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Hayse v. City of Melvindale

United States District Court, E.D. Michigan, Southern Division

August 2, 2018

CHAD HAYSE, Plaintiff,
CITY OF MELVINDALE, et al., Defendants.

          Hon. Linda V. Parker, Judge



         I. Introduction

         Plaintiff Chad Hayse, the former chief of police of the City of Melvindale, sues Melvindale, its city council, and the members of the city council, under 42 U.S.C. § 1983. [ECF No. 68]. He alleges that defendants violated his Fourteenth Amendment due process rights by removing him as police chief based upon false charges of misconduct, and after “sham proceedings, ” and that defendants violated his First Amendment rights by retaliating against him. [Id.]. The Honorable Linda V. Parker referred various motions to the undersigned for hearing and determination, and the Court held a hearing on July 30, 2018. For the reasons stated on the record and below, the Court:

. DENIES defendants' motion to enforce protective order [ECF No. 79];
. GRANTS IN PART AND DENIES AS MOOT IN PART plaintiffs motion to compel Patrick Easton and Carl Louvet to testify [ECF No. 82];
. GRANTS IN PART, DENIES IN PART, AND TAKES UNDER ADVISEMENT IN PART PENDING FURTHER BRIEFING, plaintiffs motion to compel responses to his third and fourth set of requests to produce [ECF No. 86], and ORDERS defendants to produce by August 29, 2018 documents described below; and,
. GRANTS plaintiffs motion to compel production of settlement agreement [ECF No. 91], and ORDERS defendants to produce the settlement agreement by August 6, 2018.

         II. Analysis

         Motion for Protective Order [ECF No. 79]

         Defendants accuse Hayse of violating the stipulated protective order by disclosing deposition testimony and other confidential records to a reporter, and by using deposition testimony in a separate lawsuit (Michael Welch v. City of Melvindale, et al., case number 18-11450). Hayse states that, with the exception of six pages of a deposition, the reporter obtained access to the allegedly confidential documents through the Court's electronic filing system. [ECF Nos. 92, PageID.3924; 92-2]. At the hearing, defense counsel acknowledged that he had no evidence that the reporter obtained any document designated as confidential from Hayse's counsel rather than from court filings. Therefore, as a factual matter, the evidence supports only that Hayse's counsel provided the reporter with deposition testimony, and filed deposition transcripts in the Welch matter.

         The parties' stipulated protective order states in part, “All confidential Discovery Material produced, or depositions taken in discovery in the Litigation, shall be used solely for purposes of the Litigation and for no other purpose.” [ECF No. 31, PageID.540]. Defendants state that the word “confidential” in this sentence does not modify “depositions taken in discovery in the Litigation.” In other words, defendants contend that all of the deposition testimony taken in this matter is covered by the protective order and cannot be used for any purpose other than this case. The Court finds this interpretation to be unsustainable.

         First, protective orders are warranted only upon a showing of good cause. Fed.R.Civ.P. 26(c)(1). Stipulated protective orders “are often blanket in nature, and allow the parties to determine in the first instance whether particular materials fall within the order's protection.” Shane Grp. Inc. v. Blue Cross Blue Shield of Michigan, 825 F.3d 299, 305 (6th Cir. 2016). Defendants' position is that the stipulated protective order allowed for a blanket designation of confidentiality with regard to all deposition testimony, but nothing in the stipulated order articulated “good cause” for categorically designating all deposition testimony as confidential.

         Instead, the protective order specified categories of documents that could be considered confidential:

A disclosing party may designate information produced in discovery as Confidential Material only if the disclosing party determines, in good faith, that such material constitutes: (a) trade secrets; (b) information of a confidential or proprietary nature; (c) Plaintiff's or Defendants' financial or tax information; (d) medical records related to Plaintiff; and/or, (e) any other information in which any party or any third-party has a reasonable expectation of privacy (such as social security information, health information, etc.).

[ECF No. 31, PageID.540].

         The protective order went on to describe the process of designating documents as confidential, and stated, “Deposition testimony and the transcripts and exhibits thereof shall be deemed ‘Confidential' pursuant tothe terms of this stipulated protective order without having to orally indicate such on the record.” [Id., PageID.541 (emphasis added)]. Defendants argue that this provision demonstrates that all deposition testimony was automatically deemed confidential. But Hayse responds that the language, “pursuant to the terms of this stipulated protective order, ” requires reference to the specified categories of confidential documents, meaning that deposition testimony is automatically deemed confidential only if it refers to a trade secret, financial or tax information, medical records, or other private information. [Id., PageID.540-41]. And other language in the protective order does anticipate that the parties would designate deposition testimony as confidential. “Any deposition testimony, transcripts, or exhibits that are marked confidential may nonetheless be cited in motion ...

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