Royal v. Boykin et al

Filing 306

ORDER granting in part and denying in part 299 Motion to Produce Certain Deposition Transcripts and Exhibits to the Attorney General's Office in Pending Criminal Case. Signed by Magistrate Judge Roy Percy on 12/14/18. (cs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
PAUL N. ROYAL
V.

PLAINTIFF
CIVIL ACTION NO.: 1:16-CV-176-GHD-RP

CANYON BOYKIN, et al.

DEFENDANTS
ORDER

This matter is before the court on the Motion of Officer Canyon Boykin to Produce
Certain Deposition Transcripts and Exhibits to the Attorney General’s Office in His Pending
Criminal Case. Docket 299. Boykin is under indictment and awaiting trial in state court on
charges stemming from the shooting death that was the subject of the instant action. Boykin
asserts he is obliged under the Mississippi Rules of Criminal Procedure to produce to the State
any statements in his possession of witnesses he may call at the criminal trial. Boykin states he
may call as witnesses at the criminal trial individuals who were deposed in this case, and in light
of the various protective orders concerning confidential information disclosed during discovery
in this case, Boykin seeks this Court’s permission to provide to the State all depositions that were
taken in this case with the exception of his own. The plaintiff Paul N. Royal has joined in
Boykin’s motion and requests further that he be permitted to provide to the State his counsel’s
file in this case (excluding privileged materials) in response to a subpoena from the Mississippi
Attorney General’s Office. Docket 300. The defendant City of Columbus opposes Boykin’s and
Royal’s requests, arguing the proposed disclosures would disclose to unauthorized third parties
confidential information that the City agreed to produce in discovery in this case in reliance on
the Court’s protective orders. Docket 302. The City urges strict compliance with the protective
orders.

To the extent that Boykin and Royal request permission to disclose to the State
information that is not covered by a protective order in this case, this Court’s permission is not
necessary and will be neither granted nor denied. To the extent that they request permission to
make disclosures that are forbidden by a protective order in this case, the Court construes their
requests as requests to modify the applicable protective order. As discussed below, the Court
finds their requests for modification are not well taken and should be DENIED. However, the
Court will order a slight modification as discussed with specificity below.
Modification of a Protective Order
A court has discretion to modify a protective order it has entered so long as the order
remains in effect. Peoples v. Aldine Independent School District, Civil Action No. 06-2818,
2008 WL 2571900, *2 (S.D. Tex. 2008) (citing United Nuclear Corp. v. Cranford Ins.. Co., 905
F.2d 1424, 1427 (10th Cir. 1990)). The court retains this power even if the underlying suit has
been dismissed. Peoples, 2008 WL 2571900 at *2. This flexibility permits a party to seek
modification of a protective order. Id. A nonparty may also seek access to protected materials
through intervention under Federal Rule of Civil Procedure 24. Id.
In determining whether to modify a protective order in the civil context, courts consider
four factors: (1) the nature of the protective order; (2) the foreseeability, at the time of issuance
of the order, of the modification requested; (3) the parties’ reliance on the order; and most
significantly (4) whether good cause exists for the modification. United States v. Morales, 807
F.3d 717, 723 (5th Cir. 2015) (citing Peoples, 2008 WL 2571900 at *2). The modification
requests of Boykin and Royal are discussed in turn below.

A. Boykin’s modification request
Boykin requests a modification to allow his disclosure to the State in his criminal case all
depositions, including exhibits thereto, that were taken in this case other than his own. The City
argues such a disclosure would include confidential information covered by one or more
protective orders, such as personnel files of current or former City employees that were attached
as exhibits to those employees’ depositions. This information would certainly appear to be
specifically covered by the protective orders entered at Docket Entries 150 and 152. In his reply
Boykin makes alternative requests that the Court allow disclosure of the depositions with
exhibits that have been redacted by the City or that the Court allow disclosure of the depositions
without the exhibits. Boykin makes no mention of redacting the deposition transcripts
themselves, which presumably contain some discussion of the contents of the confidential
documents attached as exhibits. The protective order entered at Docket 150 specifically
discusses the handling of deposition transcripts and exhibits, so it was contemplated that those
items would be subject to the protective order to the extent they contain protected information.
Turning to the four factors, the Court first considers the nature of the subject protective
order. “When evaluating the nature of a protective order, courts consider ‘its scope and whether
it was court imposed or stipulated to by the parties.’” Peoples, 2008 WL 2571900 at *2 (quoting
Murata Mfg. Co., Ltd. v. Bel Fuse, Inc., 234 F.R.D. 175, 179 (N.D. Ill. 2006)). As to the scope
of the protective orders in this case, both protective orders referenced above specifically apply to
the City’s employee personnel files. Also, Boykin agreed to both protective orders. “A party’s
prior consent to the protective order will weigh against its motion for modification.” Peoples,
2008 WL 2571900 at *2 (quoting Bayer AG and Miles, Inc. v. Barr Labs., Inc., 162 F.R.D. 456,

466 (S.D.N.Y. 1995)). The nature of the subject protective orders weighs against Boykin’s
modification request.
As to the factor of foreseeability, the question is “whether the need for modification of
the order was foreseeable at the time the parties negotiated the original stipulated protective
order.” Peoples, 2008 WL 2571900 at *2 (quoting Murata, 234 F.R.D. at 180 (quoting Bayer,
162 F.R.D. at 466)). “[A] party’s oversight in not negotiating a provision in a protective order
considering a matter which should have been reasonably foreseeable at the time of the agreement
has been held not to constitute good cause for relief from the protective order.” Peoples, 2008
WL 2571900 at *2 (quoting Murata, 234 F.R.D. at 180 (quoting Jochims v. Isuzu Motors Ltd.,
145 F.R.D. 499, 502 (S.D. Iowa 1992))). Boykin was under indictment and awaiting trial in the
criminal case at the time he agreed to the subject protective orders in this case. The
foreseeability factor weighs against his modification request.
As to the factor of reliance, this factor focuses on “the extent to which a party resisting
modification relied on the protective order in affording access to discovered materials.” Peoples,
2008 WL 2571900 at *2 (quoting Murata, 234 F.R.D. at 180 (quoting Bayer, 162 F.R.D. at
467)). Courts have found it “presumptively unfair … to modify protective orders which assure
confidentiality and upon which the parties have reasonably relied.” Peoples, 2008 WL 2571900
at *2 (quoting AT&T Corp. v. Sprint Corp., 407 F.3d 560, 562 (2d Cir. 2005) (quoting S.E.C. v.
TheStreet.com, 273 F.3d 222, 230 (2d Cir. 2001))). The City certainly relied on the subject
protective orders in giving Boykin access to its employee personnel files. This factor weighs
against Boykin’s modification request.
As to whether good cause exists for the modification, this requires “changed
circumstances or new situations” warranting modification. Peoples, 2008 WL 2571900 at *3

(quoting Murata, 234 F.R.D. at 180). In determining whether the moving party has established
good cause, “the court must weigh that party’s need for modification against the other party’s
need for protection, and ought to factor in the availability of alternatives to better achieve both
sides’ goals.” Peoples, 2008 WL 2571900 at *3 (quoting Murata, 234 F.R.D. at 180). The
City’s need to safeguard the confidentiality of its employee personnel files – particularly those of
its law enforcement personnel – is self-evident. After all, they are statutorily exempt from public
records requests for a reason. As to Boykin’s need for modification, he states that he may call to
testify at his criminal trial one or more of the witnesses who were deposed in this case, and that
he is procedurally required to provide the State a copy of any statements of his prospective
witnesses that are in his possession. As discussed above with respect to foreseeability, this is not
a “changed circumstance” or “new situation” for Boykin.
Presumably, if Boykin provides the State with deposition transcripts that have been
redacted of protected documents and of testimony discussing protected information, he will be
unable to elicit testimony at his criminal trial from his respective witnesses regarding that
information. Boykin has not articulated any particular need to offer such testimony at his
criminal trial. If there is such a need, he has available the alternative course, under Mississippi
Rule of Criminal Procedure 33, of serving a subpoena on the City for production of the
information for use at his criminal trial, any dispute over which subpoena would be decided by
the presiding state court, which would be in a better position than this Court is to weigh Boykin’s
need to use the information against the City’s need to protect it.
Based on the above analysis, Boykin’s request to modify the protective order will be
denied. That being said, the Court believes it is not unreasonable under the circumstances to
place the burden on the City to advise Boykin (and Royal) of the specific information in the

subject deposition transcripts – by attached exhibit number as well as page and line numbers for
specific testimony – that the City considers to be confidential and wishes to protect from
disclosure under one or more protective orders in this case, so that Boykin may provide redacted
transcripts to the State if he wishes. The City is encouraged to be judicious in its identified
redactions. As to any deposition testimony or exhibits not so identified by the City within
fourteen days after the date of this Order, Boykin’s disclosure of that information to the State in
connection with his criminal case will not be considered by this Court to be a violation of a
protective order, and in this respect the applicable protective orders are so modified. However,
this modification does not apply to the protective order entered at Docket 262 pertaining to
personal health information of Yolanda Young, which will remain covered by the protective
order as entered unless and until she consents in writing to such a modification.
B. Royal’s modification request
Royal requests a modification to allow him to produce his counsel’s case file, with the
exception of privileged materials, in response to a subpoena from the Mississippi Attorney
General’s Office. In reply to the City’s opposition, Royal appears to change his request for
modification to one that would allow him to produce only the depositions and exhibits. Docket
304. In either case, using the four-factor analysis the court finds Royal’s modification request
should be denied.
Considering the nature of the protective orders, there is no doubt they apply to
information contained within counsel’s entire case, and Royal’s request to produce the file
essentially requests a wholesale modification of all the protective orders in this case. As to the
deposition transcripts and exhibits only, the protective orders specifically apply to the City’s
employee personnel files that were discussed and attached as exhibits to the depositions. Royal

agreed to the protective orders just as Boykin did. The nature of the protective orders weighs
against Royal’s modification request.
As to foreseeability, presumably the subject subpoena was not served on Royal’s counsel
until after the protective orders were entered. However, Royal and his counsel were well aware
of the criminal prosecution of Boykin for the very conduct that was the basis of Royal’s claims
in this case, and it was far from inconceivable that the criminal prosecutor might be interested in
what Royal learned during discovery in this case. The Court finds the foreseeability factor to be
neutral under the circumstances.
As to reliance, as discussed above the City relied on the subject protective orders in
giving Royal access to its confidential information, and this factor weighs against Royal’s
modification request.
As to good cause, there is no indication that Royal has made any effort to formally
oppose the subject subpoena to the extent it seeks protected information provided to Royal by the
City. Further, to the extent the State needs access to that information, the State has available the
alternative course of subpoenaing that information from the City, any dispute over which
subpoena would be decided by the appropriate state court, which would be in a better position to
weigh the State’s prosecutorial need for that information against the City’s need to protect it.
Based on the above analysis, Royal’s modification request will be denied. However, the
modification ordered above with respect to Boykin’s disclosure of deposition testimony and
exhibits in connection with his criminal case will apply as well to any disclosure by Royal of
deposition testimony and exhibits in response to the subject subpoena.
SO ORDERED, this the 14th day of December, 2018.
/s/ Roy Percy
UNITED STATES MAGISTRATE JUDGE