UNITED STATES OF AMERICA v. JOHNSON

Filing 104

MEMORANDUM ORDER signed by JUDGE THOMAS D. SCHROEDER on 5/19/2014, Boney's objections 84 are overruled, and the Magistrate Judge's Amended Protective Order is affirmed.(Powell, Gloria)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

UNITED STATES OF AMERICA,

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Plaintiff,
v.
TERRY S. JOHNSON, in his
official capacity as Alamance
County Sheriff,
Defendant,
and
BONEY PUBLISHERS, INC.,
Intervenor.

1:12cv1349

MEMORANDUM ORDER
Before the court are objections (Doc. 84) to the United
States Magistrate Judge’s Order regarding discovery (Doc. 83)
filed

by

Intervenor

Boney

Publishers,

Inc.

(“Boney”).

The

Government, which opposed Boney’s motion before the Magistrate
Judge,

has

Defendant

responded,

Terry

S.

again

Johnson,

in
who

opposition.
did

not

file

(Doc.
any

92.)

response

supporting or opposing Boney’s original motion, also has not
filed a response.

For the reasons set forth below, Boney’s

objections will be overruled.
Boney’s
Protective

objections
Order

concern

(“Protective

a

Joint

Order”)

between the United States and Johnson.

Confidentiality
governing
(Doc. 18.)

and

discovery
In the

underlying action, the Government alleges a pattern or practice
of

the

Alamance

discriminatory
Latinos

in

County

law

Sheriff’s

enforcement

violation

of

the

Office

activities

Violent

Crime

Enforcement Act of 1994, 42 U.S.C. § 14141.

(“ACSO”)

directed
Control

of

against
and

Law

(Doc. 1.)

Discovery began in March 2013 (Doc. 16), and the Protective
Order was granted on April 23 (Doc. 18).

On September 4, Boney

moved to intervene in the case to advocate for public access to
discovery materials (Doc. 41), and the court granted the motion
to intervene on November 14 (Doc. 67).

The court declined to

rule on Boney’s arguments regarding access and modification of
the Protective Order at that time, instead inviting Boney to
address those arguments to the Magistrate Judge, who entered the
Protective

Order

in

the

first

instance.

Boney

did

so,

contending that the Protective Order violates North Carolina’s
Public Records Law and the public’s First Amendment right of
access.
The

(Doc. 75.)
Magistrate

Judge

modified

the

Protective

Order

in

several ways (“Amended Protective Order”), but did not grant the
access Boney seeks.
found

that

neither

(Doc. 83 at 7-8.)
the

common

law

nor

The Magistrate Judge
the

First

Amendment

provided the public with a presumptive right of access to the
discovery materials at issue and that the Government’s interest
in confidentiality outweighed the public’s interest in access.
2

(Doc. 83 at 3-7.)

He further found that, while the exemption

for work product in the North Carolina Public Records law (N.C.
Gen.

Stat.

§

132-1.9(g))

did

not

protect

the

documents

from

disclosure, “[t]he federal judiciary is not constrained in any
way by state law requiring public access to documents.”
83 at 7.)

(Doc.

Consequently, because of the confidentiality concerns

implicated,
Protective

the

Magistrate

Order

to

allow

Judge
the

refused

level

of

to

public

modify
access

the
Boney

advocated.
Boney does not object to the Magistrate Judge’s findings
regarding the common law and First Amendment, but it instead
limits its objections to the Magistrate Judge’s ruling regarding
the North Carolina Public Records Law.

(Doc. 84.)

Therefore,

this court’s review is similarly limited.

28 U.S.C. § 636(b);

Fed.

Judge

R.

Civ.

Protective

P.

72(a).

Order

in

two

The

Magistrate

ways:

(1)

documents

modified

are

no

the

longer

automatically designated “confidential,” but must be sealed or
redacted by the parties to prevent disclosure of “personally
identifiable

information,”

and

(2)

judicial

records

used

to

adjudicate substantive rights or attached to dispositive motions
are not subject to the Protective Order and will only be deemed
confidential
ruling.

upon

(Doc.

83

a

proper
at

motion,

7-8.)

Boney

notice,

contends

Judge’s modifications “do not go far enough.”
3

and

the

the

court’s

Magistrate

(Doc. 84 at 3.)

The

modifications

“[m]odify

Boney

the

information,’”
information
Protective

seeks

include

definition
eliminate

as

of
the

does

not

the

‘personally
“automatic

‘confidential,’”

Order

asking

and

restrict

designation

in

of

that

the

way

from

any

complying with the North Carolina public records law. 1
10.)

to

identifiable

“clarify”
ACSO

court

(Id. at

Essentially, Boney seeks to obtain through public records

requests documents in ACSO’s possession that were produced by
the Government to ACSO during discovery.
Pursuant to Federal Rule of Civil Procedure 72, this court
must modify or set aside any part of a Magistrate Judge’s order
on

a

non-dispositive

contrary to law.”

matter

“that

clearly

Fed. R. Civ. P. 72(a).

that Rule 72(a)’s standard applies.
4-5.)

is

erroneous

or

The parties agree

(Doc. 84 at 3; Doc. 92 at

“A factual finding is clearly erroneous when the court is

left with the definite and firm conviction that a mistake has
been committed.
plenary
discovery

review

Although the contrary to law standard permits
of

disputes

legal
are

conclusions,

accorded

greater

decisions

related

deference.”

to

United

States v. Duke Energy Corp., No. 1:00CV1262, 2012 WL 1565228, at

1

Boney also seeks an addition to the Protective Order that would
require “a constitutionally sound procedure for the proposed filing
under seal of documents designated as ‘confidential.’”
(Doc. 84 at
10.) This request is moot in light of the addition of new Local Rule
5.4 that address the requirements for the filing of materials under
seal, effective March 1, 2014, and published on the court’s website
after the filing of Boney’s objections.

4

*1 (M.D.N.C. Apr. 30, 2012) (quoting Stonecrest Partners, LLC v.
Bank of Hampton Roads, 770 F. Supp. 2d 778, 782 (E.D.N.C. 2011))
(alterations omitted).
As a practical matter, many of the documents to which Boney
sought to gain public access are now public.
sought

a

“2012

statistical

study

For example, Boney

commissioned

by

the

[Government] that indicates a Latino driver in Alamance County
is ‘as much as ten times more likely than a similarly situated
non-Latino driver to be stopped by an ACSO deputy for committing
a traffic infraction.’”
which

the

Government

(Doc. 84 at 2-3.)

relies

are

now

public

Government’s motion for summary judgment.
Similarly,

Boney

sought

supporting

The studies upon
exhibits

3.)

Depositions

of

over

forty

the

(Docs. 89-42, 89-45.)

documents

for

racially

discriminatory statements allegedly made by Johnson.
at

to

witnesses,

(Doc. 84

which

include

testimony regarding such statements, have also been made public.
(See Doc. 89-1 (listing depositions attached as exhibits).)

All

of Boney’s objections as to documents that are now public are
therefore moot.
Boney’s remaining objections regarding discovery materials
not made public rest solely on the North Carolina public records
statute, N.C. Gen. Stat. § 132-1 et seq.
assertions,
guarantees

state
of

public

disclosure.

records

laws

When

balanced

5

Contrary to Boney’s
are

not

absolute

against

important

competing considerations, state public records laws have been
overridden.

See, e.g., United States v. Loughner, 807 F. Supp.

2d 828, 835 (D. Ariz. 2011) (in criminal case, Sixth Amendment
right to fair trial outweighed state public records law); Dream
Palace v. Cnty. of Maricopa, 384 F.3d 990, 1012 (9th Cir. 2004)
(in

civil

case,

First

Amendment

right

to

self-expression

outweighed state public records law); Wittenberg ex rel. J.W. v.
Winston-Salem/Forsyth Cnty. Bd. of Educ., No. 1:05CV818, 2009 WL
2566959 (M.D.N.C. Aug. 19, 2009) (in civil settlement agreement,
minor

child’s

right

to

privacy

outweighed

North

Carolina’s

public records law).
Here,
public’s

the
right

maintaining
principally

the
the

Magistrate
of

Judge

access

and

the

confidentiality
private,

carefully

Government’s
of

identifying

witnesses who fear reprisal.

considered
interest

discovery
information

(Doc. 83 at 6-7.)

the
in

materials,
of

certain

The Magistrate

Judge found the Government’s interest to be more compelling. 2

It

is neither clearly erroneous nor contrary to law to find that
the

Government’s

confidentiality

interests

in

this

particular

case outweigh the state public records law at this stage.

2

The Government notes that many of the documents Boney now seeks are
those of the federal government that would not be in the possession of
Johnson but for this litigation. (Doc. 92 at 8.)

6

For the reasons stated, the court finds that no part of the
Magistrate Judge’s Protective Order to which objection is made
is clearly erroneous or contrary to law.
IT

IS

THEREFORE

ORDERED

that

Boney’s

objections

are

overruled, and the Magistrate Judge’s Amended Protective Order
is affirmed.

/s/
Thomas D. Schroeder
United States District Judge
May 19, 2014

7