Elswick Memorandum Opinion and Order

Case 3:21-cv-00468 Document 75 Filed 10/21/22 Page 1 of 4 PageID #: 393
IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
DUSTIN ELSWICK,
Plaintiff,
v. Civil Action No. 3:21-cv-00468
BRIAN D. HALL, individually,

XERXES RAHMATI, individually,
SCOTT A. LOWTHER, individually,
RYAN LOCKHART, individually,
PUTNAM COUNTY COMMISSION,
a political subdivision of the State of West
Virginia, JOHN DOE, an individual,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Officers’ Motion for Protective Order, (ECF
No. 66), under Federal Rule of Civil Procedure 26(c). Defendants seek to prevent
Plaintiff’s counsel from publishing the videotaped depositions of Defendants Hall,
Rahmati, Lowther, and of a witness, Kenny Davis, on counsel’s YouTube channel.
Defendants contend that publication of the depositions will lead to embarrassment and
annoyance and will expose the defendants and the witness, who are police officers, to
unnecessary risk. Defendants also seek attorneys’ fees and expenses incurred in moving
for the protective order.
Plaintiff has filed a response to the Motion, indicating that he will agree not publish
or disseminate the videotaped depositions until after conclusion of the jury trial or other
adjudication of the case, but he objects to a protective order that grants “broad post-trial
1
restraint.” (ECF No. 68 at 14). Plaintiff asserts that he has a First Amendment right to use
the depositions and that right should not be unnecessarily restricted. Defendants have
submitted a reply memorandum in which they argue that they are not asking the Court to
limit Plaintiff’s right to use the information in the depositions. They simply do not want
the videotapes themselves to be published. They reiterate concerns for their safety and
argue that a protective order is necessary to ensure that approval is obtained from the
Court before the depositions are published to the general public. Defendants point out
that the depositions were taken for discovery purposes and may never become a part of
the public record. For the reasons that follow, this Court GRANTS Defendants’ motion
for a protective order and DENIES Defendants’ request for attorneys’ fees.
A. Protective Order
A court may issue a protective order controlling the publication of discovery
materials pursuant to Rule 26(c) if the moving party demonstrates good cause. Plaintiff’s
counsel has agreed not to publish or disseminate the videotaped depositions while the
case is pending. (ECF Nos. 66-1 at 2, 68 at 13). Given the safety concerns expressed by the
defendants, and because the publication of these depositions may taint the jury pool in
case of a jury trial, especially seeing as Plaintiff’s counsel’s YouTube channel has viewers
in West Virginia and Putnam County, (ECF Nos. 66 at 7, 68 at 14–15), Defendants have
demonstrated good cause for issuing the protective order. See Valerie v. Mich. Dept. of
Corr., No. 2:07-cv-5, 2008 WL 4377715, at *2 (W.D. Mich., Sept. 23, 2008) (denying
motion to dissolve a protective order prohibiting dissemination of videotape to media,
recognizing substantial risk of tainting the jury pool); Bell v. Bd. of Educ. of Cty. of
Fayette, 225 F.R.D. 186, 191 (S.D.W. Va. 2004) (noting a concern for tainting the jury
pool in granting motion for a protective order to seal depositions).
2
However, the Court currently is not in a position to determine whether the
protective order should terminate upon adjudication of the case, as that determination
depends upon factors not yet known. The issue may become moot, as it is possible that
the parties will agree not to publish the videotaped depositions as part of a compromise
and settlement. The depositions may also become part of the public record, creating a
presumption of public access which would significantly alter the Court’s analysis of the
protective order. See Seattle Times v. Rhinehart, 467 U.S. 20 (1984) (analyzing the First
Amendment implications of a protective order barring dissemination of discovery
materials not part of the public record). Thus, the Court will not place an expiration date
on the protective order. Since both parties agree that the videotaped depositions will not
be published during the litigation, it is simplest for the order to remain in place
indefinitely. Once the case is tried, settled, or otherwise dismissed, Plaintiff can move to
vacate the protective order, and the matter can be reconsidered at that time.
Contrary to Plaintiff’s assertions, (ECF No. 68 at 13), this protective order is not an
unconstitutional prior restraint on speech. Id. at 33 (“[A]n order prohibiting
dissemination of discovered information before trial is not the kind of classic prior
restraint that requires exacting First Amendment scrutiny.”). Though Plaintiff cites
Seattle Times for the proposition that these kinds of protective orders require First
Amendment analysis, (ECF No. 68 at 13), the Supreme Court’s opinion in Seattle Times
stresses that courts must have discretion in fashioning protective orders to prevent abuse
of the discovery process, which may uncover information only tangentially related to the
pending case. Seattle Times, 467 U.S. at 36. The Supreme Court explicitly stated that a
protective order supported by good cause and limited to pretrial civil discovery, without
restricting dissemination of information found in other sources, does not offend the First
3
Amendment. Id. at 37. The protective order issued here complies with that description in
Seattle Times and is therefore constitutional.
B. Request for Attorneys’ Fees
Federal Rule of Civil Procedure 37 governs the award of attorneys’ fees and
expenses for protective orders. Rule 37 provides that the court must require the party
whose conduct necessitated the motion to pay the movant’s reasonable expenses,
including attorneys’ fees, unless the movant filed the motion before making a good faith
effort to obtain the disclosure without court action; the opposing party’s action was
substantially justified; or other circumstances make an award of expenses unjust. Fed. R.
Civ. P. 37(a)(5)(A). Here, Plaintiff’s counsel’s actions were substantially justified. Prior to
this Order, Plaintiff’s counsel had a good faith argument that he could publish the
depositions on his YouTube channel at the conclusion of the case, and that a protective
order was not necessary. Accordingly, an award of attorneys’ fees and expenses is
inappropriate.
The Court hereby GRANTS Defendants’ motion for protective order and
DENIES Defendants’ request for expenses and attorneys’ fees.
The Clerk is directed to provide a copy of this Order to counsel of record and any
unrepresented parties.
ENTERED: October 21, 2022

Elswick Memorandum Opinion and Order

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Case 3:21-cv-00468 Document 75 Filed 10/21/22 Page 1 of 4 PageID #: 393

IN THE UNITED STATES DISTRICT COURT

v. Civil Action No. 3:21-cv-00468

BRIAN D. HALL, individually,

MEMORANDUM OPINION AND ORDER

Plaintiff’s counsel from publishing the videotaped depositions of Defendants Hall,

Rahmati, Lowther, and of a witness, Kenny Davis, on counsel’s YouTube channel.

for the protective order.

A court may issue a protective order controlling the publication of discovery

motion to dissolve a protective order prohibiting dissemination of videotape to media,

pool in granting motion for a protective order to seal depositions).

However, the Court currently is not in a position to determine whether the

Amendment implications of a protective order barring dissemination of discovery

unconstitutional prior restraint on speech. Id. at 33 (“[A]n order prohibiting

Seattle Times and is therefore constitutional.

B. Request for Attorneys’ Fees

substantially justified; or other circumstances make an award of expenses unjust. Fed. R.

DENIES Defendants’ request for expenses and attorneys’ fees.

ENTERED: October 21, 2022

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