Blount v. Major, et al

Filing 102

MEMORANDUM AND ORDER: For the reasons stated above, IT IS HEREBY ORDERED that the motion of plaintiff to modify the Protective Order (doc. 78 ) is denied. IT IS FURTHER ORDERED that the motion of defendants to modify the Protective Order (doc. [96)] to include Exhibit 1-B (submitted as doc. 97) is sustained. Signed by Magistrate Judge David D. Noce on 5/20/16. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JAMES P. BLOUNT

)
)
Plaintiff,
)
)
v.
)
)
KEITH S. MAJOR, NICHOLAS R.
)
SHELTON, ERICH J. VONNIDA,
)
EZELL T. CODY, JR., ZACHARY
)
NICHOLAY, MATTHEW MILLER,
)
ALBERT NAPIER, HBS, CO., CASINO )
ONE CORP., and MATTHEW HARMON, )
)
Defendants.
)

No. 4:15 CV 322 DDN

MEMORANDUM AND ORDER
This action is before the court on the motion of plaintiff James P. Blount to amend
the current Protective Order (Doc. 67) by lifting its restrictions regarding Exhibit 1A, a
surveillance camera's video record of the relevant incident. (Doc. 78.) Defendants Albert
Napier, Zachary Nicholay, and Matthew Miller have moved to expand the Protective
Order to cover a new dvd recording delivered to the St. Louis Metropolitan Police
Department by Lumiere Casino (Exhibit 1B). (Doc. 96.) The court heard oral argument
on March 11, 2016.

I. BACKGROUND
On February 19, 2015, plaintiff Blount commenced this action against defendants
Casino One Corporation and certain individuals in their individual capacities.1 Plaintiff
seeks relief under Missouri state law and under 42 U.S.C. § 1983, invoking the court's

1

Several defendants were dropped by plaintiff’s first amended complaint, filed on March 16,
2015. (Doc. 41.)

federal question jurisdiction under 28 U.S.C. § 1331 and supplemental jurisdiction under
28 U.S.C. § 1367(a). (Doc. 41.)
Exhibit 1-A was filed under seal on May 21, 2015, (doc. 66) as an exhibit to the
parties' stipulated joint motion for a Protective Order (doc. 65). The court granted the
stipulated Joint Protective Order. (Doc. 67.)
On January 27, 2016, plaintiff filed the motion to amend the protective order.
Defendants object to any amendment and seek to broaden the Protective Order to include
Exhibit 1-B.

II. PROTECTIVE ORDER MODIFICATION STANDARD
Federal Rule of Civil Procedure 26(c) allows for the issuance of a protective order
upon a showing of good cause. See Monsanto Co. v. Pioneer Hi-Bred Int’l, Inc., No.
4:12 CV 1090 CEJ, 2014 WL 1211111, *1 (E.D. Mo. Mar. 24, 2014). If parties enter
freely into a stipulated protective order, they are implicitly agreeing that there is good
cause to grant it. Factory Mut. Ins. Co. v. Insteel Indus., Inc., 212 F.R.D. 301, 305
(M.D.N.C. 2002). When modification of a protective order is sought, the movant bears
the burden of showing good cause. F.T.C. v. AbbVie Products LLC, 713 F.3d 54, 66
(11th Cir. 2013); Geller v. Branic Int’l Realty Corp., 212 F.3d 737, 738 (1st Cir. 2000).
However, when parties have agreed to a stipulated protective order, the party seeking
modification has the burden to show particular good cause to gain relief. See, e.g., Am.
Tel. &Tel. Co. v. Grady, 594 F.2d 594, 597 (7th Cir. 1978) (“where a protective order is
agreed to by the parties before its presentation to the court, there is a higher burden on the
movant to justify the modification of the order”). Guzhagin v. State Farm Mutual Auto.
Ins. Co., Civil No. 07-4650 JRT/FLN, 2009 WL 294305, *2 (D. Minn. 2009); Jochims v.
Isuzu Motors, Ltd., 145 F.R.D. 499, 501 (S.D. Iowa 1992). Regardless of whether the
protective order was stipulated to, “[a] party seeking to amend a protective order has the
burden of showing that intervening circumstances have obviated or limited any potential
prejudice to the protected party.” U.S. Commodity Futures Trading Comm’n v. U.S.
Bank, N.A., No C13-2041, 2015 WL 429962, at *2 (E.D. Iowa Feb. 2, 2015) (citing Iowa
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Beef Processors, Inc. v. Bagley, 601 F.2d 949, 954 (8th Cir. 1979)); see also, Tama
Plastic Indus. v. Pritchett Twine & Net Wrap, LLC, No. 8:12 CV 324, 2014 WL
4825173, at *1 (D. Neb. Sept. 26, 2014).
Plaintiff agreed to the protective order, even though he attempted to limit that
agreement by stating, “[p]laintiff does not concede whether it is necessary and/or
appropriate for Exhibit 1A to be the subject of a protection order and at the present it is
unknown to Plaintiff as to whether the Exhibit 1A is an open record in the possession of
any public depository . . . .”

(Doc. 67 at 1.)

Nonetheless, plaintiff agreed to the

“stipulated joint protective order,” conceding that there was good cause to enter it and
now bears the burden of proving that circumstances have changed and that modification
is necessary. Accord Iowa Beef Processors, Inc., 601 F.2d at 954; U.S. Commodity
Futures Trading Comm’n, 2015 WL 429962 at *2; Factory Mutual Ins. Co., 212 F.R.D.
at 305.
Additionally, plaintiff asserts that he only agreed to the Protective Order for a
certain amount of time. The record indicates, however, that he stated “[p]laintiff agrees
not to seek relief of protective order for at least one hundred days after entry of this
protection order by the Court.” (Doc. 67 at ¶ 16.) This statement does not change his
burden of proof the relief he now seeks.

III. DISCUSSION
Plaintiff has moved to amend the protective order to allow for the release to the
public of the footage from the outside “open and obvious” cameras, because such
disclosure would not reveal secret or proprietary information.

(Docs. 78, 84, 86.)

Plaintiff also argues the open and obvious recordings do not implicate any government
interest, particularly any interest of the Missouri Gaming Commission.

(Doc. 84.)

Plaintiff argues that the current Protective Order limits his ability to find witnesses to the
alleged events. (Doc. 78.) Finally, plaintiff argues the matter is of significant public
interest and therefore public release is necessary. (Docs. 78, 84, 86, 98.) Plaintiff also

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requests the court deny defendants’ motion to include Exhibit 1-B in the Protective
Order. (Doc. 98.)
Defendants counter that the circumstances have not changed from when the court
issued the Protective Order: the cameras’ locations and effectiveness remain proprietary
and confidential and plaintiff is not prejudiced by the order.

A.

The Original Protective Order

The proprietary and secretive nature of the cameras, both on and off the casino’s
gaming floor, has not changed from the day the court granted the original stipulated joint
protection order (Doc. 67.) Although most persons would assume that cameras are
capturing visitors’ actions throughout the casinos, the number of cameras and their
locations and capabilities have not been shown to public knowledge. This lack of public
knowledge about the cameras is a deterrent to crime both on and around the gaming floor
and on the casino's other premises. These are security and financial interests that are
lawfully the subject of the Protective Order. There continues to be significant concerns
from defendants regarding disclosing location of their cameras as well as their
capabilities by the release of the videos in their entirety.
Additionally, in no proceeding has the court heard from the Missouri Gaming
Commission and whether or not the release of any of these videos would conflict with its
own regulations. Plaintiff has not shown that circumstances have changed since May 22,
2015 when the court entered the stipulated joint protective order.

B.

Including Exhibit 1-B

Exhibit 1-B (doc. 97) is a copy of two of the six camera views that are captured on
Exhibit 1-A. As stated in the stipulated joint protective order,
Nothing herein shall restrict a recipient, for use in connection with these
actions, from making working copies, abstracts, digests and analyses of
Exhibit 1A or from preparing documents for filing disclosing such
information. However, all such working copies, abstracts, digest, analyses

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and/or filings shall be deemed to have the same level of protection under
the terms of this order as the original disc.
(Doc. 67 at ¶ 11.)
Therefore, the court considers Exhibit 1-B as confidential and covered under the
Stipulated Joint Protective Order (Doc. 67).

V. CONCLUSION
For the reasons stated above,
IT IS HEREBY ORDERED that the motion of plaintiff to modify the Protective
Order (doc. 78) is denied.
IT IS FURTHER ORDERED that the motion of defendants to modify the
Protective Order (doc. 96) to include Exhibit 1-B (submitted as doc. 97) is sustained.

/S/ David D. Noce
u
UNITED STATES MAGISTRATE JUDGE
Signed on May 20, 2016.

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