United States District Court, D. Oregon, Eugene Division
WYATT B. and NOAH F. by their next friend Michelle McAllister; KYLIE R. and 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,
KATE BROWN, Governor of Oregon in her official capacity; FAIRBORZ 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.
ORDER AND OPINION
Aiken United States District Judge.
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.
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. Either party
would still be free to seek further depositions beyond such a
limit with leave of the Court for good cause shown.
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)(i). 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 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 *l (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).
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.
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.
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.
agree that most of the documents and information that will
require confidential or AEO 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.
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.
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 information
"derived from" the confidential documents - that
is, from the case records - be filed under seal and only
disclosed to designated individuals, including the
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.
is a general right to inspect and copy judicial records and
documents. See Nixon v. Warner Commc'ns, Inc.,
435 U.S. 589, 597, 98 S.Ct. 1306, 1312 (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, 1135 (9th Cir. 2003). 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 *l (D. Or.
Oct. 9, 2013) (citing Kamakana v. City & County of
Honolulu, 447 F.3d 1172, 1178-1179 (9th Cir. 2006)).
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
Honolulu, 447 F.3d at 1179 (citing Macon, 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.
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 ...