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Buck v. Indian Mountain School, Inc.

United States District Court, D. Connecticut

July 20, 2016

PETER J. BUCK, JR.
v.
INDIAN MOUNTAIN SCHOOL, INC.

          RULING ON DEFENDANT'S MOTION FOR PROTECTIVE ORDER AND ON NON-PARTIES' MOTION TO QUASH SUBPOENA DUCES TECUM AND FOR PROTECTIVE ORDER

          Joan Glazer Margolis U.S. Magistrate Judge

         On January 29, 2015, plaintiff, who had been a student at defendant Indian Mountain School, Inc. ["IMS"] from 1982 through 1984, when he was fourteen and fifteen years old, filed this lawsuit, alleging horrific and repeated sexual abuse by various school employees, including by English teacher Christopher Simonds, about which Headmaster Peter Carleton, Assistant Headmaster Steven Carter, and multiple other faculty members and staff, and members of the Board of Trustees, knew or should have known; allegations of sexual abuse and/or misconduct are also alleged against teacher Windsor Copeland, Headmaster Carleton, Carleton's wife, Kitty Carleton, and an employee Jim Hickey. (Dkt. #1). The Complaint raises five counts: negligence (First Claim), recklessness (Second Claim), negligent infliction of emotional distress (Third Claim), intentional infliction of emotional distress (Fourth Claim), and breach of fiduciary duty (Fifth Claim). (Id.). On February 23, 2015, defendant filed its Answer and Affirmative Defenses. (Dkt. #11). Under the latest scheduling order, all discovery (including expert discovery) is to be completed by August 1, 2016. (Dkts. ##43-44; see also Dkts. ##17, 34, 47).

         On June 14, 2016, defendant filed the pending Motion for Protective Order, with respect to a subpoena served upon Attorney Perley Grimes. (Dkt. #46).[1] Two weeks later, on June 28, 2016, Attorney Grimes and his law firm, Cramer & Anderson LLP, filed their own Motion to Quash Subpoena Duces Tecum and for Protective Order, with regard to this same subpoena. (Dkt. #49).[2] On July 5, 2016, plaintiff filed his brief and affidavit of counsel in opposition to both motions. (Dkts. ##51-52).[3] Six days later, defendant filed its reply brief. (Dkt. #54).

         On June 29, 2016, U.S. District Judge Janet Bond Arterton referred both of these motions to this Magistrate Judge. (Dkt. #50). For the reasons stated below, defendant's Motion for Protective Order (Dkt. #46) and the non-parties' Motion to Quash and for Protective Order (Dkt. #49) are granted in large part.

         I. DISCUSSION

         As set forth in both pending motions, Attorney Grimes represented former IMS students who had brought lawsuits against the school during the 1990s; the subpoena at issue had sought production of

[e]very document in [Attorney Grimes'] possession, custody or control concerning or relating to sexual abuse perpetuated at Indian Mountain School, specifically including documents created and produced in the course of lawsuits brought by victims of sexual abuse against the school and other parties, such as deposition transcripts, exhibits, and other documents produced in discovery by the defendants.

(Dkt. #46, at 1-2 & Exh. A; Dkt. #49, at 1 & Exh. A). In his letter to Attorney Grimes, plaintiff's counsel specifically exempted production of documents protected by the attorney-client privilege or the work product doctrine, but further added that to the extent that any of his clients had signed confidentiality agreements precluding the disclosure of discovery materials, then "the attached subpoena is a lawful order overriding any such [a]greement, subjecting the recipient to contempt for failure to comply pursuant to Fed.R.Civ.P. 45(g)." (Dkt. #46, at 2 & Exh. B; Dkt. #49, Exh. A).

         According to defendant, plaintiff's subpoena "seeks to invalidate" an order entered by U.S. Magistrate Judge William I. Garfinkel, upon agreement of counsel, on November 12, 2015, in the related case of Brownville v. Indian Mountain School, Inc., 14 CV 1472 (JBA); both plaintiffs are represented by the same law firm. (Dkt. #46, at 2-3, 4-5; see also Dkt. #52, Exh. B; see also Brownville, Dkts. ##48-49, 99, 105). Defendant further represents that it produced nineteen redacted deposition transcripts in accordance with the order and agreement reached before Judge Garfinkel. (Dkt. #46, at 3; see also Dkt. #49, at 4). In their brief, the non-parties argue that they are barred by Rule 1.6 of the Rules of Professional Responsibility from disclosing any confidential client information, particularly when the lawsuits filed in the 1990s "have long been concluded." (Dkt. #49, at 1-4).

         Plaintiff's arguments in opposition are four-fold. First, plaintiff argues that defendant's insistence upon confidentiality as a condition of settling all other plaintiffs' sexual abuse cases against it is an attempt "to hide relevant and admissible evidence from the plaintiffs, the Court and the jury, " all in violation of Rules 3.4(6) and 3.4(1) of the Rules of Professional Conduct. (Dkt. #51, at 1-3; Dkt. #52, Exh. A). Second, plaintiff argues that defense counsel, who "has represented [defendant] IMS in every child sexual abuse case brought against the school, from the early 1990's to the present time[, ]" has lost or destroyed deposition transcripts, deposition exhibits, and other relevant documents. (Dkt. #51, at 3-5). Specifically, plaintiff represents that at least fifty-five children have been identified by defendant with "Doe" pseudonyms, of whom plaintiff believes that approximately twelve have come forward, have been deposed and have settled their claims, but only six victim depositions have been produced in this case; of these six, some are incomplete - Vol. II of Doe 1's transcript and Doe 3's transcript were not produced, and plaintiff is unable to ascertain how many additional transcripts may exist. (Dkt. #51, at 3; Dkt. #52, Exhs. C-D). Plaintiff further identifies two other deposition transcripts that are missing - those of Headmaster Richard Rouse and Teacher Michelle Nemiroff. (Dkt. #51, at 4). Defense counsel has acknowledged his "files from the 1990s are far from perfect. Not all of the transcripts are complete." (Dkt. #51, at 3-4; Dkt. #52, Exh. E; see also Dkt. #52, Exh B, at 12-13, Exh. F).

         Third, plaintiff complains that defendant has not only redacted out the names and identifying information of all previous sex abuse victims who settled their claims against defendant, as agreed to before Judge Garfinkel at the November 12, 2015 hearing, but in fifteen of the deposition transcripts, including that of Simonds, also redacted the names and identifying information of approximately fifty other children who were not victimized, never filed or threatened suit, never entered into a confidentiality agreement with defendant, and are not covered by Judge Garfinkel's order. (Dkt. #51, at 5-7; Dkt. #52, Exh. D; Exh. B, at 6-9, 15). And fourth, on February 19, 2016, defendant served a subpoena for a second deposition upon one of the plaintiffs who was deposed before, but whose case settled; the deposition was held on May 25, 2016 in Los Angeles. (Dkt. #51, at 7-12; Dkt. #52, Exh. I). During the deposition, the deponent was asked a question he could not answer without violating the confidentiality agreement, and defendant cross-examined the deponent using his previous deposition testimony. (Dkt. #51, at 7-12; Dkt. #52, Exh. I, at 6, 7, 15-17, 22-25, 30-33). Plaintiff contends that "it is unduly prejudicial for . . . defendant's lawyers to have the possession and use of unredacted transcripts, while tying the hands of plaintiff['s] counsel with redacted ones[, ]" and "it was profoundly improper for defense counsel to depose a settling plaintiff without first releasing him from [defendant's] mandatory confidentiality agreement." (Dkt. #51, at 11).

         Thus, plaintiff asks that both motions be denied (Dkt. #51, at 13-16), defendant should be precluded from using the former plaintiff's May 25, 2016 deposition testimony for any purpose (id. at 16), defendant should be compelled to re-produce all deposition transcripts without any redactions (id. at 16-17), and defendant should be compelled to perform a thorough search for the missing documents "from all sources, including court reporters, court files, counsel for co-defendants, school archives, defense law firm archives, and every other location where the documents may be found." (Id. at 17-18; Dkt. #52, Exhs. J-K).

         In its reply brief, defendant argues that plaintiff has incorrectly interpreted the Rules of Professional Conduct (Dkt. #54, at 2-3), that defendant has made "extensive production[, ]" including deposition transcripts of former Trustees, employees and students, all in accordance with Judge Garfinkel's order in Brownville (id. at 3-4), that plaintiff's counsel had suggested, and thus agreed to, production of transcripts in defendant's possession with the names of prior plaintiffs and/or potential plaintiffs redacted in order to protect their privacy, and that such redaction should apply to all transcripts, including those in Attorney Grimes' possession (id. at 4-6), and that defendant has not engaged in any discovery misconduct and has no duty to seek documents from third parties, such as courts, court reporters, counsel for co-defendants, and defense law firm archives. (Id. at 6-7). With respect to defendant's deposition of one of the unnamed plaintiffs, defendant asserts that such deposition was not improper in that the deponent had been identified during plaintiff's deposition, taken on December 16, 2015, as plaintiff's former roommate who had witnessed several alleged acts of sexual abuse, and according to defense counsel, this unnamed plaintiff had been released from his confidentiality order with respect to the questions posed at his recent deposition, and defense counsel asked only one question based upon the deponent's prior deposition testimony and there was one objection about the witness's independent recollection. (Id. at 7-9).

         A. PRIOR SETTLEMENT AND CONFIDENTIALITY AGREEMENTS

         The sample Settlement, Confidentiality, and General Release Agreement presented to the Court, negotiated between the settling plaintiffs and defendant, provided that each plaintiff agreed "that, except . . . if required by law, he will not provide or disclose any discovery materials from the Lawsuit, or any information obtained during any investigation conducted by him or on his behalf (either before or after suit was commenced) to any person or entity." (Dkt. #52, Exh. A, ¶ 9). The paragraph continues that plaintiff's attorneys are also bound by "the same restrictions . . ., and [plaintiff] further agrees that such instruction cannot subsequently be revoked by him." (Id.).[4]

         Contrary to plaintiff's arguments, last year, a federal court held that Rule 3.4(f) of the Missouri Rules of Professional Conduct, which bars a lawyer from "request[ing] a person other than a client to refrain from voluntarily giving relevant information to another party . . .[, ]" does not apply to confidentiality agreements that are negotiated, and executed, as part of a settlement agreement. See, e.g., Timber Point Props. III, LLC v. Bank of Am., N.A., No. 13-3449-CV-S-DGK, 2015 WL 4426223, at *3-4 (W.D. Mo. July 20, 2015):

[The paragraph at issue] does not violate Rule 3.4(f). No "lawyer" is "request[ing]" any party to refrain from divulging information here. The parties themselves negotiated and agreed to a mutual confidentiality provision, as reflected by the parties' signatures of the Memorandum of Settlement. The attorneys presumably counseled the parties in making this decision, but such was not unlawful; Rule 3.4(f) proscribes only requests to person "other than a client."

Id. at *3.

         B. AGREEMENT REACHED BEFORE AND ORDERED BY JUDGE GARFINKEL

         As both parties acknowledge, many of the issues raised in these two motions already were addressed, extensively, in an oral argument before Judge Garfinkel on November 12, 2015 in the Brownville matter, which lasted nearly one hour. (Brownville, Dkts. ##99, 105, at 3, 37; see also Dkt. #52, Exh. B). When Judge Garfinkel inquired whether either counsel had communicated with the attorneys who previously represented the former plaintiffs in the 1990s lawsuits, defense counsel expressed that the two prior attorneys had been contacted, and both indicated that the former plaintiffs "vehemently do not want to be contacted." (Id. at 5-6). According to defense counsel, one of the two attorneys represented that his clients do not "want anyone to know what they said[, ]" particularly because some of the statements, including informal "depositions" with court reporters, were given to defense counsel "pre-suit, . . . with the understanding that this was for [defense counsel] to analyze the case, for [him] to evaluate the case, and if possible, to settle the case. That was done. A confidentiality agreement was entered into. And his client[s do not] want to hear from anyone." (Id. at 6-7). The other attorney responded that he would not "even dare to go back and talk to [his] client[s] about this[, ]" because they would be "so angry" and "furious" if their names, depositions, and information were to be released. (Id. at 7-8). One of the attorneys "made it very clear to [defense counsel] that when [defense counsel] settle[s] one of his cases, that's the end of it. He wants . . . the transcripts destroyed, returned to him, or just never see the light of day again, because he feels that's what his clients are expecting of him." (Id. at 15).

         After discussing the impossibility of returning to state court for permission to amend court orders that had been issued in the mid-1990s by one state court judge who is no longer on the bench and one who is deceased (id. at 8-12), defense counsel acknowledged that "a lot of stuff has passed away - has gone[, ]" but "some, " perhaps five or six, deposition transcripts were still available. (Id. at 12-13). Judge Garfinkel then inquired of plaintiff's counsel as to his thoughts regarding "the best way . . . [to] handle these deposition transcripts to give [plaintiff's counsel] the maximum amount of information without intruding upon the rights or at least, at a minimum, the ...


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