Doe v. Johnson City, TN

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT GREENEVILLE

B.P., H.A., S.H., individually, and )

on behalf of all others similarly situated, )

)

Plaintiffs, )

)

v. ) No. 2:23-CV-71-TRM-JEM

)

CITY OF JOHNSON CITY, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This case is before the Court pursuant to 28 U.S.C. § 636, the Rules of this Court, and

Standing Order 13-02.

Now before the Court is Plaintiffs’ Motion for Protective Order Regarding Depositions of

Unnamed Class Members and/or Motion to Quash Deposition Subpoenas Issued to Females 8, 9,

and 12 (“Motion for Protective Order”) [Doc. 245]. City of Johnson City, Tennessee (“Johnson

City”), Justin Jenkins (“Jenkins”), Jeff Legault (“Legault”), Brady Higgins (“Higgins”), Kevin

Peters (“Peters”), and Toma Sparks (“Sparks”) responded to the motion [Docs. 271, 272, and 273],

and Plaintiffs replied [Doc. 288]. Also before the Court is Plaintiffs’ Motion to Strike [Doc. 308].

Defendant Johnson City responded in opposition to the motion [Doc. 314]. These matters are ripe

for adjudication. See E.D. Tenn. L.R. 7.1(a).

On September 6, 2024, the parties appeared for a motion hearing.1 Attorneys Julie Erickson

and Heather Collins appeared on behalf of Plaintiffs. Attorneys Jonathan Lakey, K. Erikson Herrin,

1 During the hearing, the Court also addressed Plaintiffs’ Motion to Compel Production of

(1) Defendants’ Financial Records and (2) the Real Estate Contract Between City Manager Cathy

Ball and Sean Williams [Doc. 235]. The Court adjudicated that motion by separate order

[See Doc. 337].

and Emily Taylor appeared on behalf of Defendants Turner and Johnson City. Attorney Keith

Grant appeared on behalf of Defendant Legault. Attorney Ben Allen appeared on behalf of

Defendant Sparks. For the reasons stated below, the Court DENIES IN PART AND GRANTS

IN PART Plaintiffs’ motion for a protective order [Docs. 245] and DENIES Plaintiffs’ motion to

strike [Doc. 308].

I. PROCEDURAL HISTORY

Plaintiffs filed this action on June 21, 2023 [Doc. 1] and filed the Second Amended Class

Action Complaint (“Amended Complaint”) on March 1, 2024 [Doc. 121]. The Amended

Complaint alleges that “[b]eginning in at least 2018 and continuing to 2021, Sean Williams, a

known drug dealer and convicted felon, conspired with Alvaro Fernando Diaz-Vargas and others

to drug and rape women, and sexually exploit children, in his apartment in downtown Johnson

City” [Id. ¶ 18]. Plaintiffs state that “Defendant [Johnson City Police Department] officers

conspired with [Sean] Williams to participate in a venture, the purpose of which was to recruit,

entice, harbor, provide, obtain, maintain, and solicit women and children, who had not attainted

the age of 14 years, for the purpose of engaging in commercial sex acts”

[Id. ¶ 57]. They state that Johnson City Police Department (“JCPD”) officers were aware of the

complaints that Sean Williams had raped women and that “officers took overt acts in furtherance

of Williams’[s] sex trafficking venture” [Id. ¶¶ 95–143]. And despite being aware of such

complaints, Plaintiffs allege that the JCPD failed to investigate them [Id. ¶¶ 232–33]. This failure,

according to Plaintiffs, “was motivated, in part, by the officers’ discriminatory animus towards

women” [Id. ¶ 242]. In addition, Plaintiffs allege that several Defendants accepted payments from

Sean Williams “with either the implied or explicit understanding that Defendants would shield

[him], permitting him to continue his practice of abuse and trafficking with impunity in exchange

for the payments” [Id. ¶ 313].

Plaintiffs represent three classes: (1) “All individuals, including minors, who were sexually

abused, drugged, or trafficked by Sean Williams or Alvaro Fernando Diaz-Vargas”; (2) “All

members of the Sex Trafficking Survivor Class who were sexually assaulted by Sean Williams

following the first report to the JCPD of Sean Williams’[s] alleged sexual violence on or about

November 7, 2019”; and (3) “All women, including minors, who reported sexual abuse or

trafficking by any person to JCPD from January 1, 2018, to April 25, 2023” [Id. ¶ 298]. They allege

(1) sex trafficking claims, 18 U.S.C. §§ 1591, 1594, and 1595; (2) obstruction of enforcement,

18 U.S.C. §§ 1594, 1595, and 1591(d); (3) aiding and abetting a sex-trafficking venture,

18 U.S.C. §§ 2, 1591(a)(1) & (2), and 1595; (4) conspiracy to commit violations of the Trafficking

Victims Protection Act, 18 U.S.C. §§ 1594(c), 1591, and 1595; (5) violations of 42 U.S.C.

§ 1983; (6) liability under the Tennessee Governmental Tort Liability Act, Tenn. Code Ann.

§ 29-20-205; (7) negligence for the failure to train; and (8) negligence for the failure to supervise

[Id. ¶¶ 311–423].

On August 21, 2024, United States Chief District Judge Travis A. McDonough entered an

Order granting the motions to dismiss filed by Jenkins, Peters, and Higgins [Doc. 301].

Chief Judge McDonough granted in part and denied in part Defendant Sparks’s motion to dismiss

and denied Defendant Legault’s motion to dismiss [Id.].

II. BACKGROUND

The disputes before the Court relate to Defendants’ subpoenas for the depositions of

Females 8, 9, and 12 (collectively, the “Females”) [See Doc. 245]. “[O]n March 12, 2024, . . .

Defendants issued deposition notices . . . to depose Female 9 on May 23, 2024[,] as well as Female

12 on June 12, 2024” [Doc. 307-1 ¶ 4]. Due to a scheduling conflict, Plaintiffs’ counsel, Attorney

Baehr-Jones, canceled Female 9’s deposition but stated, “I am happy to find some additional dates

over June and July, so that we can reschedule [Female 9] sooner” [Id. ¶ 5 (brackets in original)].

According to Defendants, Plaintiffs’ counsel also unilaterally canceled Female 12’s deposition

[Id. ¶ 6].

Subsequently, on June 20, 2024, the parties met and conferred via telephone over

deposition dates, and Defendants stated that they would like “to depose Female 9 and Female 12

on July 8 and 9, and Female 8 on July 17 if that date became available because of ongoing motion

practice between Plaintiffs and a Third-Party deponent” [Id. ¶ 8]. Prior to the conclusion of the

telephone call, “Plaintiffs’ counsel announced they would agree to produce these three

[individuals] but only if the Defendants agreed to a [p]rotective [o]rder that Plaintiffs’ counsel

stated they would subsequently describe” [Id.]. The parties reached an impasse on Plaintiffs’

proposed deposition parameters [Id.]. On June 26, 2024, Defendants served subpoenas for the

depositions of the Females [Id. ¶ 9]. “[They understood] that Plaintiffs could then proceed to file

a motion for protective order as they said they would in the June 20 call” [Id. ¶ 10].

Plaintiffs now seek “an order prohibiting depositions of unnamed class members absent

leave of Court, quashing the deposition subpoenas of Females 8, 9, and 12, and imposing the

appropriate and necessary restrictions requested [in their proposed protective order, Doc. 246-1]

should the Court determine at any point in the future that Defendants have satisfied the heavy

burden applicable here” [Doc. 245 pp. 20–21]. For grounds, Plaintiffs state that Defendants

deposed the named Plaintiffs and that their depositions were hostile, intimidating, abusive, re-

traumatizing, and confrontational and that defense counsel asked irrelevant questions [Id. at 5–10].

But regardless, Plaintiffs state that Defendants did not obtain leave of Court to take these

depositions, and therefore, the Court must quash the subpoenas [Id. at 10–13]. Even if Defendants

had requested leave, Plaintiffs submit they cannot establish their burden for deposing the three

unnamed class members [Id. at 13–19]. To the extent the Court allows the depositions, Plaintiffs

ask that the Court impose certain restrictions [Id. at 19–20; see also Doc. 245-1].

Defendants respond that Plaintiffs originally consented to these depositions [Doc. 271

pp. 1–3].2 They argue that the Females are not ordinary unnamed class members but instead are

more akin to fact witnesses [Doc. 271 pp. 3–5, 12–17]. Given that, they claim that they are entitled

to take the depositions [Id.]. To the extent they must make a particularized showing of their need

for these depositions, however, Defendants argue that they have met that burden [Id. at 17–20].

Plaintiffs reply that the depositions of the named Plaintiffs were “abusive and harassing”

[Doc. 288 p. 2]. They state that “[t]he factual allegations in this case do not depend on the

testimony of unnamed class members” and that “[they] do not intend to call Females 9 and 12 as

witnesses to testify at trial, and they anticipate calling Female 8 for extremely limited purposes”

[Id. at 3 (emphasis and footnote omitted)]. While they acknowledge that they originally agreed to

the depositions of Females 9 and 12, they argue that they changed their position after Defendants

deposed the named Plaintiffs [Id. at 9]. Regardless, Plaintiffs state their original agreement is not

relevant to the issues before the Court [Id.].

On July 31, 2024, the Court set the matter for a hearing.3 Later, on August 30, 2024,

Defendant Johnson City filed a Notice of Filing Documents in Support of Response of Johnson

City, Tennessee to Plaintiffs’ Motion to Quash Subpoenas or for Protective Order (“Notice”)

2 Defendants Legault and Sparks adopt the response filed by the other Defendants

[See Doc. 272 p. 1 n.1, Doc. 273 p. 19].

3 The Court originally scheduled this hearing for August 22, 2024, but rescheduled the matter

for September 6, 2024.

[Doc. 307]. The Notice contained two exhibits filed in support of Defendant Johnson City’s

response in opposition to Plaintiffs’ Motion for Protective Order (“Response”): (1) the Declaration

of K. Erikson Herrin (“Herrin Declaration”) [Doc. 307-1] and (2) excerpts from Plaintiffs’ Rule

26(a) Supplemental Initial Disclosure as to Defendants Brady Higgins and Jeff Legault (“Initial

Disclosures”) [Doc. 307-2].

Plaintiffs filed a Motion to Strike, requesting that the Court strike the Notice under Rule

12(f) of the Federal Rules of Civil Procedure [Doc. 308]. Plaintiffs state that the parties had

completed briefing the Motion for Protective Order and that the Notice violates Local Rule 7.1

[Id. at 1–2]. “Moreover,” Plaintiffs contend, “the content presented is redundant, immaterial, or

impertinent, as demonstrated by the fact that [Defendant Johnson] City chose not to include these

documents with its opposition” [Id. at 2]. To the extent the Court does not strike the Notice,

“Plaintiffs request leave to file a brief response” [Id.].

Defendant Johnson City responds in opposition to the motion [Doc. 314]. It argues that

Rule 12(f) is not the proper vehicle given that it applies only to pleadings [Id. at 3]. To the extent

the Court construes Plaintiffs’ request as a motion to disregard the Notice, Defendant Johnson City

requests that the Court not disregard its Notice because it filed it “for the convenience of the parties

and the Court” [Id. at 2]. While Defendant Johnson City acknowledges that “one could argue that

the filing of the [its] [e]xhibits technically violates the local rules, they are unquestionably relevant

and are not otherwise substantively infirm” [Id. at 5]. According to Defendant Johnson City, there

is no prejudice by allowing its Notice because the “[Herrin] Declaration simply repeats facts set

forth in [its] Response, and the Plaintiffs’ Initial Disclosures were explicitly cited in [its] Response

and were prepared by the Plaintiffs” [Id.]. “[P]resumably[,]” Defendant Johnson City argues,

“Plaintiffs’ Initial Disclosures could be introduced as an exhibit during the hearing” [Id.].

Defendant Johnson City therefore argues that filing the Initial Disclosures earlier did not harm

Plaintiffs [Id.]. “[T]o the extent there has been a violation of the [L]ocal [R]ules, [Defendant

Johnson] City . . . requests that the Court exercise its discretion to enlarge the time period to allow

for the filing of [its] [e]xhibits” [Id. (citation omitted)]. With respect to Plaintiffs’ request to file a

response, Defendant Johnson City states that “a response is not necessary” because the “[e]xhibits

do not contain any information that was not also included in [its] Response” [Id.].

III. PLAINTIFFS’ MOTION TO STRIKE

Plaintiffs seek to strike the Notice pursuant to Rule 12(f). Rule 12(f) provides that “[t]he

court may strike from a pleading an insufficient defense of any redundant, immaterial, impertinent,

or scandalous matter.” Fed. R. Civ. P. 12(f). As the Court has previously explained, Rule 12(f)

pertains only to “pleadings” [Doc. 188 pp. 1–2 (citations omitted)]. The Notice is not a pleading.

See Fed. R. Civ. P. 7(a) (defining what constitutes a “pleading”). The Court cannot strike the

Notice under Rule 12(f), but it will construe Plaintiffs’ motion as a request to disregard the Notice.

See Osborne v. Nicholas Fin., Inc., No. 3:12-00185, 2014 WL 12774230, at *1 (M.D. Tenn.

Dec. 5, 2014) (“Nonetheless, other Courts have construed a motion to strike as a request to

disregard the disputed material.” (citations omitted)).

Local Rule 7.1(a) provides that briefing is limited to an opening brief, an answering brief,

and a reply brief. E.D. Tenn. L.R. 7.1(a). Local Rule 7.1(d) states:

No additional briefs, affidavits, or other papers in support of or in

opposition to a motion shall be filed without prior approval of the

Court, except that a party may file a supplemental brief of no more

than 5 pages to call to the Court’s attention developments occurring

after a party’s final brief is filed. Any response to a supplemental

brief shall be filed within 7 days after service of the supplemental

brief and shall be limited to no more than 5 pages.

E.D. Tenn. L.R. 7.1(d).

The Court’s Local Rules have “the force of law.” Hollingsworth v. Perry, 558 U.S. 183,

191 (2010) (quoting Weil v. Neary, 278 U.S. 160, 169 (1929)). The Court has “discretion in

choosing how to enforce them.” Romine v. Uber Techs., Inc., No. 3:16-CV-371,

2017 WL 11494685, at *1 (E.D. Tenn. Jan. 23, 2017); see also Valassis Commc’ns, Inc. v. Aetna

Cas. & Sur. Co., 97 F.3d 870, 873 (6th Cir. 1996) (“[T]he district court is the final arbiter of its

own local rules.” (citations omitted)). It also “has broad discretion to overlook violations.”

SmartBank v. Cartron, No. 4:19-CV-00062, 2020 WL 1897168, at *4 (E.D. Tenn. Apr. 16, 2020)

(citations omitted).

Construing Defendant Johnson City’s filing of the Notice as a violation of the Local Rules,

the Court exercises its discretion to overlook this violation. The Notice does not add new

arguments for the Court to consider. Instead, Defendant Johnson City submitted exhibits relating

to issues it referenced in its Response. As Defendant Johnson City explains, “there is no prejudice

because the [Herrin] Declaration simply repeats the facts sets forth in [its] Response, and the

Plaintiffs’ Initial Disclosures were explicitly cited in [its] Response and were prepared by the

Plaintiffs themselves” [Doc. 314 p. 5]. See Larson v. Wal-Mart Stores, Inc., No. 3:08-CV-86,

2008 WL 4924728, at *3 (E.D. Tenn. Nov. 14, 2008) (declining to disregard an affidavit even

though the “plaintiffs did not completely follow the correct procedure in placing this affidavit in

the record”).

Plaintiffs seek to file a response to the Notice [Doc. 308 p. 2]. The Court finds a response

is not necessary. The Notice contains information that was already referenced in Defendant

Johnson City’s Response, the parties appeared before the Court on September 6 for oral argument

on the underlying issues, and they later filed a Joint Status Report [Doc. 317].

IV. PLAINTIFFS’ MOTION FOR A PROTECTIVE ORDER

Plaintiffs argue that Defendants failed to seek leave of Court prior to issuing the subpoenas

for the Females’ depositions [Doc. 245 p. 13]. They assert such “failure alone is dispositive” [Id.

(citation omitted)]. At the hearing, Defendants explained that they did not request leave because

the parties originally agreed to proceed with these depositions [Doc. 342 pp. 56–57, 59–60].

The Eastern District of Tennessee has held that “in a class action, even a putative class

action, the party seeking discovery from an unnamed class member must first show a particularized

need for said discovery and first seek permission from the court.” In re Skelaxin (Metaxalone)

Antitrust Litigation, 292 F.R.D. 544, 550 (E.D. Tenn. 2013) (considering the merits of the matter

but noting that the failure to seek the court’s permission could serve as a basis to grant the motion

for a protective order). Defendants did not obtain leave from the Court to take the depositions of

the Females. But the parties agreed to these depositions. Plaintiffs initially agreed to these

depositions and scheduled the depositions of Female 9 and 12 for May 23, 2024, and June 12,

2024, respectively [Doc. 307-1 ¶ 4]. Plaintiffs’ counsel canceled those depositions due to

scheduling conflicts and indicated that they would be rescheduled [Id. ¶¶ 5–6]. In June 2024, when

the parties discussed rescheduling Female 9’s and 12’s depositions and setting Female 8’s

deposition, Plaintiffs’ counsel said they would produce these individuals for a deposition upon

agreement of a protective order [Id. ¶ 8]. Plaintiffs’ counsel later sent Defendants a proposed

protective order with parameters for the depositions [Doc. 246-2]. The parties could not agree on

the parameters, so Defendants served the subpoenas for the Females’ depositions “understanding

that Plaintiffs could then proceed to file a motion for protective order as they said they would in

the June 20 call” [Doc. 307-1 ¶ 9]. Plaintiffs then filed their motion [Doc. 245].

As the Court has previously explained:

“Courts will enforce discovery agreements reached between two parties.”

J.S.T. Corp. v. Robert Bosch LLC, No. 15-13842, 2019 WL 1857080, at *5

(E.D. Mich. Apr. 23, 2019) (citing In re Santa Fe Nat. Tobacco Co. Mktg.

& Sales Pracs. and Prod. Liab. Litig., No. MD 16-2695, 2018 WL 3972909,

at *11 (D.N.M. Aug. 18, 2018)), report and recommendation adopted by

No. 15-13842, 2019 WL 1790250 (E.D. Mich. Apr. 24, 2019); see also

Libertarian Party of Ohio v. Husted, 302 F.R.D. 472, 478 (S.D. Ohio 2014)

(“[Rule] 29 permits the parties to make agreements about discovery.”).

“[T]he Court has an obligation to read any purported written discovery

agreement fairly and reasonably, and to place the burden of persuasion on

the party asserting that an agreement has been reached.” Libertarian Party

of Ohio, 302 F.R.D. at 478 (citation omitted).

Dahl v. Turner, No. 2:22-CV-72, 2024 WL 4005957, at *7 (E.D. Tenn. Mar. 12, 2024).

Defendants have shown an agreement was reached to take the three depositions, and such

agreement was appropriate under the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 29(a)

(explaining that the parties may stipulate that “a deposition may be taken before any person, at any

time or place, on any notice, and in the manner specific”). In March 2024, Defendants issued

deposition notices for Females 9 and 12 “consistent with the discussions counsel for the [p]arties

engaged in during February 2024” [Doc. 307-1 ¶ 4]. Later, in May 2024, “[t]he [p]arties traded

charts of the previously agreed upon schedule,” and Plaintiffs’ proposed schedule included Female

9’s deposition [Id.]. Although Female 9’s and Female 12’s depositions were ultimately canceled

by Plaintiffs’ counsel, in June 2024, the parties met and conferred about rescheduling them [Id.

¶ 8]. During this meet and confer, the parties also discussed Female 8’s deposition [Id.]. At the

conclusion, Plaintiffs’ counsel “agree[d] to produce these three clients” if Defendants agreed to a

protective order [Id.]. It therefore appears the parties agreed to these depositions subject to

Plaintiffs’ request for a protective order4 [See id. ¶¶ 8–9]. Plaintiffs do not dispute they agreed to

these depositions, and when asked at the hearing why their position changed, Plaintiffs’ counsel

said it was the conduct of defense counsel at the depositions of the named Plaintiffs [Doc. 342

pp. 73–74]. The Court is inclined to enforce the parties’ agreement to take the three depositions

and will address whether any protective measures shall be imposed for these depositions below.

See In re Santa Fe Nat. Tobacco Co. Mktg & Sales Pracs. And Prod. Liab. Litig., No. MD 16-

2695, 2018 WL 3972909, at *11 n.9 (D.N.M. Aug. 18, 2018) (explaining the rationale for enforcing

discovery agreements: “If the parties could not rely on courts to enforce discovery agreements,

there would be little incentive for parties to make them” (citations omitted)).

But even if the parties had not agreed to take the depositions of the Females, the Court

finds Defendants’ argument that the Females are not “ordinary unnamed class members”

persuasive and would find their depositions warranted on this basis. See Hu v. BMW of N. Am.

LLC, No. CV184363, 2022 WL 13837791, at *3 (D.N.J. Oct. 21, 2022) (“Even absent class

members can be subject to discovery if they were once named plaintiffs, provided the discovery is

relevant and not unduly burdensome.”); [see also Doc. 271 pp. 3–10, 12–17; see also Doc. 272

pp. 1–2 (“Females 8, 9, and 12 each have information that is clearly relevant to the claims and

defenses generally, not just to class certification, and their depositions are crucial, particularly to

the individual Defendants.”); Doc. 273 pp. 1–2 ([T]hese are individuals that may well submit

testimony in support of Plaintiffs’ claims in this lawsuit.”)]. While “most courts have found that

‘discovery from absent class members is not forbidden but rather is disfavored,’” Hu,

2022 WL 13837791, at *2 (quoting Stephenson v. Fam. Sols. of Ohio, Inc., No. 1:18CV2017,

4 From the record before the Court, it appears that during the scheduling of these depositions,

Plaintiffs never raised the requirement that Defendants needed to obtain leave of court to take these

depositions.

2022 WL 597261, at *6 (N.D. Ohio Feb. 28, 2022)), “courts have recognized that special

circumstances may exist warranting discovery from an absent class member,” Coffey v. WCW &

Air, Inc., No. 3:17CV90, 2019 WL 9089615, at *2 (N.D. Fla. July 30, 2019) (citations omitted).

“One such circumstance[] is where the absent class member is identified as a fact witness or has

otherwise been injected into the litigation, submitted declarations or are represented by plaintiff’s

counsel.” Id. (citations omitted); see also Antoninetti v. Chipotle, Inc., No. 06CV2671,

2011 WL 2003292, at *1 (S.D. Cal. May 23, 2011) (“Although Courts do not usually allow

discovery from absent class members, the rules pertaining to such discovery are flexible, especially

where the proposed deponents have been identified as potential witnesses or have otherwise

‘injected’ themselves into the litigation.” (citations omitted)); Moreno v. Autozone, Inc.,

No. C-05-4432, 2007 WL 2288165, at *1 (N.D. Cal. Aug. 3, 2007) (“Discovery of absent class

members is generally not allowed. However, such discovery may be taken even prior to

certification if the proponent of the deposition demonstrates discovery is not sought to take undue

advantage of class members or to harass class members, and is necessary to the trial preparation

(or in this instance for preparation of the opposition to class certification).” (citations omitted)).

Here, Defendants have pointed to facts showing that the Females have injected themselves

in this litigation. Plaintiffs identified the Females in their Initial Disclosures [Doc. 307-2 ¶ 1]. See

Coffey, 2019 WL 9089615, at *2 (finding that the unnamed class member was “more accurately

described as a fact witness rather than an absent or putative class member” given that the plaintiffs

identified her in response to discovery as someone having substantive knowledge about the case);

Brown v. Wal-Mart Store, Inc., No. 09-cv-03339, 2018 WL 339080, at *1 (N.D. Cal. Jan. 9, 2018)

(permitting the depositions of eight absent class members identified as witnesses in plaintiffs’ Rule

26 disclosure because they had been “injected” into the litigation). Females 9 and 12 also served

as named representatives for several months.5 See In re Drassinower, No. 3:19-CV-1715,

2021 WL 3772328, at *7 (S.D. Cal. Aug. 25, 2021) (“The Court agrees with [the d]efendant that

‘the person who [it] is seeking to depose is not a mere absent class member but is a former named

plaintiff who has injected herself into the litigation.’” (citation omitted)).6

Further, the Females are specifically referenced in the Amended Complaint [See Doc. 121

¶¶ 49–56; 81, 109–115, 130–39, 175–83, 235, 244, 257, 329(g), 385]. Plaintiffs allege that Female

8 agreed to clean Sean Williams’s apartment for cash [Id. ¶ 49]. She agreed to do other tasks for

money, “as well as other benefits like drugs and alcohol while they were hanging out” [Id. ¶ 50].

During this time, Plaintiffs allege that Sean Williams drugged and sexually assaulted Female 8 [Id.

¶ 55]. He also sexually exploited Female 8’s minor son [Id. ¶ 56].

With respect to Female 9, Plaintiffs claim that she attempted to report her rape to JCPD on

October 20, 2020 [Id. ¶ 109].7 She called Defendant Sparks and reported the sexual assault, but he

told her that “she should wait to make a police report until she received the rape kit results” [Id.

¶ 111]. Plaintiffs allege that Female 9 followed up with Defendant Sparks on at least two occasions,

but she did not hear back from him, and she never received the results of her rape kit [Id. ¶¶ 112,

115]. “[O]n December 7, 2022, JCPD officers obtained information that Female 9 was meeting

with civil rights attorneys at her public housing unit in Johnson City” [Id. ¶ 175]. She also met

5 Females 9 and 12—originally identified as Jane Does 5 and 7—were named as class

representatives in the original Complaint that Plaintiffs filed on June 21, 2023 [See Doc. 1].

On December 12, 2023, Plaintiffs requested leave to amend the Amended Complaint, which

dropped Females 9 and 12 as named class representatives [Doc. 93]. The Court ruled on that

motion on February 23, 2024 [Doc. 119].

6 The putative class member in In re Drassinower had served as a named plaintiff for

approximately four months. In re Drassinower, 2021 WL 3772328, at *1.

7 According to Defendant Sparks, Female 9 is the sister of Plaintiff H.A. [Doc. 273 p. 12

(footnote omitted)]. Plaintiff H.A. testified that she immediately called Female 9 after the sexual

assault [Id. at 13 (citation omitted)].

with an agent from the Federal Bureau of Investigation (“FBI”) [Id. ¶ 176]. Plaintiffs allege that

the following events occurred:

Either late at night on April 18 or early in the morning on April 19,

2023, Female 9 was standing outside Tipton’s Street Pub in

downtown Johnson City with a male companion, waiting for her ride

in an otherwise empty parking lot, when at least two JCPD patrol

cars drove up and stopped. JCPD officers approached the male to

handcuff him. Female 9 pulled out her cellphone to start videoing as

there appeared to be no legitimate law enforcement purpose for this

encounter. One of the officers took hold of her arm. When she pulled

her arm back, the officer proceeded to physically assault her. Her

head hit the ground so hard, she urinated herself. While she was on

the ground, several officers pinned her down while other officers

continued to assault her. The next day, she had bruises all over her

body.

[Id. ¶ 178]. Plaintiffs state that the police report does not provide probable cause for the arrest of

Female 9’s companion [Id. ¶ 179]. In addition, the police report stated that the officers found

cocaine in Female 9’s backpack, but she “did not possess any narcotic substance in her backpack

and JCPD officers planted the evidence” [Id. ¶ 180]. She was later evicted and lost custody of her

children due to the incident [Id. ¶¶ 181–82]. “Defendant Legault was the supervisory patrol officer

who signed off on the police report” [Id. ¶ 183]. Plaintiffs allege, “Upon information and belief,

the unlawful arrest, physical assault, and subsequent eviction of Female 9 was part of an effort by

JCPD officers, including Defendant Legault, to retaliate against and intimidate Female 9, who was

a witness in an ongoing federal sex trafficking investigation” [Id. (footnote omitted)].8

Turning to Female 12, Plaintiffs allege that Sean Williams raped her on November 24,

2020 [Id. ¶¶ 130–32]. She reported her rape to the FBI “because she did not trust JCPD to take the

sexual assault seriously” [Id. ¶ 133]. The FBI agent called Defendant Sparks, who accompanied

8 As Defendant Legault argues, “Female 9’s very specific allegations appear to be a basis for

the overall conspiracy Plaintiffs allege, and the only specific allegation that ties [Defendant]

Legault to this alleged conspiracy” [Doc. 272 p. 2].

Female 12 to the hospital for a rape kit [Id. ¶¶ 135–36]. “After leaving the hospital, Female 12

went to JCPD offices where she spoke with a female investigator and/or attorney and explained

that she wished to press charges” [Id. ¶ 136]. According to the allegations, “[Defendant] Sparks

told her falsely that she was the first woman who wished to go forward with charges, claiming the

other women were too scared” [Id. ¶ 137]. Female 12 never received the results of her rape kit and

charges were never “brought against [Sean] Williams for Female 12’s sexual assault” [Id. ¶ 138].

In August 2023, the FBI told Female 12 “that [Sean] Williams had taken images and/or videos of

himself sexually assault her[,]” and such “images were found on [his] digital devices at the time

of his arrest in April 2023” [Id. ¶ 139].

Plaintiffs argue that they will not be calling Females 9 or 12 as witnesses at trial and that

they will call Female 8 only for limited purposes. Plaintiffs’ decision not to call them to trial, or to

call them only for limited purposes, does not mean that the Females do not possess relevant

knowledge about the facts of the case. In re Drassinower, 2021 WL 3772328, at *3 (ordering the

absent class member’s deposition, despite the plaintiffs’ contention that they do not intend to call

her to trial); Brown, 2018 WL 339080, at *1 (“Plaintiffs claim that their testimony would only be

used for rebuttal purposes, but this does not change the fact that Plaintiffs may rely on the proposed

deponents as witnesses.”).

In sum, the detailed allegations about the Females in the Amended Complaint, their

identification in Plaintiffs’ Initial Disclosures, and Female 9’s and Female 12’s previous roles as

named plaintiffs support Defendants’ argument that the Females are not ordinary absent class

members but instead have injected themselves into this litigation such that their depositions are

warranted. See In re Drassinower, 2021 WL 3772328, at *8 (allowing the deposition of a putative

class member noting that she had alleged facts pertaining to the allegations in the case).

Plus, Plaintiffs’ counsel represents the Females [See Doc. 342 pp. 55–56]. Coffey,

2019 WL 9089615, at *2 (noting that courts should consider whether an absent class member is

represented by the plaintiffs’ counsel).

That brings the Court to Plaintiffs’ request for deposition parameters in the form of a

protective order under Rule 26(c) of the Federal Rules of Civil Procedure [See Doc. 246-1].

Rule 26(c) provides, “The court may, for good cause, issue an order to protect a party or person

from annoyance, embarrassment, oppression, or undue burden or expense, including . . . forbidding

the disclosure or discovery”; “forbidding inquiry into certain matters, or limiting the scope of

disclosure or discovery to certain matters[.]” Fed. R. Civ. P. 26(c)(1)(A) and (D). “To show good

cause, a movant for a protective order must articulate specific facts showing ‘clearly defined and

serious injury’ resulting from the discovery sought and cannot rely on mere conclusory

statements.” Nix v. Sword, 11 F. App’x 498, 500 (6th Cir. 2001) (quoting Avirgan v. Hull,

118 F.R.D. 252, 254 (D.D.C. 1987)). The party requesting the protective order, here Plaintiffs, has

the burden of establishing good cause. Id.

Plaintiffs submitted a proposed protective order with the following terms regarding the

depositions of Females 8, 9, and 12:

a) The deposition shall be limited to 1.5 hours of defense counsel

examination, and .5 hours of redirect.

b) Defendants will designate one attorney to examine the witness. No other

attorneys for Defendants will examine the witness.

c) Defendants and their employees will watch the deposition remotely.

d) The witness will have the option to have a support person present.

e) Questions regarding the following topics will not be permitted:

(i) The witness’s sexual conduct or any sexual assaults (if

applicable)

(ii) Drug or alcohol use (if applicable)

(iii) Child custody (if applicable)

(iv) Domestic abuse or restraining orders (if applicable)

(v) Mental health issues, diagnoses, and treatment thereof (if

applicable)

[Doc. 246-1]. Defendants offer the following parameters:

1. Defendants agree to limit each deposition to six hours of

testimony[.]

2. Defendants agree that only counsel for the Defendants will be in the

deposition room. The individually named Defendants and the

representatives from the City will observe the deposition via a Zoom

link.

3. Defendants agree to not ask questions regarding the following

topics, unless the witness testifies in a way that opens the door to

testimony on these topics:

a. Child custody; and

b. Domestic abuse or restraining orders, unless the allegations

were investigated by JCPD[.]

4. The Defendants continue to make clear that the agreement reached

regarding the conditions for the depositions of the class

representatives apply to these depositions, which include the

following:

a. Only one attorney will ask the witnesses about the specific

details of their sexual assault(s), as alleged in the Second

Amended Complaint;

b. The witness can have a support person sit next to her;

c. Counsel for the witness can sit next to her;

d. The witness can take as many breaks as needed; and

e. Any testimony regarding sensitive information, including

details of a sexual assault, will be designated “attorney’s

eyes only.”

[See Doc. 317 pp. 5–6]. There is some agreement here, and the Court will enforce those

agreements. Dahl, 2024 WL 4005957, at *7 (“Courts will enforce discovery agreements reached

between two parties.” (quoting J.S.T. Corp., 2019 WL 1857080, at *5)); Gaddis v. City of Detroit,

No. 2:18-CV-13763, 2020 WL 2085068, at *2 (E.D. Mich. Apr. 30, 2020) (“Moreover, the Court

will enforce any stipulation, agreements or resolutions made within the relative portion of the

parties’ joint statement.” (citation omitted)).

What remains in dispute is Plaintiffs’ request for an order requiring “Defendants [to] seek

and obtain leave of court prior to seeking to conduct the deposition of any unnamed putative class

member in this case” [Doc. 246-1 p. 2], as well as the following requests by Plaintiffs: that

(1) “[t]he deposition[s] be limited to 1.5 hours of defense counsel examination, and .5 hours of

redirect[,]” (2) “Defendants will designate one attorney to examine the witness” and that “[n]o

other attorneys for Defendants will examine the witness[,]” and (3) inquiries into certain topics,

such as the witnesses’ sexual conduct or any sexual assaults, drug or alcohol use, or mental health

issues, diagnoses, and treatment thereof, not be permitted [Doc. 246-1 p. 3].

This Court has already held that “in a class action, even a putative class action, the party

seeking discovery from an unnamed class member must first show a particularized need for said

discovery and first seek permission from the court.” In re Skelaxin (Metaxalone) Antitrust

Litigation, 292 F.R.D. at 550. A protective order in this regard, therefore, is not necessary. As for

Plaintiffs’ request to limit each deposition to 1.5 hours for defense counsel examination and .5

hours for redirect, the Amended Complaint includes specific allegations about the Females, and

there is no dispute that they have relevant knowledge about the facts underlying the claims in this

case. The general rule is that parties are afforded seven hours to depose a witness.

Fed. R. Civ. P. 30(d)(1). Defendants’ agreement to limit each deposition to six hours is reasonable

in light of the allegations in the Amended Complaint and the number of parties involved. And the

parties have agreed to allow the Females to take as many breaks as necessary. Plaintiffs also request

that Defendants designate one attorney to examine the witness, but Defendants have different

interests in this case [See e.g., Doc. 272 p. 2 (discussing how Female 9’s allegations are the only

ones that tie Defendant Legault to the alleged conspiracy)]. Defendants have also agreed to some

limitations with regard to certain topics, and the Court declines to impose any additional

restrictions considering the allegations in the Amended Complaint; to the extent an issue arises

during the depositions, the parties may contact Chambers if they cannot resolve any disputes. The

Court will therefore impose a protective order consistent with Defendants’ offer, but Plaintiffs have

not shown good cause to place the additional requested parameters on the depositions.

The Court expects all counsel to conduct themselves in a civil and professional manner

during the depositions. To the extent the depositions are taken “in a manner that unreasonably

annoys, embarrasses or oppresses the deponent[s,]” the Females have recourse under the Federal

Rules of Civil Procedure. Fed. R. Civ. P. 30(d)(3).

V. CONCLUSION

For the reasons explained above the Court DENIES IN PART AND GRANTS IN PART

Plaintiffs’ Motion for Protective Order Regarding Depositions of Unnamed Class Members and/or

Motion to Quash Deposition Subpoenas Issued to Females 8, 9, and 12 [Doc. 245] and DENIES

Plaintiffs’ Motion to Strike [Doc. 308].

IT IS SO ORDERED.

ENTER:

ME Fat

oh E. McCook

United States Magistrate Judge

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