Nelson v. Green et al
Filing
161
MEMORANDUM OPINION, ORDER regarding Order on Motion to Seal Document 3 , Sealed Document-Exhibits to Defendants Reply Brief 160 , Pretrial Order 24 , Brief / Memorandum in Support 158 Reply Brief in Support of Motion to Dismiss filed by John Freeman, Lori Green, Kathy Ralston, Cindy Casey, MOTION to Proceed Under Pseudonyms and MOTION to Seal 2 filed by John T. Nelson, MOTION to Dismiss 144 filed by John Freeman, Lori Green, Kathy Ralston, Cindy Casey Setting forth that Document 160 shall remain Sealed, Clarifying order 3 of March 28, 2007 governing the use of pseudonyms, and amending and replacing 24 pretrial order of May 23, 2007 with the pretrial order attached hereto at Exhibit Two.. Signed by Judge Norman K. Moon on 10/31/13. (hnw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION
JOHN T. NELSON,
Plaintiff,
CASE NO. 3:06-cv-00070
v.
LORI GREEN, ET AL.,
MEMORANDUM OPINION AND ORDER
Defendants.
I. INTRODUCTION
This matter is before the Court on documents filed on October 28, 2013 under seal
(“Defendants’ Exhibits” or “Exhibits”) (docket no. 160) as exhibits to Defendants Lori Green,
Cindy Casey, Kathy Ralston, and John Freeman’s Reply Brief (“hereinafter “Defendants”)
(docket no. 158) to Defendants’ Motion to Dismiss Plaintiff’s Complaint (docket no. 144). This
Court issued an order (docket no. 3) on March 28, 2007 granting Plaintiff’s Motion to Proceed
Under Pseudonyms (docket no. 2). Defendants rely on that order in filing their exhibits under
seal. Since 2007, the United States District Court for the Western District of Virginia has
promulgated new local rules that have changed case management and sealing procedures. Given
those changes, legal development about the sealing of documents, and the particular personal
identifiers included in Defendants’ sealed exhibits (docket no. 158), it appears necessary to
address these sealed exhibits and procedures related to filing sealed documents.
For the reasons that follow, Defendants’ Exhibits will remain sealed. However, the Clerk
of the Court is ORDERED to return the sealed documents, in paper form, to Defendants’ counsel
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at the conclusion of the case, rather than unsealing the Exhibits. See W.D. Va. Gen. R. 9 and its
commentary. This Court’s March 28, 2007 order granting Plaintiff’s Motion to Proceed Under
Pseudonyms remains in force, and the Clerk of the Court shall continue to file all pleadings and
documents that reveal the identity of the child or parents in this case under seal. See Nelson v.
Green, No. 3:06-cv-00070, 2007 WL 984127 (W.D. Va. Mar. 28, 2007). Finally, this Court
hereby AMENDS its May 23, 2007 pretrial order (docket no. 24), replacing it with the one
attached to this order as Exhibit Two.
II. FILING DOCUMENTS UNDER SEAL
Since 2007, multiple legal developments have affected sealing procedures in federal
district courts. The United States District Court for the Western District of Virginia has also
adopted Local Rules that address sealing procedures. See W.D. Va. Gen. R. 9. Upon review of
relevant case law and this Court’s March 28, 2007 order allowing Plaintiff to proceed under
pseudonyms, neither this law nor the Local Rules change sealing procedures for documents
revealing the identity of the child or parents in this case. See, e.g., Doe v. Pittsylvania Cnty., Va.,
844 F. Supp. 2d 724 (W.D. Va. 2012) (applying the five-prong test from James v. Jacobson, 6
F.3d 233 (4th Cir. 1993), on a motion for leave to proceed under pseudonyms); James v.
Jacobson, 6 F.3d 233 (4th Cir. 1993); W.D. Va. Gen. R. 9. Therefore, this Court’s March 28,
2007 order continues to require that documents revealing the child or parents’ identities be filed
under seal, among other provisions. 1
The parties should note that any documents they seek to file under seal in this case that
fall outside this Court’s March 28, 2007 order must be filed in adherence with Local Rule 9.
1
For reference, I attach my March 28, 2007 order as Exhibit One.
2
III. DEFENDANTS’ EXHIBITS
Defendants submitted Exhibits under seal on October 28, 2013 that list the names, social
security numbers, and detailed personal descriptions of the parents involved in this case, as well
as either former or current addresses for the parents and child at issue. Counsel alone bears
responsibility for redacting personal identifiers from pleadings as required by the federal rules of
civil procedure, see W.D. Va. Gen. R. 8. But the Court will act here to ensure the Clerk of the
Court will not inadvertently release this information at the close of this case. Therefore, the
Clerk is ordered to send these Exhibits back to Defendants’ counsel at the conclusion of this
case, rather than simply unsealing them.
IV. PRETRIAL ORDER
This Court issued its pretrial order on May 23, 2007 (docket no. 24). Since then, case
management procedures have changed in the Western District of Virginia, as have procedures
related to filing sealed documents. Therefore, the pretrial order in this case is hereby replaced by
a new pretrial order, attached here as Exhibit Two.
V. CONCLUSION
For the reasons stated above, Defendants’ Exhibits (docket no. 160) will remain sealed,
but the Court ORDERS the Clerk of the Court to return the sealed documents, in paper form, to
Defendants’ counsel at the conclusion of the case. The Court clarifies that its March 28, 2007
order governing the use of pseudonyms in this case remains in force. See Exhibit One. Finally,
the May 23, 2007 pretrial order in this case (docket no. 24), is hereby AMENDED AND
REPLACED with the one attached to this order as Exhibit Two.
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The Clerk of the Court is hereby directed to send a certified copy of this Order to all
counsel of record.
31st
Entered this _____ day of October, 2013.
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Exhibit One
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Case 3:06-cv-00070-NKM-RSB Document 3 Filed 03/28/07 Page 1 of 4 Pageid#: 18
Case 3:06-cv-00070-NKM-RSB Document 3 Filed 03/28/07 Page 2 of 4 Pageid#: 19
Case 3:06-cv-00070-NKM-RSB Document 3 Filed 03/28/07 Page 3 of 4 Pageid#: 20
Case 3:06-cv-00070-NKM-RSB Document 3 Filed 03/28/07 Page 4 of 4 Pageid#: 21
Exhibit Two
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION
)
)
)
)
)
John T. Nelson
v.
Lori Green, et al.
Civil Action No. 3:06-cv-70
PRETRIAL ORDER
The court proposes the following as a pretrial order pursuant to Federal Rule of Civil
Procedure 16(b). If no party requests changes within 10 days, it will constitute the scheduling
order in this case. The court may amend the order on its own motion, or the parties may amend
the order’s disclosure and discovery provisions by submitting an agreed written plan that
satisfies the requirements of Rule 26(f).
Summary
TRIAL DATE:
Contact Heidi Wheeler, scheduling clerk, at (434) 296-9284,
within 14 days of this order for the purpose of setting a trial
date.
PLACE:
UNITED STATES DISTRICT COURT
255 West Main Street
Charlottesville, VA 22902
FED.R.CIV.P.26(f) CONFERENCE:
14 days from this order
INITIAL DISCLOSURES UNDER FED.R.CIV.P.26(a):
30 days from this order
PLAINTIFF(S) INITIAL EXPERT DISCLOSURE:
75 days from this order
DEFENDANT(S) INITIAL EXPERT DISCLOSURE:
90 days from this order
DEADLINE TO COMPLETE DISCOVERY:
90 days before trial date
DEADLINE TO FILE DISPOSITIVE MOTIONS:
75 days before trial date
DEADLINE FOR HEARING DISPOSITIVE MOTIONS:
45 days before trial date
Trial and Settlement
1.
This case is set for a jury trial.
2.
Proposed jury instructions and special interrogatories must be filed with the clerk
of the court at least 7 days prior to trial, with copies provided to opposing counsel.
3.
Motions in limine must be filed with the clerk of court at least 14 days prior to
trial, with copies provided to opposing counsel. Opposition briefs to any motion in limine must
be filed with the clerk of the court at least 7 days prior to trial.
4.
If the case settles before trial and the court does not receive a proposed final order
within 30 days after the court received oral or written notification of the settlement, the court will
dismiss the case with prejudice.
Motions
5.
All dispositive motions must be filed no later than 75 days before trial and must
be heard or submitted for decision no later than 45 days before trial. If the parties agree that a
dispositive motion is appropriate for decision without oral argument they must file a stipulation
no later than 45 days before trial stating that the motion is ripe for decision.
6.
A supporting brief must accompany all pretrial motions, unless the motion
contains the legal argument necessary to support it or is certified to be unopposed. If a motion
that is not unopposed has been filed before this order without legal argument to support it, the
movant must file a supporting brief within 14 days of the date of this order or the motion will be
dismissed.
7.
If any motion, properly filed and briefed, is to be opposed, a brief in opposition
must be filed within 14 days of the date of service of the movant's brief (or within 14 days of this
order if a motion and supporting brief were served before this order). Except for good cause
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shown, if a brief opposing a motion is not timely filed, the court will consider the motion to be
unopposed. If a moving party desires to submit a reply brief, it must be filed within 7 days of the
date of service of the brief opposing the motion. A surreply brief may not be filed without prior
leave of the court.
8.
Exclusive of any accompanying exhibits, a brief may not exceed 25 pages in
length using standard margins, double-spaced lines, and a font no smaller than 12-point Times,
unless the filing party first obtains leave of the court after showing good cause why a longer brief
is necessary.
9.
When a dispositive motion, together with its supporting brief and exhibits (or any
other brief combined with exhibits), consists of 50 or more pages, the filing party must send a
paper courtesy copy of the documents to the chambers of the presiding District Judge at 1101
Court Street, Room 390, Lynchburg, VA 24504.
10.
No motion, brief, or exhibit may be filed under seal, except as allowed by the
mandatory provisions of W.D. Va. Gen. R. 9. The requirements of Rule 9 may not be modified
by a stipulated protective order or other agreement of the parties. See W.D. Va. Gen. R. 9(g).
11.
If any party desires a hearing on any dispositive or nondispositive motion, then no
later than 14 days after the filing of the last brief on the motion, that party must contact Heidi
Wheeler, scheduling clerk, to set a hearing date. If no hearing on the motion is necessary, the
moving party must file a notice that the motion is ripe for decision, no later than 14 days after the
filing of the last brief on the motion. In any event, if within 45 days of the filing of any
dispositive or nondispositive pretrial motion, no party has scheduled the motion for hearing or
advised the court that the motion is ripe for decision, the court may deny the motion with or
without prejudice.
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12.
Nondispositive motions, including motions for enlargement of time, whether or
not opposed, may be acted upon at any time by the court, without awaiting a response, and any
party adversely affected by such action may request reconsideration, vacation or modification.
13.
All nondispositive pretrial motions and issues, including any requested changes in
this order, are hereby referred to United States Magistrate Judge Robert S. Ballou pursuant to 28
U.S.C. § 636(b)(1)(A).
Discovery
14.
Unless the parties stipulate otherwise, within 14 days of the date of this Order, the
parties must confer and develop a discovery plan as required by Rule 26(f).
15.
Unless the parties stipulate otherwise, initial disclosures as required by Rule
26(a)(1) must be made within 30 days of the date of this Order.
16.
All discovery must be completed at least 90 days prior to trial. This schedule
requires that written discovery be served in sufficient time to allow the responding party time to
respond before the cutoff date for discovery.
17.
Except for disclosures under Rule 26(a)(3) of trial witnesses and exhibits, which
the parties must file, the parties are not to file discovery and disclosure material unless and until
actually used in the proceeding.
Expert Witnesses
18.
Expert witnesses who are retained or specially employed to provide expert
testimony in the case or whose duties as an employee of the party regularly involve giving expert
testimony must prepare a written report that conforms to the requirements of Rule 26(a)(2)(B).
Unless the parties otherwise agree or the court otherwise directs, the plaintiff must submit the
written report of each expert not later than 75 days from the date of this order, and the defendant
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must submit the written report of each expert no later than 90 days from the date of this order.
Supplemental and additional reports may be thereafter submitted, if submitted "in sufficient
time" that discovery, if desired, can be completed reasonably by the discovery cutoff date
without undue duplication and expense.
19.
With respect to expert witnesses who are not retained or specially employed to
provide expert testimony or whose duties as an employee of the party do not regularly involve
giving expert testimony, such as a treating physician or clinician, the plaintiff must disclose the
identity of any such witness and provide a summary of all opinions the witness will render and
the basis therefore not later than 75 days from the date of this order, and the defendant must
disclose the identity of any such witness and provide a summary of all opinions the witness will
render and the basis therefore not later than 90 days from the date of this order. Supplemental
and additional disclosures may be thereafter submitted, if submitted "in sufficient time" that
discovery, if desired, can be completed reasonably by the discovery cutoff date without undue
duplication and expense.
20.
Any motion to exclude the testimony of an expert based on the sufficiency or
reliability of the expert’s testimony must be filed no later than the deadline for filing motions for
summary judgment.
21.
The parties shall exchange lists of the witness they expect to call at trial no later
than 21 days prior to trial. For each witness, the list shall include the witness's name and address
and a summary of the witness's anticipated testimony.
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Mediation
22.
At the request of any party, the court will refer the case to the magistrate judge to
conduct mediation.
Joinder of Other Parties
23.
The court shall consider motions to join other parties in accordance with Rules 19,
20, and 21 of the Federal Rules of Civil Procedure. Except for good cause shown, any such
motion must be filed no later than 45 days from the date of this order.
Amendment of Pleadings
24.
The court shall consider a party's motion to amend pleadings in accordance with
Rule 15 of the Federal Rules of Civil Procedure. Except for good cause shown, any such motion
must be filed no later than 45 days from the date of this order.
Integrated Pretrial Order
25.
No later than 7 days before trial the parties shall jointly file a proposed pretrial
order briefly summarizing the following:
•
any contested issues of law that require a ruling before trial;
•
the essential elements that a party must prove to establish any meritorious
claims remaining for adjudication, and the damages or other relief sought;
•
the essential elements that a party must prove to establish any meritorious
defenses;
•
the material facts and theories of liability or defense;
•
the issues of fact contested by each party;
•
any contested issues of law that do not require a ruling before trial;
•
any stipulations; and
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•
any special voir dire questions.
For those items, if any, on which the parties are unable to agree, each party shall briefly
summarize its position in a separately filed addendum to the joint proposed pretrial order.
It is so ORDERED.
ENTERED this 31st day of October, 2013.
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