United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs' motion (ECF No.
251) to compel the production of documents from Defendant the
City of Ferguson (the “City”). The motion and
related briefs and exhibits were filed under seal pursuant to
the parties' stipulated protective order. Plaintiffs have
also filed a motion (ECF No. 263) to unseal these documents.
The City opposes both motions. For the reasons set forth
below, the Court will grant in part and deny in part the
motion to compel and grant the motion to unseal.
filed this action on February 8, 2015. In it, Plaintiffs
allege that, by its policies and practices, the City caused
them to be jailed because of their inability to pay cash
bonds or other debts resulting from traffic and other minor
offenses. Plaintiffs' amended complaint asserts seven
claims pursuant to 42 U.S.C. § 1983, under the Fourth,
Sixth, and Fourteenth Amendments.
September 30, 2015, the parties filed a joint motion (ECF No.
29) for entry of a stipulated protective order, pursuant to
Federal Rule of Civil Procedure 26(c), which would allow the
City to designate certain documents produced in discovery as
confidential. Paragraph seven of the stipulated protective
order permitted Plaintiffs to challenge the City's
designation at any time by sending written notice to the
City's counsel specifying the document in question; if
the parties could not agree regarding the confidential status
of the document, the City was required to file a motion to
preserve protected status within 45 days after receipt of the
written notice, and the documents were to remain protected
until further order of the Court pursuant to a hearing. ECF
No. 29-1 ¶ 7. The Court entered the stipulated
protective order on October 2, 2015 (ECF No. 30).
on December 19, 2016, the City filed a consent motion (ECF
No. 89) to modify the protective order, in order to allow the
City to produce “several thousand emails . . . in
electronic email format” in the most efficient matter.
Specifically, the City requested, with Plaintiffs'
consent, a modification permitting the City to designate
“all forthcoming production of email correspondence
belonging to City of Ferguson employees as confidential,
” but allowing Plaintiffs to “challenge the
designation of information as confidential, ” as
provided in paragraph seven of the original protective order.
Id. The Court granted the consent motion for
modification on December 19, 2016. ECF No. 91.
its filing in 2015, this case has proceeded haltingly due to
several stays. The most recent stay was lifted on January 10,
2019, after the City's interlocutory appeal was dismissed
by the United States Court of Appeals for the Eighth
Circuit. ECF No. 206. Upon lifting of the most
recent stay, the Court held a scheduling conference at which
the parties discussed their lack of progress with respect to
discovery. Thereafter, on February 7, 2019, the Court entered
an Amended Case Management Order giving the parties two weeks
to attempt to reach agreement regarding the search protocol
and format of production of the City's electronically
stored information, and four weeks to begin production of
such discovery. ECF No. 221. On July 8, 2019, the parties
jointly moved to amend the CMO again, describing their
progress with respect to discovery and noting that they still
had outstanding discovery disputes, and accordingly seeking
to extend the close of fact discovery until October 31, 2019.
ECF No. 245. The Court granted the parties' motion. ECF
now move to compel the production of two categories of
documents from the City: (1) documents and communications
exhibiting racial bias, including documents containing
certain “racist search terms” identified by
Plaintiffs, and (2) documents containing “non-racist
disputed search terms” related to traffic violations
and enforcement. Plaintiffs argue that both categories of
documents are highly relevant to their claims.
response, the City argues that the first category of
documents is irrelevant to this case because Plaintiffs do
not assert any race-based discrimination claim. The City does
not dispute the relevance of the second category of
documents, and the City has now agreed to produce such
documents, except with respect to a single search term:
“(St. Ann OR St. Louis) /s (book OR arrest OR transfer
OR hold)” (hereinafter, the “St. Ann”
reply, Plaintiffs maintain that the racist search terms are
relevant to their claims, particularly as to the City's
liability for deliberate indifference to the alleged
constitutional violations, because “racism both
correlates with indifference and serves as a
‘marker' or ‘clue' that the same email or
another one in the ‘email chain' contains evidence
of indifference to Plaintiffs['] rights.” ECF No.
262 at 4. As an example, Plaintiffs cite to an email from the
City's mayor stating that he did not want the City to be
seen as a “ghetto.” Plaintiffs suggest that such
emails help evidence the City's motivations in
implementing the challenged policies and practices. Regarding
the non-racist disputed search terms, Plaintiffs withdraw
their motion to compel these documents, except with respect
to the St. Ann search term.
also move to unseal their motion to compel, and the related
briefs and exhibits. Plaintiffs admittedly have not complied
with the procedures set forth in paragraph seven of the
stipulated protective order, for challenging the City's
designation of particular documents as confidential. However,
Plaintiffs argue that the motion to compel and related
documents are subject to the common law right of public
access to judicial documents. Moreover, Plaintiffs contend
that the City has not shown good cause to conceal the
documents from public view, particularly because many of the
documents were already made public in a United States
Department of Justice report on the City in 2015, and in
media coverage of that report.
City opposes the motion to unseal. The City argues that the
common law right of access does not apply to discovery
motions, and that Plaintiffs voluntarily entered into the
protective order and should be held to its terms. The City
also argues that unsealing the motion and accompanying
exhibits would “unfairly inflam[e] the public against
[the City]” and could unduly prejudice the jury pool in
another § 1983 case that the City is scheduled to try in
this District, Fred Watson v. Eddie Boyd III and City of
Ferguson, No. 4:14-cv-02187-RLW (E.D. Mo.). The
Watson trial was originally scheduled for September
16, 2019, but, as Plaintiffs note, that trial setting has now
been vacated and a new trial date has not been set. No.
4:14-cv-02187-RLW, ECF No. 156 (docket text order entered
Aug. 20, 2019).