Brown-Thomas v. Hynie
Brown-Thomas v. Hynie
2021 WL 1650264 (D.S.C. 2021)
March 24, 2021
J. Michelle Childs, United States District Judge
Summary
The court granted Defendant Tommie Rae Hynie's Motion to Confirm the Confidential Designation of Certain Documents, including communications between defense counsel and music consultant Peter Afterman, as well as certain agreements and related documents. The court ordered that the documents remain confidential and put in place a Protective Order to ensure that the documents are not disclosed to the public.
Additional Decisions
Deanna Brown-Thomas, an individual and in her capacity as intestate heir and pending Personal Representative of the estate of her sister, the deceased Venisha Brown; Yamma Brown, an individual; Michael D. Brown, an individual; Nicole C. Brown, an individual; Jeanette Mitchell Bellinger, an individual; Sarah LaTonya Fegan, an individual; Ciara Pettit, an individual; and Cherquarius Williams, an individual, Plaintiffs,
v.
Tommie Rae Hynie, an individual also known as Tommie Rae Brown; James J. Brown, II, an individual; Russell L. Bauknight, as the Personal Representative of the Estate of James Brown and Trustee of the James Brown I Feel Good Trust; David C. Sojourner, Jr., as the Limited Special Administrator of the Estate of James Brown and Limited Special Trustee of the James Brown I Feel Good Trust; and Does, 1 through 10, inclusive, Defendants
v.
Tommie Rae Hynie, an individual also known as Tommie Rae Brown; James J. Brown, II, an individual; Russell L. Bauknight, as the Personal Representative of the Estate of James Brown and Trustee of the James Brown I Feel Good Trust; David C. Sojourner, Jr., as the Limited Special Administrator of the Estate of James Brown and Limited Special Trustee of the James Brown I Feel Good Trust; and Does, 1 through 10, inclusive, Defendants
Civil Action No. 1:18-cv-02191-JMC
United States District Court, D. South Carolina, Aiken Division
Filed March 24, 2021
J. Michelle Childs, United States District Judge
ORDER AND OPINION
*1 Before the court is Defendant Tommie Rae Hynie's (“Hynie”) Motion to Confirm the Confidential Designation of Certain Documents.[1] (ECF No. 297.) The above-captioned Plaintiffs entered a Response (ECF No. 302), to which Hynie offered a Reply (ECF No. 306). By way of brief background,[2] the court previously ordered Hynie to produce various materials, including certain agreements and related documents, and communications between defense counsel and music consultant Peter Afterman that Defendants claimed were privileged. (See ECF No. 283.) At the time, the court noted the parties had “agreed to stipulate to a standard protective order” for such documents, and thus ordered “that any such discoverable material shall be subject to a joint standard protective order” to be submitted by the parties. (Id. at 22.) Thereafter, Defendants produced documents in compliance with the Order and purportedly designated “every single one of the 1,202 pages of documents they finally produced” as confidential.[3] (ECF No. 302 at 2.) Hynie then brought the instant Motion seeking to confirm the confidential designation of these documents. (See ECF No. 297.)
Plaintiffs stress that Defendants’ confidential designations were clearly overbroad. (Id. at 3.) For support, Plaintiffs point out that several documents Defendants produced were already publicly available, including a previously disclosed settlement agreement and publicly filed motion for summary judgment. (Id.) Plaintiffs further contend half-heartedly that communications with Afterman—which the court previously found were not privileged—“hardly qualify” as confidential. (Id.) Lastly, Plaintiffs insist the undisclosed agreement and related materials should lose their confidential protection, as a strong presumption exists in favor of allowing public access to documents filed in court. (Id. at 6-9.)
Defendants claim they have since removed the confidential designation from certain documents, and that all other documents should remain confidential. (ECF Nos. 297-1 at 3; 306 at 2.) Defendants lean heavily on this court's prior Order, which compelled the production of documents “subject to the terms of” the stipulated protection Order, and noted that “many of the [Requests for Production] discussed [in the Order] implicate materials that are sensitive or confidential but not privileged.” (Id. at 3 (quoting ECF No. 283 at 15, 17, 19, 21, 22).) Defendants further posit that, although they previously failed to prove communications with Afterman were privileged, such documents are confidential at minimum. (ECF No. 297-1 at 3-12.) Defendants likewise briefly contend that they would “suffer irreparable harm” if the undisclosed and disclosed agreements, and related documents, lost their confidential status.[4] (Id. at 12-13.)
*2 The Protective Order at issue includes procedures on how to challenge a confidential designation. (See ECF No. 287 at 5-6.) Although “[t]he burden of proving the necessity of a [c]onfidential designation remains with the party asserting confidentiality[,]” the challenging party must explain its “specific basis for the challenge.”[5] (Id. at 5.)
The court has discretion on the issuance and scope of a protective order, with “good cause” being the key determination.[6] Rech v. Wal-Mart Stores E., L.P., No. 8:19-CV-2514-BHH, 2020 WL 3396723, at *2 (D.S.C. June 19, 2020).
Good cause “is difficult to define in absolute terms, it generally signifies a sound basis or legitimate need to take judicial action.” In re Alexander Grant & Co. Litig., 820 F.2d 352, 356 (11th Cir. 1987). In deciding whether good cause exists, the district court must balance the interests involved: the harm to the party seeking the protective order and the importance of disclosure to the public. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787-89 (3d Cir. 1994); General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973); In re Alexander Grant & Co. Litig., 820 F.2d 352, 356 (11th Cir. 1987). Some factors to consider in making this determination are privacy interests, whether the information is important to public health and safety and whether the party benefiting from the confidentiality of the protective order is a public official. Pansy, 23 F.3d at 787-88. This list is not exhaustive and the court must consider the facts and circumstances of each case in making the good cause determination. Id. at 789.
Wiggins v. Burge, 173 F.R.D. 226, 229 (N.D. Ill. 1997); Rech, 2020 WL 3396723, at *2 (citing Wiggins); cf. Parkway Gallery Furniture, Inc. v. Kittinger/Pennsylvania House Grp., Inc., 121 F.R.D. 264, 267 (M.D.N.C. 1988) (“When a party willingly accedes to the entry of a stipulated protective order, the [c]ourt will be hesitant to relieve that party of its obligations, particularly when the other party produced discovery in reliance on their agreement.”).
*3 At the outset, the court notes that both sides base their arguments on different categories of relevant documents, which the court examines as follows: (1) communications with Afterman; and (2) certain agreements and related documents. First, the court finds Hynie has shown good cause that the communications with Afterman are confidential, particularly given the reasons outlined by defense counsel in his declaration. (See ECF No. 297-6.) By contrast, Plaintiffs have wholly failed to articulate any “specific basis” as to why such communications should lose their confidential status.
Second, the disclosed and undisclosed agreements, as well as related documents, shall remain confidential.[7] Citing primarily to out of Circuit courts, Plaintiffs maintain the undisclosed agreement should not be confidential because of the strong “presumption of public access ... [to] documents that relate to the merits of the case[.]” (ECF No. 302 at 7-9.) Yet the court finds good cause exists to maintain the confidentiality of these materials and overcome any such presumption. The information therein certainly does not raise any public health or safety concerns, while Defendants’ privacy interests are implicated in a potential disclosure. Further, Plaintiffs now have access to the agreements and related materials, thereby fatally curtailing any substantial need Plaintiffs have alleged. Similarly, Plaintiffs allude to making these materials public in part because “the existence of related collateral litigation argues in favor of increased access to avoid needless duplication of discovery[.]” (ECF No. 304 at 5.) Yet as the court previously explained, “to the extent the Estate remains involved in ongoing litigation against other parties, the court observes a standard protective order ... will sufficiently protect Hynie's interest in confidentiality.” (ECF No. 283 at 11.)
Moreover, the court observes that the Protective Order has encouraged the production of materials in this case when the parties have otherwise repeatedly required court intervention for discovery disputes. See Rech, 2020 WL 3396723, at *3 (“Wal-Mart has relied upon the protections provided by the Confidentiality Order in making its production of ... [numerous materials] that it considers confidential for Plaintiff's use in the instant matter. Removing the confidential designation for the Subject Documents, absent any substantial need, could chill further discovery cooperation in this case.”) Lastly, the court notes that, when previously arguing for the undisclosed agreement's production, Plaintiffs explicitly emphasized their “expressed willingness to stipulate to a standard protective order” to specifically preserve the undisclosed agreement's confidentiality.[8] (ECF No. 257-1 at 3.) The court thus concludes these materials shall remain confidential.
After careful consideration, the court GRANTS Hynie's Motion to Confirm the Confidential Designation of Certain Documents as set forth herein. (ECF No. 297.)
IT IS SO ORDERED.
Footnotes
Hynie's co-Defendant, the Estate and Trust of James Brown, has joined in support of her Motion. (See ECF No. 297-8.)
Additional facts are available in the court's prior Order. (See ECF No. 283.)
Hynie has since stated she
has agreed to the removal of the “Confidential” designation of multiple sets of documents per Plaintiffs’ request including: Afterman 0002-0024, 0055-0056, 0059-0108, 0110-0112, 0123-0125, 0126-0137, 0263-0264, 0268-0277, 0300-0302, 0366-0367, 0369, 0371-0372, 0384-0385, 0396, 0446-0448, 0480, 0492-0496, 0509-0518, 0520-0525, 0527-0528, 0531-0534, 0543-0545, and 0547-0557. [Hynie] has also agreed to remove the “Confidential” designation of additional documents not specifically requested by Plaintiffs designated as Afterman 0497-0507.
(ECF No. 297 at 3.)
The parties further quibble over who has the burden of proving a document is confidential, whether the removal of confidential designations will prejudice Defendants, whether the public interest overcomes any such prejudice, and the impact on Plaintiffs if these documents remained confidential. (See ECF Nos. 297-1; 302; 306.)
Similarly, Federal Rule of Civil Procedure 26(c) “allows a court to issue a protective order on a showing of good cause. If the parties agree to a protective order and it is entered without a showing of good cause, the party who later seeks to keep information confidential will bear the burden of showing good cause. However, if the party seeking protection was required to show good cause initially, the burden will be on the party seeking modification of the order. Longman v. Food Lion, Inc., 186 F.R.D. 331, 333 (M.D.N.C. 1999); see Moses Enterprises, LLC v. Lexington Ins. Co., No. 3:19-CV-00477, 2020 WL 7634165, at *3 (S.D.W. Va. Dec. 22, 2020).
Although the court previously ordered the parties to submit a joint proposed protective order, it did so based upon the parties’ representations that they stipulated to such an order. (See ECF No. 283 at 20-21; 269 at 33.) Consequently, the parties submitted a joint proposed protective order, which the court signed and entered. (See ECF No. 287 (“Consent Confidentiality and Protective Order.”).) While the court commented in its Order compelling production that “many of the [relevant Requests for Production] ... implicate[d] materials that are sensitive or confidential but not privileged[,]” the court did not explicitly find Defendants had demonstrated “good cause” to justify a court-issued protective order. (ECF No. 283 at 21.) Indeed, rather than being issued by the court, the Protective Order expressly states the parties “stipulated” and “agreed” to the terms within it. (ECF No. 287 at 1.) As the parties stipulated to the Protective Order and Defendants were not required to initially show good cause before the Protective Order was entered, the court finds they bear the burden of doing so now. See Moses Enterprises, 2020 WL 7634165, at *3. Regardless, the court notes that even if Plaintiffs bore the burden of demonstrating good cause to modify the Protective Order, the court's ruling here would remain unchanged.
Plaintiffs also contends that Defendants may “have waived their right to designate [the undisclosed agreement] as confidential at all” due to prior representations to the court that the disclosed agreement was “the” settlement. (ECF No. 302 at 4-5.) The court finds this argument without merit.
Curiously, Plaintiffs have not explained why their position has shifted so rapidly, including why they now believe—with the undisclosed agreement in hand—that any such presumption in favor of public access outweighs the need to keep the undisclosed agreement confidential.