Leser v. Indianapolis Public Schools

          ORDER

          DORIS L. PRYOR, UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on the Plaintiff's Motion to Compel the Removal of Confidentiality Designation from Specific Documents Under the Protective Order (Dkt. 220)^[1]. The motion was referred to the Undersigned for ruling and, for the reasons that follow, is hereby GRANTED IN PART and DENIED IN PART.

         I. Background

         For the purposes of this Order, the Court assumes familiarity with the underlying facts of this case. On April 24, 2019, the parties participated in a telephonic status conference with the Undersigned. During this call, the Plaintiff expressed concerns that the Defendants were improperly designating certain documents as confidential, and the Defendants expressed concerns that the Plaintiff was improperly withholding certain documents from production. With the discovery deadline fast approaching, the Court discussed an expedited briefing schedule for the parties' imminent motions to compel. The Plaintiff and Defendants filed their respective Motions to Compel on April 26, 2019, their responses on May 1, 2019, and their replies on May 3, 2019.

         In the Plaintiff's instant Motion to Compel, she requests that the Court compel the Defendants to remove the confidential designation from certain documents because, she argues, the documents are not actually confidential. She also requests her reasonable attorneys' fees for having to pursue this motion. The Defendants' Motion to Compel [Dkt. 214] will be discussed via separate order.

         II. Legal Standard

         Even when a governing protective order provides for confidentiality of certain documents, the party who desires the secrecy has the burden of continually showing “good cause” to maintain such confidentiality when the confidential nature of the information is challenged. In re Bank One Sec. Litig., 222 F.R.D. 582, 586 (N.D. Ill. 2004) (citing Union Oil Co. of Cal. v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000)). Establishing good cause requires a party to present “a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.” Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 (1981).

         If good cause is shown, a court then must balance the public's interest in access to the record against the interest of the party seeking confidentiality to determine whether to seal the record. In re Matter of Cont'l Ill. Secs. Litig., 732 F.2d at 1313. If a party does not show good cause to justify the ongoing concealment of certain information, the protective order may be dissolved or modified to unseal that information. Id.; see also Jepson, Inc. v. Makita Elec. Works, 30 F.3d 854, 861 (7th Cir. 1994). If a party does identify specific genuine confidential material within documents concealed by the protective order, a court nevertheless may place the documents in the public record following redaction of the confidential material. Methodist Hosps., Inc. v. Sullivan, 91 F.3d 1026, 1032 (7th Cir. 1996).

         III. Discussion

         The Court approved the parties' protective order on April 27, 2018. [Dkt. 97.] The protective order provides that “[a]ny party or non-party who produces protected information in this action may designate is at “Confidential” consistent with the terms of this Order.” [Dkt. 97 at 2.] The protective order also lays out the process for challenging designated information as follows:

In the event that a Receiving Party disagrees at any time with any designation(s) made by the Designating Party, the Receiving Party must first try to resolve such challenge in good faith on an informal basis with the Designating Party pursuant to S.D. Ind. L.R. 37-1. The Receiving Party must provide written notice of the challenge and the grounds therefor to the Designating Party, who must respond in writing to the challenge within 15 days. At all times, the Designating Party carries the burden of establishing the propriety of the designation and protection level. Unless and until the challenge is resolved by the parties or ruled upon by the Court, the designated information will remain protected under this Order.

         Based on the parties' briefing, the Plaintiff challenges the confidential designation of three categories of documents: 1) documents already produced in discovery without the confidential designation; 2) documents authored by and in the control of the Defendants; and 3) documents produced in the Shana Taylor criminal matter. The Court will address each in turn.

         1) Documents Already Produced

         The Plaintiff requests that the Court compel the Defendants to remove the confidential designation from various documents that were already produced in discovery in this case. The Defendants claim that this is a “non-issue, ” while the Plaintiff maintains that all documents that have been produced should have the confidential designation removed. This issue could have (and should have) been easily resolved by the parties themselves, without court intervention. Nevertheless, it is the Court's opinion that any documents that were produced without a confidential designation can be used in this litigation. Therefore, there ...