United States District Court, D. Connecticut
PETER J. BUCK, JR.
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
Glazer Margolis U.S. Magistrate Judge
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).
14, 2016, defendant filed the pending Motion for Protective
Order, with respect to a subpoena served upon Attorney Perley
Grimes. (Dkt. #46). 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). On July 5, 2016, plaintiff filed his brief
and affidavit of counsel in opposition to both motions.
(Dkts. ##51-52). Six days later, defendant filed its reply
brief. (Dkt. #54).
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.
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
[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).
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
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).
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).
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).
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).
PRIOR SETTLEMENT AND CONFIDENTIALITY AGREEMENTS
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.).
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
[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.
AGREEMENT REACHED BEFORE AND ORDERED BY JUDGE GARFINKEL
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).
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 ...