Ross v. University of Tulsa

225 F. Supp. 3d 1254, 2016 WL 6839459, 2016 U.S. Dist. LEXIS 160885
District Court, N.D. Oklahoma·Decided November 21, 2016·No. Case No. 14-CV-484-TCK-PJC·Published·Cited by 3 cases

Opinion

OPINION AND ORDER

TERENCE C. KERN, United States District Judge

Before the Court is Defendant’s Motion for Civil Contempt (“Motion for Contempt”), in which Defendant the University of Tulsa (“TU”) seeks a citation of civil contempt and sanctions against Plaintiff and her counsel for “multiple intentional violations of protective orders concerning evidence produced in this case.” (Doc. 311 at 1.) TU seeks relief pursuant to the inherent power of the Court and Federal Rule of Civil Procedure 37(b)(2)(A)(vii).

TU contends Plaintiff and her counsel impermissibly provided the following materials to a-local journalist: (1) CD of an audio interview of Jane Doe 1 (“Jane Doe 1 Audio”); (2) sealed motion filed by TU entitled “Defendant’s Motion to Introduce Plaintiffs Sexual Behavior Pursuant to 412(b)(2)” (“Motion to Introduce Sexual Behavior”) or the substance thereof; (3) video interview of Patrick Swilling (“Swilling Video”); (4) “Supplementary Offense Report” by Tulsa Police Department (“TPD”) Officer Eric Leverington (“TPD Report”); (5) Consent for Forensic Medical Exam, Treatment and Release of Evidence and Information form signed by Plaintiff (“Consent Form”); (6) deposition of Yolanda Taylor (“Taylor Deposition”); (7) deposition of Zachary Livingston (“Livingston Deposition”); and (8) the entirety of text messages retrieved by TPD from Plaintiffs phone (“Texts”). TU also contends that comments (“Comments”) made to the journalist by Plaintiffs attorneys, John Clune (“Clune”) and Spencer Bryan (“Bryan”), impermissibly referenced confidential and protected information.

The Court conducted a sealed evidentia-ry hearing on September 28, 2016 on the Motion for Contempt. Bryan attended the [1259]*1259hearing on behalf of Plaintiff. Neither Plaintiff nor Chine attended or were called as witnesses. TU called four witnesses, including Gerald Bender (“Bender”), attorney for the City of Tulsa; Bryan; David Lackey (“Lackey”), lead counsel for TU; and June Brown (“Brown”), Secretary to the TU Board of Trustees. Plaintiff did not call any witnesses.

I. Factual Background

Plaintiff reported to TU that she was sexually assaulted by TU student-athlete Patrick Swilling (“Swilling”). After conducting a hearing, TU failed to take disciplinary action against Swilling. Plaintiff filed this lawsuit alleging violations of Title IX and Oklahoma law based on TU’s conduct before and after her alleged assault. After a lengthy discovery period, the Court granted TU’s motion for summary judgment by a published Opinion and Order. Ross v, Univ. of Tulsa, 180 F.Supp.3d 951 (N.D. Okla. 2016). Plaintiff appealed, and the matter is pending before the Tenth Circuit Court of Appeals.

Early in the litigation, on October 31, 2014, the parties and non-party Tulsa County District Attorney’s Office (“TCDA”) filed a Joint Motion for Protective Order after Plaintiff sought documents related to TPD’s criminal investigation of Swilling. The Court granted the motion and entered a protective order (“Protective Order”) (Doc. 19).1 The Protective Order, which is binding upon parties and their attorneys, contains the following relevant provisions:

“Confidential Information” as used herein means any Designated Material that is designated pursuant to this Protective Order as “Confidential” by the Supply-
ing Party, limited to the identities and/or contact information of potential victims of Patrick Swilling, Jr., whether it is contained in a document, revealed during a deposition or other testimony, revealed in an interrogatory answer or otherwise revealed.
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Subject to Paragraph 11(c),2 all documents and other materials produced in this litigation shall be used only for purposes of this litigation whether or not a Supplying Party designates such documents or materials as “Confidential.”
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In the case of depositions and the information contained in depositions (including exhibits), designation of the portions of the transcript (including exhibits) which contain Confidential Information shall be made by a statement to such effect on the record in the course of the deposition by counsel for the party or witness producing such information, or by letter from such counsel within thirty (30) days of receipt of the deposition transcript or copy thereof (or written notification that the transcript is available). The entire deposition transcript (including exhibits) shall be treated as Confidential under this Order until the expiration of the above-referenced thirty-day period for designation by letter, except that the deponent may review the transcript of his or her own deposition during this thirty-day period. After the expiration of the thirty (30) day period, the following legend shall be conspicuously placed on the front and back of any original deposition transcript, and on each copy thereof, which contains [1260]*1260Confidential Information: “CONTAINS CONFIDENTIAL INFORMATION.”
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The filing of any documents and materials with the Court containing or reflecting the contents of Confidential Information shall be governed by LCvR 79.1 and Northern District General Order 08-11.... No party or other person may have access to any sealed document from the files of the Court without an order from the Court.
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Subject to Paragraph 11(c), Confidential Information shall not be used by any person, other than the Supplying Party, for any purpose other than conducting this Proceeding, Abigail Ross v. The University of Tulsa, Case No. 14-CV-484-TCK-PJC ... and in no event shall such information be used for any business, competitive, personal, private, public or other purpose.

(Doc. 19 at ¶ 1(c),¶ 1(e); ¶2⅛), ¶2(£); ¶3 (footnote and emphases added).)

On December 31, 2014, the parties filed a Joint Motion for Protective Order after Plaintiff sought documents from TU. The Court granted the motion and entered a protective order (“Second Protective Order”) (Doc. 24). The Second Protective Order is identical to the first except it defines confidential information as

the identities and/or contact information of potential victims of Patrick Swilling, Jr., any materials protected by FERPA, HIIPPA, or any other federal privacy law/regulation, and any documents referring to past or current student(s) of the University by name or other identifier, whether it is contained in a document, revealed during a deposition or other testimony, revealed in an interrogatory answer or otherwise revealed.

(Doc. 24, ¶ 1(c).) The Protective Order and Second Protective Order are collectively referred to as the “Protective Orders.”

On April 7, 2016, the Court entered the Order granting TU’s motion for summary judgment under seal but stated its intent to unseal and publish the Order. The Court gave the parties an opportunity to object to unsealing or request that the Court conceal certain information prior to unsealing. TU did not object to unsealing or request any redactions.

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Ross v. University of Tulsa, 225 F. Supp. 3d 1254, 2016 WL 6839459, 2016 U.S. Dist. LEXIS 160885 (N.D. Okla. 2016).

225 F. Supp. 3d 1254 (Ross v. University of Tulsa) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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