Wenk et al v. O'Reilly et al
Filing
29
OPINION AND ORDER granting in part and denying in part 19 Motion to Quash & 20 Motion to Quash. The documents requested by the subpoenas shall be produced for the Court's in camera inspection w/in seven (7) days. Signed by Magistrate Judge Terence P Kemp on 9/17/2012. (kk2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Peter Wenk, et al.,
:
Plaintiffs,
:
v.
:
Edward O'Reilly, et al.,
Defendants.
Case No.
2:12-cv-474
:
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp
:
OPINION AND ORDER
Plaintiffs Peter and Robin Wenk, the parents of a student
enrolled in the Grandview Heights City Schools, filed this action
following an investigation of them by Franklin County Children’s
Services and the Grandview Heights Police Department.
They
allege that school officials falsely reported child abuse to
those agencies after the Wenks had met several times with school
officials and expressed concerns (and dissatisfaction) about the
educational and social planning for their child.
On August 17, 2012 and August 20, 2012, respectively, nonparties Franklin County Children’s Services Board and the City of
Grandview Heights filed motions to quash subpoenas served on them
by the Wenks’ counsel.
Through the subpoenas, the Wenks seek the
records of the two investigations, and particularly documents
which would show who initiated the complaints against them and
what information was given either to Children’s Services or the
police.
Supplemental, responsive, and reply memoranda have now
been filed, and the two motions are ready to decide.
For the
following reasons, the Court will order an in camera inspection
of the documents at issue.
I.
The legal issue presented by the motions to quash is not
difficult to describe.
Both of the movants have records which
may well show who reported the Wenks as suspected child abusers.
Under Ohio law, such records are confidential.
See Ohio Rev.
Code §2151.421(H)(1)(“Except as provided in divisions (H)(4) and
(N) of this section, a report made under this section is
confidential”).
The same statute states, in subsection (H)(2),
that “[n]o person shall permit or encourage the unauthorized
dissemination of the contents of any report made under this
section”).
A violation of that latter subsection is a
misdemeanor offense under Rev. Code §2151.99(A)(1).
The movants
argue that this Court should honor the statutory confidentiality
which attaches to their records and should not require them to
produce any reports made to them either by the defendants or
anyone else.
They also argue that the records are irrelevant, or
that the Wenks can get the same information elsewhere (and that
they should do so).
For their part, the Wenks claim that the
records are critical evidence of which defendants actually
retaliated against them and what they said, and that there is no
federal privilege which prevents them from obtaining this
information through the discovery process.
II.
When dealing with a similar state statute which creates a
privacy interest in certain records, this Court stated that:
To the extent that this statute may create a state law
privilege for certain student information, such a
privilege would not be binding on this Court under
Fed.R.Evid. 501. In federal cases dealing with a
federal question, Rule 501 states that privilege “shall
be governed by the principles of the common law as they
may be interpreted by the courts of the United States
in the light of reason and experience.” Hancock v.
Dodson, 958 F.2d 1367, 1373 (6th Cir.1992); see also
Nilavar v. Mercy Health System–Western Ohio, 210 F.R.D.
597 (S.D. Ohio 2002). Further, the existence of pendent
state law claims does not relieve the Court of “[the]
obligation to apply the federal law of privilege.” Id.
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Smith v. Southwest Licking School Dist. Bd. of Educ., 2010 WL
3910487, *3 (S.D. Ohio Oct. 1, 2010). Although the movants cite
to a number of cases in their memoranda which address the
confidentiality of such records in connection with proceedings in
the Ohio courts, they have not cited to any decisions which have
recognized a federally-based privilege for such records.
The one
federal decision they do cite, Hupp v. Switzerland of Ohio Local
Sch. Dist., Case No. 2:07-cv-628 (S.D. Ohio June 3, 2008)(King,
M.J.), recognized both that such information is relevant to a
claim of retaliation brought against school officials under 42
U.S.C. §1983 - the same claim which the Wenks have made in this
case - and that the “plaintiffs’ interest in the information
sought by the subpoena outweighs the confidentiality
considerations addressed by O.R.C. §§5153.17 and 2151.421(H)(1).”
Hupp, slip op. at 6.
This Court agrees with Magistrate Judge
King that, to the extent that a balancing test is necessary, the
balance of interests weighs in favor of discovery given the clear
relevance of such information to a First Amendment retaliation
claim.
This conclusion does not, of course, completely resolve the
issues created by the Wenks’ request.
In Hupp, Magistrate Judge
King ordered the records produced for an in camera inspection,
noting that “[i]f it appears to the Court that the abuse
complaint was initiated by an agent of the defendant school
district, the Court will direct the disclosure of the documents
to plaintiffs on terms calculated to preserve the Agency’s -- and
the public’s –- confidentiality concerns.”
reasonable procedure.
Id.
That seems a
Although the Court does not generally
favor in camera reviews, the number of documents at issue appears
relatively small, and the Court has a good feel for what the
Wenks are looking for in the documents.
-3-
To insure that the Court
is completely advised on that matter, however, it will also
direct the Wenks to submit a list of names of persons who are
suspected of having made the allegedly false reports as well as a
list of other school officials who were involved in the
discussions about their child’s educational and social
programming during the time in question.
If the Court is unable
to determine, from that list and the records, whether any
complaining parties were affiliated with the Grandview City
School District, the Court reserves the right to request
additional information to assist with its review of the records.
III.
For these reasons, the motions to quash (#s 19 and 20) are
granted in part and denied in part. Within seven days, the
documents requested by the subpoenas shall be produced for the
Court’s in camera inspection. At the same time, plaintiffs shall
provide the Court with the information described above.
Before
the Court orders the disclosure of any of the information
submitted for in camera review, it will confer with counsel to
address any additional restrictions which might be appropriate
with respect to the use or further dissemination of the documents
at issue or the information they contain.
IV.
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.
28 U.S.C. §636(b)(1)(A),
Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.
I., F., 5.
The motion must specifically designate the order or
part in question and the basis for any objection.
Responses to
objections are due fourteen days after objections are filed and
replies by the objecting party are due seven days thereafter.
The District Judge, upon consideration of the motion, shall set
aside any part of this Order found to be clearly erroneous or
contrary to law.
-4-
This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.
S.D. Ohio L.R. 72.4.
/s/ Terence P. Kemp
United States Magistrate Judge
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