B.L., Plaintiff, v. LOUISVILLE METRO POLICE DEPARTMENT, et al., Defendants. CIVIL ACTION NO. 3:18-CV-151-RGJ-CHL United States District Court, W.D. Kentucky Signed October 21, 2020 Counsel Lindsay A. Cordes, Louis Carl Schneider, Tad Thomas, Thomas Law Offices, PLLC, Louisville, KY, for Plaintiff. Adam E. Fuller, Carol S. Petitt, Vaughn Petitt Legal Group, PLLC, Pewee Valley, KY, for Defendant Bradley Schuhmann. Jace S. Martin, James P. Dilbeck, Jr., Dilbeck & Myers, PLLC, Louisville, KY, for Defendants Matthew Gelhausen, Casey Scott. Kayla M. Campbell, Kent Wicker, William H. Brammell, Jr., Dressman Benzinger LaVelle PSC, Louisville, KY, for Defendant Kenneth Betts. Bradley Robert Palmer, Edward L. Lasley, Kenneth A. Bohnert, Conliffe, Sandmann & Sullivan, Louisville, KY, for Defendant Brandon Wood. Kelly M. Rowan, Lee E. Sitlinger, Sitlinger & Theiler, Louisville, KY, for Defendant Curtis Flaherty. Darryl William Durham, James M. Gary, Weber & Rose, PSC, Louisville, KY, for Defendant Julie Schmidt. Annale Renneker Taylor, Peter Frank Ervin, Jefferson County Attorney, Louisville, KY, for Defendant Louisville Metro Police Department. Caroline C. Phelps, J. Brittany C. Carlson, Marc S. Murphy, Neil E. Barton, Robert M. Connolly, Stites & Harbison, PLLC, Louisville, KY, for Defendants Lincoln Heritage Council, Inc. Boy Scouts of America, Learning for Life, Inc., Learning for Life Lincoln Chapter, Inc. J. Brittany C. Carlson, Marc S. Murphy, Neil E. Barton, Robert M. Connolly, Stites & Harbison, PLLC, Louisville, KY, for Defendant The Boy Scouts of America. Jeffrey K. Phillips, Steptoe & Johnson PLLC, Lexington, KY, Patricia C. Le Meur, William B. Orberson, Jr., Phillips, Parker, Orberson & Arnett, PLC, Peter Frank Ervin, Jefferson County Attorney, Louisville, KY, for Defendant City of Louisville, Jefferson County / Louisville Consolidated Government. Joseph C. Klausing, O'Bryan, Brown & Toner, PLLC, Louisville, KY, for Defendant Paul Brandon Paris. Lindsay, Colin H., United States Magistrate Judge ORDER *1 Before the Court is the Motion for Protective Order filed by Defendant Louisville/Jefferson County Metro Government (“Louisville Metro”). (DN 511.) No party filed a response, and the Parties indicated during a prior status conference that there was no objection to the motion. (DN 527, at PageID # 10,720.) Therefore, this matter is ripe for review. Louisville Metro represented in its motion that in the course of collecting and reviewing documents responsive to written discovery requests, its counsel came into possession of photographs and a video depicting sexually explicit images (“Sensitive Material”). (DN 511-1, at PageID # 10,565.) Louisville Metro did not know the names or ages of the individuals depicted but, given the subject of this litigation, acknowledged that the Sensitive Material might depict minors. (Id.) Louisville Metro conceded that the Sensitive Material is responsive to Plaintiffs' discovery requests and is required to be produced. (Id.) Because of its concern that producing these materials could run afoul of state or federal laws prohibiting the distribution of sexual images involving minors, Louisville Metro moved the Court for a Protective Order controlling discovery of the Sensitive Material only. (Id.) Specifically, Louisville Metro sought a Protective Order ruling that: (1) Louisville Metro is relieved of its duties to produce the Sensitive Material in discovery; (2) Louisville Metro must deposit the material with the Court, under seal, for the Court to determine whether and how the material may be accessed and used in litigation; (3) once Louisville Metro has deposited said material, counsel for Louisville Metro must permanently delete the material from its files; and (4) by complying with the Court's Orders, the Parties, their attorneys, and their witnesses will be immune from prosecution under applicable federal and state laws related to the possession and distribution of sexual material involving minors. (Id. at PageID # 10,564.) Louisville Metro is understandably wary of proceeding with discovery of the Sensitive Material given the potential criminal penalties for possessing, viewing, or distributing child pornography. Kentucky state law provides a limited exception for persons viewing such materials in the course of a law enforcement investigation or civil or criminal litigation involving the matter. KRS § 531.335(2)(b). Federal law outlines how to proceed with similar discovery in criminal proceedings. 18 U.S.C. § 3509(m). However, the Court is not aware of a federal statute exempting or outlining the procedure for this discovery in a civil proceeding. Louisville Metro posited that its attorneys are prohibited from disclosing the Sensitive Material in a civil action pursuant to Grayson v. Witt, No. 5:07-221-JMH, 2008 WL 2096368, at *2 n.2 (E.D. Ky. May 16, 2008). The Court is not persuaded Grayson is dispositive of the issue as there the conclusion that Section 3509(m) prohibited reproduction for civil discovery purposes was made in passing and without addressing that the statute by its own text explicitly applies only to criminal proceedings. Id.; 18 U.S.C. § 3509(m)(1) (“In any criminal proceeding, any property or material that constitutes child pornography ... shall remain in the care, custody, and control of either the Government or the court.”). However, the Court appreciates Louisville Metro's cautiousness. *2 Under Fed. R. Civ. P. 26(c)(1), the Court may issue a protective order for good cause to “protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense ....” Fed. R. Civ. P. 26(c)(1). Good cause requires the moving party to “articulate specific facts showing ‘clearly defined and serious injury’ resulting from the discovery sought .... ” Nix v. Sword, 11 F. App'x 498, 500 (6th Cir. 2001) (citing Avirgan v. Hull, 118 F.R.D. 252, 254 (D.D.C. 1987)). Because of the content of the Sensitive Material, the Court finds public disclosure would bring annoyance, embarrassment, and oppression to the individuals depicted. Further, since Louisville Metro cannot identify the individuals depicted in the Sensitive Material, the Court cannot foreclose the possibility that they are not parties to this litigation. This Circuit has recognized the Court's interest in protecting nonparties' privacy. See Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 365 (6th Cir. 1999). Additionally, to the extent the individuals depicted in the Sensitive Material are minors, “[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.” New York v. Ferber, 458 U.S. 747, 757 (1982). Images depicting child pornography serve as “a permanent record of the children's participation and the harm to the child is exacerbated by their circulation.” Id. at 759. Because the discovery would potentially cause injury to the privacy of nonparties and to the wellbeing of potential child victims, the Court will grant Louisville Metro's request for a protective order relieving it from its duty of producing the Sensitive Material in discovery. However, the Court finds that Louisville Metro has not offered sufficient authority for its remaining requested relief to grant the same. Its motion relied heavily on Grayson to say this Court should have the Sensitive Material deposited with the Court. (DN 511-1, at PageID # 1568-69.) But Grayson is distinguishable on several grounds. In Grayson, a former employee of the Fayette County Sheriff's Office brought § 1983 claims regarding his termination, including what he viewed as an illegal search of his personal computers. Grayson, 2008 WL 2096368, at *1. As part of an internal investigation of Grayson prior to his termination, defendants made a mirror image of the hard drives of two of Grayson's personal computers. Id. Defendants' expert who reviewed the mirror images indicated that the same might contain child pornography. Id. Though Grayson was ultimately terminated, defendants took the position that the Sheriff did not actually view or rely on the contents of the hard drives as part of his decision to terminate Grayson. Id. After Grayson filed suit, defendants filed a motion for a protocol for discovery of the hard drives, and Grayson objected because he contended the hard drives were illegally seized. Id. at *1-2; DN 21, Grayson v. Witt, No. 5:07-221-JMH (E.D. Ky. Dec. 16, 2007); DN 22, Grayson v. Witt, No. 5:07-221-JMH (E.D. Ky. Jan. 3, 2008). In his response, Grayson requested that the hard drives be deposited with the Court pending resolution of the action, though his response made clear that his request was not meant to address the potential child pornography on the drives but to address his concern that defendants would illegally and improperly search the drives if they maintained possession of them. DN 22, at PageID # 109, Grayson v. Witt, No. 5:07-221-JMH (E.D. Ky. Jan. 3, 2008) (“[T]he actions of the Defendants in this case raise questions about whether they will proceed with a search of the mirror drives in their possession even absent an order from this Court giving them permission to do so. The Plaintiff requests that the Defendants be directed to transfer possession of the mirror drives to the Court pending resolution of the parties' claims herein.”). The magistrate judge denied defendants' motion and directed the hard drives to be deposited with the Court. (DN 511-2.) The district judge affirmed the magistrate judge's ruling over an objection finding that the potentially explicit materials were not relevant to the action given the Sheriff's representation that he did not rely on or view the materials as part of his decision to terminate Grayson and that the legality of the search could be determined without reference to the materials themselves. Grayson, 2008 WL 2096368, at *2-3. Given the fact that the Court in Grayson was not actually addressing the proper procedure for the handling of child pornography in civil discovery, the case does not support the remedy Louisville Metro seeks here. Further, unlike in Grayson, Louisville Metro has conceded that the Sensitive Material is relevant and responsive to Plaintiffs' discovery requests. Accordingly, the Court finds that Grayson does not offer any applicable guidance as to the situation now facing the Court and the Parties. *3 For various reasons, the remainder of Louisville Metro's motion does not convince the Court of the propriety of the relief it requested. Louisville Metro did not cite direct authority that persuades this Court that even it could possess the Sensitive Material without violating federal law. It disclosed no advisement from the Federal Bureau of Investigation or United States Attorney's Office that would prove helpful in navigating these uncertain waters. Its request that the Court order it to permanently delete the Sensitive Material once deposited seems to run afoul of the ordinary rules regarding spoliation and runs the risk of the single remaining copy of the material being lost due to human error. Further, the Court hesitates to order the permanent deletion of materials that may implicate other litigation. Additionally, Louisville Metro asked the Court to enter an immunity order to shield the parties, counsel, and witnesses from criminal prosecution. In support, it cited United States v. Paull, 551 F.3d 516, 525 (6th Cir. 2009), but the Court does not find Paull to be instructive. The limited discussion of an immunity order in Paull did not address the standard, appropriateness, or scope of such an order in civil litigation. The Court is skeptical about encroaching on the power of the executive branch to prosecute crimes federally and is not convinced it has any authority to direct the prosecutorial discretion of the Commonwealth of Kentucky. For these reasons, the Court will deny Louisville Metro's motion other than to release it of its obligation to produce the Sensitive Material in discovery. While no party objected to Louisville Metro's proposal, the Court acknowledges that Louisville Metro's proposal as a whole did not foreclose eventual discovery of the Sensitive Material. As the Court's instant order will merely relieve Louisville Metro of its obligation to produce the materials in discovery, the Court will grant any party who wishes to do so leave to file an additional motion regarding discovery of the sensitive material as set forth below. If such motion sufficiently advises the Court of a permissible course of action for civil discovery of the Sensitive Material, one which is clearly within this Court's authority and does not subject anyone to criminal liability, the Court will readdress this order as needed. Accordingly, IT IS HEREBY ORDERED as follows: (1) Louisville/Jefferson County Metro Government's Motion for Protective Order (DN 511) is GRANTED IN PART and DENIED IN PART. Louisville/Jefferson County Metro Government's Motion is granted insofar as it is relieved of its duties to produce the Sensitive Material in discovery but denied in all other respects. (2) Any Party who wishes to do so is granted leave to file a motion on or before November 20, 2020, regarding discovery of the Sensitive Material without requesting a status conference with the undersigned. cc: Counsel of record