Professional Documents
Culture Documents
Defendants.
their attorneys, COX, HODGMAN & GIARMARCO, P.C., and for their Motion to Set Aside
this Court's Protective Order pursuant to E.D. Mich. L.R. 5.3(a) and/or for Entry of
1. On March 30, 2006, this Honorable Court granted Plaintiffs' ex parte motion
2. In addition to sealing Plaintiffs' identities, this Court further ordered that all
"parties, their agents, attorneys, and all witnesses to this litigation shall maintain and
protect from disclosure the names of the minor children absent further order of this court."
3. For the reasons set forth in the accompanying brief in support, Defendants
publicize and improperly influence the litigation process by use of one-sided disclosures to
4. Further, Defendants object to the language of the protective order which fails
to make clear what actions are prohibited and allowed, particularly as it relates to the
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5. Finally, given past history and the brief history of this case, the extraordinary
request and grant of a protective order as to the identities of the Plaintiffs should be mutual
so as to prohibit and protect from release all documents, deposition transcripts (video
protective order of March 30, 2006, be set aside or in the alternative altered to specify the
restrictions intended and to include mutual protection from release of information and/or
documents, together with any and all other relief deemed reasonable and necessary.
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Defendants.
TABLE OF CONTENTS
I. INTRODUCTION ........................................................................................1
II. FACTS........................................................................................................1
IV. CONCLUSION............................................................................................8
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INDEX OF AUTHORITIES
Cases Page
Doe v. Frank,
951 F. 2d 320 (11th Cir. 1992) ..............................................................................4
Doe v. Shauker,
165 F.R.D. 359 (So. Dist. N.Y. 1996) ...................................................................5
Doe v. Stegall,
653 F. 2d 180 (C.A. 5, 1981)................................................................................4, 5
Doe v. Wolowitz,
No. 01-73907; 2002 U.S. Dist. LEXIS 10431 (May 28, 2002) ..............................5, 6
Southern Methodist Univ. Ass'n of Women Law Students v. Wynne & Jaffe,
599 F. 2d 707 (C.A. 5, 1979)................................................................................5
42 U.S.C. §1983......................................................................................................1
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I. INTRODUCTION
On March 30, 2006, ten (10) minor Plaintiffs, by way of their Next Friends, filed the
herein action seeking money damages against the institutional and individual Defendants
under 42 U.S.C. §1983. Simultaneous with the filing of the Complaint, Plaintiffs filed an ex
parte motion for protective order and to seal affidavit concerning Plaintiffs' identity pursuant
to E.D. Mich. L.R. 5.3(a). Based upon Plaintiffs' motion and brief in support, this Honorable
Court granted the ex parte motion for protective order. Defendants now seek to set aside
said order, or in the alternative, to clarify the order's language and to make the restrictions
therein mutual so as to avoid the one-sided use and manipulation of the news media and
II. FACTS
The Plaintiffs' ex parte motion and the Court's protective order both set forth the
… to protect the privacy of minor plaintiffs doe and to protect them from
further embarrassment, mortification, and humiliation …
Plaintiffs' brief in support of the ex parte protective order, states the basis for good
cause is premised upon the "privacy of minors" and the matters stated in the Complaint
have been "excruciatingly embarrassing and humiliating to the minor plaintiffs." (Brief in
The complaint and ex parte motion to protect the "privacy of minors" was filed on
Thursday, March 30, 2006. On Monday, April 3, 2006, (prior to Defendants being served or
notified of the complaint), a lengthy expose was aired on the local news. In addition to
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Plaintiffs' counsel, William Seikaly, publicly disclosing the very facts and allegations which
are the basis for Plaintiffs' protective order, parents or next friends of the minor Plaintiffs
were shown (by use of shading of faces) and interviewed for the news report. (See
attached, video, Exhibit 1). Despite the complaint being filed with this Court five days
earlier (March 30, 2006), service of the complaint and notice of the lawsuit was not made
on the Defendant School District or individual Defendants until April 4, 2006, the day after
the local news story was aired. Interestingly, the reporters were in possession and made
reference to the complaint, of which the Defendants had no knowledge nor were the
Defendants aware of the identity of the individual Defendants, which included two teachers
The above tactics are consistent with Plaintiffs' counsel's previous behavior in the
case of Sally Doe, et al. v. Warren Consolidated Schools, James Kearly, Dr. James Clor,
Dr. Paul Stamatakis, and Jerry Maiorano, U.S. District Case No. 00-72956, before the
Honorable Paul D. Borman. On November 22, 2004, the evening prior to the jury selection,
another investigative expose appeared on local television, (see attached, video, Exhibit 1),
wherein a prejudicial, unfair, and inflammatory account of the plaintiffs' allegations were
aired on the eve of jury selection. In addition to the news report, including court records,
without anyone's permission or prior knowledge. The following morning, after determining
that many of the prospective jurors had seen the prejudicial news report, the Honorable
Paul Borman inquired of plaintiffs' counsel how the information was released to a reporter.
Specifically, Judge Borman was annoyed and displeased with the obvious attempt to
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influence the prospective jurors by the release of a video deposition of the defendant,
James Clor. The following colloquy occurred between Mr. Seikaly and Judge Borman:
MR. SEIKALY: Your Honor, I have informed Court that I did not release
that.
III. ARGUMENT
"Neither the Federal Rules of Civil Procedure nor the advisory notes specifically
address the use of pseudonymous filings." 53 Kan. Law Rev. 195 (2004). Instead, Rule
10(a) of the Federal Rules of Civil Procedures requires that the title of the action in the
complaint include "the names of all the parties." "Only under unusual and unique
circumstances, have the courts recognized circumstances in which use of a fictitious name
for the plaintiff is appropriate." 53 Kan. Law Rev. 195 (2004). As cited in the Plaintiffs' own
brief, the U.S. Supreme Court in Nixon v. Warner Communications, Inc., 435 U.S. 589, 602;
98 S. Ct. 1306, 1314; 55 L. Ed. 2d 570 (1978) held that while it is within a court's
discretionary power to control and seal records and files in its possession, the interest of
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In addition to Rule 10 of the Federal Rules of Civil Procedure, Rule 17(a) provides
that "every action shall be prosecuted in the name of the real party in interest." The right to
Doe v. Bell Atlantic Business Systems, 162 F.R.D. 418, 420 (D. Mass. 1995) (quoting Doe
In Lindsey v. Dayton Hudson Corp., 592 F.2d 1118, 1125 (C.A. 10, 1979), cert.
denied 444 U.S. 856; 100 S. Ct. 116; 62 L. Ed. 2d 75 (1979), the Court held that the
decision whether to permit fictitious names is "subject to a discretion by the judge as to the
need for the cloak of anonymity." "Basic fairness requires that where a plaintiff makes such
accusations publicly, he should stand behind those accusations, and the defendants should
be able to defend themselves publicly." Doe v. Indiana Black Expo, Inc., 923 F. Supp. 137,
141 (S.D. Ind. 1996). To make the determination, the trial court must review the
openness in judicial proceedings." Doe v. Stegall, 653 F. 2d 180, 186 (C.A. 5, 1981), reh'g
In Stegall, supra, the Court noted the following factors to be considered in the
balancing process:
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Stegall, supra, at 185-186 (citing Southern Methodist Univ. Ass'n of Women Law Students
In Doe v. Shauker, 165 F.R.D. 359, 364 (So. Dist. N.Y. 1996), the court considered
the following factors: (1) whether the plaintiff is challenging governmental activity; (2)
whether the plaintiff would be required to disclose information of the utmost intimacy; (3)
whether the plaintiff would be compelled to admit his or her intention to engage in illegal
conduct, thereby risking criminal prosecution; (4) whether the plaintiff would risk suffering
injury if identified; and (5) whether the party defending against a suit brought under a
pseudonym would be prejudiced. The interests of a child has also been found by the
The above factors were cited and considered by the Honorable John Corbett O'Mara
of the U.S. Court for the Eastern District of Michigan in a written opinion in the case of Doe
v. Wolowitz, No. 01-73907; 2002 U.S. Dist. LEXIS 10431 (May 28, 2002) (Exhibit 3). After
analyzing many of the above cases, Judge O'Mara reiterated the holding in Doe v. Bell
(Emphasis added).
Judge O'Mara also pointed out the distinction of allowing a pseudonym in a case
challenging a statute or practice (i.e. school prayer, regulation of abortion or birth control),
reputation. Where, as here, the claims involve a "personal challenge" against the individual
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concluded:
This will be a case involving direct and personal attacks upon the reputation
and integrity of the defendant in which personal credibility will play a large
role in the issues in the case. The court finds that plaintiff does not have a
substantial privacy right which outweighs the "customary and constitutionally
embedded presumption of openness in judicial proceedings." This case is
simply not exceptional in any way.
Wolowitz, supra, at 2.
their claims "in the name of the real party in interest." Fed. R. Civ. P. 17(a). While the age
of the plaintiff is certainly a factor, the case law does not support use of a pseudonym or
fictitious name based solely upon age. Rather, as alleged herein by Plaintiffs, the
balancing test is premised upon a substantial privacy right of the Plaintiffs being
judicial proceedings. Doe v Bell Atlantic, supra, at 420. As a result, the focus must be on
the privacy of the instant Plaintiffs or as stated in Plaintiffs' motion and this Court's ex parte
order, the "good cause" for sealing the identities of the minor Plaintiffs.
disclosure of the facts in the case, and that same would cause "embarrassment,
mortification, and humiliation," Plaintiffs' through their counsel have intentionally and
repeatedly publicized the filing of the complaint and the nature of the allegations contained
therein. The grandstanding engaged in by Mr. Seikaly subsequent to the filing of the
complaint but prior to actually serving the complaint on any of the Defendants, was clearly
designed to manipulate the news media and disclose only limited facts regarding his
allegations, while at the same time hiding behind an ex parte protective order. Plaintiffs'
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counsel's brief history in this case and past history in other related cases, establishes a
pattern of unfairly using the supposed "privacy rights" of his minor Plaintiffs as a sword to
manipulate and influence public opinion and ultimately affect the potential jury pool. If
consistent with past practices, it is fully expected that Plaintiffs' counsel will continue to
While it is certainly the case this Court has limited power to restrict either Plaintiffs or
Plaintiffs' counsel's First Amendment rights of freedom of speech, it is certainly within this
Court's discretion to question whether Plaintiffs' claim that "good cause exists" to seal
Plaintiffs' identities based upon a need for privacy. If the need for privacy is so great and is
press conference before even serving the Complaint on the Defendants? Plaintiffs'
counsel's behavior in the present case raises questions of credibility as to whether there is
In addition to it being within the Court's discretion to deny the use of pseudonyms, it
is also within the Court's discretion to fashion such relief in a manner which is fair to all
parties and not prejudicial to the Defendants, particularly individual Defendants whose
personal credibility, reputation, and integrity is being challenged (i.e., teachers Jacqueline
Rybinski and Christopher Thomson, principal Patricia Prill, and Superintendent Dr. James
Clor). Nothing prohibits the Court and the facts and law certainly support a finding that the
protective order be mutual and that the parties, their agents, attorneys, and witnesses be
1
The Court should also note that each of the minor Plaintiffs were previously named in
public documents in the criminal prosecution of Defendant Roderick Reese. Macomb
Circuit Court case People v. Roderick Reese, Case No. 04-6318 P. The prior public
disclosure of the identities of the minor Plaintiffs diminishes if not eliminates the alleged
need for privacy in the case at bar.
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(videotapes), discovery answers, documents, and other materials exchanged in the course
of the litigation. Fairness and the preservation of an equal playing field dictates that if the
Plaintiffs seek the exceptional relief of proceeding under a fictitious name on the grounds of
In addition to all of the above, the protective order entered is unclear as to what
limitations are placed on the "parties, their agents, attorneys and all witnesses." To
adequately prepare and defend the matter, Defendants and their attorneys must have full
access to all documentation and testimony from potential witnesses regarding each of the
individual Plaintiffs. A very broad restriction on the disclosure of names as contained in the
protective order would certainly limit Defendants and Defendants' counsel's ability to
information. Particularly given the number of Plaintiffs (now eleven), the protective order
creates significant difficulty in the defense of this matter. Based upon the protective order
being overbroad and unclear in its expected interpretation, the Defendants seek to have it
IV. CONCLUSION
The use of a pseudonym is contrary to the public's interest and openness and is an
exceptional relief granted by the Court. It is within the Court's discretion to balance the
proceedings. The Plaintiffs' claims of privacy are contradicted by the Plaintiffs' and their
counsel's disclosure to and manipulation of the news media. It is within this Court's
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discretion to grant or deny anonymity based upon compliance with certain conditions.
Within that discretion is the Court's power to mutually restrict public disclosure. In addition
to avoiding the prejudicial affect of one-sided public disclosures, fairness dictates that both
parties be either restricted or allowed to defend their reputation and integrity against a
public assault.
As set forth herein, Defendants request this Court's protective order be set aside
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CERTIFICATE OF SERVICE
KATHIE A. LANE, being first duly sworn, deposes and says that on the 26th day of
May, 2006, I electronically filed the foregoing paper with the Clerk of the Court using the
ECF system which will send notification of such filing to the following: William R. Seikaly,
Esq. and Kenneth H. Karam, Esq. Under the penalty of perjury, I declare the
aforementioned is true to the best of my knowledge, information, and belief.
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Defendants.
INDEX OF EXHIBITS
Exhibit Description
1 Video portions of news broadcasts, compact disc hard copy provided to court
3 Unpublished Opinion
Jane Doe v. Wolowitz, No. 01-73907; 2002 U.S. Dist. LEXIS 10431
(decided May 28, 2002)
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