JAN BURGESS, and all 1,703 individuals identified in the Burgess FTCA Administrative Complaint v. UNITED STATES OF AMERICA
Filing
246
OPINION AND ORDER GRANTING 224 MOTION TO SEAL AND 223 MOTION FOR PROTECTIVE ORDER Signed by District Judge Linda V. Parker. (AFla)
Case 4:17-cv-11218-LVP-CI ECF No. 246, PageID.4753 Filed 10/19/23 Page 1 of 10
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
In re FTCA Flint Water Cases,
Case No. 17-cv-11218
(Consolidated)
_________________________/
This Order Relates to:
Honorable Linda V. Parker
S.J. v. EPA
________________________________/
OPINION AND ORDER GRANTING MOTION TO SEAL (ECF NO. 224)
AND MOTION FOR PROTECTIVE ORDER (ECF NO. 223)
This matter is before the Court on Plaintiffs’ Motion for Protective Order
(ECF No. 223), and a motion to file two documents under seal (ECF No. 224),
which the United States offers to aid in the disposition of Plaintiffs’ motion.
Because the Court finds the documents offered by the United States useful in
resolving Plaintiffs’ motion, it is granting the motion to file those documents under
seal. Because the Court finds good cause to issue a protective order, it is granting
Plaintiffs’ request for one.
Background
SJ’s Deposition
Earlier this year, on May 23, the United States deposed bellwether plaintiff
SJ, who is now 21-years old. Almost six months earlier, on November 3, the
United States provided Plaintiffs’ counsel with copies of SJ’s educational records,
Case 4:17-cv-11218-LVP-CI ECF No. 246, PageID.4754 Filed 10/19/23 Page 2 of 10
which the United States had subpoenaed from a third party. Those records include
a “Discipline Alert” listing several infractions by and disciplinary actions against
SJ from October 1, 2018 through November 12, 2020, while he was a student at
Swartz Creek High School. Prior to SJ’s deposition, Plaintiffs’ counsel did not
object to the use of any evidence at the deposition.
During the deposition, however, counsel for the United States began asking
SJ about any behavioral problems he had in high school. (ECF No. 226 at PageID
4517.) Plaintiffs’ counsel objected, claiming privilege, and instructed SJ not to
answer. (Id.) An off-the-record discussion ensued, followed by the parties
contacting the Court to discuss Plaintiffs’ counsel’s objection. (Id.) Plaintiffs’
counsel informed the United States, and then the Court, that conduct leading to one
of SJ’s disciplinary actions—specifically a November 6, 2020 incident which led
to a 10-day out-of-school suspension—resulted in criminal charges and a purported
plea agreement under Michigan’s Holmes Youthful Trainee Act (“HYTA”).
Plaintiffs’ counsel argued that HYTA precludes the conduct, charges, and plea
agreement from being explored.
The Court instructed that the deposition proceed, without questions related
to the November 2020 incident, and that the incident be redacted from the school
record when used during the deposition. The Court requested post-deposition
briefing to address whether the incident may be explored at a renewed deposition.
2
Case 4:17-cv-11218-LVP-CI ECF No. 246, PageID.4755 Filed 10/19/23 Page 3 of 10
The deposition then continued on May 23, with counsel for the United States
shortly thereafter asking SJ about other disciplinary incidents on the redacted
report. (Id. at PageID 4518, 4522-23.) Counsel asked SJ inter alia whether he was
contending that the disciplinary actions listed on the now-redacted report are
attributable to his exposure to the contaminated Flint River water that is the subject
of this lawsuit. (Id. at PageID 4523.) SJ answered, “Yes.” (Id.) When asked
why, SJ explained that he would not do anything like what was listed on the report
prior to his exposure to the contaminated water. (See id.) Counsel for the United
States then asked the same general questions with respect to several of the specific
acts of misconduct. (See id. at PageID 4527-35.)
Plaintiffs’ Motion for Protective Order & Related Briefing
Following the deposition, Plaintiffs filed the pending motion for protective
order. (ECF No. 223.) Plaintiffs focus in their supporting brief on HYTA’s
framework and purpose, arguing that allowing the United States to question SJ
about the November 2020 incident and related charges would violate HYTA
expressly or at least in spirit. Plaintiffs also cite to evidentiary rules which would
arguably preclude the admission into evidence of any HYTA charges and/or
related HYTA agreement.
In response, the United States argues that nothing in HYTA or any case
interpreting the statute bars civil discovery into facts underlying or related to a
3
Case 4:17-cv-11218-LVP-CI ECF No. 246, PageID.4756 Filed 10/19/23 Page 4 of 10
separate HYTA-pled criminal case. (ECF No. 227.) In other words, the United
States maintains the HYTA does not create a privilege protecting related
information from discovery. The United States points out that different rules and
standards govern whether information is discoverable as opposed to admissible at
trial. As the United States additionally points out, the scope of discovery under the
Federal Rules of Civil Procedure is broad and includes matters bearing on or that
reasonably could lead to matters bearing on any issue in the case. The United
States asserts that the November 2020 disciplinary incident is relevant because SJ
alleges that his misconduct was directly related to his consumption of and exposure
to the contaminated water from the Flint River.
In its response brief, the United States asks the Court to sanction Plaintiffs
for impeding or frustrating the examination of SJ, pursuant to Federal Rule of Civil
Procedure 30(d)(2). The United States seeks the reasonable expenses, including
court reporter and videographer fees, of reconvening the deposition.
Plaintiffs argue in reply that SJ did not contend at his deposition that the
November 2020 discipline was attributed to the Flint water, as that disciplinary
action had been redacted from the report presented to him at the deposition. (ECF
No. 234.) Plaintiffs further argue that the United States provides no other basis to
conclude that this conduct and/or discipline are relevant. Instead, Plaintiffs
maintain, the United States’ “assertion that the high school suspension ‘may bear
4
Case 4:17-cv-11218-LVP-CI ECF No. 246, PageID.4757 Filed 10/19/23 Page 5 of 10
upon [its] defenses or lead to information that bears upon those defenses’ is simply
an unsupported, conclusory statement that is insufficient to support discovery so
far afield from any claim or defense in this case.” (Id. at PageID 4649 (quoting
ECF No. 227 at PageID 4619).) Plaintiffs represent that they do not intend to
address or introduce the allegations that form the basis of the HYTA charges and
disposition. (ECF No. 223 at PageID 4460.)
Clarifying the arguments raised in their opening brief, Plaintiffs assert that
they seek a protective order because the information sought is not relevant,
HYTA’s “framework, purpose[,] and protections” would be undermined if the
United States is able to force SJ to disclose the conduct underlying the charges, and
they are seeking to protect SJ from annoyance, embarrassment, and oppression.
(ECF No. 234 at PageID 4650.) Plaintiffs also argue that sanctions are unavailable
and unwarranted.
Applicable Law & Analysis
Scope & Limitations on Discovery
Rule 26 of the Federal Rules of Civil Procedure defines the scope of
discovery:
Unless otherwise limited by court order, . . . [p]arties may obtain
discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to relevant
5
Case 4:17-cv-11218-LVP-CI ECF No. 246, PageID.4758 Filed 10/19/23 Page 6 of 10
information, the parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit. Information within
this scope of discovery need not be admissible in evidence to be
discoverable.
Fed. R. Civ. P. 26(b)(1). The scope “is traditionally quite broad.” Lewis v. ACB
Bus. Servs, Inc., 135 F.3d 389, 402 (6th Cir. 1998) (citing Mellon v. CooperJarrett, Inc., 424 F.2d 499, 501 (6th Cir. 1970)). “The test is whether the line of
interrogation is reasonably calculated to lead to the discovery of admissible
evidence.” Id. (quotation marks and citation omitted).
“[D]iscovery of matter ‘not reasonably calculated to lead to the discovery of
admissible evidence’ is not within the scope of Rule 26(b)(1).” Id. (quoting
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351-52 (1978)). “[D]iscovery
has limits and these limits grow more formidable as the showing of need
decreases.” Serrano v. Cintas Corp., 699 F.3d 884, 901 (6th Cir. 2012) (quoting
8A Charles Alan Wright & Arthur R. Miller, et al, Fed. Practice & Proc. § 2036
(3d ed. 2012)) (ellipsis omitted).
“[F]or good cause,” the court may issue a protective order and preclude
discovery “to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense[.]” Fed. R. Civ. P. 26(c)(1). “To sustain a
protective order under Rule 26(c), the moving party must show ‘good cause’ for
protection from [a harm(s) listed in Rule 26(c)(1)] ‘with a particular and specific
6
Case 4:17-cv-11218-LVP-CI ECF No. 246, PageID.4759 Filed 10/19/23 Page 7 of 10
demonstration of fact, as distinguished from stereotyped and conclusory
statements.’” In re Ohio Execution Protocol Litig., 845 F.3d 231, 236 (6th Cir.
2016) (quoting Serrano, 699 F.3d at 901).
Analysis
The United States maintains that SJ’s suspension in 2020 is relevant because
SJ contends that his middle- and high-school disciplinary issues are attributable to
the contaminated Flint water. Plaintiffs indicate, however, that this is not SJ’s
contention. In fact, Plaintiffs offer that SJ is not seeking damages or injuries
related to the behavior that led to this suspension. In other words, he is not
claiming that his consumption of the contaminated water caused this particular
behavior. As such, the relevance of this incident to the pending litigation is
unclear. The United States asserts that “it is reasonable to conclude that
information about the 2020 10-day high school suspension may bear upon
Defendant’s defenses or lead to information that bears upon those defenses,” (ECF
No. 227 at PageID 4619). Yet, without more specificity, this Court struggles to
find how the conduct and suspension could have any bearing on the issues to be
tried.
Moreover, any possible relevance is outweighed by the embarrassment and
oppression that SJ would most likely suffer if the United States is allowed to
explore these matters. The nature and seriousness of the behavior is particularly
7
Case 4:17-cv-11218-LVP-CI ECF No. 246, PageID.4760 Filed 10/19/23 Page 8 of 10
relevant to the Court’s assessment. And while HYTA does not create a privilege,
the statute reflects the Michigan legislature’s desire to shield young individuals
from the stigmatism of their “unreflective and immature acts.” People v. Perkins,
309 N.W.2d 440, 444 (Mich. Ct. App. 1981).
The Court acknowledges that HYTA focuses on the confidentiality of “the
proceedings regarding the disposition of the criminal charge and the individual’s
assignment as youthful trainee[,]” Mich. Comp. Laws § 762.14(4) (emphasis
added), and that the United States does not seek to ask SJ about any criminal
charges or his HYTA status. 1 The Court further acknowledges that the statute
prohibits a youthful trainee’s loss of “a civil disability or loss of right or
privilege[,]” id. § 762.14(2), and that asking SJ questions at his deposition about
his conduct in November 2020 and resulting school discipline does not jeopardize
any civil liberty or privilege. Nevertheless, the statute reflects an acknowledgment
that youthful indiscretions and/or criminal actions, period, generally should be
The United States cites two cases to argue that “the Michigan Court of Appeals
has limited this phrase to the sealing of records and closure of hearings in the
specific criminal matter after youthful-trainee status has been granted.” (ECF No.
227 at PageID 4623 (citing People v. GR, 951 N.W.2d 76 (Mich. Ct. App. 2020);
People v. Bobek, 553 N.W.2d 18 (Mich. Ct. App. 1996)).) This argument
overstates the Michigan court’s holdings as neither case raised the issue—or
opined on the issue—of whether confidentiality extends to proceedings outside the
specific criminal matter. GR presented the issue of whether probation-review
hearings for youthful trainees may remain closed. 951 N.W.2d at 78-79. Bobek
presented the same issue with respect to a probation termination hearing. 553
N.W.2d at 21.
8
1
Case 4:17-cv-11218-LVP-CI ECF No. 246, PageID.4761 Filed 10/19/23 Page 9 of 10
shielded from public view. See People v. Bobek, 553 N.W.2d 18, 21 (Mich. Ct.
App. 1996) (finding, in response to the press discovering information regarding the
youthful trainee’s misbehavior, that this was “the very harm the YTA seeks to
prevent”); see also id. at 20 (quoting the trial court’s statement that “the purpose of
the statute was to protect young people so that the public would not be aware of
their behavior”).
For these reasons, but even putting aside HYTA, the Court concludes that a
protective order should issue to shield SJ from the embarrassment and oppression
of discussing his November 2020 discipline and the conduct leading to that
discipline. The Court appreciates the United States’ argument that Plaintiffs
should have sought this protective order well in advance of SJ’s deposition so as
not to “impede[], delay[], or frustrate[] the fair examination of [SJ].” Fed. R. Civ.
P. 30(d)(2). Nevertheless, because the Court is granting Plaintiffs’ request for a
protective order, it cannot conclude that their position was unjustified. See Fed. R.
Civ. P. 37(d)(3). Moreover, as the Court expects that SJ’s deposition will not be
reconvened in light of the protective order, the expenses the United States asks
Plaintiffs to pay as a sanction will not be incurred.
Accordingly,
IT IS ORDERED that the motion to file documents under seal filed by the
United States (ECF No. 224) is GRANTED;
9
Case 4:17-cv-11218-LVP-CI ECF No. 246, PageID.4762 Filed 10/19/23 Page 10 of 10
IT IS FURTHER ORDERED that the motion for protective order filed by
Plaintiffs (ECF No. 223) is GRANTED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: October 19, 2023
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?