The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
HOWARD BROWN, )
)
Plaintiff, )
)
v. ) No. 1:24-cv-042-TRM-SKL
)
CITY OF CHATTANOOGA, et al., )
)
Defendants. )
ORDER
Plaintiff Howard Brown filed this lawsuit pursuant to 42 U.S.C. § 1983 following his arrest
in downtown Chattanooga on September 15, 2023. According to the complaint, Plaintiff was
denied entrance into a bar and subsequently arrested for public intoxication. He was also charged
with possession of a controlled substance. The charges were dismissed and later expunged. In his
complaint, he names the City of Chattanooga, Hamilton County Sheriff Austin Garrett, and
Chattanooga Police Department Officer Karli Thomas as defendants (collectively, “Defendants”).
There are three related motions currently before the Court. First, the City has filed a
renewed motion for entry of a protective order [Doc. 37 & Doc. 37-1 (proposed protective order)].
Plaintiff filed a response in opposition [Doc. 38]. The City did not file a reply in support of the
renewed motion, and the time for doing so has passed. See E.D. Tenn. L.R. 7.1. The City’s
renewed motion is now ripe. It will be granted in part and denied in part as set forth below.
Plaintiff has filed a motion to compel [Doc. 36], and a motion seeking entry of an order
requiring Defendants to show cause why they should not be held in contempt of court [Doc. 39].
The City filed a response in opposition to the motion for an order to show cause (“OSC”)[Doc 40],
and Defendant Garrett filed a response in opposition to the motion to compel [Doc. 41]. Plaintiff
did not file replies in support of his motions and the time for doing so has passed. See E.D. Tenn.
L.R. 7.1. Accordingly, Plaintiff’s motions are now ripe. As set forth below, both motions [Doc.
36 & Doc. 39] will be denied.
I. THE CITY’S RENEWED MOTION FOR PROTECTIVE ORDER [Doc. 37]
The City seeks entry of a protective order to “protect[] sensitive and confidential
information from being disseminated,” and requiring that such information be “used only during
the pendency of this matter.” [Doc. 37 at Page ID # 200]. In its motion, the City argues a protective
order is needed because Plaintiff has requested information that may be subject to Tennessee’s
“Expunction of criminal records” statute, Tennessee Code Annotated § 40-32-101. This statute
requires the removal and destruction of “all public records of a person who has been charged with
a misdemeanor or a felony” following entry of an order of expunction. The statute does not require
expunction of “arrest histories, investigative reports, intelligence information of law enforcement
agencies, or files of district attorneys general that are maintained as confidential records for law
enforcement purposes and are not open for inspection by members of the public.” Id. § 40-32-
101(b)(1). However, subsection (c)(1) makes the release of such “confidential records or
information contained therein other than to law enforcement agencies for law enforcement
purposes” a Class A misdemeanor. The City maintains Defendants are subject to the penalties in
Tennessee Code Annotated § 40-32-104 for any violation of the non-disclosure provision of the
expunction statute.
This is the City’s second attempt to have a proposed protective order entered based on the
expunction statute. The Court denied the prior motion in part because the proposed protective
order specifically designated certain materials as confidential based on the expunction statute,
thereby foreclosing Plaintiff’s ability to contest the designation as to the materials listed in the
propose protective order. The materials were identified as follows:
a. Any body cam or dash cam footage related to the arrest of
Howard Brown;
b. Any records maintained by the Hamilton County Sheriff’s
Office related to the detention of Howard Brown, not including any
potential medical records which may have been created, and for
which a separate HIPAA-compliant protective order would be
required; and
c. Any records maintained by the Hamilton County Criminal
Court Clerk related to the arrest of Howard Brown.
[Doc. 29-1 at Page ID # 157].
The Court noted Defendants did not describe any specifics about the materials nor did they
address whether the materials were actually “maintained as confidential for law enforcement
purposes.” See Tenn. Code Ann. § 40-32-101(b)(1). The Court held it would not prejudge vague
categories of materials as confidential without further explanation and supported argument [Doc.
35 at Page ID # 183]. In the renewed motion, the City does not provide any additional information
or supporting authority addressing the Court’s concerns. See State v. Doe, 1986 WL 8584, at *4
(Tenn. Crim. App. Aug. 6, 1986) (discussing legislative history of § 40-32-101, and holding “the
only investigative reports of the defendants’ case which are exempt from expunction are those
‘that are maintained as confidential records for law enforcement purposes . . . .’ by law enforcement
agencies and the district attorney general.”). The City also did not change any terms of the
protective order it previously proposed—the new version is identical to the previously proposed
version.
Generally speaking, the expunction statute does not control the course of discovery in this
§ 1983 lawsuit. See Lee ex rel. Doe #1 v. Sevier Cnty., 3:17-cv-41, 2017 WL 1026491, at *4 (E.D.
Tenn. Mar. 15, 2017) (“This Court—a federal court—is unable to bar evidence in limine under
Tennessee law in this case, which, on the merits, involves an alleged violation of § 1983 and is
before the Court based on federal-question jurisdiction, not diversity jurisdiction.”); Garton v.
Crouch, No. 3:21-cv-00338, 2023 WL 2287637, at *3 (M.D. Tenn. Feb. 28, 2023) (“Allowing a
state’s designation of its own law enforcement files as confidential to preclude their production in
federal court discovery would unduly hinder a Section 1983 plaintiff’s ability to access the remedy
prescribed by Congress to ensure that state actors do not infringe upon federal constitutional
rights.”); J.H. v. Cruz, No. 3:14-cv-02356, 2022 WL 18028149, at *4 (M.D. Tenn. Dec. 30, 2022)
(“The records are not subject to exclusion simply because they might otherwise be covered by the
expungement statute.”). Moreover, as the Court previously noted, the expunction statute’s primary
purpose is “to prevent a person from bearing the stigma of having been charged with a criminal
offense when the charges have been dismissed.” Pizzillo v. Pizzillo, 884 S.W.2d 749, 754 (Tenn.
Ct. App. 1994). Applying the expunction statute to block Plaintiff from obtaining discovery
regarding his own arrest in a lawsuit he filed would not advance this purpose, clearly.
In the exercise of its considerable discretion and consistent with its prior order, the Court
finds there is sufficient good cause in this case to justify entry of a protective order allowing
Defendants to designate their own (or the Criminal Court Clerk’s) internal, non-public records as
confidential in the discovery stage, provided they claim in good faith that such materials are
maintained as confidential in the ordinary course and implicate some legitimate law enforcement
concern or the privacy interests of nonparties or parties. See Fed. R. Civ. P. 26(c); see also State
v. Bridges, No. 01C01-9508-CC-00271, 1996 WL 417631, at *1 n.1 (Tenn. Crim. App. July 26,
1996) (explaining that definition of “public records” was amended to expressly exclude from
expunction those confidential records maintained by law enforcement and district attorney’s
office, to ensure law enforcement is not “hamper[ed]”).
The Court finds, however, that the City has not shown good cause to justify pre-designating
the materials listed above as confidential, and the Court will order the City to re-file the proposed
order with paragraph 10 stricken. The City has given the Court no information about the materials
listed. However, Defendants may designate the materials as confidential themselves pursuant to
the terms of proposed protective order, once entered. Upon review, Plaintiff may agree with the
confidentiality designation. If he does not, and he has a good faith basis for disagreeing, he will
have the opportunity to first confer with the producing party and then object to the confidential
designation in accordance with the procedures described in the revised protective order [see Doc.
37-1 at Page ID # 217], at which time the Court would then be able to rule on the confidentiality
of the documents.
Finally, as the Court noted in connection with the prior motion, the proposed protective
order references “the Nondisclosure Statement in the form of that attached to this Order” [Doc.
37-1 at Page ID # 215]. Again, there is no such “Nondisclosure Statement” attached. The Court
expects this error to be corrected when the modified proposed protective order is filed.
Accordingly, the City’s renewed motion for a protective order [Doc. 37] is GRANTED IN
PART AND DENIED IN PART. The Court will enter a proposed protective order with
modifications consistent with the foregoing analysis. The City is ORDERED to file a revised
proposed protective order which removes paragraph 10, including parts 10.a., 10.b., and 10.c., and
which attaches the referenced “Nondisclosure Statement.” The City SHALL file this modified
proposed protective order on the docket within TWO DAYS of entry of this Order.1
1 The Court typically does not “red pencil” parties’ filings, whether proposed orders, discovery
requests, or otherwise, and the parties should not expect the Court will do so again in their case.
All parties are DIRECTED to comply fully with the final protective order regarding any
challenge to the designation of materials as confidential [see Doc. 29-1 at Page ID # 160 at ¶ 18]
and with the Court’s prior Order regarding filing such challenges/materials under seal, including
the meet and confer provisions, until the Court has had an opportunity to rule on any dispute [Doc.
33].
II. PLAINTIFF’S MOTION TO COMPEL AND MOTION FOR OSC [Doc. 36 & Doc.
39]
Plaintiff’s motion to compel [Doc. 36] concerns Defendant Garrett’s initial disclosures and
the City’s responses to his request(s) for production and request(s) for admission.
Plaintiff complains Defendant Garrett failed to produce a “complete list” of “all inmates
incarcerated with the Plaintiff” and “all correctional and police officers that were present in the
jail at the time of Plaintiff’s incarceration.” [Id. at Page ID 187]. Plaintiff contends this list should
have been disclosed as part of Defendant Garrett’s initial disclosures. In his response, Defendant
Garrett indicates a spreadsheet has now been produced to Plaintiff “that identifies the individuals
with whom he may have crossed paths, along with addresses and telephone number[s], as well as
Shift Rosters identifying Hamilton County’s Sheriff’s Office employees with whom he may have
interacted.” [Id. at Page ID # 235-36]. Defendant Garrett indicates any delay was because IT
personnel were “making efforts to extract information . . . in the most efficient manner from the
system” [Id. at Page ID # 235]. Defendant Garrett further indicates he has provided, or will
provide, information responsive to Plaintiff’s other discovery requests, although these are not at
issue in Plaintiff’s motion to compel.
The Court finds the list of individuals Defendant Garrett has produced is sufficient to fulfill
his initial disclosure obligations under Rule 26(a)(1). Accordingly, Plaintiff’s motion to compel
[Doc. 36] will be denied as moot as to Defendant Garrett. Although it appears the list was not
timely provided, Plaintiff indicates he does not seek sanctions against Defendant Garrett, and the
Court finds the circumstances make any sanctions against Defendant Garrett unjust. See Fed. R.
Civ. P. 37(a)(5).
Plaintiff indicates he served requests for production and requests for admission on the City
on April 18, 2024. He states the “sole discovery response” he has received from the City provides:
Attached please find the City of Chattanooga’s responses to your
requests for admissions that were emailed to me on April 18, 2024.
We will respond to your other outstanding discovery requests and
provide documents when we can resolve the protective order which
has been filed with the Court along with the joint motion for an
agreed protective order which is Document 27-1 and 27-2 which
was filed on May 6, 2024. Please let us know if you have questions
as we proceed with discovery in this case. I am copying all other
counsel in this email as set forth in the electronic addresses which
are provided on this document.
[Doc. 36 at Page ID # 188].
Based on the above-quoted discovery response by the City, entry of the protective order
will render Plaintiff’s motion to compel moot. The Court will require the City to produce the
requested discovery upon entry of the protective order and will deny Plaintiff’s motion to compel
as moot as it pertains to the City.
Plaintiff requests sanctions against the City for its failure to produce the requested
discovery sooner. Relatedly, in his motion for an OSC, Plaintiff asks the Court to require the City
and Defendant Garrett to “show cause as to why they shouldn’t be held in contempt of court for
the delay in proceedings, failure to comply with this Court’s order, and failure to produce
completed discovery.” [Doc. 39 at Page ID #230]. As explained below, the Court finds the
circumstances would make an award of expenses to Plaintiff or any other sanction against the City
unjust and therefore will deny the motion to compel in this regard. For the same reasons, the Court
will also deny Plaintiff’s motion for an OSC.
As pertinent, the Court entered its order denying Defendants’ original motion for a
protective order on May 24, 2024 [Doc. 35]. The denial was without prejudice, and the order
specifically provides that “the Court is generally willing to enter a protective order to govern the
exchange of materials in discovery, especially if those materials contain confidential information
protected from disclosure by Tennessee law, reflect confidential law enforcement information, or
implicate privacy concerns of parties or nonparties.” [Doc. 35 at Page ID # 183-84]. Despite this
language and being fully aware of Defendants’ position regarding discovery of information
potentially implicating the expunction statute, Plaintiff admits he asked Defendants, by email, to
“re-submit all of their discovery” by close of business on May 30 [Doc. 36-2 at Page ID # 197].
The City and Defendant Garrett did not respond to Plaintiff’s email. According to Plaintiff,
Defendant Thomas separately attempted to arrange a time for the parties to confer about renewing
the request for a protective order and discovery generally, but neither the City nor Defendant
Garrett responded to Defendant Thomas [see Doc. 39 at Page ID # 229]. After a few days, Plaintiff
again contacted the City and Defendant Garrett to ask that they re-submit their discovery
responses. When they did not respond within Plaintiff’s one-day deadline, Plaintiff filed the
instant motion to compel [Doc. 36].
In response to Plaintiff filing the motion to compel, the City filed its renewed motion for a
protective order (addressed above) two days later. The day after that, on June 8, Plaintiff filed his
motion for a show-cause order [Doc. 39], citing Defendant Garrett and the City’s failure to respond
to emails and his discovery requests, and because the City did not confer with him prior to filing
the renewed motion for a protective order, in violation of the Court’s May 24 Order [see Doc. 35
at Page ID # 195 (“Before filing any renewed motion for entry of a proposed protective order
addressing the exchange of materials designated as confidential in discovery, Defendants are
ORDERED to contact Plaintiff to arrange to confer in good faith to determine whether they can
reach agreement regarding the terms of a proposed protective order to govern the exchange of
disclosures and discovery, in light of this Order and the Sealing Order.”)].
The foregoing demonstrates that neither Plaintiff nor the City and Defendant Garrett are
without fault for the acrimonious state of this case. Plaintiff gave Defendants little to no
opportunity to take steps toward renewing their request for a protective order before he began
insisting they provide him with potentially sensitive or confidential information on unreasonably
short deadlines. The Court took pains to explain the purpose and function of discovery-related
protective orders in its May 24 Order, primarily for Plaintiff’s benefit as a pro se litigant. While
the Court had objections to certain aspects of Defendants’ proposed protective order, the Court
explicitly stated it was inclined to enter a revised version. It was reasonable for Defendants to
continue to insist on entry of a protective order, albeit in a revised state, before they began
producing information to Plaintiff that they reasonably believe they are required to maintain as
confidential.
On the other hand, the failure of the City and Defendant Garrett to provide even a cursory
response to Plaintiff’s and Defendant Thomas’s emails is just as troublesome and obstructive as
Plaintiff’s approach. And Plaintiff correctly points out that the City’s decision to file the renewed
motion for a protective order without attempting to confer with Plaintiff (and the other Defendants)
is in direct violation of the Court’s May 24 order. The City’s explanation—that it could not confer
considering Plaintiff had already filed his motion to compel—is not satisfactory.
This case cannot proceed unless the parties make reasonable efforts to read and comply
with the Court’s orders, communicate with one another in good faith, exchange information
cooperatively, and avoid wasting scarce time and resources with unsupported arguments set forth
in hastily written briefs. The Court will enter a revised protective order. At that point, the Court
expects Defendants will provide discovery responsive to Plaintiff’s requests within the parameters
of Rule 26, applicable caselaw, and the Court’s prior orders. Moreover, the Court expects the
parties to confer in good faith to resolve disputes about discovery. If further motions to compel or
other filings indicate inadequate good faith conferral or unreasonable time demands or positions,
the Court may order in-person conferral and hearings to address said disputes and sanctions may
be imposed.
In sum, and for the reasons set forth above, Plaintiff’s motion to compel [Doc. 36] is
DENIED AS MOOT as it pertains to Defendant Garrett’s initial disclosures and the City’s
discovery responses. The City SHALL file the modified proposed protective order on the docket
within TWO DAYS of entry of this Order.
To the extent Defendant Garrett has already produced documents or information he
believes should be considered “confidential” under the terms of the forthcoming protective order,
see Doc. 41 at Page ID # 236 n.2, he SHALL notify Plaintiff in writing within SEVEN DAYS of
entry of the modified protective order and SHALL identify any such documents, which Plaintiff
SHALL treat as subject to the terms of the protective order.
The City is ORDERED to respond to the discovery requests addressed in Plaintiff’s
motion to compel within SEVEN DAYS of entry of the forthcoming modified protective order.
Plaintiff’s request for sanctions against the City in his motion to compel [Doc. 36] is
DENIED. Plaintiff’s motion for an OSC [Doc. 39] is DENIED.
SO ORDERED.
ENTER:
s/Susan K. Lee
SUSAN K. LEE
UNITED STATES MAGISTRATE JUDGE