Wenk et al v. O'Reilly et al

Filing 77

OPINION AND ORDER denying 57 Amended SEALED MOTION for Order Dissolving Protective Orders. Signed by Magistrate Judge Terence P Kemp on 4/23/2013. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Peter Wenk, et al.,

:

Plaintiffs,

Edward O’Reilly, et al.,

Case No.

:

v.

:

2:12-cv-474

JUDGE ALGENON MARBLEY
Magistrate Judge Kemp

:

Defendants

:

OPINION AND ORDER
Plaintiffs Peter and Robin Wenk, parents of a student
enrolled in the Grandview Heights City Schools, filed this action
following an investigation by Franklin County Children’s Services
(“FCCS”) and the Grandview Heights Police Department (“GHPD”).
Plaintiffs allege that school officials falsely reported child
abuse to those agencies after the Wenks had met several times
with school officials and expressed dissatisfaction with the
education and social planning for their child.

On August 7,

2012, Plaintiffs served FCCS and GHPD with subpoenas duces tecum
for documents related to the report and investigation of those
abuse allegations (ECF Nos. 18 and 20-2).

FCCS and GHPD filed

Motions to Quash the Subpoenas (ECF Nos. 19 and 20).

This Court

ordered the documents produced for an in camera inspection to
determine if they contained information suggesting that someone
affiliated with the Grandview City School District made a report
to FCCS or GHPD (ECF No. 29).

At the First Pretrial Conference,

held on September 25, 2012, this Court encouraged the parties to
negotiate an Agreed Protective Order that would apply to the
disputed documents and related information.

The parties

negotiated an Agreed Protective Order which was approved by this
Court on October 4, 2012 (ECF No. 36).
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Subsequently, this Court

ordered that the disputed documents were discoverable subject to
the Agreed Protective Order for the reasons articulated in the
order granting in camera inspection (ECF No. 37, citing ECF No.
29).

This Court also authorized a Supplemental Agreed Protective

Order which covered additional disputed documents and deposition
testimony (ECF No. 38).

The terms of the Agreed Protective Order

allow any party or non-party to apply to this Court for relief
from the terms of the Order (p. 10, ECF No. 37).
On December 26, 2012, Plaintiffs filed a Motion for Order
Dissolving Protective Orders (ECF No. 50). A response was filed
(ECF No. 52), and Plaintiffs withdrew their motion (ECF No. 54).
On January 24, 2013, Plaintiffs filed an Amended Sealed Motion
for Order Dissolving Protective Orders (ECF No. 57). Responsive
and reply memoranda have been filed (ECF Nos. s 66-68, 71), and
the Motion is ready to be decided. For the following reasons,
this Court will order that Plaintiffs’ motion be DENIED.
I.
Rule 26(c) of the Federal Rules of Civil Procedure permits
courts to issue protective orders for good cause.

As indicated

above, the parties agreed to certain filing procedures related to
the FCCS and GHPD documents, including that these documents would
be filed under seal.

This Court concluded that there was good

cause for the protective order in light of the public’s interest
in the confidentiality of child abuse reporting documents, and
this Court entered the Protective Order (ECF No. 36).
Plaintiffs make two legal arguments in their renewed Motion
for Order Dissolving Protective Orders (ECF No. 50).

First,

Plaintiffs argue that when documents filed under seal are
referenced in dispositive motions, they lose their confidential
character.

The cases Plaintiffs cite on this issue do not

involve allegations of child abuse or confidential child abuse
reporting documents.

Phillips v. General Motors Corporation, 307
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F. 3d 1206 (9th Cir. 2002)(involving the disclosure of
confidential settlement documents which a newspaper moved to have
released); Foltz v. State Farm Automobile Ins. Co., 331 F.3d 1122
(9th Cir. 2002)(involving sealed documents in an insurance fraud
claim); United States v. El-Sayegh, 131 F.3d 158 (D.C. Cir.
1997)(involving a criminal plea agreement).

However, even if the

documents here would lose their confidential character once
referenced in a dispositive motion, Plaintiffs fail to cite where
in the docket these confidential documents have been referred to
or filed in a dispositive motion.

Plaintiffs also argue that

Defendant Schott’s deposition reveals confidential information
and will likely be used at trial, but that argument, if
meritorious, is premature.
Second, Plaintiffs argue that since they have waived
confidentiality in the FCCS and GHPD documents, the only person
who could benefit from the confidentiality of those documents is
Defendant Schott.

The Plaintiffs cite Defendant Schott’s

deposition (ECF No. 46) to argue that since Ms. Schott already
publicized the information in the report, there is no interest
left to protect.

Plaintiffs also point to the fact that the

information contained in the report is largely the same as the
information in the “secret dossier of allegations” kept by
teacher Karla Hayes, see Plaintiffs’ Exhibit #4, which Defendants
never asserted should remain confidential.
Plaintiffs have cited to no authority for the proposition
that confidentiality can be waived in the same way that privilege
can.

However, even with respect to privilege, not every

disclosure constitutes a waiver.

Here, the confidentiality

interest in the official report does not belong solely to the
Plaintiffs and Defendants.

The public and the agencies involved,

here FCCS and GHPD, also have an interest in maintaining the
confidentiality of official records concerning child abuse.
3

Hupp

v. Switzerland of Ohio Local Sch. Dist., Case No. 2:07-cv-628,
2008 WL 2323783, *2 (S.D. Ohio June 3, 2008)(citing Pennsylvania
v. Ritchie, 480 U.S. 29, 61 n.17 (1987)).
Furthermore, to the extent that Plaintiffs seek to show that
the information is not, in fact, confidential because it has been
disseminated, they have not met their burden to do so.
Plaintiffs fail to indicate what part of Defendant Schott’s
deposition her testimony shows that she actually disseminated the
report itself.

Even if she discussed its contents, or the fact

that she made a report, she did not destroy the confidentiality
interest in the report.

Child abuse reports should be protected

to the extent practicable from public dissemination so members of
the public feel safe in making those reports.

Citizens may feel

less inclined to make child abuse reports if they are publicized
through the discovery process.
29 (1987).

Pennsylvania v. Ritchie, 480 U.S.

Lastly, it is irrelevant that the allegations

contained in Plaintiffs Exhibit 4 are largely the same as in the
FCCS and GHPD report.

Plaintiffs’ Exhibit #4 was created before

the report was made.

While the official report may share some of

its content, Plaintiffs have failed to show how this bears on
whether the report itself has remained confidential.
For the foregoing reasons, Plaintiffs’ Motion for Order
Dissolving Protective Orders is DENIED.
II.
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.
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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.
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. 72.3.

/s/ Terence P. Kemp
United States Magistrate Judge

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