Walter PETTAWAY, as Administrator of the Estate of Joseph Lee Pettaway, deceased, Plaintiff, v. Cpl. Nicholas D. BARBER, et al., Defendants CASE NO. 2:19-cv-8-JTA United States District Court, M.D. Alabama, Northern Division Signed April 14, 2021 Counsel Gordon Griffin Sikes, Jr., Attorney at Law, Montgomery, AL, Horace Earl Nix, Jr., H. E. Nix, Attorney at Law, Montgomery, AL, for Plaintiff. Allison Alford Ingram, Charles Winston Sheehan, Jr., Sydney Kay Brasfield, Ball Ball Matthews & Novak PA, Montgomery, AL, Rebecca L. Chambliss, Chambliss Law, Montgomery, AL, Robert Lee DeMoss, III, Balch & Bingham, Montgomery, AL, for Defendant Nicholas D. Barber. Allison Alford Ingram, Charles Winston Sheehan, Jr., Sydney Kay Brasfield, Ball Ball Matthews & Novak PA, Montgomery, AL, Robert Lee DeMoss, III, Balch & Bingham, Montgomery, AL, for Defendant Ernest N. Finley. Allison Alford Ingram, Charles Winston Sheehan, Jr., Sydney Kay Brasfield, Ball Ball Matthews & Novak PA, Montgomery, AL, Robert Lee DeMoss, III, Balch & Bingham, Montgomery, AL, Stacy Lott Bellinger, City of Montgomery, Montgomery, AL, for Defendant The City of Montgomery, Alabama. Adams, Jerusha T., United States Magistrate Judge ORDER *1 Pending before the Court are two motions filed by Plaintiff challenging the City of Montgomery's confidential designation for video and audio recordings which were produced pursuant to a protective order. (Doc. No. 109; Doc. No. 132.) In said motions, Plaintiff's Motion to Strike the Designation of “Confidential” for Nicholas Barber's Body Cam Recording (Doc. No. 109) and Plaintiff's Motion to Strike Confidentiality Designation Regarding the Entire Barber Video and Other Videos Identified Herein (Doc. No. 132), Plaintiff argues that the confidential designation should be removed because the City of Montgomery has not complied with the terms of the protective order issued by this Court under Federal Rule of Civil Procedure 26(c). The City of Montgomery has filed timely responses opposing both motions. (Doc. No. 113; Doc. No. 138-1.) The motions are ripe for review. I. FACTUAL BACKGROUND This dispute arises from a 42 U.S.C. § 1983 action against current and former Montgomery police officers who responded to a suspected burglary call at an unoccupied residence in the early morning of July 8, 2018. The body camera video from Officer Nicholas Barber (“Barber”) shows him arrive at the address, assess the situation through conversation with a third party, and enter the darkened house with his canine partner to search the premises. Shortly after entry, the recording depicts the canine's attack of Joseph Lee Pettaway (“Pettaway”), officers removing Pettaway to the ground outside, the officers’ awaiting the arrival of an ambulance, and the steps taken by medical personnel to assist Pettaway. Pettaway later died from his injuries. Pettaway's brother, Walter Pettaway (“Plaintiff”), filed this action against the City of Montgomery (“the City”), Police Chief Ernest Finley, Jr., and fifteen unknown police officers. (Doc. No. 1.) The current operative pleading is Plaintiff's Second Amended Complaint which names current and former officers Barber, Michael Green, Justin Thrasher, Ryan Powell, Joshua Smith, Keiundra Watts, Bianka Ruiz and Neal Flournoy.[1] (Doc. No. 147 at 2.) The Second Amended Complaint contains allegations of unlawful seizure under the Fourth Amendment to the United States Constitution, unlawful and excessive force under the Fourth and Fourteenth Amendments, deliberate indifference to serious medical needs under the Fourth and Fourteenth Amendments, and wrongful death under Ala. Code § 6-5-410 (1975). (Doc. No. 147 at 9-15.) Together with the Alabama Law Enforcement Agency (“ALEA”),[2] the parties filed a Joint Motion for Entry of a Protective Order. (Doc. No. 100.) The resulting Protective Order applies to “information contained in documents produced by any party to this case, including, but not limited to, ALEA and the City, whether by subpoena or in civil discovery among parties in this case pursuant to the Federal Rules of Civil Procedure.” (Doc. No. 101 at ¶ 1.) The Protective Order provides in pertinent part: *2 2. The following provisions apply to such discovery requests and subpoenas served in this case: (a) The producing party will provide the requesting party with complete, unredacted copies of all of the documents or other materials (whether containing confidential information or not) in that party's possession or control that are requested or that are responsive to any subpoena or discovery request. (b) At the time of production, the producing party will identify and designate any information contained in the documents or materials produced, whether in response to discovery under the Federal Rules or to a subpoena, which the producing party reasonably and in good faith deems to be “confidential,” i.e., information which the producing party contends should be withheld from the public or public disclosure and disclosed only to parties or non-parties bound by this Court's order. (c) The receiving party will review the information designated as “confidential” and, if the receiving party agrees with those designations, will notify the producing party of agreement that the designated information should be and will be confidential. That information thereafter shall be confidential and cannot be publicly released and shall not be disclosed outside of this case absent the Court's order to the contrary. (d) If the receiving party disagrees with any designations of any information as “confidential,” the receiving party will communicate such disagreements about particular information designated as “confidential” to the producing party. (e) Thereafter the parties will attempt to resolve any such disagreements, if possible. (f) If there are any disagreements about whether information should properly be “confidential” and withheld from public disclosure which the parties cannot resolve, any party may then seek by appropriate motion to have the Court rule upon and resolve such disagreement about the specified information. (g) However, after production, any information contained in that production that is designated by the producing party as “confidential,” but about which designation the receiving party disagrees, shall be treated as “confidential” unless and until the Court rules that such information should not be treated as “confidential.” (h) Regarding 911 telephone recordings, in accordance with § 11-98-12, Ala. Code 1975, the Court finds that the right of the parties to the release of these recordings outweighs the privacy interests of the individual who made the 911 call(s) or any person involved in the facts or circumstances relating to the 911 call. Those recordings shall be produced and the producing party shall designate any information contained within them that it contends should be “confidential.” (i) Inadvertent failure by a producing party to designate as “confidential” any information within documents produced shall not waive the confidentiality and protection under this order if the producing party designates the information as “confidential” within a reasonable time thereafter. If the parties agree the information is or should be confidential, they shall make reasonable efforts to obtain return of any such later-designated “confidential” information from any person not authorized to view or possess those materials, and shall otherwise attempt to ensure that persons to whom the information was disclosed treat such information as confidential. *3 (j) All (1) information agreed by the parties to be “confidential” and (2) information determined by the Court to be “confidential” and (3) information about which the parties disagree as to whether it should be confidential, but which disagreement has not been resolved by court ruling or order, shall not be filed publicly with the Court but shall instead be filed under seal with a notation that the information is confidential and subject to this Order. (Doc. No. 101 at ¶ 2.) As discovery commenced after the entry of the Protective Order, the City produced its Confidentiality Log and responsive discovery. Included in the discovery production were several body camera recordings from Montgomery police officers at the scene of the call, including one from Defendant Barber. All of the recordings were designated in their entirety by the City as confidential. Plaintiff informed the City of his disagreement with the designations and followed the procedures set forth in paragraphs (d) through (f) of the Protective Order. The parties’ failure to reach an agreement resulted in Plaintiff filing his Motion to Strike the Designation of “Confidential” for Nicholas Barber's Body Cam Recording. (Doc. No. 109.) Plaintiff urged the court to review an excerpted portion of the Barber recording (submitted in camera as Exhibit A) and to remove the confidential designation on the grounds that the City failed to designate specific information to be kept confidential, and that neither the City nor Defendant Barber has standing to assert any claim of confidentiality as to the information or images pertaining to Pettaway. (Doc. No. 109 at 3; Doc. No. 109-1.) Plaintiff also created and submitted a narrative timeline that purports to correlate with the events depicted on the video (submitted in camera as Exhibit B). (Doc. No. 109-2.) Plaintiff's requests to file the exhibits under seal was granted as to Exhibit A and denied as to Exhibit B by the Court.[3] (Doc. No. 110 at 2; Doc. No. 115.) The City opposed the motion to strike, arguing that the Protective Order did not preclude the designation of an entire document as confidential and referred the court to the Eleventh Circuit's balancing test which looks to “a party's interest in obtaining access against the other party's interest in keeping the information confidential” when resolving issues arising under Federal Rule of Civil Procedure 26(c). (Doc. No. 113 at ¶¶ 2-3 (quoting Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1313 (11th Cir. 2001)).) The City asked the court to consider the goals of protective orders listed in Rule 26(c)(1) – “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” – as grounds for the City to maintain confidentiality of the recording. (Id. at ¶ 3 (quoting Fed. R. Civ. P. 26(c)).) The potential for embarrassment is highlighted by the City's submission that, if released, the graphic images presented in the recording could lead to civil unrest. (Id. at ¶¶ 4-5.) The City further asked the court to consider that a non-confidential designation of the recording would unduly prejudice the defendant officers, as the “sensationalistic but misleadingly incomplete mosaic set out” in Plaintiff's motion would lead the jury and public to arrive at conclusions regarding the officers’ actions based solely on emotion. (Id. at ¶ 6.) Further, the City contested Plaintiff's representation that he is the only person with the right to protect the recording from disclosure and argued that confidentiality serves the City's interests of protecting the safety and well-being of its police officers and the defendants’ interest in resolving the litigation within the confines of court proceedings. (Id. at ¶ 7.) *4 Following a hearing on Plaintiff's motion, the Court ordered the City to submit the entire Barber recording for its review and for Plaintiff to file a motion challenging the confidential designation of the entire recording. (Doc. No. 120.) The parties were also directed to meet and confer on confidential designations, and to file a joint status report on any agreement regarding what information and/or video images were to be deemed confidential. (Id.) The Joint Status Report filed by the parties designated several segments of the Barber recording which the parties agreed should be confidential but could not agree upon how confidentiality should be maintained. (Doc. No. 125 at ¶ 2A-D; G-H.) The City asserted confidentiality on two segments of the video to which Plaintiff either objected or found the audio incomprehensible. (Id. at ¶ 2E-F.) A final segment upon which the parties could not agree is the excerpt of sixteen minutes and 41 seconds submitted to the Court under seal in conjunction with the first motion. (Id. at ¶ 3; Doc. No. 109-1.) As directed by the Court, Plaintiff filed his Motion to Strike the Confidentiality Designation Regarding the Entire Barber Video and Other Videos Identified Herein. (Doc. No. 132.) In this motion, Plaintiff adopts all arguments set forth in the initial motion to strike the confidential designation of the Barber recording (COM 000001) and challenges the confidential designation of all remaining recordings identified as COM 000003 through COM 000009.[4] (Id. at ¶ 10.) Plaintiff avers that the City's failure to properly designate confidential information or identify the grounds for confidentiality in the recordings “violates the Protective Order to a degree that the videotapes should be deemed not confidential and should be stripped of any ‘confidential designation.’ ” (Id. at ¶ 9.) Plaintiff notes that the “Protective Order is an Order of the Court that was entered to facilitate discovery by allowing for confidentiality claims,” and asserts “the public has the right to know and understand ongoing litigation.” (Id. at ¶¶ 11, 12.) The City responds that Plaintiff received the video under the Protective Order which is consistent with its practice where it deems verbal or visual material in a recording confidential. (Doc. No. 138-1 at ¶ 3.) The City lists various reasons for its confidential designation, including intermittent references to a third-party business, personal information belonging to third-party citizens, the interior of a third-party's residence, and the graphic nature of the K-9 assault and the physical condition of Pettaway thereafter. (Id. at ¶¶ 4, 6.) The City asserts it has received inquiries seeking comment on Pettaway's death from local, state and national media, and that the newspapers of record in Montgomery and Birmingham have published articles referencing Plaintiff's lawsuit. (Id. at ¶ 9.) Given the media interest, the City expresses concern that the release of videos would create the “potential for protests which could endanger the safety of law enforcement officers, the public and private property.” (Id.) The City concludes by noting its responsibility to ensure a fair trial for its first responders as well as the prematurity of Plaintiff's effort to remove confidentiality from any recording, as they are not needed at this time to support a public pleading. (Id. at ¶ 10.) II. DISCUSSION The parties’ Joint Motion for Entry of a Protective Order requested an order that would “apply to all discovery accomplished in this case under the discovery rules of the Federal Rules of Civil Procedure.” (Doc. No. 100.) Finding good cause, the Court entered the order (Doc. No. 101) under the authority granted in Rule 26(c)(1) of the Federal Rules of Civil Procedure “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). Subject to a claim of confidentiality and in the interest of facilitating discovery, Plaintiff received all recordings, without redaction, retrieved from the body cameras of the Montgomery police officers. The City's Confidentiality Log states that the recordings identified as COM 000001 through COM 000008(a) contain sensitive and graphic images. (Doc. No. 138-1 at ¶ 1.) The Court's review of the sole recording submitted in camera, COM 000001, compels it to agree that the recording, and any similar images, are indeed sensitive and graphic.[5] The Confidentiality Log also represents that the recording of a call for service identified as COM 000009 contains confidential and personal identifiers of parties and non-parties. Plaintiff's primary objection to the continued confidentiality of the recordings is that the City has neither specifically identified the information that is claimed to be confidential, nor has it provided an authoritative legal basis for its claims. (Doc. No. 132 at ¶ 7.) *5 The Court has reviewed the motions, responses in opposition thereto and applicable law, and concludes that Plaintiff's motions are due to be denied. The Court is not persuaded by Plaintiff's assertion that an entire video or recording cannot be designated as confidential. Nor is the Court convinced by Plaintiff's argument that the City does not have standing to assert any claim of confidentiality as to the information or images in the videos and recordings. Plaintiff does not allege any hardship posed by the City's confidential designations, nor any benefit to be gained by him should the relief sought be granted. Indeed, Plaintiff has received the videos and recordings without any redactions or alterations through discovery. Without attribution to authority or context explaining his need to remove the confidential designations, Plaintiff argues the public's right to know and understand ongoing litigation as grounds for the removal of the designation. (Doc. No. 132 at ¶ 12.) This argument however misses the mark as the public does not have a right to the discovery material at this time. Plaintiff appears to be confusing the common law right of access with the private process of discovery. In the Eleventh Circuit, there is no right to public access to discovery material. See In re Alexander Grant & Co. Litig., 820 F.2d 352, 355 (11th Cir. 1987) (finding a newspaper publisher and journalist “have no common-law right to examine the discovery material at issue”). There is no question that the press and the public jointly possess a common-law right to inspect and copy judicial records and public documents. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S. Ct. 1306, 1311, 55 L. Ed. 2d 570 (1978); United States v. Rosenthal, 763 F.2d 1291, 1293 (11th Cir. 1985); Wilson v. American Motors Corp., 759 F.2d 1568, 1570 (11th Cir. 1985). Nevertheless, this court has observed that private “documents collected during discovery are not ‘judicial records’ ” United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986). Thus, while [the newspaper publisher and journalist] may enjoy the right of access to “pleadings, docket entries, orders, affidavits or depositions duly filed,” Wilson, 759 F.2d at 1569 (emphasis added), [their] common-law right of access does not extend to information collected through discovery which is not a matter of public record. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33, 104 S. Ct. 2199, 2207, 81 L. Ed. 2d 17 (1984); Anderson, 799 F.2d at 1441; United States v. Gurney, 558 F.2d 1202, 1209 (5th Cir. 1977), cert. denied sub nom., Miami Herald Publishing Co. v. Krentzman, 435 U.S. 968, 98 S. Ct. 1606, 56 L. Ed. 2d 59 (1978). Id. at 355. Moreover, [d]iscovery is neither a public process nor typically a matter of public record.... [D]ocuments collected during discovery are not “judicial records.” Discovery, whether civil or criminal, is essentially a private process because the litigants and the courts assume that the sole purpose of discovery is to assist trial preparation. That is why parties regularly agree, and courts often order, that discovery information will remain private. If it were otherwise and discovery information and discovery orders were readily available to the public and the press, the consequences to the smooth functioning of the discovery process would be severe. Not only would voluntary discovery be chilled, but whatever discovery and court encouragement that would take place would be oral, which is undesirable to the extent that it creates misunderstanding and surprise for the litigants and the trial judge. United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986) (citations omitted) (emphasis added); see also Comm'r, Ala. Dep't of Corr. v. Advance Local Media, LLC, 918 F.3d 1161, 1167 (11th Cir. 2019); Chicago Tribune Co., 263 F.3d at 1316; Romero v. Drummond, 480 F.3d 1234, 1245 (11th Cir. 2007). Further, “restricting the use of discovery materials to case-related purposes only, even over [Plaintiff's] objection, is within [the] court's discretion and authority.” Looney v. Moore, No. 2:13-CV-00733-KOB, 2014 WL 1364509, at *1-2 (N.D. Ala. Apr. 7, 2014) (finding good cause under Rule 26(c) was satisfied by the need to protect the defendants from the “annoyance, embarrassment, [and] oppression” that could result from the additional publicity the discovery materials would generate). The court finds Looney persuasive as to its obligation to control discovery and the existence of good cause under Rule 26(c). As Plaintiff noted in his second motion, the Protective Order was “entered to facilitate discovery by allowing for confidentiality claims.” (Doc. No. 132 at ¶ 11.) The City has fully and consistently claimed confidentiality of the recordings in the production to Plaintiff and when challenged, invoked the protections in Rule 26(c)(1) to avoid “annoyance, embarrassment, [and] oppression.” The City and individual defendants are entitled to protect the sensitive and graphic material contained in the recordings and videos during the discovery phase of this litigation. In addition, removing the confidential designation would not be consistent with expeditious discovery, as it could produce the chilling effect forewarned in Anderson. Anderson, 799 F.2d at 1441. *6 Courts “must be mindful that the purpose of discovery is ‘to facilitate orderly preparation for trial, not to educate or titillate the public.” Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982). The Court is troubled that Plaintiff is attempting to try this case in the informal court of public opinion, rather than in the courtroom. However, as stated eloquently by the court in Looney, “[i]n the interest of justice, [the Court] is committed to giving both parties a fair trial, which includes protecting the [City and individual defendants] from the ‘annoyance, embarrassment, [and] oppression’ that could occur from allowing their names to be dragged through the metaphorical mud before a jury has even made any determination of wrongdoing.” Looney, 2014 WL 1364509, at *2. Accordingly, good cause exists to maintain the confidential designations of the recordings and videos. The denial of Plaintiff's motions does not harm his case. As the City noted, Plaintiff's effort to remove the confidential designations is premature and does not prevent his use of any discovery in support of an appropriate pleading. (Doc. No. 138-1 at ¶ 10.) “Indeed, protective orders are a discovery device, and not a device designed to protect the confidentiality of documents indefinitely.” Waterkeeper Alliance, Inc. v. Alan and Kristin Hudson Farm, 278 F.R.D. 136, 141 (D. Md. 2011). “A protective order ... ‘[o]nce entered, ... need not remain in place permanently, and [it is] not immutable in [its] terms.” Waterkeeper Alliance, Inc., 278 F.R.D. at 141 (quoting 8A Charles Alan Wright, Arthur R. Miller & Richard L., Fed. Prac. & Proc. § 2044.1 (3rd ed. 2010)). Plaintiff is free to seek removal of the confidential designations at the summary judgment stage when the Court is obligated to protect the public's right to access judicial records. See Bryant v. Community Bankshares, Inc., No. 2:14-cv-1074-WKW-PWG, 2016 WL 11654390 (M.D. Ala. May 20, 2016) (denying parties’ motions to maintain confidentiality of summary judgment motions). III. CONCLUSION For the reasons discussed herein, it is ORDERED as follows: 1. Plaintiff's Motion to Strike the Designation of “Confidential” for Nicholas Barber's Body Cam Recording (Doc. No. 109) is DENIED. 2. Plaintiff's Motion to Strike Confidentiality Designation Regarding the Entire Barber Video and Other Videos Identified Herein (Doc. No. 132) is DENIED. DONE this 14th day of April, 2021. Footnotes [1] All defendants, except Neal Flournoy, are represented by the legal department for the City of Montgomery. As of this date, the Second Amended Complaint has not been served upon Justin Thrasher. [2] Both parties subpoenaed investigative material from ALEA. That agency required a protective order be entered before it would produce the material requested by Plaintiff and Defendants. [3] In denying Plaintiff permission to file Exhibit B under seal, the Court instructed Plaintiff to submit the exhibit as evidence for a hearing on Plaintiff's motion. (Doc. No. 115.) However, Plaintiff submitted Exhibit B as a public filing (Doc. No. 117; Doc. No. 117-1), which prompted the City to file a motion to strike based upon the inclusion of information designated as confidential (Doc. No. 118). The Court granted the motion to strike. (Doc. No. 119.) [4] Recordings COM 000001-COM 000008(a) are described by the City as body camera recordings and COM 000009 is a call for service via the City's 911 Emergency System. (See Doc. No. 138-1 at ¶ 1, n.1.) [5] The City explained in its second Response that “[t]he videos all depict, albeit from each officer's different vantage point and involvement, the same scene.” (Doc. No. 138-1 at ¶ 6.)