McGee v. Armstrong, et al

Filing 60

Memorandum Opinion and Order denying in part 58 Defendants' Motion for protective order. Defendants' Motion for protective order is DENIED without prejudice. Defendants' Motion to order plaintiff to file responses and any motions under seal is DENIED. The Court has set a briefing schedule for Defendants' Motion relating to Local Rule 32.1. See order for details. Magistrate Judge Kathleen B. Burke on 5/18/2012. (D,I)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

KEVIN McGEE

PLAINTIFF,
vs.

THOMAS ARMSTRONG, et al.

DEFENDANTS.

)
)
)
)
)
)
)
)
)
)
)
)

CASE NO. 5:11-cv-2751

JUDGE SARA LIOI
MAGISTRATE JUDGE BURKE

Memorandum Opinion and Order

On May 17, 2012, Defendants filed their Expedited Motion for Protective Order
requesting a broad Protective Order “precluding all parties from using discovery materials for
purposes beyond those specifically authorized by the Civil Rules.” Doc. 58, p.1. Additionally,
contained within Defendants’ motion is a request that this Court impose sanctions on the ground
that Plaintiff has violated Local Rule 32.1. Doc. 58, p. 6-7. For the reasons set forth below,
Defendants’ motion is DENIED without prejudice to the extent it seeks a protective order. 1 A
briefing schedule is set forth below for the portion of Defendants’ Motion relating to Local Rule
32.1.
A. Defendants’ Request for Protective Order
Defendants request for a protective order is made pursuant to Federal Civil Rule 26(c).
Doc. 58, p. 1. That rule requires that the party seeking a protective order demonstrate that he

1

As part of their Motion, Defendants requested that this Court order Plaintiff to file his response under seal. For the
reasons stated herein, that request is denied.

1

“has in good faith conferred or attempted to confer with other affected parties in an effort to
resolve the dispute without court action” 2 and that good cause exists for issuance of the
protective order, i.e., that a protective order is necessary “to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense.” Fed. Civ. R. 26(c).
Defendants have failed to meet their burden of demonstrating good cause for the
protective order they seek. See Burgett v. City of Flint, 2008 WL 363291, *4 (E.D. Mich.
2008), 2008 WL 363291, *4 (the burden of showing good cause for a protective order rests with
the party seeking the order); Flagg v. City of Detroit, 2010 U.S. Dist. LEXIS 78501, *12-13
(indicating that good cause for a protective order requires “specific identification of a clearly
defined and sufficiently serious harm. . .”). Defendants’ Motion for Protective Order cites the
alleged posting of defendant Thomas Armstrong’s May 14, 2012, video deposition on the
internet by Plaintiff and also alleges that, during Mr. Armstrong’s deposition, “Plaintiff’s counsel
asked numerous personal questions, designed to simply annoy, harass, and embarrass Mr.
Armstrong . . .” Doc. 58, p. 3. Defendants have chosen not to submit to this Court the alleged
annoying, harassing and embarrassing excerpts of the deposition to support their Motion. 3 Doc.
58, p. 3-4. The undersigned cannot make a determination as to whether a protective order is
necessary “to protect a party or person from annoyance, embarrassment, oppression, or undue
burden or expense” without knowing what the allegedly annoying, harassing or embarrassing
information is. Furthermore, Defendants have not articulated how they have or will be annoyed,
2

As discussed herein, the Defendants have not met their burden of showing good cause for a protective order,
therefore, it is not necessary for this Court to determine whether the Defendants have in good faith conferred or
attempted to confer with other affected parties in an effort to resolve the dispute without court action prior to filing
this second request for a protective order.

3

Defendants state that “[d]ue to the sensitive nature of these questions, Defendants decline to repeat those questions
in this brief.” Doc. 58, p. 3. Defendants could have, but elected not to, seek leave to file the allegedly sensitive
material under seal consistent with this Court’s Case Management Plan and Trial Order, Section V. – Filing
Documents Under Seal. Doc. 20, p. 6-7.

2

harassed or embarrassed if this Court does not enter an order precluding use of all discovery
materials for purposes beyond those specifically authorized by the Civil Rules. 4 See Freudeman
v. The Landing of Canton, 2010 WL 106878, * 2 (N.D. Ohio 2010) (denying a motion for
protective order where the defendants failed to illustrate good cause with a particular or specific
demonstration of facts). Nor do the Defendants provide legal authority to support such a broad
order.
Because Defendants have failed to meet their burden of showing good cause for the
issuance of a protective order, Defendants’ Expedited Motion for Protective Order (Doc. 58) is
DENIED without prejudice as to the request for a protective order and DENIED as to the
request for an order requiring Plaintiff to file under seal his response to the Motion for Protective
Order and any other motion or memorandum dealing with Thomas Armstrong’s deposition. If a
protective order or sealing order is to issue in this case, there must be a showing of good cause
based on specific facts and the order will be limited to those portions of a motion or supporting
documents that have been determined by this Court to require a protective or sealing order. See
Doc. 20, p. 6.
B. Defendants’ request for sanctions for violation of Local Rule 32.1.
The Court reserves ruling on Defendants’ request for sanctions for violation of Local
Rule 32.1 until such time as Plaintiff has had an opportunity to respond. Plaintiff’s Response to
Defendants’ request for sanctions shall be filed on or before May 23, 2012. Defendants’ Reply
shall be filed on or before May 25, 2012. As part of its Response, Plaintiff shall include the

4

Notwithstanding that the focus of this Motion is the video deposition of Thomas Armstrong, Defendants have
made a very broad request that this Court preclude “all parties from using discovery materials for purposes beyond
those specifically authorized by the Civil Rules.” Doc. 58, p. 1. The Motion appears unduly broad for at least two
reasons: (1) this case involves a public entity and many of the documents produced in discovery are likely to be
public records; and (2) the parties have indicated that an administrative proceeding likely to require consideration of
the same records being produced in discovery in this case is pending or imminent.

3

following information: (1) identification of the deposition officer at the May 14, 2012, Thomas
Armstrong deposition; (2) identification of the individual currently in possession of the original
video tape of Mr. Armstrong’s deposition; (3) identification of all individuals who have received
a copy of the video tape of Mr. Armstrong’s deposition, and identification of the person(s) from
whom they received the copy. Since the Court has issued its ruling on the portion of Defendants’
motion requesting a protective order, Plaintiff shall not respond to that portion of the motion.

Dated: May 18, 2012
KATHLEEN B. BURKE
U.S. MAGISTRATE JUDGE

4