The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
WYATT B. and NOAH F. by their next No. 6:19-cv-000556-AA
friend Michelle McAllister; KYLIE R. and ORDER AND OPINION
ALEC R. by their next friend Kathleen
Megill Strek; UNIQUE L. by her next
friend Annette Smith; SIMON S. by his
next friend Paul Aubry; RUTH T. by her
next friend Michelle Bartov; BERNARD C.
by his next friend Ksen Murry; NAOMI B.
by her next friend Kathleen Megill Strek;
and NORMAN N. by his next friend Tracy .
Gregg, individually and on behalf of all
others similarly situated,
et al.,
Plaintiffs,
ov.
KATE BROWN, Governor of Oregon in her
official capacity; FATRBORZ PAKSERESHT,
Director, Oregon Department of Human
Services in his official capacity; JANA
MCLELLAN, Interim Director, Child Welfare
in her official capacity, and OREGON
DEPARTMENT OF HUMAN SERVICES,
Defendants.
Page 1 — ORDER AND OPINION
AIKEN, District Judge.
Plaintiffs, various minor children and their next friends, bring this putative
class action against the State of Oregon Department of Human Services and state
officers alleging violations of their rights under the First, Ninth, and Fourteenth
Amendments to the United States Constitution, as well as violations of the Adoption
Assistance and Child Welfare Act 42 U.S.C. § 670 et seq, Americans with Disabilities
Act 42 U.S.C. § 12131 et seq, and Rehabilitation Act 29 U.S.C. § 794. Now before the
Court is a discovery and case management dispute. The parties submitted this
dispute to the Court on through a joint letter and a status hearing was held on
September 6, 2019.
First, the parties dispute the total number of hours that should be allowed for
non-expert depositions. Plaintiffs argue that the total number of hours for deposition
should be 120 hours while defendants prefer 100 hours. The parties have agreed that
there will be no limitation on the total number of depositions but instead that there
should be an initial limit on the number of hours for depositions per side. Hither
party would still be free to seek further depositions beyond such a limit with leave of
the Court for good cause shown.
In federal civil cases, there is a presumptive limit of ten depositions per party,
absent stipulation by the parties or leave of the court. Fed. R. Civ. P. 30(a)(2)(A)Q@).
Generally, the maximum time allowed for a non-expert deposition is capped at one
day of seven hours. Fed. R. Civ. P. 30(d)(1). When considering a party’s request for
leave to take more than ten depositions, the Court “must grant leave to the extent
Page 2— ORDER AND OPINION
consistent with Rule 26(b)(1) and (2).” Fed. R. Civ. P. 30(a)(2). Thus, a party seeking
to exceed the presumptive number of depositions must make a particularized showing
of the need for the additional discovery. Authentec, Inc. v. Atrua Techs., Inc., 2008
WL 5120767, at *1 (N.D. Cal. Dec. 4, 2008) (emphasis added). A plaintiff is not
required to exhaust her ten-deposition limit before attempting to make such a
particularized showing. Kelly v. Boeing Complany, 2019 WL 281294, at *3 (D. Or.
Jan. 22, 2019).
Here, the parties have stipulated to exceed the maximum number of allowable
depositions. The Court finds, at this time, that plaintiffs have made no particularized
showing of the need for an additional twenty hours of depositions other than generally
noting that this is a complex case. Thus, at this time, the number of hours per side
for non-expert depositions shall be initially set at 100 hours per side. As mentioned
during the most recent status conference, however, the Court will work to ensure that
ample, non-cumulative, discovery is allowed for both parties if this amount of time
proves insufficient. The parties are reminded that should work together in good faith
to resolve any requests for additional time for depositions.
The second set of issues before the Court relates to the parties’ dispute
regarding their current Stipulated Protective Order (“SPO”). (doc..39) Plaintiffs
argue that the Court should amend that order with respect to the type of documents
which may be designated as “Confidential” or “Attorney's Eyes Only” (““AEO”) as well
as the use of information derived from such confidential or AEO information. SPO. at
3.
Page 3—- ORDER AND OPINION
As to the first matter, the SPO currently provides a set of procedures regarding
documents that are designated as confidential and AEO. The SPO provides that the
parties specifically do not intend to designate the following types documents as
confidential or AEO: “de-identified aggregate data, internal DHS communications
that do not contain individually identifiable information, and non-privileged policy
documents and drafts of such documents.” Plaintiffs propose adding to this list any
documents that do not contain personally identifying information about the named
plaintiffs, class members, their family members or foster parents.
Defendants agree that most of the documents and information that will require
confidential or AKO designation will be information mentioned in plaintiffs’ proposed
amended language. However, they also raise concerns that such a broad amendment
would limit their discretion to protect information which might identify third parties
who report abuse. The Court takes these concerns seriously and notes that the
parties are required to designate documents as confidential or AEO in good faith.
Moreover, the SPO already provides that the parties may challenge any designations
with which they disagree, by bringing the issue to the Court for resolution.
Therefore, the Court will not add plaintiffs proposed language to the SPO at
this time. The Court stands ready to adjudicate any disputed designations if
necessary.
Finally, plaintiffs request that the Court amend the SPO to allow them to use
information derived from confidential reports in their public filings before this Court.
They argue that Paragraphs 2, 7 and 8 of the SPO presently requires that all
Page 4— ORDER AND OPINION
information “derived from” the confidential documents — that is, from the case records
— be filed under seal and only disclosed to designated individuals, including the
Court.
Plaintiffs complain that under this language they would be unable to discuss
their personal stories relating to their claims against defendants. They argue that
this would allow defendants to conduct largely secret trial on a matter of significant
public importance. Plaintiffs argue that any concerns about safeguarding their
identities, the identities of family members, and other protected parties can be
remedied by the use pseudonyms and redacting individually identifiable information
such as birth dates.
There is a general right to inspect and copy judicial records and documents.
See Nixon v. Warner Commce'ns, Inc., 435 U.S. 589, 597, 98 S. Ct. 1806, 1812 (1978).
In the Ninth Circuit, courts start with a strong presumption in favor of access to court
records. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1185 (9th Cir. 2008).
1 Paragraph 2 of the SPO directs that the
“fujse of any information or documents labeled "Confidential" or
"Attorneys' Eyes Only" and subject to this Protective Order, including
all information derived therefrom, shall be restricted solely to the
litigation of this case and shall not be used by any party for any business,
commercial, competitive, or other purpose
SPO at 5. Paragraphs 7 and 8 of the SPO restrict the use of such confidential
information and any information derived from those sources to an exclusive list of
persons. See SPO at 7-8.
Page 5 - ORDER AND OPINION
A party seeking to seal a judicial record bears the burden of overcoming this strong
presumption by articulating compelling reasons supported by specific factual findings
that outweigh the general history of access and the public policies favoring disclosure
such as the public interest in understanding the judicial process and significant
public events. See Evergreen Int'l Airlines, Inc. v. Anchorage Advisors, LLC, 2013
WL 12321565, at *1 (D. Or. Oct. 9, 2013) (citing Kamakana v. City & County of
Honolulu, 447 F.3d 1172, 1178-1179 (9th Cir. 2006)).
“In general, ‘compelling reasons' sufficient to outweigh the public's interest in
disclosure and justify sealing court records exist when such ‘court files might have
become a vehicle for improper purposes,’ such as the use of records to gratify private
spite, promote public scandal, circulate libelous statements, or release trade
secrets.” Kamakana v. City & County of MHonolulu, 447 F.8d at
1179 (citing Nixon, 435 U.S. at 598). “The mere fact that the production of records
may lead to a litigant's embarrassment, incrimination, or exposure to further
litigation will not, without more, compel the court to seal its records.” Id.
In balancing the interests mentioned above with defendants concerns about
safeguarding the identities of the named plaintiffs, their families, potential class
members, and third party reports of abuse, the Court has determined that the use of
pseudonyms and redaction, which is routinely used in other federal and state cases
dealing with minors, is sufficient to protect the identity of those parties. Accordingly,
the Court shall amend the SPO to allow the parties to use information derived from
confidential and AEO documents in their public filings in this litigation.
Page 6 - ORDER AND OPINION
This Court is familiar with the sensitivity surrounding juvenile matters, and
expects that even given this order, the parties shall take seriously their obligation to
make every effort to protect the identities of protected individuals. If there is a
significant dispute regarding information to be used in public filings, the Court
stands ready to perform in camera review of the information and resolve any
objections.
In conclusion, the total number of hours for non-expert deposition testimony is
set initially at 100 hours per side. The Court will enter an Amended Protective Order
which shall not change the agreed procedures for designation of information as
confidential or AEO. The amended order shall allow the parties to use information
derived from confidential reports in public filings in this litigation.
IT IS SO ORDERED.
DATED this /®/4ay of September, 2019.
— Qu Oth
ANN AIKEN
United States District Judge
Page 7 ~ ORDER AND OPINION