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Garrett Et Al v. The Ohio State University Motion For Miscellaneous Relief
Garrett Et Al v. The Ohio State University Motion For Miscellaneous Relief
1. On July 26, 2019, Plaintiffs filed a Motion for Clarification (Dkt. 81) of the Court’s
May 24, 2019 Order permitting discovery (Dkt. 70) in which Plaintiffs requested
leave to take the depositions of Dr. Ted Grace, Dr. John Lombardo, Dr. Trent Sickles,
Dr. Forrest Smith, Dr. William Malarkey, and Dr. Roger Miller (“Non-Cooperative
Witnesses”) during the pendency of mediation. All are former employees of The
Ohio State University (“OSU”). As grounds, Plaintiffs explained: (i) testimony from
the Non-Cooperative Witnesses was material and necessary to the case; (ii) the Non-
Cooperative Witnesses, all former OSU employees, refused to give substantive
interviews to the Perkins Coie investigators; (iii) due to the age of the Non-
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Cooperative Witnesses, Plaintiffs were at risk of losing the ability to procure any
testimony from them for use at trial; and (iv) their testimony would assist all parties
in engaging in the mediation process.
2. On August 23, 2019, the Court granted Plaintiffs’ Motion for Clarification. (Dkt. 90)
and authorized Plaintiffs to take the depositions of the Non-Cooperative Witnesses.
The Court properly characterized these depositions as “limited discovery.” Id. at 2.
3. The Court did not designate any of the depositions confidential, nor did Defendants
request that any deposition be confidential. Id.
4. On October 9, 2019, Judge Barrett, in his role as mediator in this case, recommended
that the deposition transcripts for the Non-Cooperative Witnesses remain confidential
for the purposes of mediation.1 Judge Barrett did not make any recommendation
regarding the confidentiality of the transcripts in the context of litigation. As set forth
below, after this Court reinstated the litigation on April 17, 2020 (Dkt. 151), Judge
Barrett informed the parties in an April 29 teleconference that he is lifting his
confidentiality recommendation for purposes of mediation.
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Specifically, Judge Barrett advised that “the depositions will be sealed in their entirety and
marked ‘HIGHLY CONFIDENTIAL/ATTORNEY’S EYES ONLY’ (or other similar designation
that comports with any Stipulated Protective Order entered by Judge Watson) while mediation is in
process.”
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6. In each deposition, former OSU employees gave testimony relevant to the parties’
claims and potential defenses, including Dr. Strauss’ misconduct, OSU’s notice of the
sexual abuse at very high levels of the administration, OSU’s deliberate indifference
to Dr. Strauss’ sexual abuse for decades, and Defendant’s alleged statute of
limitations defense.
8. At present, the parties are only instructed to keep confidential any statement in the
transcripts that cites portions of the Perkins Coie Report designated “Attorneys’ Eyes
Only.” Only one of the Non-Cooperative Witnesses’ deposition transcripts contains
testimony referring to such protected statements, and Plaintiffs will not cite that
testimony. Plaintiffs do not intend to cite any non-public sections of the Perkins Coie
Report in their Amended Complaint, nor to name any sexual abuse survivor who has
not publicly named himself. Plaintiffs also do not intend to cite any portions of the
deposition that defense counsel or the witness’s counsel designated confidential
during the testimony.
9. The Court and the public should not be deprived of information relevant to the claims
and defenses in this case, nor should they be deprived of sworn testimony of key OSU
witnesses about this case. Further, at any stage of this case—a potential motion to
dismiss, a potential summary judgment motion, and at trial—Plaintiffs expect to use
the Non-Cooperative Witnesses’ testimony.
10. OSU and its counsel have announced their intention to “commit[] to transparency” in
these proceedings. Def.’s Motion for Order at 9 (Dkt. 70). The deposition testimony
of these witnesses would further public transparency regarding OSU’s role in
facilitating Dr. Strauss’s abuse, a goal OSU has previously professed to share.
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11. It is Defendant’s burden to show good cause why any of the Non-Cooperative
Witnesses’ deposition testimony should be confidential. Fed. R. Civ. P. 26(c)(1); see
also Oxymed, Inc. v. Lincare, Inc., No. 1:17-cv-349, 2018 WL 1322236, at *3 (S.D.
Ohio Mar. 13, 2018) (party seeking protection bears the burden to establish that the
contested material should be protected under Fed. R. Civ. P. 26); Kondash v. Kia
Motors Am., Inc., No. 1:15-cv-506, 2018 WL 770418, at *2 (S.D. Ohio Feb. 7, 2018),
aff'd, 767 F. App’x 635 (6th Cir. 2019) (“[T]he proponent of closure bears
the burden of showing that disclosure will work a clearly defined and serious
injury.”). OSU will not be able to meet this burden, as the public has a right to know
of the role a public institution played in facilitating serial sexual abuse by one of its
employees.
12. Defendant cannot make such a showing. There is no good reason why sworn
testimony from former employees of a public university about key issues in this case
should be kept from the Court, or be kept secret from the public.
13. On an April 29, 2020 telephone conference, Judge Barrett advised the parties that the
Non-Cooperative Witnesses’ deposition transcripts do not need to be confidential
pursuant to any mediation privilege. However, Judge Barrett advised the parties to
consult the Court before filing any public document citing the transcripts. Plaintiffs
also offered OSU the opportunity to inform us whether they believed any particular
portion of a deposition should be confidential. OSU declined to do so.
15. Plaintiffs have conferred with Defendant. Notwithstanding its alleged commitment to
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transparency, Defendant does not agree with this motion. Defendant has not provided
a basis for its position other than a belief that Judge Barrett’s October 9, 2019
confidentiality recommendation governs the use of the transcripts in litigation,
notwithstanding Judge Barrett’s statements to the contrary during the April 29, 2020
teleconference.
/s/
SCOTT E. SMITH (0003749)
Phil Judy
Scott Elliot Smith, LPA
5003 Horizons Drive, Suite 101
Columbus, Ohio 43220
Phone: 614.846.1700
Fax: 614.486.4987
E-mail: [email protected]
E-mail: [email protected]
/s/
Ilann M. Maazel*
Debra L. Greenberger*
Marissa R. Benavides*
EMERY CELLI BRINCKERHOFF
& ABADY LLP
600 Fifth Ave, 10th Floor
New York, NY 10075
Phone: 212-763-5000
Fax: 212-763-5001
E-mail: [email protected]
E-mail: [email protected]
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/s/
Adele P. Kimmel*
Alexandra Brodsky*
PUBLIC JUSTICE, P.C.
1620 L Street, NW, Suite 630
Washington, DC 20036
Phone: (202) 797-8600
Fax: (202) 232-7203
E-mail: [email protected]
/s/
Simina Vourlis
(Trial Attorney) #0046689
The Law Office of Simina Vourlis
856 Pullman Way
Columbus, OH 43212
(614) 487-5900
(614) 487-5901 fax
[email protected]
/s/
Rex A. Sharp
Ryan C. Hudson
Larkin Walsh
Sarah T. Bradshaw
SHARP LAW, LLP.
5301 W. 75th Street
Prairie Village, KS 66208
(913) 901-0505
(913) 901-0419 fax
[email protected]
[email protected]
[email protected]
[email protected]
Robert Allard
CORSIGLIA, MCMAHON AND ALLARD, LLP
96 North Third Street, Suite 620
San Jose, CA 95112
(408) 289-1417
(408) 289-8127 fax
[email protected]
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Stephen Estey
ESTEY & BOMBERGER LLP
2869 India Street
San Diego, CA 92103
619-295-0035
619-295-0172 fax
[email protected]
Joseph Sauder
SAUDER SCHELKOPF LLC
555 Lancaster Avenue
Berwyn, PA 19312
(610) 200-0580
(610) 421-1326
[email protected]
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CERTIFICATE OF SERVICE
A copy of this document was served by the Court’s ECF System on all counsel of record