Capel et al v. Ottawa County Board of County Commissioners et al

Filing 210

OPINION AND ORDER by Judge Claire R Kelly ; denying 173 Sealed Motion (clb, Dpty Clk)

Case 4:17-cv-00325-CRK-CDL Document 210 Filed in USDC ND/OK on 08/18/22 Page 1 of 15

UNITED STATE DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

ROBBIE EMERY BURKE, ADMINISTRATRIX
OF THE ESTATE OF TERRAL BROOKS ELLIS
II, DECEASED, ET AL.,
Plaintiffs,

4:17-cv-00325-CRK-CDL

v.
OTTAWA COUNTY BOARD OF
COUNTY COMMISSIONERS, ET AL.,
Defendants.

OPINION AND ORDER
Before the Court is defendants’, Theresa Horn, L.P.N. (“Horn”), Johnny Bray
(“Bray”), Charles Shoemaker (“Shoemaker”), and the Sheriff of Ottawa County (the
“Sheriff”) (collectively, “Defendants”), joint motion for contempt of court and the
imposition of sanctions, or, alternatively, setting a sealed evidentiary hearing. Defs.’
Joint Mot. Civil Contempt, Sanctions, Alternatively, Sealed Evidentiary Hr’g, Feb. 6,
2020, ECF No. 173 (“Defs.’ Contempt Mot.”).

Defendants’ motion argues that

plaintiffs, Robbie Emery Burke, 1 Terral B. Ellis, Sr., and Shelly Bliss (collectively,
“Plaintiffs”) or their counsel violated the Agreed Protective Order (“APO”) when they

Plaintiff Robbie Emery Burke was the Special Administratrix of the Estate of Terral
Brooks Ellis, II, deceased (“Decedent”) when the Plaintiffs responded to the contempt
motion. On September 25, 2020, the Court granted Plaintiffs’ motion to substitute
Austin P. Bond for Robbie Emery Burke as the Personal Representative of the
Decedent. Min. Order, Sept. 25, 2020, ECF No. 188.
1

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filed unsealed video and audio of the alleged conditions of confinement of Terral
Brooks Ellis, II’s (“Decedent”). Defs.’ Contempt Mot. 4. Plaintiffs contend they did
not violate the APO by filing unsealed video clips of the alleged mistreatment of the
Decedent because the Sheriff waived the confidentiality of the video clips by
disclosing significant and substantive information contained in the video clips in its
motion for summary judgment and exhibits, thus, Defendants have failed to establish
that Plaintiffs are in contempt of the APO and no sanctions should be imposed. Pls.’
Resp. Opp’n Defs.’ Joint Mot. Civil Contempt, Sanctions, Alternatively, Sealed
Evidentiary Hr’g at 1–2, Feb. 27, 2020, ECF No. 180 (“Pls.’ Resp. Contempt Mot.”).
For the following reasons, Defendants’ Contempt Motion is denied.
BACKGROUND
Plaintiffs 2 commenced an action on June 9, 2017 against defendants Bray,
Shoemaker, Horn, Jennifer Grimes (“Grimes”), Kent Williams (“Williams”), Baptist
Healthcare of Oklahoma, LLC d/b/a Integris Miami EMS (“Integris”), Jeffrey Harding
(“Harding”), Terry Durborow (“Durborow”), Jeremy Floyd in his official capacity as
the Sheriff of Ottawa County, 3 and the Board of County Commissioners of Ottawa

At the time the complaint was filed, Megan Capel was the Administratrix of the
Decedent’s estate. Compl. at 1, June 9, 2017, ECF No. 2.
3 On February 6, 2020, the Court granted Defendant Jeremy Floyd’s motion to
substitute the Sheriff of Ottawa County in His Official Capacity. Min. Order, Feb. 6,
2020, ECF No. 169; see generally Unopposed Mot. Substitute Party by Jeremy Floyd,
Jan. 31, 2020, ECF No. 164.
2

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County (“BOCC”) 4 alleging negligence, wrongful death, and violations of the
Decedent’s constitutional rights while in the custody of the Ottawa County Sheriff’s
Department. Compl. at 1–2, June 9, 2017, ECF No. 2. On December 19, 2017, during
the course of discovery, the parties filed an Agreed Protective Order (“APO”)
governing the confidentiality of materials produced during discovery.

Agreed

Protective Order, Dec. 19, 2017, ECF No. 59 (“APO”).
The APO provides protection for certain material the parties designate as
confidential. APO ¶ 1.b. The terms of the APO define the scope of confidential
material, id. ¶ 1, its designation, id. ¶ 2, objections to designation as confidential, id.
¶ 7, remedies for inadvertent disclosure, id. ¶ 9, and the inapplicability of
confidentiality to public documents. Id. ¶ 10.a. The APO permits a party to file a
document unsealed if the confidential information contained in the document was so
designated solely by that party. Id. ¶ 2.f. A party that inadvertently fails to designate
material as confidential may correct its error by providing notice in writing and
substituting properly designated copies of each item of material. Id. ¶ 9. The APO
does not protect materials designated confidential that are publicly available, unless

On June 5, 2019, the Court granted the BOCC’s motion to dismiss after the BOCC
notified this Court of the Oklahoma Supreme Court’s ruling that there is no private
cause of action for denial of medical care under Art. II, §§ 7 and 9 of the Oklahoma
Constitution. Order, June 5, 2019, ECF No. 92; see generally Def. [BOCC]’s Notice
to Ct. of Ruling Okla. Sup. Ct., May 13, 2019, ECF No. 90 (providing notice to the
Court and re-urging dismissal); Opinion and Order at 7, July 20, 2018, ECF No. 63
(denying BOCC’s motion to dismiss, instructing BOCC to notify the Court if it wished
“to re-urge its dismissal motion” in light of the Oklahoma Supreme Court’s ruling);
Mot. Dismiss, July 20, 2017, ECF No. 23.
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they became public in violation of the APO. Id. ¶ 10. Among the materials designated
as confidential by the parties are audio and video recordings taken within the Ottawa
County Jail (“Jail Video”). 5 See Defs.’ Contempt Mot., Ex. 1 at 1–2, Dec. 11, 2017,
ECF No. 173-1 (“Email Re: Jail Video”) (agreeing to designate Jail Video as
confidential).
Between December 13, 2019 and December 20, 2019, after the designation of
the Jail Video as confidential material under the APO, Defendants filed unsealed
motions for summary judgment, attaching depositions discussing the audio and
content of the Jail Video as well as digital files of the Jail Video to their motions. On
December 13, 2019, the Sheriff filed an unsealed motion for summary judgment
attaching excerpts of the depositions of Horn, Shoemaker, Bray, and Derek Derwin
to its motion. Def. Floyd’s Mot. Summ. J., Dec. 13, 2019, ECF No. 120 (“Sheriff MSJ”);
id., Exs. 4, 7, 11, 15, Dec. 13, 2019, ECF Nos. 120-4, -7, -11, -15. In that motion, the
Sheriff argued the Plaintiffs cannot establish municipal liability against the Sheriff
because Plaintiffs cannot show that any delay or denial of medical care to the
Decedent was caused by any policy, practice, or custom of the Sheriff. Sheriff MSJ at
12–19. The deposition excerpts attached to the motion contained statements by

Plaintiffs argue they disagreed with Defendants that the Jail Video should be
designated confidential in the first instance. Pls.’ Resp. Contempt Mot. at 7. Whether
Plaintiffs agreed with the Jail Video’s designation as confidential material is
irrelevant because the Jail Video fell under the APO’s scope once the Defendants
designated it confidential. See APO ¶ 1.b. (“any Supplying Party shall have the right
to identify and designate as ‘Confidential’ any document it produces or provides . . .
.”). Second, the Plaintiffs admit in their motion response that they agreed to treat
the Jail Video as confidential even before the APO entered. See Pls.’ Resp. Contempt
Mot. at 7.
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deponents and counsel quoting audio and discussing content from the Jail Video. See
id., Ex. 4 at 124–27, 131–38, Ex. 7 at 82, 88, 91, 153–55, Ex. 11 at 74–77, 106–7, 126–
28, Ex. 15 at 185–86, 188–91, 193–94. 6 The Sheriff used these depositions in the
statement of facts to its summary judgment motion, including to support Facts 10,
12–14, and 16. See, e.g., Sheriff’s MSJ at 4–6 (“According to the Jail video, on October
21, 2015, at approximately 8:18 p.m., Ellis was let out of his cell to use the bathroom.
Under his own power, Ellis walks to the bathroom and then back to the cell with a
cup in his hand. Ellis does not appear to have any difficulty walking and does not
appear to be in any distress.” Citing Sheriff MSJ, Ex. 15 at 185:6–186:9).
On December 13, 2019, Durborow and Harding 7 filed motions for summary
judgment, which are nearly identical to the Sheriff’s motion in describing the facts
and citing to the depositions of Horn, Shoemaker, Bray, and Derek Derwin. See Def.
Duborow’s Mot. and Br. Summ. J., Dec. 13, 2019, ECF No. 122 (“Durborow MSJ”); id.,
Exs. 4, 7, 11, 15, Dec. 13, 2019, ECF Nos. 122-4, -7, -11, -15; Harding’s Mot. Summ.
J., Dec. 13, 2019, ECF No. 124 (“Harding MSJ”); id., Exs. 4, 7, 11, 15, Dec. 13, 2019,
ECF Nos. 124-4, -7, -11, -15.

Harding argued he was not present during the

interactions between the jailers, Horn, and the Decedent. Harding MSJ at 15 n.2.
Durborow and Harding alleged facts citing directly to portions of the depositions
containing statements from, and descriptions of, the Jail Video. See id. at 4–6, Ex. 4

Citations to the excerpts of depositions correspond to the page number of the
deposition transcript unless the cited deposition transcript contains timestamps.
7 On January 13, 2020, the Plaintiffs dismissed with prejudice Durborow and Harding
as Defendants in this matter. Stipulation Dismissal Defs. [Durborow] and [Harding]
with Prejudice, Jan. 13, 2020, ECF No. 149.
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at 124–127, 131–38, Ex. 7 at 153:5–155:6, Ex. 11 at 74–77, 126–28, Ex. 15 at 185–86,
188–91, 193–94; Durborow MSJ at 4–6 (citing Ex. 4 at 124–127, 131–38, Ex. 7 at
153:5–155:6, Ex. 11 at 74–77, 126–28, Ex. 15 at 185–86, 188–91, 193–94). The
deposition excerpts attached to Durborow and Harding’s motions are identical to
those attached to the Sheriff’s summary judgment motion. Compare Sheriff MSJ,
Exs. 4, 7, 11, 15 with Durborow MSJ, Exs. 4, 7, 11, 15 and Harding MSJ, Exs. 4, 7,
11, 15.
On December 18, 2019, Horn filed an unsealed motion for summary judgment
attaching excerpts of her deposition to her motion. Def. [Horn]’s Mot. Summ. J. and
Br. in Supp., Dec. 18, 2019, ECF No. 131 (“Horn MSJ”); id., Ex. 3, Dec. 18, 2019, ECF
No. 131-3 (“Horn’s Dep.”). Excerpts from Horn’s Deposition contain statements by
Horn and counsel quoting directly from the Jail Video. Horn’s Dep. at 127–28; 131–
34; 136–38, 148–49.

Horn cites several depositions, including her own, in her

motion’s statement of facts arguing she was not deliberately indifferent to Decedent’s
medical needs, or alternatively, that she is entitled to qualified immunity. See Horn
MSJ at 1, 5–6. Horn references her own statements contained in the Jail Video,
which were discussed in her deposition (though not citing directly to the deposition
in its motion). See, e.g., id. at 13 (“She stated, for example, that ‘there was nothing
wrong’ with Decedent and that she was ‘sick and tired of his dumb explicative [sic].’
When he continued to complain, she told him to ‘shut the explicative [sic] up.’”)
(quoting the Jail Video filed with Bray and Shoemaker’s Notice of Conventional
Filing. See Notice Conventional Filing, Dec 23, 2019, ECF No. 138 (“Jail Video DVD”)

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(internal bracketing omitted)); Horn’s Dep. at 132–37, 148 (discussing the audio and
content of the Jail Video).
On December 18, 2019, Defendants Integris, Williams, and Grimes filed an
unsealed motion for summary judgment attaching excerpts of the depositions of
Durborow, Bray, Shoemaker, and Harding.

Mot. Summ. J. Defs. [Integris],

[Williams], and [Grimes], Dec. 18, 2019, ECF No. 133 (“Integris MSJ”); id., Exs. 7–
10, Dec. 18, 2019, ECF Nos. 133-7–10. Integris, Williams, and Grimes argued that
the tortious actions of the Ottawa County Jail and its employees were an intervening
cause of the death of the Decedent, insulating Integris, Williams, and Grimes from
liability. Id. at 1. Several of the deposition excerpts attached to the motion contain
statements by deponents and counsel quoting directly from the Jail Video. Id., Ex. 7
at 107–08, 118–19; Ex. 8 at 204; Ex. 10 at 173–74, 191–93. Integris, Williams, and
Grimes cited to deposition excerpts quoting the Jail Video in their statement of facts.
Id. at 6–7.
On December 20, 2019, Bray and Shoemaker filed unsealed motions for
summary judgment attaching excerpts of the depositions of Horn, Shoemaker, Bray,
and Derek Derwin to their motion. Mot. Summ. J. Def. [Bray] and Supporting Br.,
Dec. 20, 2019, ECF No. 134 (“Bray MSJ”); Mot. Summ. J. [Shoemaker] and
Supporting Br., Dec. 20, 2019, ECF No. 135 (“Shoemaker MSJ”).

Bray and

Shoemaker both argued they are entitled to summary judgment on the basis of
qualified immunity. Bray MSJ at 21–24; Shoemaker MSJ at 22–25. Several of the
deposition excerpts attached to the motions contain statements by deponents and

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counsel quoting directly from the Jail Video. See, e.g., Bray MSJ, Ex. 5 at 153–55, Ex.
9 at 106–07; Shoemaker MSJ, Ex. 5 at 153–55, Ex. 9 at 106–07.

Bray and

Shoemaker’s motions also directly cite the Jail Video and include four unsealed clips
from the Jail Video. Bray MSJ at 5–6, 8, Exs. 11–14; Shoemaker MSJ at 5–6, Exs.
11–14; see generally Jail Video DVD.
On January 17, 2020, Plaintiffs filed their response to the Sheriff’s Motion for
Summary Judgment, including 18 hyperlinks to the Jail Video and attaching clips of
the Jail Video as exhibits. Pls.’ Resp. Opp. Def. Floyd’s Mot. Summ. J. at iv, 1–4, 6–
19, Jan. 17, 2020, ECF No. 152 (“Pls.’ Resp. Floyd MSJ”); id., Exs. 1, 10, 13, 17, 23–
34, 36, 38. Plaintiffs provided direct quotes to the Jail Video in their response, several
of which are the same statements as transcript excerpts the Sheriff had included in
his motion for summary judgment. See Floyd MSJ, Ex. 4 at 126–27, 131–34, 137–38;
Pls.’ Resp. Floyd MSJ at 2. On January 29, 2020, THE WASHINGTON POST and THE
FRONTIER published articles detailing the content of the Jail Video and embedded the
video in the online articles. Defs.’ Contempt Mot., Exs. 2, 3, Feb. 6, 2020, ECF Nos.
173-2–3.
On January 31, 2020, the Sheriff’s counsel conferred with Plaintiffs’ counsel by
phone informing them of the Sheriff’s concerns regarding the disclosure of the Jail
Video. See Defs.’ Contempt Mot. at 6; see Pls.’ Resp. Contempt Mot. at 6. In a letter
sent later that day, the Sheriff’s counsel requested Plaintiffs’ counsel withdraw their
exhibits and refile them under seal. Defs.’ Joint Reply Supp. Mot. Civil Contempt,
Ex. 1, Jan. 31, 2020, ECF No. 183-1.

On February 5, 2020, Plaintiffs’ counsel

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responded via email acknowledging that the Sheriff had initially designated the Jail
Video as confidential but arguing that Plaintiffs had not violated the APO because
the Sheriff had waived confidentiality for the Jail Video. Pls.’ Resp. Contempt Mot.,
Ex. 2, Feb. 5, 2020, ECF No. 180-2.
JURISDICTION AND STANDARD OF REVIEW
This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3)–(4),
which provide original jurisdiction over all civil actions arising under the
Constitution, laws, or treaties of the United States, and which provide original
jurisdiction over any civil action authorized by law to redress the deprivation of
Constitutional or federal statutory rights. 28 U.S.C. §§ 1331, 1343(a)(3)–(4) (2018).8
The Court also has jurisdiction over the state law claims forming part of the same
case or controversy as those claims over which the Court has original jurisdiction,
pursuant to 28 U.S.C. § 1367. 28 U.S.C. § 1367.
“To prevail in a civil contempt proceeding, the plaintiff has the burden of
proving, by clear and convincing evidence, that a valid court order existed, that the
defendant had knowledge of the order, and that the defendant disobeyed the order.”
Reliance Ins. Co. v. Mast Const. Co., 159 F.3d 1311, 1315 (10th Cir. 1998) (internal
citations omitted).

Further citations to the United States Code are to the 2018 Edition unless otherwise
indicated.

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DISCUSSION
Defendants’ motion asks the Court to find Plaintiffs violated an agreed
protective order and to impose sanctions, or alternatively to order an evidentiary
hearing. The Sheriff’s public filing rendered the Jail Video beyond the scope of the
APO. By failing to correct his filing within a reasonable period of time as permitted
by the APO, the Sheriff voluntarily waived the self-designated confidentiality of the
Jail Video, thus Plaintiffs did not violate the APO. 9 Furthermore, the Sheriff’s
tactical use of portions of the Jail Video to construct a narrative of the events in
support of his Motion for Summary Judgment removes the entirety of the Jail Video
from the APO’s protection. See Sheriff MSJ at 4–6 (Facts 10, 12–14, and 16). 10
The Sheriff fails to demonstrate that Plaintiffs violated the APO because the
terms of the APO do not require protection of materials already in the public domain.
Although the terms of the APO grant protective status to designated materials and
the Jail Video was initially designated as confidential, see APO ¶ 1.b; Email Re: Jail
Video, the APO specifically excludes from protection materials made public, so long
as the materials were not made public in violation of the APO. See id. ¶¶ 2.f.
(“Regardless of any provision in this Order to the contrary, a party does not have to

The Court does not reach the issue of sanctions because it finds no violation of the
APO.
10 Defendants alternatively seek an evidentiary hearing. Defs.’ Contempt Mot. at 1,
13. There is no dispute that the Sheriff used the Jail Video during the depositions
and then attached excerpts of the depositions to its public Motion for Summary
Judgment. See Defs.’ Joint Reply Supp. Mot. Civil Contempt at 8; Sheriff MSJ, Exs.
4, 7, 11, 15. The Court concludes as a matter of law that the Jail Video is beyond the
scope of the APO and therefore an evidentiary hearing is unnecessary.
9

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file a document under seal if the Confidential Information contained or reflected in
the document was so designated solely by that party”), 10.a. (“The restrictions set
forth in this Order shall not apply to documents or information designated
Confidential that are publicly available or that are obtained independently and under
rightful means by the Receiving Party, unless they became so due to a violation of
this Order”). The Sheriff’s public filing of the depositions containing quotes from and
references to the Jail Video was not a violation of the APO and rendered the Jail
Video public. 11 See Sheriff MSJ, Exs. 4, 7, 11, 15. When the Jail Video became public,
it was beyond the scope of the APO. See APO ¶ 10.a.
Further, the Sheriff acquiesced to the public filing of the Jail Video well before
the Plaintiffs attached it to their motion response. The Sheriff’s co-defendants all
made use of the Jail Video in their own motions for summary judgment. Durborow
and Harding’s motions contained statements of fact citing to deposition excerpts,

Defendants argue that “there is a significant difference between Sheriff’s use of
witnesses’ testimony recalling the events (after Counsel refreshed their memory with
the jail videos) and Counsel’s publication of the confidential videos on a third-party
website so new media could access and report on their content.” Defs.’ Joint Reply
Supp. Mot. Civil Contempt at 8, Jan. 31, 2020, ECF No. 183 (“Defs.’ Reply”).
Defendants’ argument lacks merit. Unsealed deposition excerpts filed by Sheriff as
exhibits to its summary judgment motion quote directly from the Jail Video. See,
e.g., Sheriff’s MSJ, Ex. 4 at 127. Defendants fail to explain to the Court why
deposition transcripts directly quoting the Jail Video are not subject to confidentiality
under the APO, but the Jail Video is, when both the deposition transcripts and the
Jail Video contain the same information. Furthermore, Defendants Bray and
Shoemaker filed an unsealed CD containing clips of the Jail Video as exhibits to their
summary judgment motions nearly a month before Plaintiffs filed their response to
Sheriff’s summary judgment motion. Compare Jail Video DVD (filed December 3,
2019) with Pls.’ Resp. Floyd MSJ (filed January 17, 2020). To date, the Jail Video
DVD is publicly available, and Sheriff has not made a motion for sanctions or civil
contempt against Bray, Shoemaker, or their counsel.
11

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which contained statements from the Jail Video and descriptions of what the
deponent viewed on the video. See Harding MSJ at 4–6, Ex. 4 at 124–27, 131–38, Ex.
7 at 153:5–155:6, Ex. 11 at 74–77, 126–28, Ex. 15 at 185–86, 188–91, 193–94;
Durborow MSJ at 4–6, Ex. 4 at 124–27, 131–38, Ex. 7 at 153–55, Ex. 11 at 74–77,
126–28, Ex. 15 at 185–86, 188–91, 193–94. Horn used depositions in her motion’s
statement of facts. See Horn MSJ at 1, 5–6. Horn also referenced her own statements
contained in the Jail Video, which were discussed in her deposition. See, e.g., id. at
13, Horn’s Dep. at 137, 148. Bray and Shoemaker’s motions directly cited the Jail
Video and include four unsealed clips from the Jail Video. Bray MSJ at v; Shoemaker
MSJ at v; see Jail Video DVD. In their statement of facts, Integris, Williams, and
Grimes cited to deposition excerpts quoting the Jail Video. Integris MSJ at 6–7, Ex.
7 at 107–08, 118–19, Ex. 8 at 204, Ex. 10 at 173–74, 191–93. The Sheriff received
notice of the filing of its co-defendants’ motions between December 13 and 20, 2019.
Defendants do not indicate they requested their co-defendants withdraw and re-file
their motions and exhibits under seal as they now request of the Plaintiffs.
Further, after making portions of the Jail Video public, Defendants failed to
re-designate the Jail Video as confidential pursuant to the terms of the APO. The
APO permits a party who erroneously files confidential materials unsealed to notify
the other parties and the Court in writing and provide sealed copies in substitution,
assuming it did so within a reasonable amount of time. APO ¶ 9 (“A Supplying Party
that inadvertently fails to designate discovery material as ‘Confidential’….at the time
of its production shall be entitled to make a correction to its designation within a

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reasonable time of the discovery of the [non-designation]. Such correction and notice
thereof shall be made in writing, accompanied by substitute copies of each item of
discovery material, appropriately designated”). Instead of timely providing notice
and substitutions, Defendants waited 50 days after the Sheriff filed its motion for
summary judgment, and 14 days after Plaintiffs filed their response, to raise the issue
of the confidentiality of the Jail Video with Plaintiffs. See Defs.’ Contempt Mot. at 6;
Pls.’ Resp. Contempt Mot. at 6; Defs.’ Joint Reply Supp. Mot. Civil Contempt, Ex. 1;
Pls.’ Resp. Contempt Mot., Ex. 2, Feb. 5, 2020, ECF No. 180-2. Not only is 50 days
an unreasonable period of time to delay notifying the Court or the parties in this case,
but the Sheriff also failed to make the required substitutions. 12 Instead, the Sheriff’s
counsel called Plaintiffs’ counsel and informed them that filing clips of the Jail Video
violated the APO and that Defendants intended to seek relief from the Court. 13 See
Defs.’ Contempt Mot. at 6; Pls.’ Resp. Contempt. Mot. at 6.

Had the Sheriff wanted to maintain APO protection for the Jail Video, the APO
provides that it needed to write the parties and the Court within a reasonable amount
of time informing them it discovered that it had filed its summary judgment motion
and exhibits unsealed in error. See APO ¶ 9.
13 The Sheriff’s counsel also wrote a letter with her analysis of how the Plaintiffs had
violated the APO and demanded the Plaintiffs withdraw the exhibits containing links
to the Jail Video and refile under seal. Defs.’ Joint Reply Supp. Mot. Civil Contempt,
Ex. 1. Even assuming the Sheriff did not discover its inadvertent disclosure until
after the Plaintiffs filed their response to the motion for summary judgment, the
Sheriff still waited 14 days to notify the Plaintiffs of the issue. In this case, 14 days
would be an unreasonable amount of time to raise the issue with the other parties
and the Court.
12

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Finally, the Sheriff’s tactical use of portions of the Jail Video destroys the
confidentiality designation of the entirety of the Jail Video. See Sheriff MSJ at 4.
Although the Jail Video’s confidentiality status stems from the terms of the APO
rather than from the laws of evidence, the law on privileged communications is
instructive here. The tactical use of portions of privileged communications renders
the privilege waived as to the entirety of a communication. Burke v. Regalado, 935
F.3d 960, 1023 (10th Cir. 2019) (“Any voluntary disclosure by the client to a third
party waives the privilege not only as to the specific communication disclosed, but
often as to all other communications relating to the same subject matter”) quoting
United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982) (“[W]hen a party reveals
part of a privileged communication to gain an advantage in litigation, the party
waives the attorney-client privilege as to all other communications relating to the
same subject matter. Selective disclosure for tactical purposes waives the privilege”).
Thus, Plaintiffs did not violate the APO by filing its unsealed response to the
Sheriff’s motion for summary judgment containing links to the Jail Video, and
sanctions against Plaintiffs are unwarranted. 14 It is,

Defendants also argue that Plaintiffs or counsel intentionally or negligently filed
the Jail Video publicly and on a third-party website, which “at a minimum violated
the APO’s prohibition against the production of non-confidential information for any
purpose other than this litigation.” Defs.’ Contempt Mot. at 7, 7 n.4 (citing APO ¶
1.e.); Defs.’ Reply at 6–7, 6–7 nn.15–16 (citing APO ¶ 1.e.). Paragraph 1.e. of the APO
provides “Subject to paragraph 1[0](c), 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.’” APO ¶
1.e. Plaintiffs published clips of the Jail Video to a third-party website which allowed
Plaintiffs to provide the hyperlinks to the clips of the Jail Video in their response to
Sheriff’s motion for summary judgment. Pls.’ Resp. Floyd MSJ, passim. Thus,
14

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ORDERED that the Defendants’ Joint Motion for Civil Contempt, Sanctions,
Or, Alternatively, a Sealed Evidentiary Hearing is DENIED.
/s/ Claire R. Kelly
Claire R. Kelly, Judge *
Dated:

August 18, 2022
New York, New York

Plaintiffs did not violate paragraph 1.e. of the APO because the uploaded clips were
used for the purpose of this litigation.
* Judge Claire R. Kelly, of the United States Court of International Trade, sitting by
designation.
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