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IN THE UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

A.J. DOE, by her Next Friend MOTHER A.J. DOE;


A.A. DOE, by her Next Friend MOTHER A.A. DOE;
H.E. DOE, by her Next Friend MOTHER H.E. DOE;
K.L. DOE, by her Next Friend MOTHER K.L. DOE;
L.C. DOE, by her Next Friend MOTHER L.C. DOE;
L.N. DOE, by her Next Friend MOTHER L.N. DOE;
M.E. DOE, by her Next Friend MOTHER M.E. DOE;
O.B. DOE, by her Next Friend MOTHER O.B. DOE;
P.E. DOE, by her Next Friend MOTHER P.E. DOE;
R.A. DOE, by her Next Friend MOTHER R.A. DOE;
and T.J. DOE, by her Next Friend MOTHER T.J. DOE,

Plaintiffs, Case No.: 2:06 cv-11336


Hon. Bernard A. Friedman
v. Mag. R. Steven Whelan

WARREN CONSOLIDATED SCHOOLS, a


Michigan municipal corporation; DR. JAMES CLOR;
RODERICK REESE; PATRICIA; PRILL;
JACQUELINE RYBINSKI; and CHRISTOPHER
THOMSON, individuals, jointly and severally,

Defendants.

WILLIAM R. SEIKALY (P33165) DANIEL J. KELLY (P41315)


Attorney for Plaitniffs STEPHEN J. HITCHCOCK (P15005)
SEIKALY & STEWART, P.C. Attorneys for Defendants Warren
38505 Woodward, Suite 2300 Consolidated Schools, Clor, Prill,
Bloomfield Hills, MI 48304 Rybinski, and Thomson
(248) 723-5120 COX, HODGMAN & GIARMARCO, P.C.
Tenth Floor Columbia Center
KENNETH H. KARAM (P33245) 101 West Big Beaver Road
Attorney for Defendant REESE Troy, MI 48084-5280
PERALTA, JOHNSON & KARAM (248) 457-7000
31760 Harper Avenue
St. Clair Shores, MI 48082
(586) 294-8800
2:06-cv-11336-MOB-RSW Doc # 18 Filed 05/26/06 Pg 2 of 18 Pg ID 128

DEFENDANTS WARREN CONSOLIDATED SCHOOLS,


DR. JAMES CLOR, PATRICIA PRILL, JACQUELINE
RYBINSKI, AND CHRISTOPHER THOMSON'S
MOTION TO SET ASIDE PROTECTIVE ORDER
CONCERNING PLAINTIFFS' IDENTITIES AND/OR
ENTRY OF PROTECTIVE ORDER

NOW COME the Defendants, WARREN CONSOLIDATED SCHOOLS, a Michigan

municipal corporation, DR. JAMES CLOR, PATRICIA PRILL, JACQUELINE RYBINSKI,

and CHRISTOPHER THOMSON (hereinafter collectively "Defendants"), by and through

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

Protective Order state as follows:

1. On March 30, 2006, this Honorable Court granted Plaintiffs' ex parte motion

for protective order and to seal affidavit concerning Plaintiffs' identities.

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

object to Plaintiffs' use of pseudonyms in light of Plaintiffs' counsel's blatant attempts to

publicize and improperly influence the litigation process by use of one-sided disclosures to

the news media.

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

actions of the attorneys and witnesses herein.

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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

tapes), and other materials exchanged in discovery.

WHEREFORE, Defendants respectfully request that this Honorable Court's

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.

COX, HODGMAN & GIARMARCO, P.C.

/s/ Daniel J. Kelly


Attorneys for Defendants Warren
Consolidated Schools, Clor, Prill,
Rybinski, and Thomson
Tenth Floor Columbia Center
101 West Big Beaver Road
Troy, MI 48084-5280
dkelly@chglaw.com
(248) 457-7025
P41315
Dated: May 26, 2006

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IN THE UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

A.J. DOE, by her Next Friend MOTHER A.J. DOE;


A.A. DOE, by her Next Friend MOTHER A.A. DOE;
H.E. DOE, by her Next Friend MOTHER H.E. DOE;
K.L. DOE, by her Next Friend MOTHER K.L. DOE;
L.C. DOE, by her Next Friend MOTHER L.C. DOE;
L.N. DOE, by her Next Friend MOTHER L.N. DOE;
M.E. DOE, by her Next Friend MOTHER M.E. DOE;
O.B. DOE, by her Next Friend MOTHER O.B. DOE;
P.E. DOE, by her Next Friend MOTHER P.E. DOE;
R.A. DOE, by her Next Friend MOTHER R.A. DOE;
and T.J. DOE, by her Next Friend MOTHER T.J. DOE,

Plaintiffs, Case No.: 2:06 cv-11336


Hon. Bernard A. Friedman
v. Mag. R. Steven Whelan

WARREN CONSOLIDATED SCHOOLS, a


Michigan municipal corporation; DR. JAMES CLOR;
RODERICK REESE; PATRICIA; PRILL;
JACQUELINE RYBINSKI; and CHRISTOPHER
THOMSON, individuals, jointly and severally,

Defendants.

DEFENDANTS WARREN CONSOLIDATED SCHOOLS,


DR. JAMES CLOR, PATRICIA PRILL, JACQUELINE
RYBINSKI, AND CHRISTOPHER THOMSON'S
MOTION TO SET ASIDE PROTECTIVE ORDER
CONCERNING PLAINTIFFS' IDENTITIES AND/OR
ENTRY OF PROTECTIVE ORDER
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TABLE OF CONTENTS

I. INTRODUCTION ........................................................................................1

II. FACTS........................................................................................................1

III. ARGUMENT ...............................................................................................3

IV. CONCLUSION............................................................................................8

V. CERTIFICATE OF SERVICE ...................................................................10

VI. EXHIBIT LIST ...........................................................................................11

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INDEX OF AUTHORITIES

Cases Page

Doe v. Bell Atlantic Business Systems, Inc.,


162 F.R.D. 418 (D. Mass. 1995) ..........................................................................4, 5, 6

Doe v. Frank,
951 F. 2d 320 (11th Cir. 1992) ..............................................................................4

Doe v. Indiana Black Expo, Inc.,


923 F. Supp. 137 (S.D. Ind. 1996) .......................................................................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

Lindsey v. Dayton Hudson Corp.,


592 F. 2d 1118 (C.A. 10, 1979)............................................................................4

Nixon v. Warner Communications, Inc.,


435 U.S. 589; 98 S. Ct. 1306; 55 L. Ed.2d 570 (1978) .........................................3

People v. Roderick Reese,


Macomb Circuit Case No. 04-6318 P ...................................................................7

Sally Doe v Warren Consolidated Schools, et al.,


U.S. District Case No. 0072956 ...........................................................................2

Southern Methodist Univ. Ass'n of Women Law Students v. Wynne & Jaffe,
599 F. 2d 707 (C.A. 5, 1979)................................................................................5

Statutes and Court Rules

42 U.S.C. §1983......................................................................................................1

E.D. Mich. L.R. 5(a).................................................................................................1, 2

Fed. R. Civ. P. 10 ....................................................................................................4

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Statutes and Court Rules (con't)

Fed. R. Civ. P. 10(a)................................................................................................3

Fed. R. Civ. P. 17(a)................................................................................................4, 6

Treatises and Other Publications

53 Kan. Law Rev. 195 (2004)..................................................................................3

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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

other public disclosures to affect the course of this litigation.

II. FACTS

The Plaintiffs' ex parte motion and the Court's protective order both set forth the

"good cause" basis as follows:

… to protect the privacy of minor plaintiffs doe and to protect them from
further embarrassment, mortification, and humiliation …

(Protective Order, Mar. 30, 2006, p. 2, para. 2).

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

Support of Ex Parte Motion, pp. 2-3).

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

who are neither administrators nor supervisors.

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,

choreographed slices of Superintendent James Clor's video deposition, was broadcast

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 did not appear on the camera.

THE COURT: Your voice did.

MR. SEIKALY: Not by my recording that anybody made by my


permission.

THE COURT: It was the deposition.

MR. SEIKALY: Your Honor, I have informed Court that I did not release
that.

THE COURT: I have never heard of a court reporter that gives


information when parties hire them for a particular case, to give out stuff to
people that call and say, I would like a copy of a deposition that you did in a
private case between two parties, and give them a copy of a deposition in a
case.

(Trial Trans., Nov. 23, 2004, pp. 9-10, Exhibit 2).

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

the public is "presumptively paramount" as against the interests advanced by a party.

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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

proceed anonymously is premised upon:

Whether the plaintiff has a substantial privacy right which


outweighs the "customary and constitutionally embedded
presumption of openness in judicial proceedings." It is the
exceptional case in which the plaintiff may proceed under a
fictitious name.

Doe v. Bell Atlantic Business Systems, 162 F.R.D. 418, 420 (D. Mass. 1995) (quoting Doe

v. Frank, 951 F.2d 320 (11th Cir. 1992)).

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

appropriate factors which "requires a balancing of considerations calling for maintenance of

a party's privacy against the customary and constitutionally embedded presumption of

openness in judicial proceedings." Doe v. Stegall, 653 F. 2d 180, 186 (C.A. 5, 1981), reh'g

denied 659 F. 2d 1075 (1981).

In Stegall, supra, the Court noted the following factors to be considered in the

balancing process:

1. Prosecution of the suit compels the plaintiff to disclose information of a


private nature;

2. The plaintiff seeks to challenge governmental activity; and

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3. The plaintiff is compelled to admit an intention to engage in illegal


conduct.

Stegall, supra, at 185-186 (citing Southern Methodist Univ. Ass'n of Women Law Students

v. Wynne & Jaffe, 599 F. 2d 707, 712-713 (C.A. 5, 1979)).

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

courts to be an appropriate factor. Stegall, supra, at 186.

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

Atlantic Business Systems, supra, at 420:

It is the exceptional case in which a plaintiff may proceed under a


fictitious name.

(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),

in cases which raise a personal challenge to an individual defendant's integrity or

reputation. Where, as here, the claims involve a "personal challenge" against the individual

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Defendants' integrity or reputation, the standard should be heightened. Judge O'Mara

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.

As the above indicates, there is a public interest in requiring parties to prosecute

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

outweighed by the customary and constitutionally embedded presumption of openness in

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.

Contrary to Plaintiffs' argument that their privacy would be interrupted by public

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

manipulate public opinion right up until the eve of trial.

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

necessary to avoid further embarrassment, humiliation, and mortification, why stage a

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

a true desire to prosecute this matter in a confidential and private manner.1

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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prohibited from public disclosures, including the release of deposition transcripts

(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

privacy, he or she should equally be restricted in publicly disclosing disparaging allegations

or releasing information, documents or transcripts (videotapes) out of context.

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

conduct thorough discovery, complete depositions or otherwise obtain records and

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

set aside or modified.

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

privacy interest against the constitutionally embedded presumption of openness in judicial

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

and/or modified consistent with the above.

COX, HODGMAN & GIARMARCO, P.C.

/s/ Daniel J. Kelly


Attorneys for Defendants Warren
Consolidated Schools, Clor, Prill,
Rybinski, and Thomson
Tenth Floor Columbia Center
101 West Big Beaver Road
Troy, MI 48084-5280
dkelly@chglaw.com
(248) 457-7025
P41315
Dated: May 26, 2006

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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.

/s/ Kathie A. Lane


Tenth Floor Columbia Center
101 West Big Beaver Road
Troy, MI 48084-5280
klane@chglaw.com
(248) 457-7035

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IN THE UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

A.J. DOE, by her Next Friend MOTHER A.J. DOE;


A.A. DOE, by her Next Friend MOTHER A.A. DOE;
H.E. DOE, by her Next Friend MOTHER H.E. DOE;
K.L. DOE, by her Next Friend MOTHER K.L. DOE;
L.C. DOE, by her Next Friend MOTHER L.C. DOE;
L.N. DOE, by her Next Friend MOTHER L.N. DOE;
M.E. DOE, by her Next Friend MOTHER M.E. DOE;
O.B. DOE, by her Next Friend MOTHER O.B. DOE;
P.E. DOE, by her Next Friend MOTHER P.E. DOE;
R.A. DOE, by her Next Friend MOTHER R.A. DOE;
and T.J. DOE, by her Next Friend MOTHER T.J. DOE,

Plaintiffs, Case No.: 2:06 cv-11336


Hon. Bernard A. Friedman
v. Mag. R. Steven Whelan

WARREN CONSOLIDATED SCHOOLS, a


Michigan municipal corporation; DR. JAMES CLOR;
RODERICK REESE; PATRICIA; PRILL;
JACQUELINE RYBINSKI; and CHRISTOPHER
THOMSON, individuals, jointly and severally,

Defendants.

INDEX OF EXHIBITS

Exhibit Description

1 Video portions of news broadcasts, compact disc hard copy provided to court

2 Jury Trial Transcript, Nov. 23, 2004, pp. 9-10

3 Unpublished Opinion
Jane Doe v. Wolowitz, No. 01-73907; 2002 U.S. Dist. LEXIS 10431
(decided May 28, 2002)

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