Milligan, Joshua v. Rock on the River, Inc. et al

Filing 69

ORDER denying 66 Motion for Reconsideration. Signed by District Judge James D. Peterson on 8/23/2017. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JOSHUA MILLIGAN,
by his legal guardian and conservator, Susan Thomas,
Plaintiff,
v.
ROCK ON THE RIVER, INC., SCOTT
SHECKLER,
JILL SHECKLER, SHECKLER MANAGEMENT,
INC.,
COUNTRY ON THE RIVER, INC., ABC CORP.,
DEF CORP., GHI CORP.,
JKL INSURANCE COMPANY,
MNO INSURANCE COMPANY, and
PQR INSURANCE COMPANY,
Defendants,

ORDER

and
STATE
FARM
COMPANY,

FIRE

AND

CASUALTY

Intervenor,
and
ROCK ON THE RIVER, INC., SCOTT
SHECKLER,
JILL SHECKLER, SHECKLER MANAGEMENT,
INC., and COUNTRY ON THE RIVER, INC.,
Third-Party Plaintiffs,
v.
ANTHONY WILLIAM RUNDE,
Third-Party Defendant.

16-cv-498-jdp

On August 22, 2017, Magistrate Judge Stephen Crocker granted defendants’ motion to
amend the protective order. Dkt. 65. He determined that good cause existed for the
amendment and ordered “that transcripts and exhibits from depositions of law enforcement
personnel who participated in the related criminal investigation shall be treated as confidential
under the protective order entered in this case.” Id.
Now third-party defendant Anthony William Runde moves the court to reconsider that
order. Dkt. 66. Rather than have the magistrate judge reconsider his decision, which could then
be appealed to me, I will rule on the motion directly.
Under the newly amended protective order, certain deposition transcripts and exhibits
will be confidential and filed under seal. Those depositions—of Crawford County Sheriff’s
Department law enforcement officers—will elicit testimony regarding an open criminal case.
There is nothing unusual or untoward about the amendment on its face, especially considering
the protective order already covered “information or documents that contain information
provided by the Wisconsin Department of Justice” regarding the ongoing criminal
investigation. Dkt. 43, at 2. (Runde acknowledges that “[t]he parties agreed that those
materials would be kept confidential.” Dkt. 67, at 3.)
Runde objects to the amendment for several reasons; none are compelling. First, Runde
contends that defendants did not show good cause for the amendment. Not so. It is entirely
appropriate to seal depositions discussing open, ongoing criminal investigations. “[L]ogically
speaking, it makes sense to seal hearings where pending criminal investigations may be
discussed.” United States v. Sonin, 167 F. Supp. 3d 971, 977 n.4 (E.D. Wis. 2016). And the
public does not have a sufficiently compelling interest in the depositions to overcome that logic,
not when the investigation itself is not the subject of this case. Second, Runde contends that

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he will be prejudiced if the transcripts are sealed because he would not be able to use the
transcripts to impeach officers during his criminal trial, nor would he be able to use any
inculpatory evidence that may come up. The court is not convinced. The prosecutor is duty
bound under Brady to produce inculpatory evidence to Runde. Not surprisingly, Runde makes
no showing that the officers are likely to provide testimony in Runde’s criminal trial that is
inconsistent with their deposition testimony here.
These depositions actually provide Runde with a benefit that most defendants in
criminal cases don’t get: the chance to participate in the deposition of the investigating officers
before the trial. The court sees no injustice in restricting the disclosure of the transcripts beyond
this case. If, through some unlikely chain of circumstances, the protective order comes to pose
some injustice, the court can address those circumstances when they come to pass.

ORDER
IT IS ORDERED that third-party defendant Anthony William Runde’s motion for
reconsideration, Dkt. 66, is DENIED.
Entered August 23, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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