JH et al v. Multi-County Juvenile Detention Facility et al

Filing 33

OPINION AND ORDER regarding Discovery. Signed by Magistrate Judge Norah McCann King on 2/19/2015. (mas1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JH, et al.,
Plaintiffs,
vs.

Civil Action 2:14-cv-1608
Judge Graham
Magistrate Judge King

MULTI-COUNTY JUVENILE DETENTION
FACILITY, et al.,
Defendants.

OPINION AND ORDER
The Court met with counsel for the parties on February 19, 2015
regarding a discovery matter.
During the course of defendants’ deposition of a plaintiff (who
is no longer a juvenile), the deponent was asked about and testified
to certain events that occurred while he was detained in the detention
facility at issue in this case. Prior to that testimony, plaintiffs’
counsel had denominated the entire deposition as “confidential” within
the ambit of the Agreed Protective Order, ¶ 1, ECF 25, which, inter
alia, restricts confidential information to use only in connection
with this litigation. Following the deposition, defendants’ counsel
expressed an intention to report that portion of the deponent’s
testimony to relevant prosecuting authorities and sought, pursuant to
the Agreed Protective Order, ¶ 2, this Court’s determination whether
plaintiff’s designation of confidentiality was proper.

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The parties agree that the events about which the deponent
testified have been known to a number of people, including government
employees and officials, since those events occurred. The parties also
agree that they do not know whether the deponent will in fact be
subject to criminal prosecution should his testimony be disclosed to
prosecuting authorities. Plaintiffs contend that the Agreed Protective
Order requires that the portion of the deposition not be disclosed to
prosecuting authorities; plaintiffs take the position that any such
prosecution would be wholly retaliatory for the filing of this
lawsuit.
The Agreed Protective Order permits any party to designate any
deposition as “Confidential Information.” Agreed Protective Order, ¶1.
Confidential Information “may only be used in connection with these
proceedings and shall not be disclosed or utilized in any other
respect, except as may be otherwise provided for in this Protective
Order.” Id. However, any other party may “apply to the Court for a
determination of whether the designation is proper.” Id., ¶ 2.
The portion of the deposition presently at issue addresses events
that have not been maintained in confidence and which do not implicate
matters that have traditionally enjoyed protection.

See Proctor &

Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996);
Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1177 (6th Cir.
1983). Plaintiffs have simply not established a basis for designating
that portion of the deposition as “Confidential Information” within
the meaning of the Agreed Protective Order.

It follows, then, that

the restrictions on the use and disclosure of Confidential Information
required by the Agreed Protective Order are inapplicable.

2

Plaintiffs fear retaliatory prosecution.

This fear is, to some

extent, grounded on speculation; it is simply unknown whether
prosecution will result from disclosure of this portion of the
deposition.

Of course, should prosecuting authorities institute a

formal prosecution based on this portion of the deposition, the
deponent remains free to assert retaliation as a defense.
In short, the Court concludes that the designation of the
relevant portion of the deposition as confidential was improper.
Therefore, the Agreed Protective Order does not address the use or
disclosure of that portion of the deposition.

February 19, 2015

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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