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Hale v. Emporia State University ESU

United States District Court, D. Kansas

April 26, 2018



          Teresa J. James, U.S. Magistrate Judge

         This matter is before the Court on Defendants' Emergency Motion to Enforce Court Order and for Order to Show Cause Why Plaintiff Should Not Be Held in Contempt (ECF No. 88) (hereafter “Motion to Enforce”) and Defendants' Motion to Stay (ECF No. 91). After expediting the briefing on the motions, the Court held a telephone motion hearing on April 16, 2018. Plaintiff Angelica Hale appeared at the telephone motion hearing pro se. Defendants appeared through counsel, Carrie Barney, Rachael Longhofer, and Dennis Depew. This Order memorializes and supplements the Court's rulings made during the motion hearing.

         I. Defendants' Motion to Enforce Protective Order (ECF No. 88)

         Defendants request the Court enter an order enforcing the provisions of the Protective Order entered in this case (ECF No. 42). Defendants allege Plaintiff violated the Protective Order by publicly filing pages from Defendant ESU's investigation report, which have been marked as “Confidential Information, ” as Exhibit DD to the Memorandum in support of her Motion for Summary Judgment (ECF No. 86) (hereinafter “Exhibit DD”) and posting Exhibit DD on the website with links to it on multiple social media accounts, despite the Protective Order restriction limiting the disclosure and use of designated confidential information to prosecution of this litigation.

         Plaintiff does not deny Defendants' allegations that she publicly filed and posted Exhibit DD to the internet website and social media. Rather, Plaintiff contends she has not violated the Protective Order because Exhibit DD was improperly designated by Defendants as confidential, arguing that various sections of ESU's investigation report have been in the public domain for over two years. Plaintiff also argues that Defendants' counsel should be sanctioned for altering documents and spoliation by adding the words “Confidential Information” to the bottom of every page of ESU's investigation report.

         A. Whether Plaintiff Violated the Terms of the Protective Order

         Based upon a review of the motions, briefing, statements made during the motion hearing, and document submitted by Plaintiff after the hearing, [1] the Court finds that Plaintiff violated the terms of the Protective Order in this case by filing Exhibit DD without taking any of the actions required under Section 7 of the Protective Order to ensure designated confidential information was protected from public disclosure. The Court also finds Plaintiff violated the Protective Order by publicly posting and thereby disclosing designated confidential information, specifically Exhibit DD, to the website, and by making it accessible via a link on the @marchonemporia Twitter account.

         Even after Defendants filed their Motion to Enforce claiming Plaintiff violated the Protective Order by publicly filing Exhibit DD, posting it on a website, and making it accessible via links on social media accounts, Plaintiff did not remove Exhibit DD from the website or links to it posted on social media. Instead, Plaintiff filed her objection to the Motion to Enforce, arguing that Exhibit DD is not confidential because it is already in the public domain.[2] At the hearing, however, Plaintiff admitted she did not receive Exhibit DD until Defendants produced it to her with the confidential designation. Moreover, the document Plaintiff claims she received prior to the filing of her lawsuit (and argued was already in the public domain) is not the same document as Exhibit DD. Plaintiff therefore had no basis for her contention that Exhibit DD was already in the public domain and was improperly designated confidential by Defendants. Further, even if she believed that Exhibit DD was improperly designated as confidential, Plaintiff was well aware of the Protective Order[3] and should have complied with the procedures set out in Sections 7 and 8 of the Protective Order, respectively, for the filing of a document containing designated confidential information[4] and for challenging its confidential designation before placing Exhibit DD in the public domain.[5] She failed to do so, in violation of the Protective Order.

         The Court finds Plaintiff's accusations of spoliation, tampering, and obstruction of justice against Defendants' counsel with regard to Exhibit DD are unsupported and without merit. Defense counsels' marking or placing the word “Confidential” on those documents is specifically contemplated by the Protective Order to show that the marked documents are being designated as confidential.[6] The Protective Order also provides that “[b]y marking a designated document as confidential, the designating attorney or party appearing pro se thereby certifies that the document contains Confidential Information as defined in this Order.”[7]

         At the April 16 motion hearing and based upon the above findings, the Court ordered Plaintiff to immediately remove Exhibit DD from the website and from all other Internet postings or links to Exhibit DD via the @marchonemporia Twitter account, Dr. Melvin Hale's Twitter account, or any other social media. Plaintiff was further ordered to refrain from posting Exhibit DD or any other material or documents designated as confidential under the Protective Order to any social media or website, and to otherwise refrain from disclosing or making available designated confidential information to anyone other than those individuals specifically listed in Section 6(b)(1)-(10) of the Protective Order. Plaintiff must ensure that no designated confidential information in this case is disclosed on or accessible via her husband's Twitter or other social media accounts. Plaintiff is further ordered to abide by the terms of the Protective Order and ensure that designated confidential information is used or disclosed solely for purposes of prosecuting this lawsuit, including any appeals, as specifically provided in Section 6(a) of the Protective Order.

         With respect to the designated confidential information Plaintiff has already filed in this case, the Court directed the Clerk's Office to place under seal Exhibit DD, as well as Exhibits A through C to Plaintiff's Objection to Defendants' Emergency Motion to Enforce (ECF No. 94). If, in the future, Plaintiff intends to file any document that contains designated confidential information, Plaintiff must file a motion requesting leave to file under seal the specific document containing the confidential information, as required by Section 7 of the Protective Order and D. Kan. Rule 5.4.6.

         B. Defendants' Requested Relief for Plaintiff's Violation of the Protective Order

         Defendants include several requests for relief in their Motion to Enforce, which include striking Plaintiff's entire Memorandum in Support of her Motion for Summary Judgment, ordering Plaintiff to remove the confidential material from the website and social media accounts, imposing a coercive fine, prohibiting all future use of Defendant ESU's investigation report, and granting Defendants their attorneys' fees in bringing the Motion to Enforce.[8] In their Reply (ECF No. 95), Defendants request dismissal of this case with prejudice. The Court will address each request in turn.

         Defendants request that Plaintiff's Memorandum in Support of Motion for Summary Judgment be stricken from the record, and that the Memorandum and any references to it be removed from the Internet and from any website or social media account that references or contains a link to the document. The Court denies Defendants' request to strike from the record Plaintiff's entire Memorandum in Support of her Motion for Summary Judgment as disproportionate to the violation of the Protective Order at issue. Plaintiff attached 190 pages of exhibits (Exhibits A through NN) to her 37-page Memorandum, but only the four-pages of Exhibit DD were marked as confidential. With the exception of two paragraphs, Plaintiff's Memorandum does not expressly quote or discuss designated confidential information contained within Exhibit DD. As to those two paragraphs, the Court grants Defendants' relief and orders ...

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