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Fant v. The city of Ferguson

United States District Court, E.D. Missouri, Eastern Division

September 5, 2019

KEILEE FANT, et al., Plaintiffs,
v.
THE CITY OF FERGUSON, Defendant.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE

         This 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.

         BACKGROUND

         Plaintiffs 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.

         On 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).

         Thereafter, 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.

         Since 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.[1] 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 No. 246.

         Plaintiffs 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.

         In 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” search term).

         In 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.

         Plaintiffs 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.

         The 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).

         DISCUSSION

         Motion ...


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