United States District Court, E.D. Michigan, Southern Division
Linda V. Parker, Judge
OPINION AND ORDER REGARDING MOTIONS [ECF NOS. 79, 82,
ELIZABETH A. STAFFORD, UNITED STATES MAGISTRATE JUDGE
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.
. 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;
. GRANTS plaintiffs motion to compel
production of settlement agreement [ECF No.
91], and ORDERS defendants to
produce the settlement agreement by August 6,
for Protective Order [ECF No. 79]
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
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.
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.
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].
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