225 F. Supp. 3d 1254
N.D. Okla.2016Background
- Plaintiff sued the University of Tulsa (TU) alleging Title IX and state-law claims after an alleged sexual assault by a TU student; TU obtained summary judgment and the case is on appeal.
- The parties and the Tulsa County District Attorney’s Office entered two nearly identical protective orders restricting use and public disclosure of produced discovery and requiring sealed filing procedures for designated "Confidential Information."
- A Tulsa online news outlet published an article containing materials and descriptions that TU says originated from discovery covered by the Protective Orders or sealed court filings.
- Plaintiff’s counsel Spencer Bryan stipulated he provided materials to the journalist and defended his actions as a reasonable interpretation of the Protective Orders.
- The Court held a sealed evidentiary hearing, found Bryan (not Plaintiff or co-counsel Clune) disclosed multiple sealed/protected items without court permission, and concluded many disclosures violated specific Protective Order provisions.
- The Court found civil contempt by clear and convincing evidence and ordered Bryan to pay TU’s attorneys’ fees and costs incurred in prosecuting the contempt motion; TU was directed to file a fee motion within two weeks.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether documents produced in discovery but not marked confidential may be used outside the litigation | Bryan argued ¶1(e) was intended narrowly (to prevent sham litigation) and did not bar use of discovery once contents are public | TU argued ¶1(e) and ¶3 prohibit use of any produced materials outside the litigation absent court permission | Court: ¶1(e) bars use of any produced discovery for non‑litigation purposes until court permits; Bryan violated ¶1(e) when he disclosed such materials |
| Whether court-sealed filings may be disclosed without court permission | Bryan argued that sealing by the court does not convert non-confidential material into confidential material and thus did not require permission | TU argued that once a document is sealed in the court record, disclosure by parties requires court permission under ¶2(f) | Court: Sealed status controls; disclosure of documents filed under seal without court permission violates ¶2(f) |
| Scope of "Confidential Information" and whether partially designated documents may be partially disclosed | Bryan argued that a document stamped confidential is only protected to the extent it contains information meeting the Protective Orders’ definition | TU argued that labeled pages/records must be treated as Confidential unless court permits disclosure | Court: A page or document label notifies others of presence of confidential material; only the defined confidential information is strictly protected under ¶3, but disclosure decisions must respect sealed status and the labels; Bryan’s reading of ¶3 was a reasonable good‑faith interpretation but did not excuse violations of other provisions |
| Whether contempt sanctions were appropriate and their scope | Bryan argued his interpretation was reasonable and good faith, so contempt and sanctions are unwarranted | TU sought civil contempt and broad sanctions (including preclusion of public comment and other penalties) | Court: Bryan’s interpretation was unreasonable in part and he acted without seeking court guidance; civil contempt established and compensatory sanctions (attorney fees and costs for the contempt motion) awarded to TU; more severe sanctions denied |
Key Cases Cited
- S.E.C. v. Merrill Scott & Assocs., Ltd., 600 F.3d 1262 (10th Cir. 2010) (protective-order interpretation starts with plain language)
- O’Connor v. Midwest Pipe Fabrications, Inc., 972 F.2d 1204 (10th Cir. 1992) (standards and discretion for civil contempt remedies)
- Reno Air Racing Ass’n, Inc. v. McCord, 452 F.3d 1126 (9th Cir. 2006) (contempt may be found absent willfulness; reasonable good‑faith interpretation may avoid contempt)
- Kaufman v. Am. Family Mut. Ins. Co., 601 F.3d 1088 (10th Cir. 2010) (attorney fees can be awarded as part of compensatory contempt sanctions)
- Grove Fresh Distributors, Inc. v. John Labatt Ltd., 888 F. Supp. 1427 (N.D. Ill. 1995) (attorney’s unilateral disclosure of protected materials without seeking court clarification supports contempt/sanctions)