Tarazi v. Oshry et al
Filing
113
OPINION AND ORDER: Plaintiffs 94 motion for protective order for confidential information is DENIED. Plaintiff's 95 motion for an emergency temporary stay of discovery is WITHDRAWN. Signed by Magistrate Judge Norah McCann King on 8/15/11. (rew) Modified text on 8/16/2011 (er1).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
OMAR TARAZI,
Plaintiff,
vs.
Civil Action 2:10-CV-793
Judge Sargus
Magistrate Judge King
PAMELA G. OSHRY, et al.,
Defendants.
OPINION AND ORDER
Plaintiff seeks recovery for defamatory statements allegedly
made by defendants during the pendency of highly publicized court
proceedings in which plaintiff represented certain litigants.
This
matter is before the Court on plaintiff’s motion for protective order,
Doc. No. 94 (“Motion for Protective Order”).1
For the reasons that
follow, the Court DENIES plaintiff’s motion.
I.
BACKGROUND
Plaintiff, an Ohio attorney who is proceeding pro se, previously
represented two individuals in “Unruly and Dependency cases in Ohio”
involving their daughter, Fathima Rifqa Bary.
No. 10, ¶¶ 1, 5.
Amended Complaint, Doc.
Defendant John Stemberger, an attorney and resident
of Florida, represented Ms. Bary in a dependency case in the State of
Florida.
Id. at ¶ 2.
Various media outlets reported on the
proceedings involving Ms. Bary.
See, e.g., id. at ¶¶ 3, 7, 10, 12-15,
1
Plaintiff also filed a motion for an emergency temporary stay of
discovery pending resolution of his motion for protective order, Doc. No. 95,
which was later withdrawn. Doc. No. 104.
17.
Following some of this media coverage, plaintiff filed the
instant action.
Plaintiff sues Defendant Stemberger, who plaintiff
alleges held a press conference and appeared on a nationally televised
program in order to discuss Ms. Bary’s proceedings.
10.
Id. at ¶¶ 3, 7,
Plaintiff also sues Pamela G. Oshry,2 a resident of New York who
operates a blog known as “Atlas Shrugs,” which allegedly reported on
Ms. Bary’s proceedings.
Id. at p. 1; ¶¶ 14-23.
Plaintiff
specifically alleges that defendants, in reporting on these dependency
proceedings, defamed plaintiff.
At the initial pretrial conference in this case, the Court set a
case schedule requiring, inter alia, that discovery be completed by
September 30, 2011.
Preliminary Pretrial Order, Doc. No. 33.
After
discovery commenced, the Court granted non-parties John Doe and
Barbarossa leave to intervene (“the intervenors”).
Doc. No. 71.
Opinion and Order,
Barbarossa is a contributor to a blog known as “the Jawa
Report” and John Doe is “the confidential source of certain
information” referred to in a letter from defendant Stemberger dated
June 24, 2010.
Id. at 2.
After a purported dispute with defendant Geller regarding the
scope of discovery, Doc. No. 94, pp. 3-4, plaintiff filed a motion on
May 31, 2011,3 asking the Court to issue a proposed protective order.
2
This defendant identifies herself as Pamela Geller and denies that her
legal name (or commonly used name) is Pamela G. Oshry. Answer of Pamela
Geller to Plaintiff’s Complaint Against Defendant Pamela Oshry, Doc. No. 7, ¶
2. For ease of reference, the Court will refer to this defendant as
“Defendant Geller.”
3
The instant motion follows multiple discovery-related motions filed by
the parties in this litigation. See, e.g., Doc. Nos. 72, 76, 78, 79, 83.
2
Id.
On the same day, plaintiff filed a motion for an emergency
temporary stay of discovery pending the Court’s resolution of his
motion for protective order, which was later withdrawn.
104.
Doc. Nos. 95,
After the Court established a briefing schedule on these
motions, Order, Doc. No. 97, defendants and the intervenors filed
their responses in opposition to plaintiff’s motions.
101, 102.
Doc. Nos. 100,
With the filing of plaintiff’s reply, Doc. No. 103
(“Reply”), this matter is ripe for resolution.
II.
STANDARD
The Federal Rules of Civil Procedure grant parties the right to
“obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense....”
Fed. R. Civ. P. 26(b)(1).
Nevertheless, Rule 26 provides that a person resisting discovery may
move the court, for good cause shown, to protect the person or party
from “annoyance, embarrassment, oppression, or undue burden or
expense, including. . . forbidding the disclosure or discovery.”
R. Civ. P. 26(c)(1)(A).
Fed.
“The burden of establishing good cause for a
protective order rests with the movant.”
Nix v. Sword, 11 Fed. Appx.
498, 500 (6th Cir. 2001) (citing General Dynamics Corp. v. Selb Mfg.
Co., 481 F.2d 1204, 1212 (8th Cir. 1973)).
Specifically,
“[t]o show good cause, a movant for a protective order must articulate
specific facts showing ‘clearly defined and serious injury’ resulting
from the discovery sought and cannot rely on mere conclusory
statements.”
Id. (quoting Avirgan v. Hull, 118 F.R.D. 252, 254
(D.D.C. 1987) (internal quotation marks omitted)).
A grant or denial
of a request for a protective order falls within “‘the broad
discretion of the district court in managing the case.’”
3
Conti v. Am.
Axle & Mfg., No. 08-1301, 326 Fed. Appx. 900, at *903-04 (6th Cir. May
22, 2009) (quoting Lewelling v. Farmers Ins. of Columbus, Inc., 879
F.2d 212, 218 (6th Cir. 1989)).
Finally, the party seeking a protective order must certify that
he “has in good faith conferred or attempted to confer with the other
affected parties in an effort to resolve the dispute without court
action.”
Fed. R. Civ. P. 26(c)(1).
Although plaintiff has not
complied with this prerequisite, the Court, based on the circumstances
in this particular case, will nevertheless consider the merits of his
motion for protective order.4
III. DISCUSSION
In the case sub judice, plaintiff seeks a protective order to
protect “all parties and third parties from being abused by the
discovery process for ulterior purposes.”
Order, p. 4; Reply, p. 3.
Motion for Protective
Plaintiff argues that his proposed
protective order is necessary because, inter alia, defendant Geller
“has a history and pattern of using her website as a means of harming
individuals with documents acquired from court proceedings.”
for Protective Order, p. 2.
Motion
Plaintiff also believes that his proposed
protective order will encourage the parties to resolve their discovery
disputes extrajudicially and eliminate the need for filing discovery
motions and additional depositions.
Id. at 4; Reply, pp. 2-3.
This Court disagrees that plaintiff’s proposed protective order
4
Plaintiff has not attached the required certification, but instead
represents in the text of his motion that he has tried in good faith to
resolve the parties’ dispute. Doc. No. 94, p. 1. Under these circumstances,
to insist that the motion be re-filed with the required certification would
exalt mere formality to an unwarranted degree and would waste the time and
resources of both the parties and the Court.
4
is necessary or appropriate.
First, plaintiff fails to meet his
burden of establishing good cause.
Other than articulating a
generalized fear of abuse of the discovery process, plaintiff does not
identify the required “specific facts showing ‘clearly defined and
serious injury’ resulting from the discovery sought[.]”
11 Fed. Appx. at 500.
Nix v. Sword,
For example, identifying alleged discovery
abuse in an unrelated case resulting in alleged injury to an outside
third party or expressing fear on behalf of “other members of the
Muslim community,” Motion for Protective Order, pp. 2-3, do not
establish good cause for entering the proposed protective order in
this case.
Indeed, plaintiff has not established that he properly
represents the interests of outside third parties in this lawsuit.
Similarly, complaining that defendant Geller and Intervenor
Barbarrossa have published pleadings filed in this case and in the
proceedings involving Ms. Bary do not establish good cause.
Not only
are the pleadings filed in this case already available to the public
through this Court’s website, “the prospect that disclosure of
unproven allegations will expose a party to reputational or (by
extension) commercial harm does not outweigh the common-law
presumption of public access to court records.”
United States v.
Contents of Nationwide Life Ins. Account No. X0961 in the Name of
Steve E. Warshak, No. C-1-05-196, 2006 U.S. Dist. LEXIS 18772, at *14
(S.D. Ohio April 12, 2006) (citing, inter alia, Brown & Williamson
Tobacco Corp. v. Federal Trade Comm’n, 710 F.2d 1165, 1179-1180 (6th
Cir. 1983); Procter & Gamble v. Bankers Trust, 78 F.3d 219, 225 (6th
Cir. 1996)).
Moreover, other than referring to Geller’s “question number 2,"
5
plaintiff fails to identify the objectionable discovery requests, nor
does he articulate the specific injury that would likely result from
those particular requests.
Plaintiff cites to no authority that
requires, or even permits, the Court to issue a protective order under
these circumstances.
Second, the Court notes that plaintiff’s overly broad proposed
protective order would permit any party to denominate any material as
“confidential” and would require that the filing of any material so
denominated be made under seal.
Proposed Protective Order for
Confidential Information, ¶ 3(D), attached to Motion for Protective
Order.
Although parties may maintain discovery materials in
confidence, the actual filing of documents – which implicates the
interests of the public in unencumbered access to court proceedings –
should not routinely be made under seal.
Bankers Trust Co., 78 F.3d
at 227; Brown & Williamson Tobacco Corp., 710 F.2d at 1177.
Finally, to the extent that plaintiff seeks a protective order to
preclude defendants and intervenors from abusing the discovery
process, plaintiff seeks an order essentially requiring that
defendants and intervenors comply with the Federal Rules of Civil
Procedure.
However, all parties, whether proceeding pro se or with
the assistance of counsel, are already required to comply with the
Federal Rules of Civil Procedure.
U.S. 106, 113 (1993).
See McNeil v. United States, 508
All parties are reminded that they should
follow the Federal Rules and the Court expects that no litigant will
utilize information gleaned in this litigation for improper purposes.
However, issuing a protective order under the present circumstances
would be superfluous, further suggesting that plaintiff has failed to
6
meet his burden.
Indeed, the redundancy of such an order persuades
this Court that its discretion is better exercised in denying
plaintiff’s request.
WHEREUPON, plaintiff’s motion for protective order for
confidential information, Doc. No. 94, is DENIED.
Plaintiff’s motion for an emergency temporary stay of discovery,
Doc. No. 95, is WITHDRAWN.
See Doc. No. 104.
The Clerk is DIRECTED
to remove Doc. Nos. 94 and 95 from the Court’s pending motions list.
August 15, 2011
s/Norah McCann King
Norah McCann King
United States Magistrate Judge
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