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McMillen v. Windham

United States District Court, W.D. Kentucky, Louisville Division

January 31, 2018

MICHELLE MCMILLEN, individually and as Administratrix of the Estate of Gynnya McMillen, Plaintiffs,
REGINALD WINDHAM, et al., Defendants.



         This matter is before the Court on a motion for protective order (DN 60).[1] Plaintiffs Michelle McMillen, individually and as administratrix of the estate of Gynnya McMillen (“Plaintiffs”), filed a response (DN 69), and Movants filed a reply (DN 85). For the following reasons, the motion for protective order (DN 60) is granted in part and denied in part.


         This case stems from the death of sixteen-year-old Gynnya McMillen (“Gynnya”) on January 10 or 11, 2016, while she was in the custody of the Lincoln Village Regional Detention Center (“Lincoln Village”), a facility run by the Kentucky Juvenile Justice Department. (See generally DN 1, Complaint.) At the time of Gynnya's death, Movants were all employees of Lincoln Village. (Id. at ¶¶ 11, 1-18.) In the motion for protective order, Defendants ask the Court, pursuant to Rule 26 of the Federal Rules of Civil Procedure, to restrict the use of certain video recordings of events at Lincoln Village. Specifically, Movants argue that “[p]ublic disclosure of the internal camera footage would reveal features as to the capacity and coverage of key security features of a regional detention center and other Department of Juvenile Justice facilities.” (DN 60.)

         Movants ask the Court to enter a proposed protective order (DN 60-1 at ¶ 1) that would restrict the use of the video recordings to “legitimate purposes” associated with this action and “Kentucky Claims Commission Claim no. 2016-069, ” prohibit their use in any other legal proceeding, and prohibit their disclosure to the media or to any other individual. Any other use would be permissible only with the written consent of the producing party or its counsel of record. (Id.) The proposed protective order would also require any party wishing to put in the record of this action any portion of a video recording to first file a motion for leave to file such recording under seal. (Id. at ¶ 2.) Among the other terms included in the proposed protective order are a provision that would allow the Court to modify the order, “sua sponte, upon prior adequate notice, ” and a provision that would require any party in possession of the subject video recordings to return them to the disclosing party or destroy them within sixty days of the conclusion of this action. (Id. at ¶¶ 5-6.) Finally, the Court notes that at least twice in the proposed order, the order is described as an “Agreed Protective Order, ” but this description is inaccurate as Plaintiffs oppose the motion for protective order. (See Id. at ¶ 5.)

         In response, Plaintiffs set forth three reasons for opposing entry of any protective order related to the Lincoln Village security camera recordings. First, they argue that the two entities purporting to file the motion for protective order lack standing to do so because they are not parties to this litigation. (DN 69 at 1.) The Court addressed this issue in note 1, supra, and will not restate its reasoning here, except to say that the Court construes the motion as being filed by Defendants Price, K. Johnson, Rivers, and Gaudern, who are all parties to this action. Second, Plaintiffs argue that Movants failed to comply with Rule 26(c)(1) of the Federal Rules of Civil Procedure, as they filed the motion for protective order without conferring in good faith with Plaintiffs in effort to resolve the dispute extrajudicially. (Id. at 1-2.)

         Finally, Plaintiffs argue that Movants have not demonstrated good cause in support of a protective order. They dispute Movants' assertion that public disclosure of the camera footage would reveal security features of Lincoln Village and other Department of Juvenile Justice facilities. (DN 69 at 2.) Specifically, Plaintiffs argue that Lincoln Village was shut down after Gynnya's death, and therefore, the video recordings cannot reveal any security features of that facility, as it is no longer in use. (Id.) Additionally, they argue that the Department of Juvenile Justice “already published hundreds of screenshots of the instant security camera video footage to the public via open records, ” many of which Plaintiffs attached to their complaint in this action, and the complaint is not under seal. (Id.) Finally, Plaintiffs argue that to restrict public access to the security camera footage, particularly where Defendants have filed certain footage as an exhibit to a motion to dismiss, would violate the public's strong interest in accessing information in the Court record. (Id.) Plaintiffs contend that to enter the proposed protective order “would only cause secrecy that would have the effect of ‘insulating the participants, masking impropriety, obscuring incompetence, and concealing corruption.'” (Id. (quoting Shane Group, Inc. v. Blue Cross Blue Shield of Michigan, 825 F.3d 299, 305 (6th Cir. 2016) (citing Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1181 (6th Cir. 1983))).)

         Movants filed a reply in support of the motion for protective order (DN 85). They assert that while Lincoln Village is no longer operational as a juvenile detention center, it has been transferred to the Kentucky State Police and remains a secure facility. (Id. at 1; DN 85-1 (Memorandum of Agreement regarding transfer of use of Lincoln Village facility).) Additionally, Movants dispute Plaintiffs' assertion that any portion of the security camera footage was distributed in response to open records requests, arguing instead that the only person to whom such a report was provided was Michelle McMillen, through her counsel.[2] (Id.) Finally, Movants argue that it is “absurd” for Plaintiffs to claim that Movants failed to confer with Plaintiffs prior to filing the motion for protective order. (Id. at 2.) Movants assert that the video recordings were originally produced to Plaintiffs' counsel pursuant to a protective order in a related Kentucky Claims Commission case, and that Plaintiffs' counsel attempted to obtain the video footage prior to litigation beginning by promising to keep the recordings confidential. (Id.)


         Rule 26(c) of the Federal Rules of Civil Procedure sets forth the standard applicable to motions for protective orders. A party from whom discovery is sought may move for a protective order in the court where the action is pending. Fed.R.Civ.P. 26(c)(1). As Plaintiffs point out, the motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without Court action. Id.; see also LR 37.1 (“The moving party must attach to every discovery motion a certification that counsel have conferred and are unable to resolve their differences. The certification must detail counsel's attempts to resolve the dispute.”). The Court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Fed.R.Civ.P. 26(c)(1).

         In this case, neither Movants nor Plaintiffs cite any authority, beyond a passing reference to Rule 26, in support of their positions. The Court will look to decisions of other courts before moving on to apply the principles underlying Rule 26(c)(1) to the present dispute. In a 2016 decision in a case in which the plaintiff alleged that defendant jail employees used excessive force against him in violation of his Eighth Amendment rights, the Western District of Washington addressed a discovery dispute regarding security camera footage from a county jail. Wright v. Austin, 2016 U.S. Dist. LEXIS 168646 (W.D. Wash. Dec. 5, 2016). Defendants agreed to allow plaintiff to review a security video at issue, but refused to produce the video or allow it to enter the court record. Defendants' concern was that “dissemination of this video would reveal security vulnerabilities and camera blind spots, ” and that if the “information was shared with other inmates and the public, it would jeopardize the security and safety of inmates, jail staff and the public.” Id. at *3 (citation omitted). Defendants also expressed concerns that production of the video could increase the likelihood of inmate escape. Id.

         After considering the parties' arguments, the court granted defendants' motion for protective order, prohibiting the parties and their counsel from disclosing, sharing, transmitting, or disseminating the video to third parties, “except as may be necessary to prosecute or defend th[e] case.” Id. at *4. Unless otherwise ordered by the court or agreed to by the parties, the video could only be disclosed to (a) the receiving party's counsel and counsel's employees; (b) experts and consultants; (c) the court and its personnel; (d) deposition witnesses; and (e) records custodians. Id. at *4-5. The court emphasized that anyone to whom the video was distributed were to be instructed not to disclose its contents to third parties and to return all originals and copies after their use was completed. Id. As to the reasoning underlying this approach, the court found that, “[w]hile there is value to the openness of our court system which promotes accountability and sheds light on matters of public importance, confidentiality may be necessary in certain cases.” Id. at *4. The court concluded that defendants showed good cause, “including the security and safety risk to inmates, staff and the public, to preclude unrestricted access of the surveillance video.” Id. (citing Fourhorn v. City and County of Denver, 261 F.R.D. 564 (D. Colo. 2009)).

         In Fourhorn, a case relied upon by the Wright court, the District of Colorado discussed other courts' treatment of matters related to prison security and safety concerns.

Ample caselaw addressing issues relating to jail or prison security and safety concerns reflects a broad policy against Court interference in matters which affect those concerns. See, e.g., Thornburgh v. Abbott, 490 U.S. 401, 415 (1989) (noting that it is “beyond question” that jails have a legitimate interest in protecting security pursuant to the policies they enact); Whitington v. Sokol, 2008 U.S. Dist. LEXIS 14313, *1-2 (D. Colo. Feb. 14, 2008) (unpublished decision) (recognizing that deference is given to policies put in place to manage jail security and noting that, even if not privileged, jails may have legitimate interest in protecting polices from dissemination which may impact safety concerns, but that those concerns can ordinarily be protected “through redaction or other appropriate measures”). Accordingly, despite the presumption in favor of public access, I find that good cause has been shown to maintain the confidentiality designation of the jail policies at issue. See Ulibarri v. City & County of Denver, 2009 U.S. Dist. LEXIS 11178, *4-5 (D. Colo. Feb. 4, 2009) (unpublished ...

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