The Volokh Conspiracy

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Free Speech

Labeling Video Filed in Court "Confidential" Doesn't Make It So

Yet "[i]t is particularly troubling to the Court that [the lawyer] appears to have survived this motion more by dumb luck than any concerted effort on his part to comply with either his professional responsibilities or the orders of this Court."


From Estate of Warner v. Wellpath, decided last week by Magistrate Judge Mark J. Dinsmore (S.D. Ind.):

On July 9, 2018, Kyra Warner was arrested and taken to the Marion County Sherriff's Intake Center. Shortly before or after her arrest, Kyra Warner ingested a fatal quantity of amphetamines and methamphetamines. While in the custody of the MCSO, Warner suffered acute hypoxic respiratory failure, PEA (pulseless electrical activity), cardiac arrest, and suffered a severe anoxic brain injury. Fourteen days later, Warner died at the Eskenazi Hospital. Warner's estate brings this suit [against various defendants, including Wellpath, the company providing the jail's healthcare] pursuant to 42 U.S.C. § 1983, asserting that "Defendants' actions and inactions were deliberately indifferent to the reasonable medical needs of [ ]Warner." …

In an article published on October 16, 2020, Reuters s provided [a] brief
summary of the "facts" surrounding the death of Kyra Warner….

The same day Reuters published the Article, Waples [Warner's lawyer] filed a notice of protective order violation with the Court. Waples states, inter alia, that Reuters interviewed him "months ago … regarding issues of correctional health care, and specifically about lawsuits in which he has represented prisoners who had suffered significant injuries or death while in custody."

As part of his interview, Waples provided reporters with copies of the videos capturing Warner's time at Marion County Sherriff's Intake Center. After the initial interview and communications, Reuters contacted Waples again for additional videos he might have in his possession related to the death of individuals while incarcerated. At that point, Waples "first realized that the videos he had previously provided could be covered by [the] protective order…." Waples reported that he had failed in his attempt to regain custody of the videos from Reuters and stated that he took "complete and sole responsibility for the breach of the protective order and apologize[d] to the Court and opposing counsel for this breach."

Defendants moved for sanctions, but the court said no:

The fact that MCSO designated the videos as confidential, however, is not dispositive of whether Waples' actions are sanctionable. During the course of discovery, any party can mark a document, video, or audio clip confidential. For example, a party could label a lunch menu "CONFIDENTIAL." Such a designation would not magically transform an innocuous document into one that warrants the protection of the court, however, and justify keeping it out of the public record. Simply designating information as confidential is insufficient to permit under-seal filing. Materials that enter the court record "that influence or underpin the judicial decision are open to public inspection unless they meet the definition of trade secrets or other categories of bona fide long-term confidentiality." Ultimately, "most portions of discovery that are filed and form the basis of judicial action must eventually be released."

Therefore, it is telling that Defendants in this case did not seek to seal the videos in question when they filed them as evidence in support of their motions for summary judgment in this case approximately one year ago. Defendants have made no argument that these videos contain trade secrets, are protected by statute, or contain confidential information that outweighs the public's interest in these videos. Videos that involve the death of an individual while interacting with or in the custody or control of a government official or entity are of particular interest to the public. As such, although MCSO designated the videos as confidential, Defendants properly filed them as part of the public record in this case, as any motion to seal the videos would have been denied.

Defendants argue that they were harmed by Waples' actions, despite the fact that Defendants themselves placed the videos in the public record, because Waples "deprived Defendants of their ability to prevent the harm that resulted from his violation of the protective order. Had he immediately contacted counsel for the Defendants when he realized what he did, they would have had the opportunity to move quickly for relief from this Court by seeking an order prohibiting Reuters from displaying the video as part of its story. Instead, he waited to inform Defendants of his violation until after the story ran by filing the notice, and it was too late for Defendants to take any action to ameliorate the harm. His inaction only made matters worse."

This argument is nonsensical. The videos already existed in the public realm. Even if Defendants managed to get the videos back from Reuters, Reuters only had to access the videos in the public record. Moreover, any member of the public had and still has the ability to locate and view all of the videos in the public record of this case. Simply, it is hard to imagine what argument Defendants could have made that would have resulted in the Court enjoining Reuters from using the videos. See New York Times Co. v. United States (1971) ("Any system of prior restraints of expression comes to this Court bearing a heavy presumption against constitutional validity.")….

Although it would have been advisable for Waples to have asked the Court to lift the confidential designation prior to providing it to Reuters, the fact is that once the Designating Party intentionally files a document in the public record and does not seek to maintain it under seal, that item is no longer confidential. Thus, while Waples may have technically violated the protective order by providing the videos to Reuters without seeking leave of Court, the Court finds that no sanctions are warranted for that violation because it did not cause—and could not possibly have caused— any harm under the particular circumstances of this case.

And yet the court added (law students and junior lawyers, and perhaps even non-junior lawyers, take note):

Although the Court does not find Waples' conduct sanctionable, the Court admonishes Waples that his failure to provide the Court with an adequate timeline in this matter— specifically, the failure to make it clear whether he provided the videos to Reuters before or after MCSO filed the videos in the public record—is troubling. If Waples' disclosure happened before MCSO filed the videos in the public record, Waples should have used the procedures provided in the protective order to ask the Court to lift the "CONFIDENTIAL" designation. In addition, Waples should have notified the Court immediately when he realized that there had been a potential breach of the protective order.

It is particularly troubling to the Court that Waples appears to have survived this motion more by dumb luck than any concerted effort on his part to comply with either his professional responsibilities or the orders of this Court.