Ross v. University of Tulsa, The
Filing
324
OPINION AND ORDER by Judge Terence Kern ; setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 12/5/2016); granting 311 Sealed Motion (lmc, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
ABIGAIL ROSS,
Plaintiff,
vs.
UNIVERSITY OF TULSA,
Defendant.
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Case No. 14-CV-484-TCK-PJC
OPINION AND ORDER
Before the Court is Defendant’s Motion for Civil Contempt (“Motion for Contempt”), in
which Defendant the University of Tulsa (“TU”) seeks a citation of civil contempt and sanctions
against Plaintiff and her counsel for “multiple intentional violations of protective orders concerning
evidence produced in this case.” (Doc. 311 at 1.) TU seeks relief pursuant to the inherent power
of the Court and Federal Rule of Civil Procedure 37(b)(2)(A)(vii).
TU contends Plaintiff and her counsel impermissibly provided the following materials to a
local journalist: (1) CD of an audio interview of Jane Doe 1 (“Jane Doe 1 Audio”); (2) sealed motion
filed by TU entitled “Defendant’s Motion to Introduce Plaintiff’s Sexual Behavior Pursuant to
412(b)(2)” (“Motion to Introduce Sexual Behavior”) or the substance thereof; (3) video interview
of Patrick Swilling (“Swilling Video”); (4) “Supplementary Offense Report” by Tulsa Police
Department (“TPD”) Officer Eric Leverington (“TPD Report”); (5) Consent for Forensic Medical
Exam, Treatment and Release of Evidence and Information form signed by Plaintiff (“Consent
Form”); (6) deposition of Yolanda Taylor (“Taylor Deposition”); (7) deposition of Zachary
Livingston (“Livingston Deposition”); and (8) the entirety of text messages retrieved by TPD from
Plaintiff’s phone (“Texts”). TU also contends that comments (“Comments”) made to the journalist
by Plaintiff’s attorneys, John Clune (“Clune”) and Spencer Bryan (“Bryan”), impermissibly
referenced confidential and protected information.
The Court conducted a sealed evidentiary hearing on September 28, 2016 on the Motion for
Contempt. Bryan attended the hearing on behalf of Plaintiff. Neither Plaintiff nor Clune attended
or were called as witnesses. TU called four witnesses, including Gerald Bender (“Bender”), attorney
for the City of Tulsa; Bryan; David Lackey (“Lackey”), lead counsel for TU; and June Brown
(“Brown”), Secretary to the TU Board of Trustees. Plaintiff did not call any witnesses.
I.
Factual Background
Plaintiff reported to TU that she was sexually assaulted by TU student-athlete Patrick
Swilling (“Swilling”). After conducting a hearing, TU failed to take disciplinary action against
Swilling. Plaintiff filed this lawsuit alleging violations of Title IX and Oklahoma law based on TU’s
conduct before and after her alleged assault. After a lengthy discovery period, the Court granted
TU’s motion for summary judgment by a published Opinion and Order. Ross v. Univ. of Tulsa, --F.3d ---, 2016 WL 1545138 (N.D. Okla. Apr. 15, 2016). Plaintiff appealed, and the matter is
pending before the Tenth Circuit Court of Appeals.
Early in the litigation, on October 31, 2014, the parties and non-party Tulsa County District
Attorney’s Office (“TCDA”) filed a Joint Motion for Protective Order after Plaintiff sought
documents related to TPD’s criminal investigation of Swilling. The Court granted the motion and
entered a protective order (“Protective Order”) (Doc. 19).1 The Protective Order, which is binding
upon parties and their attorneys, contains the following relevant provisions:
1
The City of Tulsa also produced documents pursuant to this subpoena labeled COT 1536, but it is not a party to the Protective Order.
2
“Confidential Information” as used herein means any Designated Material that is
designated pursuant to this Protective Order as “Confidential” by the Supplying
Party, limited to the identities and/or contact information of potential victims of
Patrick Swilling, Jr., whether it is contained in a document, revealed during a
deposition or other testimony, revealed in an interrogatory answer or otherwise
revealed.
...
Subject to Paragraph 11(c),2 all documents and other materials produced in this
litigation shall be used only for purposes of this litigation whether or not a Supplying
Party designates such documents or materials as “Confidential.”
...
In the case of depositions and the information contained in depositions (including
exhibits), designation of the portions of the transcript (including exhibits) which
contain Confidential Information shall be made by a statement to such effect on the
record in the course of the deposition by counsel for the party or witness producing
such information, or by letter from such counsel within thirty (30) days of receipt of
the deposition transcript or copy thereof (or written notification that the transcript is
available). The entire deposition transcript (including exhibits) shall be treated as
Confidential under this Order until the expiration of the above-referenced thirty-day
period for designation by letter, except that the deponent may review the transcript
of his or her own deposition during this thirty-day period. After the expiration of the
thirty (30) day period, the following legend shall be conspicuously placed on the
front and back of any original deposition transcript, and on each copy thereof, which
contains Confidential Information: “CONTAINS CONFIDENTIAL
INFORMATION.” . . . .
...
The filing of any documents and materials with the Court containing or reflecting the
contents of Confidential Information shall be governed by LCvR 79.1 and Northern
District General Order 08-11. . . . No party or other person may have access to any
sealed document from the files of the Court without an order from the Court.
...
Subject to Paragraph 11(c), Confidential Information shall not be used by any
person, other than the Supplying Party, for any purpose other than conducting this
Proceeding, Abigail Ross v. The University of Tulsa, Case No. 14-CV-484-TCK-PJC
. . . and in no event shall such information be used for any business, competitive,
personal, private, public or other purpose.
(Doc. 19 at ¶ 1(c),¶ 1(e); ¶ 2(c), ¶ 2(f); ¶ 3 (footnote and emphases added).)
2
Paragraph 11(c) governs procedures to follow when a party or person in possession of
“Confidential Information” receives a subpoena requesting the information.
3
On December 31, 2014, the parties filed a Joint Motion for Protective Order after Plaintiff
sought documents from TU. The Court granted the motion and entered a protective order (“Second
Protective Order”) (Doc. 24). The Second Protective Order is identical to the first except it defines
confidential information as
the identities and/or contact information of potential victims of Patrick Swilling, Jr.,
any materials protected by FERPA, HIIPPA, or any other federal privacy
law/regulation, and any documents referring to past or current student(s) of the
University by name or other identifier, whether it is contained in a document,
revealed during a deposition or other testimony, revealed in an interrogatory answer
or otherwise revealed.
(Doc. 24, ¶ 1(c).) The Protective Order and Second Protective Order are collectively referred to as
the “Protective Orders.”
On April 7, 2016, the Court entered the Order granting TU’s motion for summary judgment
under seal but stated its intent to unseal and publish the Order. The Court gave the parties an
opportunity to object to unsealing or request that the Court conceal certain information prior to
unsealing. TU did not object to unsealing or request any redactions. Plaintiff objected to the
Court’s use of two alleged prior victims’ names and requested use of Jane Doe 1 and Jane Doe 2.
The Court entered an unsealed Amended Opinion and Order using Plaintiff’s requested pseudonyms.
It is not this Court’s practice to exercise caution in describing record evidence in a public
proceeding. However, this case required discussion of intimate details regarding alleged victims of
sexual assault. These individuals were not parties to the case and did not voluntarily inject
themselves into the controversy. The Court and parties exercised caution to protect these
individuals’ privacy to the extent possible.
On June 17, 2016, The Frontier, a Tulsa online newspaper, published an article (“Article”)
entitled, “She said, she said, she said: Did TU fail to investigate sexual assault allegations?” TU
4
contends that certain factual information in the Article could only have been obtained through
documents produced in this litigation, all of which were subject to restrictions in the Protective
Orders and/or sealed by the Court. Speculating that Plaintiff or her counsel must have provided
these materials, TU filed the Motion for Contempt and requested an evidentiary hearing.
On August 5, 2016, Plaintiff filed an Opposed Motion to Amend the Protective Orders to
Permit Review of Previously Sealed Records by Amicus Curiae (Doc. 316). Plaintiff requested
permission for amicus parties to review sealed portions of the summary judgment record for
purposes of the appeal. United States Magistrate Judge Paul Cleary denied the motion based on
Plaintiff’s failure to show good cause for modification.3
On August 18, 2016, the parties filed a Joint Notice of Stipulation regarding the Motion for
Contempt, stating:
The parties have conferred and in the interest [of] either removing or substantially
limiting the need for evidence at the hearing, Plaintiff stipulates that Plaintiff’s
counsel [Bryan] provided the materials in question to the journalist at The Frontier.
Plaintiff will further supplement the record as to the manner and nature of the
disclosures under a separate filing.
(Doc. 319.) Bryan simultaneously filed a Notice Regarding the Hearing, stating that he and he alone
disclosed the materials.4 Bryan stated:
While information was disclosed to The Frontier, the undersigned submits those
disclosures were not made in disregard of the protective orders. As detailed below,
each disclosure was preceded by an evaluation of the particular material or
3
It is unclear why Plaintiff’s counsel sought permission to reveal certain sealed
documents to amicus parties but did not seek that same permission prior to revealing sealed
documents to the journalist.
4
The Court doubts Bryan acted without consulting Clune. Clune is quoted in the Article
and was likely aware of the journalist’s requests for information. Nonetheless, Bryan stipulated
that he disclosed the materials based on his own examination and interpretation of the Protective
Orders. Therefore, any civil contempt violation will be against Bryan.
5
information, and compared to the terms of the protective orders as drafted. No
disclosures occurred until after the undersigned had concluded that the material in
question was not protected.
(Doc. 320 at 2.) Bryan contends his disclosures did not violate the Protective Orders. Alternatively,
he contends any violations do not warrant a finding of civil contempt because they were based upon
a reasonable, good-faith interpretation of the Protective Orders.
II.
Interpretation of the Protective Orders
“The starting point for interpretation of a protective order lies in its plain language.” S.E.C.
v. Merrill Scott & Assocs., Ltd., 600 F.3d 1262, 1271 (10th Cir. 2010). All interpretive disputes in
this case can be resolved by the plain language of the Protective Orders.
A.
Paragraph 1(e)
Paragraph 1(e) provides that “all documents and other materials produced in this litigation
shall be used only for purposes of this litigation whether or not a Supplying Party designates such
documents or materials as “Confidential.”’ This is standard language that appears in the form
protective order available on the Court’s website. The provision refers to “non-confidential
protected documents.” Burke v. Glanz, No. 11-CV-720-JED-PJC, 2013 WL 211096, at *1 (N.D.
Okla. Jan. 18, 2013). This provision clearly and unambiguously prevents parties or their attorneys
from using any documents produced in the litigation for outside purposes until a court grants relief
from the protective order. See id. (explaining that even non-confidential documents could only be
used for purposes of the litigation). This language is not a windfall for the producing party because
“the receiving party receives the benefit of avoiding discovery disputes and other problems that
often arise over production of confidential documents.” See id. at *4. Nor does the Court have
overarching concerns about the public’s right to all pre-trial discovery materials. id. (explaining that
the public does not have unfettered right to pre-trial discovery materials in any case deemed to be
of public interest).
6
Bryan urges an incorrect and unreasonably narrow interpretation of ¶ 1(e). Bryan contends
“the policy advanced by the clause relate[s] to potential issues such as initiating sham litigation to
acquire records unrelated to any legitimate legal complaint.” (Doc. 320 at 6.) During the hearing,
Bryan argued the language was intended to prevent, for example, filing a federal case solely to
obtain records that are undiscoverable in state court. No judge in this district has interpreted this
standard provision in such a narrow manner, and it is contrary to the plain language.
Bryan further contends that any broader interpretation would prevent use of discovery
documents for outside purposes, even after they are publically filed. This argument, whether legally
tenable or not, is factually irrelevant here. As explained below, none of the materials provided by
Bryan had been publically filed or unsealed by the Court prior to their disclosure. Where discovery
produced pursuant to a protective order has actually been publically filed without objection, an
attorney can direct the journalist to the public record. That avoids the attorney “using” the discovery
material in an improper manner, avoids even the appearance of violation, and ensures the discovery
material is indeed publically available. In this case, Bryan could not simply direct the journalist to
public docket entries because all relevant materials were sealed in this Court’s records.
Bryan also argues that a “broad interpretation of the clause would defeat the purpose of
designating material as ‘Confidential.’” (Doc. 320 at 5.) This argument is also incorrect and
unreasonable. The use limitation in ¶ 1(e) is redundant with the use limitation in ¶ 3; more
specifically, ¶ 1(e) encompasses ¶ 3. However, the “confidential” designation carries with it greater
protections and stricter procedures than simply the use limitation set forth in ¶ 3. Those additional
protections and procedures are set forth in ¶¶ 2 and 4. For example, parties are forced to file
“Confidential Information” under seal in accordance with Northern District Local Rule 79.1.
Paragraph 1(e) serves the distinct purpose of clarifying, at the outset of the protective order, that
7
there are certain restrictions on all discovery, “whether or not” the producing party designates the
material as confidential.
Accordingly, the Court interprets ¶ 1(e) to prevent use of any and all discovery, whether
marked confidential or not, for purposes other than the litigation. Bryan violated ¶ 1(e) if and to the
extent he used protected, non-confidential information for purposes other than this litigation.
B.
Paragraph 2(f)
Paragraph 2(f) governs the filing of materials that contain or reflect the contents of
“Confidential Information” and requires parties to file a motion to seal. If the Court grants the
motion to seal, the documents are labeled “Confidential Information - Subject to Court Order” and
must bear the legend “Filed Under Seal” on the cover page. Consistent with this district’s policy
in favor of public proceedings, the Protective Orders instruct parties to “minimize filings that
necessitate the filing of documents and materials designated Confidential under seal.” However,
¶2(f) provides that once filed under seal with permission of the Court, “[n]o party or other person
may have access to any sealed document from the files of the Court without an order of the Court.”
Acknowledging, as he must, that materials provided to the journalist were sealed Court
records, Bryan argues that he “did not locate any provision that converted non-protected documents
to ‘Confidential’ status by filing that document under seal without designation.” (Doc. 320 at 9.)
Bryan “concluded that the method of designation set forth in the Court’s protective orders
superseded the manner in which the parties may have treated a particular document when filing.”
(Id.)
This interpretation of ¶ 2(f) is also incorrect and unreasonable. Bryan’s position is that, if
an attorney concludes a record was improperly or unnecessarily sealed by the Court, attorneys have
the liberty to disclose it at will. In other words, the parties’ failure to designate as “confidential” is
8
controlling and trumps the sealed status of a Court record. This argument ignores a step in the
process – namely, the Court’s role in granting the motion to file under seal. Whether the parties
accurately or inaccurately utilized the ¶ 2(f) procedure becomes of little consequence once the Court
grants the motion to seal. At that point, the Court has given sealed status to the document or exhibit.
Bryan’s interpretation would give attorneys unilateral authority to ignore the Court’s sealing order
based on their own conclusion as to what was properly designated “confidential” under the terms
of a protective order. The Court reaches the same conclusion with respect to documents that a party
files under seal without permission, so long as the Court does not unseal or strike pursuant to its own
motion or motion of an opposing party.
Therefore, if a document remains completely sealed in the Court record, the parties must
comply with § 2(f) until the Court unseals the record or grants permission for disclosure. If a
document is sealed in some places and not others, the attorney’s safest course is to request
permission to disclose.
The reality of litigation involving significant amounts of confidential information and
exhibits is that parties may become laxidasical about the process. Parties “overseal” to avoid the
hassle of redacting and filing separate exhibits, resulting in sealed records that may or may not
contain “confidential information,” as that term is defined in the relevant protective order.5 Courts
play a role by granting motions to seal without carefully reviewing the motion in conjunction with
the relevant protective order to determine if sealing is necessary and proper. However, if properly
followed, Local Rule 79.1 and N.D. General Order 08-11 prevent these types of problems.
5
At the hearing, Bryan admitted that he was now more vigilant about moving to seal only
those materials containing “confidential information.”
9
“Oversealing,” either by acquiescence of the parties or imprimatur of the Court, results in
non-confidential information being sealed in the Court’s record. When this occurs, parties must seek
court permission before disclosing the document to non-parties or face the risk of violating § 2(f).
Accordingly, Bryan violated § 2(f) if and to the extent he disclosed a document or exhibit that was
filed exclusively under seal and therefore not part of the public record, regardless of whether it
satisfied the definition of “Confidential Information” or was marked “Confidential” in the first
instance.
C.
Paragraph 3
As explained above, ¶ 3 provides that Confidential Information may only be used for
purposes of the litigation. “Confidential Information” is defined as quoted above in the respective
Protective Orders. In order to properly designate confidentiality, the Protective Orders instruct:
a. Specific documents produced by a Supplying Party shall, if appropriate, be
designated as “Confidential” by marking the first page of the document and each
subsequent page thereof containing Confidential Information with the legend:
“CONFIDENTIAL” or “CONFIDENTIAL- SUBJECT TO PROTECTIVE
ORDER.”
(Docs. 19 & 24, ¶ 2(a).)
The question related to this provision is the effect of labeling a document or page
“confidential” as set forth above, when that page contains both confidential and non-confidential
information. Bryan contends that, even if the first page and/or subsequent pages are designated
“confidential,” the documents are only confidential to the extent they contain information satisfying
the definitions in the Protective Orders. The Court agrees with Bryan’s interpretation of ¶ 3. The
purpose of the “confidential” designation on the cover or specific page of the document alerts others
that the document contains confidential information.
However, ¶ 3 only prevents use of
“confidential information,” as that term is defined in the Protective Orders, outside the litigation.
10
Accordingly, the Court finds that Bryan only violated ¶ 3 to the extent he revealed confidential
information, as defined in each of the Protective Orders. At a minimum, the Court finds Bryan’s
interpretation to be a good-faith, reasonable interpretation of ¶ 3.
III.
Violations of Protective Orders/Findings of Civil Contempt
A district court enjoys “broad discretion in using its contempt power to require adherence
to court orders.” O’Connor v. Midwest Pipe Fabrications, Inc., 972 F.2d 1204, 1209 (10th Cir.
1992). A moving party must prove liability for civil contempt by “clear and convincing evidence.”
Id. at 1210. A violation need not be willful to result in a finding of civil contempt. Reno Air Racing
Ass’n, Inc. v. McCord, 452 F.3d 1126, 1130 (9th Cir. 2006). However, a person should not be held
in contempt if the action is based on a reasonable and good-faith interpretation of the Court’s Order.
Id.
As an initial matter, the Court denies TU’s request to hold Plaintiff or Clune in civil
contempt. TU did not present any evidence that Plaintiff or Clune violated any Court order, and
Bryan has taken sole responsibility for the disclosures.6
The Court will analyze each alleged
discovery item to determine if Bryan violated any provision of the Protective Orders, as interpreted
above.
A.
Discovery Materials From TU - Jane Doe Audio
When Bryan provided the Jane Doe Audio to the journalist, he violated three separate
provisions of the Second Protective Order. He violated ¶ 3 because TU designated the recording
as confidential and because the recording revealed the identity and contact information of a potential
victim of Swilling and a former TU student, satisfying the definition in ¶ 1(c). The Court rejects
6
Because Plaintiff did not commit the violation, the Court does not rely upon Rule
37(b)(2)(A)(vii), which applies to “a party or a party’s officer, director, or managing agent.”
Instead, the Court relies upon its inherent power to impose a sanction upon Bryan.
11
Bryan’s argument that, because Lackey played the recording during a deposition prior to first
producing it with a confidential designation, this somehow waived or nullified all future treatment
of the recording as confidential. This would elevate a possible technical error over all other
treatment of this sensitive recording throughout the litigation.
Bryan “used” the confidential information for a purpose other than the litigation – namely,
he disclosed it to the press. Bryan justified this disclosure based on assurances that the potential
victim’s name would not be published, and ultimately her name was not published. Nonetheless,
Bryan released an extremely personal audio interview into the public realm after the Court and
parties had taken steps to protect that information. This violated ¶ 3 regardless of any assurances
Bryan received.
Bryan also violated ¶ 1(e), which prohibits production of non-confidential information for
any purpose other than the litigation. This violation extends to the entire content of the Jane Doe
Audio and not just her identity and contact information.
Bryan also violated ¶ 2(f) because the Jane Doe Audio only appeared in the Court record
under seal, and ¶ 2(f) provides that no “other person may have access to any sealed document from
the files of the Court without an order from the Court.” The Jane Doe Audio is discussed in the
Court’s Opinion and Order, which is public record. Nonetheless, protective orders are concerned
with produced materials and their treatment. Bryan testified repeatedly that the “substance of” a
document or recording had been revealed, thereby justifying disclosure of the actual discovery item
to the press. However, attorneys are not free to disregard the “sealed” nature of an exhibit because
the attorney believes it has been substantively disclosed in other ways. To provide the actual
discovery – here, the audio recording – Bryan needed the Court’s permission.
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The Court finds disclosure of the Jane Doe Audio to be the most serious violation. All
parties and the Court were treating this recording with caution due to the sensitive and private nature
of the disclosures made by this young woman to a police officer regarding a past event in her life.
The Court revealed only what it deemed necessary for purposes of the public resolution of this
lawsuit, but Bryan took it upon himself to expand upon that disclosure.
B.
Discovery Materials from TCDA/City of Tulsa
1.
TPD Report
The TPD Report was marked “confidential” and contained “confidential information,” as
defined in the First Protective Order. Bryan provided the TPD Report to the journalist, who then
attached two pages of that report to the online Article. Prior to production, Bryan did not redact
potential victims’ names. Redaction occurred only after TU contacted the publication and requested
redaction. Therefore, this production of “confidential information” violated ¶ 3.
Bryan’s production of the TPD Report also violated ¶ 1(e), which prohibits production of
non-confidential information for any purpose other than the litigation. Bryan also violated ¶ 2(f)
because the TPD Report only appeared in the Court record under seal, and ¶ 2(f) provides that no
“other person may have access to any sealed document from the files of the Court without an order
from the Court.” But for Bryan’s disclosure, it seems unlikely the TPD Report would have entered
the public realm.7
2.
Swilling Video
TU has not shown by clear and convincing evidence that the CD containing the Swilling
Video was marked “confidential” upon its production. It appears Swilling was not questioned about
former potential victims at this time, and they are not mentioned by name. Therefore, this
7
The TPD Report was not part of the summary judgment record and was not discussed
in the Court’s Order.
13
production did not violate ¶ 3. At a minimum, Bryan did not believe he was producing “confidential
information” based on a reasonable and good-faith interpretation of ¶ 3.
However, Bryan’s production of the Swilling Video clearly violated ¶ 1(e), which prohibits
production of non-confidential information for any purposes other than the litigation. Bryan also
violated ¶ 2(f) because the Swilling Video only previously appeared in the Court record under seal,
and ¶ 2(f) provides that no “other person may have access to any sealed document from the files of
the Court without an order from the Court.” But for Bryan’s disclosure, it seems unlikely the
Swilling Video would have entered the public realm.8
3.
Consent Form
The Consent Form is marked “confidential” at the top center of the page. During the
hearing, the Court believed this was a medical record of Plaintiff. However, it is actually a TPD
form stating that Plaintiff does not consent to release of her medical exam at that time. The Consent
Form does not implicate any “Confidential Information,” as defined in the Protective Order, because
the Consent Form relates only to Plaintiff. Therefore, this production did not violate ¶ 3. At a
minimum, Bryan did not believe he was producing “confidential information” based on a reasonable
and good-faith interpretation of ¶ 3.
However, Bryan’s production of the Consent Form clearly violated ¶ 1(e), which prohibits
production of non-confidential information for any purpose other than the litigation. Bryan also
violated ¶ 2(f) because the Consent Form only previously appeared in the Court record under seal,
and ¶ 2(f) provides that no “other person may have access to any sealed document from the files of
8
The Swilling Video was not played during the hearing, but the Court viewed it in
chambers following the hearing. Because it was not part of the summary judgment record, it was
not discussed in the Court’s order.
14
the Court without an order from the Court.” Although Bryan violated the Protective Order, the
Court is less concerned about this document entering the public realm because: (1) it relates solely
to Plaintiff; and (2) the Court discussed in its Order that Plaintiff first told TPD about the rape on
January 28, 2014, which appears to be the key fact gleaned from this document.
4.
Texts
The Texts are marked “confidential,” but they do not implicate any “confidential
information,” as that term is defined in the Protective Order. Therefore, this production did not
violate ¶ 3. At a minimum, Bryan did not believe he was producing “confidential information”
based on a reasonable and good-faith interpretation of ¶ 3.
However, Bryan’s production of the Texts clearly violated ¶ 1(e), which prohibits production
of non-confidential information for any purpose other than the litigation. Bryan also violated ¶ 2(f)
because the Texts, in their entirety, only previously appeared in the Court record under seal, and ¶
2(f) provides that no “other person may have access to any sealed document from the files of the
Court without an order from the Court.” Although Bryan violated the Protective Order, the Court
is less concerned about the entirety of the Texts entering the public realm because (1) the Texts
relate solely to Plaintiff and Swilling, and (2) the Court discussed large portions of the Texts in its
Order.
C.
Court Documents/Depositions
1.
Motion to Introduce Sexual Behavior
Consistent with Local Rule 79.1, TU moved to file its Motion to Introduce Sexual Behavior
under seal, and the Court granted the motion by minute order. (Doc. 209.) TU then filed the
document under seal, and Plaintiff never filed an objection. Bryan disputes that he provided the
15
actual sealed motion and testified that he merely directed the journalist to his unsealed reply brief
discussing the Motion to Introduce Sexual Behavior.
TU has not shown by clear and convincing evidence that Bryan disclosed the Motion to
Introduce Sexual Behavior. TU’s Motion to File Motion to Introduce Plaintiff’s Sexual Behavior
Under Seal (Doc. 208) is a public record and discusses the content of the motion, as does the reply
brief. The Article itself does not prove that the journalist had a copy of any sealed information, as
there are no references beyond the title and general subject matter of the motion. Had a disclosure
occurred, the disclosure would have technically violated ¶ 2(f). However, to be clear, the Court
sealed the motion to protect Plaintiff’s privacy, not to prevent the public from viewing TU’s legal
arguments.
2.
Taylor Deposition
Taylor’s deposition is marked “Contains Confidential Information,” consistent with ¶ 2(c)
of the Protective Order. TU marked specific pages within the deposition as confidential. Prior to
producing the deposition to the journalist, Bryan omitted all “confidential” pages. This redacted
version of the Taylor Deposition is the version attached to the online Article. The Court finds that
Bryan’s disclosure of the Taylor Deposition did not violate ¶ 3 because he omitted the specific pages
marked confidential. At a minimum, Bryan did not believe he was producing “confidential
information” based on a reasonable and good-faith interpretation of ¶ 3.
However, Bryan clearly violated ¶ 2(f) because the Taylor Deposition had been filed under
seal in every instance, and ¶ 2(f) provides that no “other person may have access to any sealed
document from the files of the Court without an order from the Court.” Both parties filed this entire
deposition under seal when using it as an exhibit, and the Court viewed it as a sealed record.
Although the Court extensively discussed Taylor’s deposition in its summary judgment order, an
16
attorney cannot unilaterally decide a record has been effectively unsealed because a Court discussed
its contents in a public order.
3.
Livingston Deposition
The Livingston Deposition is not marked confidential, and no individual pages are marked
confidential. It therefore does not implicate ¶ 3. However, Bryan violated ¶ 2(f) because the
Livingston Deposition had been filed under seal in every instance by both parties, and ¶ 2(f)
provides that no “other person may have access to any sealed document from the files of the Court
without an order from the Court.” Bryan needed Court permission to disclose this deposition.
D.
Comments
The Article quotes Clune as stating: “I’ve never seen a school so aggressively try to defend
a case by arguing the accuser was a slut and a crazy girl.” The Article quotes Bryan as stating: “It
[TU] claimed that destruction was OK because the survivor did not report a crime, an assertion
clearly disputed in the 2014 re-interview.” TU contends these are improper comments on protected
evidence.
The Comments do not violate the Protective Orders or reveal confidential information. The
Comments are general in nature and are based on the attorneys’ personal views and interpretation
of the evidence.
E.
Summary
The Court finds Bryan committed the following violations of the relevant Protective Order:
Jane Doe Audio - ¶¶ 3, 1(e), 2(f)
TPD Report - ¶¶ 3, 1(e), 2(f)
Swilling Video - ¶¶ 1(e), 2(f)
Consent Form - ¶¶ 1(e), 2(f)
Texts - ¶¶ 1(e), 2(f)
Taylor Deposition - ¶ 2(f)
Livingston Deposition - ¶ 2(f)
17
In committing these violations, Bryan acted in disregard of and/or based upon an unreasonable
interpretation of the Protective Orders. Although he was taking an admittedly narrow view of the
Protective Orders, Bryan failed to take the simple step of requesting the Court’s permission. These
violations support a finding of civil contempt. See Grove Fresh Distributors, Inc. v. John Labatt
Ltd., 888 F. Supp. 1427, 1439 (N.D. Ill. 1995) (noting that if the attorney “had any doubts about
exactly what he could or could not disclose, he had the continued opportunity to seek clarification”
and that when “a defendant undertakes his own interpretation of an order, and does not seek
clarification, then he proceeds at his peril”).9
IV.
Sanctions
Sanctions for civil contempt may only be employed for two remedial purposes: (1) to coerce
obedience to a court order; or (2) to compensate the complainant for injuries resulting from noncompliance with a court order. O’Connor, 972 F.2d at 1211; see also Home Design Servs., Inc. v.
B & B Custom Homes, LLC, No. CIV.A. 06-CV-00249WY, 2008 WL 927683, at *2 (D. Colo. Apr.
3, 2008) (explaining that civil contempt “has a remedial objective and seeks to compel compliance
with a Court order for the benefit of the complainant”). Where a sanction is coercive, the court must
consider the character and magnitude of the harm and the probable effectiveness of a suggested
sanction in bringing about the desired result. O’Connor, 972 F.2d at 1211. Where a sanction is
compensatory, the amount of the fine must be based on actual losses sustained as a result of noncompliance with the Court order. Id. “Actual losses” can include attorney’s fees incurred in
preparing a motion for contempt. Kaufman v. Am. Family Mut. Ins. Co., 601 F.3d 1088, 1091 (10th
9
Bryan’s conduct pales in comparison to the lawyer sanctioned in the Grove Fresh case,
and it is cited merely for the quoted legal principle. In Grove Fresh, the court found a willful
violation and required the lawyer to post a $50,000 bond for five years to “save the Grove Fresh
defendants from a significant risk of repetition of future disclosures . . . and perhaps to save [the
lawyer] from himself”).
18
Cir. 2010) (affirming district court’s sanction ordering attorney to pay fees incurred by opposing
party in preparing motion for sanctions premised upon attorney’s violation of protective order).
The Court finds compensatory sanctions to be appropriate.10 Bryan agreed to the Protective
Orders in order to obtain documents, and TU and non-parties produced documents in reliance upon
these agreements. All parties filed certain discovery materials under seal throughout the litigation.
Yet Bryan produced protected and/or sealed documents to the press without seeking Court
permission. He adopted an unreasonably narrow interpretation of §1(e), and he disregarded § 2(f)
based on his decision that the parties and/or the Court erred in sealing a particular record. This
“disclose now, ask for forgiveness later” approach justifies a finding of civil contempt and sanction.
TU has shown that it suffered actual losses of attorney’s fees and costs in prosecuting this
motion; however, TU has not shown any other actual losses flowing from the violations. According
to Brown, TU trustees expressed concern regarding Clune’s comment that TU portrayed Plaintiff
as a “slut” and “crazy girl” as a defense strategy. Specifically, they were concerned this would
discourage victims from reporting assault on campus. Unhappiness and concern of TU trustees is
not an actual, quantifiable loss that supports a particular amount of compensatory sanction.
Accordingly, the Court finds that the only appropriate sanction is ordering Bryan to pay TU’s
attorney’s fees and costs for bringing the Motion for Civil Contempt. The Court declines to impose
other sanctions requested by TU, including precluding any party from further public comment or
rescinding Clune’s pro hac vice status.
V.
Conclusion
The press has a right, and indeed an obligation, to report on this case. Public awareness and
dialogue are important steps toward addressing the issue of sexual assault on college campuses.
10
TU has not requested any coercive sanctions to compel obedience to Court orders.
19
However, attorneys must follow procedures in order for court proceedings to properly function. In
this case, the Court entered protective orders and sealed certain court filings, primarily to protect the
privacy of former TU students. Instead of seeking relief from these orders, Bryan unilaterally
decided to release sealed documents to the press. Therefore, a moderate sanction is proper to
compensate TU for its fees and costs in filing this motion.
TU’s Motion for Contempt (Doc. 311) is GRANTED. TU shall file a motion for attorneys’
fees and costs with supporting time records no later than two weeks from the date of this Order.
SO ORDERED this 21st day of November, 2016.
____________________________________
TERENCE C. KERN
United States District Judge
20
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