Electronic Discovery Law

Flynn v. Oakland County, 2006 WL 950282 (E.D. Mich. Apr. 12, 2006)

In this civil rights case, plaintiffs moved to compel the production of "declassified" discovery. The parties had stipulated to a protective order regarding discovery, issued by the court on January 6, 2006, mandating that certain documents produced during discovery would be kept confidential. The protective order defined "confidential material," and set out a procedure through which a party could challenge a document's "confidential" designation. The protective order stated that confidential material could be submitted to the court, but that it must be filed under seal. It also delineated a process to protect confidential material during depositions and file handling.

Defendants thereafter produced more than 700 pages of documents, classifying every single page as "CONFIDENTIAL." When the parties could not reach agreement regarding the documents' classification, plaintiffs filed the present motion. Plaintiffs provided some examples of documents labeled "CONFIDENTIAL" by defendants which they contended were not confidential under the protective order: (1) public records, e.g., blank citizen complaint forms, published newspaper articles; (2) plaintiffs' correspondence and telephone conversations, e.g., emails and correspondence to and from plaintiffs; (3) certified mail receipts and envelopes; (4) witness statements, internal emails, internal memos: Plaintiffs argued that internal emails, memos, or correspondence directly related to the incident described in the complaint were freely discoverable when relevant to an action. Plaintiffs conceded that some of the contested documents may be protected by the deliberative process privilege, but the privilege should be invoked "only in the context of communications designed to directly contribute to the formulation of important public policy," not in civil rights cases against police departments; and (5) a key player's employment file.

Plaintiffs argued that, because the documents were stamped "CONFIDENTIAL," they were forced to comply with the protective order's requirements for the use of confidential documents during depositions and filings with the court. Plaintiffs argued that these measures were an unnecessary burden because the documents were not truly confidential under the protective order. Plaintiffs contended that defendants had made no effort to separate confidential from non-confidential material, and requested that the court order defendants to produce clean copies of discovery without the confidential stamp within 14 days.

The court reviewed the protective order and noted that there were two requirements for a document to be deemed confidential: (1) a party must "reasonably and in good faith" believe the document is confidential, and (2) the party must not normally reveal the document to others. The court stated that the definition required the party "to make an independent determination as to the document's confidentiality." It added: "As plaintiffs say, simply placing a non-confidential document into a confidential file does not make the document confidential under the protective order."

The court granted the plaintiffs' motion, and ordered defendants, within 14 days (or more if requested), to submit discovery documents that comply with the definition of "Confidential Material" in the protective order to the court for an in camera review. The court instructed that defendants should review the documents "page by page" to determine which pages, as well as portions of a page, contained confidential information. The court left open the issue of sanctions, stating: "The Court reserves decision on whether or not defendants should be sanctioned for the failure to deal with the documents with a scalpel rather than a meat ax."