 7, 9-10.)
The Court has considered the parties’ respective arguments, and finds that Defendants are
correct – it is improper for a court reporter to alter or modify the sworn testimony of a deponent
in transcribing an official deposition transcript. The Court also finds that Plaintiffs’ concerns
regarding any further revelation of their identities are well-founded and that a heightened level of
protection of Plaintiffs’ identities is therefore warranted with regard to depositions taken in this
matter. Accordingly, with regard to any depositions taken in this matter after the entry of this
Opinion and Order, the Court will order that Plaintiffs be referred to on the record by their
respective John Doe designations only; references to Plaintiffs by their actual names on the
record will no longer be permitted. With regard to the transcripts of depositions that have
already been taken but have not yet been transcribed pending the Court’s ruling on the instant
Motion, the Court will order that the transcripts be transcribed to reflect the verbatim record of
the deposition. Should these transcripts, or any already-existing transcripts of depositions taken
in this matter, reflect the actual names of the Plaintiffs, the Court will order that Plaintiffs’ actual
names be redacted from the transcripts and substituted with their John Doe designations prior to
being disseminated to anyone, except those transcripts provided to the parties or filed under seal
with the Court.
Motion to Modify Stipulated Protective Order Regarding Discovery Documents 
The court entered a Stipulated Protective Order Regarding Discovery Documents on
October 18, 2016. (Docket no. 61.) Through the instant Motion, Plaintiffs seek relief from the
following provision in the Order:
As to the named Plaintiffs, copies of records shall not be provided to them
without Defendants’ permission granted pursuant to this Order. As to any other
person currently or formerly under the jurisdiction of the MDOC, copies of the
records shall not be provided to or discussed with them without Defendants’
permission granted pursuant to this [O]rder. Plaintiffs do not agree to this
provision but solely for purposes of expediting discovery, have agreed to abide by
this Paragraph and shall abide by it until the matter can be addressed by the Court
on Plaintiffs’ motion.
(Docket no. 61 ¶ 7.) The term “records” includes: (1) personnel files of current or former state
employees; (2) disciplinary records of current or former state employees; (3) internal business or
financial files not otherwise subject to FOIA disclosure, and any investigatory materials such as
reports and witness interview statements; (4) medical and mental health records relating to any
party; and (5) financial, tax, and other similar and confidential and personal information relating
to Plaintiffs. (Id. at 2-3.) Defendants assert that only the first four categories of records, which
relate to Defendants and other MDOC employees, are relevant here; they claim that the fifth
category is irrelevant because it relates to Plaintiffs’ records.
(Docket no. 80 at 8 n.4.)
Defendants also explain that “other persons currently or formerly under the jurisdiction of the
MDOC” refers to current or former prisoners or parolees of the MDOC who are not parties to
this litigation. (Id. at 5.)
It is within the sound discretion of the district court to modify existing protective orders.
See In re Upjohn Co. Antibiotic Cleocin Products, Etc., 664 F.2d 114, 118 (6th Cir. 1981); see
also Meyer Goldberg, Inc., of Lorain v. Fisher Foods, Inc., 823 F.2d 159, 161 (6th Cir. 1987).
Much of the case law addressing modification of a protective order arises in the context of a
party seeking to lift or modify a protective order to expand the use of confidential information, as
is the case here. While “courts are split as to whether the burden of showing good cause for
continued protection lies with the protected party or with the party seeking modification,” “a
review of the case law within the Sixth Circuit relative to this issue reveals that the burden is
upon the party who seeks a modification of a protective order, to show sufficient cause to justify
the request.” Omega Homes, Inc. v. Citicorp Acceptance Co., 656 F. Supp. 393, 403 (W.D. Va.
1987); In re Air Crash Disaster at Detroit Metro. Airport on Aug. 16, 1987, 130 F.R.D. 634, 638
(E.D. Mich. 1989). Particularly, the Sixth Circuit’s decision in Meyer Goldberg, supra, is
Given that proceedings should normally take place in public, imposing a good
cause requirement on the party seeking modification of a protective order is
unwarranted. If access to protected fruits can be granted without harm to
legitimate secrecy interests, or if no such interests exist, continued judicial
protection cannot be justified. In that case, access should be granted even if the
need for the protected materials is minimal. When that is not the case, the court
should require the party seeking modification to show why the secrecy interests
deserve less protection than they did when the order was granted. Even then,
however, the movant should not be saddled with a burden more onerous than
explaining why his need for the materials outweighs existing privacy concerns.
823 F.2d at 163 (citation omitted).
Plaintiffs argue that the Protective Order should be modified to omit the provision at
issue because it “is grossly overbroad and inclusive of documents for which the MDOC cannot
articulate any justification requiring such strict protective measures.” (Docket no. 72 at 11.)
Plaintiffs also argue that the provision hinders their ability to effectively conduct discovery,
question witnesses, and develop the evidence necessary to prosecute their case. (Id. at 12.)
Plaintiffs further argue that the provision’s requirement that Plaintiffs obtain Defendants’
permission to share the confidential records gives Defendants undue influence over Plaintiffs’
capacity to develop and prosecute their case, especially where Defendants’ decisions regarding
whether to grant such permission to Plaintiffs will be colored by their legal self-interests. (Id.)
Defendants respond that the Protective Order should not be modified because it is
“limited in nature and only applies to certain records believed to be of marginal relevance to the
disputed issues in this case but for which there is a high safety and/or security concern if released
without restriction.” (Docket no. 80 at 6.) Defendants also point out that the Protective Order
includes a waiver provision, which allows the parties to deviate from the provision at issue in the
event that a confidential record is relevant and warrants some type of disclosure. (Id. at 6-7.)
Defendants also argue that Plaintiffs’ Motion should be denied because it “fails to identify any
specific documents provided under the protective order that [Plaintiffs] wish to disclose to their
clients or 3rd parties,” and it “simply seeks to undo the protective order in a wholesale manner
with no regard for the potential damage that unrestricted disclosure could cause.” (Id. at 7.)
Defendants then provide several examples of situations in which the disclosure of the
protected records could place the security of the prisons and/or the safety of MDOC employees
and their families at risk. (Docket no. 80 at 9-18.) For example, with regard to the personnel
files of current and former state employees, Defendants explain that they contain information
that is highly personal in nature, such as personally-identifiable information, home addresses,
telephone numbers, information about dependents and beneficiaries (including spouses and
children), bank account information, emergency contact information, and conflict of interest
disclosures, the sensitivity of which has been recognized by the State Legislature and has
therefore been exempted from disclosure under Michigan’s Freedom of Information Act. (Id. at
9-10.) Defendants argue that dissemination of the information contained within an employee’s
personnel record “could result in the potential for threats, manipulation, extortion, coercion, or
the perpetration of a fraud against” that employee or his or her family members. (Id. at 10.)
With regard to an employee’s disciplinary records, Defendants explain that they could contain
information not within the general knowledge of the prison population, such as specific prison
policies or protocols violated by an employee, the disclosure of which could undermine the
security of the prisons. (Id. at 12.) Defendants assert that an employee’s disciplinary records
could also contain information about the employee that could make him vulnerable to prisoner
threats or manipulation, e.g. discipline for the use of a controlled substance. (Id.)
respect to investigatory materials, Defendants state that they usually include personal and/or
privileged information about employees or third-party prisoners; they may include information
regarding investigatory techniques used by corrections officers; and they may include relevant
video footage from prison security cameras, which may reveal the location of hidden security
cameras if disseminated to Plaintiffs or other non-party current or former prisoners. (Id. at 1617.)
In light of these situational examples of security and safety risks, the Court finds
Plaintiffs’ argument that Defendants cannot articulate any justification for the protections
outlined in the provision at issue to be unavailing. The Court also finds the scope of the records
limited by the Protective Order to be appropriate for purposes of this litigation. Plaintiffs’
hypothetical assertions of difficulty in effectively conducting discovery and developing evidence
as a result of this provision are insufficient to justify modifying the Protective Order, particularly
where there is a waiver provision in place, and there is no indication that Defendants have
unjustly withheld permission to share relevant, confidential records under the provision.
Accordingly, the Court will deny Plaintiffs’ Motion to Modify the Stipulated Protective Order.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Enforce Stipulation to
Modify Deposition Procedure  is GRANTED IN PART and DENIED IN PART as
a. With regard to any depositions taken after the entry of this Opinion and Order, it is
ordered that Plaintiffs be referred to on the record by their respective John Doe
designations ONLY; references to Plaintiffs by their actual names on the record is not
b. With regard to the transcripts of depositions that have already been taken but have not
yet been transcribed pending the Court’s ruling on the instant Motion, it is ordered
that the transcripts be transcribed to reflect the verbatim record of the deposition;
c. If the transcripts described in section b above or any already-existing deposition
transcripts reflect Plaintiffs’ actual names, it is ordered that Plaintiffs’ actual names
be redacted from the transcripts and substituted with their John Doe designations
prior to being disseminated to anyone, except those transcripts provided to the parties
or filed under seal with the Court; and
d. This Order applies only to those depositions taken for purposes of this litigation.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Modify Stipulated Protective
Order Regarding Discovery Documents  is DENIED.
NOTICE TO THE PARTIES
Pursuant to Federal Rule of Civil Procedure 72(a), the parties have a period of fourteen
days from the date of this Order within which to file any written appeal to the District Judge as
may be permissible under 28 U.S.C. § 636(b)(1).
Dated: September 20, 2017
s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE
PROOF OF SERVICE
I hereby certify that a copy of this Order was served upon counsel of record on this date.
Dated: September 20, 2017
s/ Lisa C. Bartlett
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