Nelson v. Green et al, No. 3:2006cv00070 - Document 161 (W.D. Va. 2013)
Court Description: MEMORANDUM OPINION, ORDER regarding Order on Motion to Seal Document 3 , Sealed Document-Exhibits to Defendants Reply Brief 160 , Pretrial Order 24 , Brief / Memorandum in Support 158 Reply Brief in Support of Motion to Dismiss filed by John Freeman, Lori Green, Kathy Ralston, Cindy Casey, MOTION to Proceed Under Pseudonyms and MOTION to Seal 2 filed by John T. Nelson, MOTION to Dismiss 144 filed by John Freeman, Lori Green, Kathy Ralston, Cindy Casey Setting forth that Document 160 shall remain Sealed, Clarifying order 3 of March 28, 2007 governing the use of pseudonyms, and amending and replacing 24 pretrial order of May 23, 2007 with the pretrial order attached hereto at Exhibit Two.. Signed by Judge Norman K. Moon on 10/31/13. (hnw)
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA CHARLOTTESVILLE DIVISION JOHN T. NELSON, Plaintiff, CASE NO. 3:06-cv-00070 v. LORI GREEN, ET AL., MEMORANDUM OPINION AND ORDER Defendants. I. INTRODUCTION This matter is before the Court on documents filed on October 28, 2013 under seal ( Defendants Exhibits or Exhibits ) (docket no. 160) as exhibits to Defendants Lori Green, Cindy Casey, Kathy Ralston, and John Freeman s Reply Brief ( hereinafter Defendants ) (docket no. 158) to Defendants Motion to Dismiss Plaintiff s Complaint (docket no. 144). This Court issued an order (docket no. 3) on March 28, 2007 granting Plaintiff s Motion to Proceed Under Pseudonyms (docket no. 2). Defendants rely on that order in filing their exhibits under seal. Since 2007, the United States District Court for the Western District of Virginia has promulgated new local rules that have changed case management and sealing procedures. Given those changes, legal development about the sealing of documents, and the particular personal identifiers included in Defendants sealed exhibits (docket no. 158), it appears necessary to address these sealed exhibits and procedures related to filing sealed documents. For the reasons that follow, Defendants Exhibits will remain sealed. However, the Clerk of the Court is ORDERED to return the sealed documents, in paper form, to Defendants counsel 1 at the conclusion of the case, rather than unsealing the Exhibits. See W.D. Va. Gen. R. 9 and its commentary. This Court s March 28, 2007 order granting Plaintiff s Motion to Proceed Under Pseudonyms remains in force, and the Clerk of the Court shall continue to file all pleadings and documents that reveal the identity of the child or parents in this case under seal. See Nelson v. Green, No. 3:06-cv-00070, 2007 WL 984127 (W.D. Va. Mar. 28, 2007). Finally, this Court hereby AMENDS its May 23, 2007 pretrial order (docket no. 24), replacing it with the one attached to this order as Exhibit Two. II. FILING DOCUMENTS UNDER SEAL Since 2007, multiple legal developments have affected sealing procedures in federal district courts. The United States District Court for the Western District of Virginia has also adopted Local Rules that address sealing procedures. See W.D. Va. Gen. R. 9. Upon review of relevant case law and this Court s March 28, 2007 order allowing Plaintiff to proceed under pseudonyms, neither this law nor the Local Rules change sealing procedures for documents revealing the identity of the child or parents in this case. See, e.g., Doe v. Pittsylvania Cnty., Va., 844 F. Supp. 2d 724 (W.D. Va. 2012) (applying the five-prong test from James v. Jacobson, 6 F.3d 233 (4th Cir. 1993), on a motion for leave to proceed under pseudonyms); James v. Jacobson, 6 F.3d 233 (4th Cir. 1993); W.D. Va. Gen. R. 9. Therefore, this Court s March 28, 2007 order continues to require that documents revealing the child or parents identities be filed under seal, among other provisions. 1 The parties should note that any documents they seek to file under seal in this case that fall outside this Court s March 28, 2007 order must be filed in adherence with Local Rule 9. 1 For reference, I attach my March 28, 2007 order as Exhibit One. 2 III. DEFENDANTS EXHIBITS Defendants submitted Exhibits under seal on October 28, 2013 that list the names, social security numbers, and detailed personal descriptions of the parents involved in this case, as well as either former or current addresses for the parents and child at issue. Counsel alone bears responsibility for redacting personal identifiers from pleadings as required by the federal rules of civil procedure, see W.D. Va. Gen. R. 8. But the Court will act here to ensure the Clerk of the Court will not inadvertently release this information at the close of this case. Therefore, the Clerk is ordered to send these Exhibits back to Defendants counsel at the conclusion of this case, rather than simply unsealing them. IV. PRETRIAL ORDER This Court issued its pretrial order on May 23, 2007 (docket no. 24). Since then, case management procedures have changed in the Western District of Virginia, as have procedures related to filing sealed documents. Therefore, the pretrial order in this case is hereby replaced by a new pretrial order, attached here as Exhibit Two. V. CONCLUSION For the reasons stated above, Defendants Exhibits (docket no. 160) will remain sealed, but the Court ORDERS the Clerk of the Court to return the sealed documents, in paper form, to Defendants counsel at the conclusion of the case. The Court clarifies that its March 28, 2007 order governing the use of pseudonyms in this case remains in force. See Exhibit One. Finally, the May 23, 2007 pretrial order in this case (docket no. 24), is hereby AMENDED AND REPLACED with the one attached to this order as Exhibit Two. 3 The Clerk of the Court is hereby directed to send a certified copy of this Order to all counsel of record. 31st Entered this _____ day of October, 2013. 4 Exhibit One 5 Case 3:06-cv-00070-NKM-RSB Document 3 Filed 03/28/07 Page 1 of 4 Pageid#: 18 Case 3:06-cv-00070-NKM-RSB Document 3 Filed 03/28/07 Page 2 of 4 Pageid#: 19 Case 3:06-cv-00070-NKM-RSB Document 3 Filed 03/28/07 Page 3 of 4 Pageid#: 20 Case 3:06-cv-00070-NKM-RSB Document 3 Filed 03/28/07 Page 4 of 4 Pageid#: 21 Exhibit Two 6 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA CHARLOTTESVILLE DIVISION ) ) ) ) ) John T. Nelson v. Lori Green, et al. Civil Action No. 3:06-cv-70 PRETRIAL ORDER The court proposes the following as a pretrial order pursuant to Federal Rule of Civil Procedure 16(b). If no party requests changes within 10 days, it will constitute the scheduling order in this case. The court may amend the order on its own motion, or the parties may amend the order s disclosure and discovery provisions by submitting an agreed written plan that satisfies the requirements of Rule 26(f). Summary TRIAL DATE: Contact Heidi Wheeler, scheduling clerk, at (434) 296-9284, within 14 days of this order for the purpose of setting a trial date. PLACE: UNITED STATES DISTRICT COURT 255 West Main Street Charlottesville, VA 22902 FED.R.CIV.P.26(f) CONFERENCE: 14 days from this order INITIAL DISCLOSURES UNDER FED.R.CIV.P.26(a): 30 days from this order PLAINTIFF(S) INITIAL EXPERT DISCLOSURE: 75 days from this order DEFENDANT(S) INITIAL EXPERT DISCLOSURE: 90 days from this order DEADLINE TO COMPLETE DISCOVERY: 90 days before trial date DEADLINE TO FILE DISPOSITIVE MOTIONS: 75 days before trial date DEADLINE FOR HEARING DISPOSITIVE MOTIONS: 45 days before trial date Trial and Settlement 1. This case is set for a jury trial. 2. Proposed jury instructions and special interrogatories must be filed with the clerk of the court at least 7 days prior to trial, with copies provided to opposing counsel. 3. Motions in limine must be filed with the clerk of court at least 14 days prior to trial, with copies provided to opposing counsel. Opposition briefs to any motion in limine must be filed with the clerk of the court at least 7 days prior to trial. 4. If the case settles before trial and the court does not receive a proposed final order within 30 days after the court received oral or written notification of the settlement, the court will dismiss the case with prejudice. Motions 5. All dispositive motions must be filed no later than 75 days before trial and must be heard or submitted for decision no later than 45 days before trial. If the parties agree that a dispositive motion is appropriate for decision without oral argument they must file a stipulation no later than 45 days before trial stating that the motion is ripe for decision. 6. A supporting brief must accompany all pretrial motions, unless the motion contains the legal argument necessary to support it or is certified to be unopposed. If a motion that is not unopposed has been filed before this order without legal argument to support it, the movant must file a supporting brief within 14 days of the date of this order or the motion will be dismissed. 7. If any motion, properly filed and briefed, is to be opposed, a brief in opposition must be filed within 14 days of the date of service of the movant's brief (or within 14 days of this order if a motion and supporting brief were served before this order). Except for good cause 2 shown, if a brief opposing a motion is not timely filed, the court will consider the motion to be unopposed. If a moving party desires to submit a reply brief, it must be filed within 7 days of the date of service of the brief opposing the motion. A surreply brief may not be filed without prior leave of the court. 8. Exclusive of any accompanying exhibits, a brief may not exceed 25 pages in length using standard margins, double-spaced lines, and a font no smaller than 12-point Times, unless the filing party first obtains leave of the court after showing good cause why a longer brief is necessary. 9. When a dispositive motion, together with its supporting brief and exhibits (or any other brief combined with exhibits), consists of 50 or more pages, the filing party must send a paper courtesy copy of the documents to the chambers of the presiding District Judge at 1101 Court Street, Room 390, Lynchburg, VA 24504. 10. No motion, brief, or exhibit may be filed under seal, except as allowed by the mandatory provisions of W.D. Va. Gen. R. 9. The requirements of Rule 9 may not be modified by a stipulated protective order or other agreement of the parties. See W.D. Va. Gen. R. 9(g). 11. If any party desires a hearing on any dispositive or nondispositive motion, then no later than 14 days after the filing of the last brief on the motion, that party must contact Heidi Wheeler, scheduling clerk, to set a hearing date. If no hearing on the motion is necessary, the moving party must file a notice that the motion is ripe for decision, no later than 14 days after the filing of the last brief on the motion. In any event, if within 45 days of the filing of any dispositive or nondispositive pretrial motion, no party has scheduled the motion for hearing or advised the court that the motion is ripe for decision, the court may deny the motion with or without prejudice. 3 12. Nondispositive motions, including motions for enlargement of time, whether or not opposed, may be acted upon at any time by the court, without awaiting a response, and any party adversely affected by such action may request reconsideration, vacation or modification. 13. All nondispositive pretrial motions and issues, including any requested changes in this order, are hereby referred to United States Magistrate Judge Robert S. Ballou pursuant to 28 U.S.C. § 636(b)(1)(A). Discovery 14. Unless the parties stipulate otherwise, within 14 days of the date of this Order, the parties must confer and develop a discovery plan as required by Rule 26(f). 15. Unless the parties stipulate otherwise, initial disclosures as required by Rule 26(a)(1) must be made within 30 days of the date of this Order. 16. All discovery must be completed at least 90 days prior to trial. This schedule requires that written discovery be served in sufficient time to allow the responding party time to respond before the cutoff date for discovery. 17. Except for disclosures under Rule 26(a)(3) of trial witnesses and exhibits, which the parties must file, the parties are not to file discovery and disclosure material unless and until actually used in the proceeding. Expert Witnesses 18. Expert witnesses who are retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony must prepare a written report that conforms to the requirements of Rule 26(a)(2)(B). Unless the parties otherwise agree or the court otherwise directs, the plaintiff must submit the written report of each expert not later than 75 days from the date of this order, and the defendant 4 must submit the written report of each expert no later than 90 days from the date of this order. Supplemental and additional reports may be thereafter submitted, if submitted "in sufficient time" that discovery, if desired, can be completed reasonably by the discovery cutoff date without undue duplication and expense. 19. With respect to expert witnesses who are not retained or specially employed to provide expert testimony or whose duties as an employee of the party do not regularly involve giving expert testimony, such as a treating physician or clinician, the plaintiff must disclose the identity of any such witness and provide a summary of all opinions the witness will render and the basis therefore not later than 75 days from the date of this order, and the defendant must disclose the identity of any such witness and provide a summary of all opinions the witness will render and the basis therefore not later than 90 days from the date of this order. Supplemental and additional disclosures may be thereafter submitted, if submitted "in sufficient time" that discovery, if desired, can be completed reasonably by the discovery cutoff date without undue duplication and expense. 20. Any motion to exclude the testimony of an expert based on the sufficiency or reliability of the expert s testimony must be filed no later than the deadline for filing motions for summary judgment. 21. The parties shall exchange lists of the witness they expect to call at trial no later than 21 days prior to trial. For each witness, the list shall include the witness's name and address and a summary of the witness's anticipated testimony. 5 Mediation 22. At the request of any party, the court will refer the case to the magistrate judge to conduct mediation. Joinder of Other Parties 23. The court shall consider motions to join other parties in accordance with Rules 19, 20, and 21 of the Federal Rules of Civil Procedure. Except for good cause shown, any such motion must be filed no later than 45 days from the date of this order. Amendment of Pleadings 24. The court shall consider a party's motion to amend pleadings in accordance with Rule 15 of the Federal Rules of Civil Procedure. Except for good cause shown, any such motion must be filed no later than 45 days from the date of this order. Integrated Pretrial Order 25. No later than 7 days before trial the parties shall jointly file a proposed pretrial order briefly summarizing the following: ¢ any contested issues of law that require a ruling before trial; ¢ the essential elements that a party must prove to establish any meritorious claims remaining for adjudication, and the damages or other relief sought; ¢ the essential elements that a party must prove to establish any meritorious defenses; ¢ the material facts and theories of liability or defense; ¢ the issues of fact contested by each party; ¢ any contested issues of law that do not require a ruling before trial; ¢ any stipulations; and 6 ¢ any special voir dire questions. For those items, if any, on which the parties are unable to agree, each party shall briefly summarize its position in a separately filed addendum to the joint proposed pretrial order. It is so ORDERED. ENTERED this 31st day of October, 2013. 7
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