b. Mr. Graves probably did send the email attached as Exhibit “B” to Defendants’

motion. Mr. Graves may frustrate some of people, including opponents of

Mountain Park’s tactics of controlling children, but he is sincere in his beliefs, and

tries to conform his conduct to the requirements of law and polite society. It is

plain from the letter that major reforms would satisfy Mr. Graves. Undersigned

counsel does not speak for Mr. Graves, nor does Mr. Graves speak for

undersigned counsel. This is Mr. Graves opinion and speech on an issue of great

public importance, and it is the position of undersigned counsel that he is

protected against official suppression of this speech by the 1st Amendment.

c. Undersigned counsel does not know when the complaint for Jamie Kaufmann

Woods was posted on the website. Drafts of the complaint were circulated to all

plaintiffs before filing, in order to receive comments and corrections. It is entirely

possible that Mr. Graves may have come into possession of a draft of the

complaint prior to its filing.

d. It is not true that undersigned counsel was suspended for disclosure of information

to the press, period. The decision of the Arkansas Supreme Court Committee on

Professional Conduct makes it clear that the suspension came for 5 specific

reasons, listed at the end of the Findings and Order. None of these reasons

remotely suggest that disclosure of information to the press, or any attempt to

compel or extort a settlement, formed any part of the basis for punishment. The

Committee expressly rejected allegations of violation of 6 separate provisions of

the model rules, one of which was by a 5-2 vote. Undersigned counsel has been

banged up a bit, but has paid his due for those indiscretions. As one of the central

characters in the movie “Seabiscuit” stated, you don’t throw away a life just

because it’s been banged up a bit. Undersigned counsel has learned from the

various difficult experiences in his past.

e. Ms. Young and Ms. Lou Blair, grandmother of Plaintiff Jordan Blair, were both

barred from of the deposition room while depositions of Defendants were taken.

Ms. Young was barred on the specific grounds that she was not an employee of

undersigned counsel. Defendants cannot have it both ways.

6. Plaintiff admits that protective orders may be entered in a proper case. This is not a

proper case.

Defendants have cited cases, but failed to set forth the legal test for the sealing of

depositions. The proper legal test, where a litigant seeks not the sealing of specific items, but

rather a blanket sealing as in this case, is set forth at Chicago Tribune Company v. Bridgestone,

263 F.3d 1304 (11th Cir. 2001)

In certain narrow circumstances, the common-law right of access demands heightened

scrutiny of a court's decision to conceal records from the public and the media. Where

the trial court conceals the record of an entire case, making no distinction between those

documents that are sensitive or privileged and those that are not, it must be shown that

"the denial [of access] is necessitated by a compelling governmental interest, and is

narrowly tailored to that interest." Wilson, 759 F.2d at 1571 (citation omitted); see also

Brown, 960 F.2d at 1015-16. This heightened scrutiny is necessitated by the fact that

entire civil cases otherwise open to the public are erased as if they never occurred. An

example of this unusual circumstance is provided by Wilson, where the entire record,

including "pleadings, docket entries, orders, affidavits . . . depositions . . . and transcripts

or court reporter's notes of hearings or trial proceedings," were all sealed by the court

following settlement without regard to the fact that the trial had been an open public

proceeding and the trial transcript had been part of the public record. Wilson, 759 F.2d at

1569, 1571.

This case is not precisely the same as an attempt to seal every part of the case. But

Defendants are attempting a blanket sealing of all deposition testimony by the Defendants. This

strategy should be deemed more analogous to an attempt at a blanket sealing of an entire casefile,

than to an attempt to protect specific items which are truly sensitive and confidential.

The 11th Circuit in Chicago Tribune Company v. Bridgestone set forth a two part test as

follows:

The first question that must be addressed on remand is whether Firestone's

presumptively confidential documents do in fact contain trade secrets. Firestone argues

that the sealed documents meet all of the commonly accepted criteria that define this

category. These criteria require that Firestone must have consistently treated the

information as closely guarded secrets, that the information represents substantial

value to Firestone, that it would be valuable to Firestone's competitors, and that it

derives its value by virtue of the effort of its creation [Page 1314] and lack of

dissemination.[fn13] Firestone argues that the Goudie affidavit and privilege log

established each of these criteria.

We recognize that in its analysis the district court regarded Firestone's Response to

Intervenors' Motion to Unseal, as well as the accompanying affidavit, as too conclusory to

meet Firestone's burden. See Van Etten v. Bridgestone/Firestone, Inc., 117 F. Supp. d.

1375, 1382-83 (S.D.Ga. 2000). We also recognize that the district court's subsidiary

findings of fact are entitled to deference. Anderson v. City of Bessemer, 470 U.S. 564,

574, 105 S.Ct. 1504, 1511-12 (1985). But this particular determination was made in

conjunction with the application of what we now determine was an erroneous legal

standard. Additionally, the court did not explain its conclusion. Because findings of fact

made by a district court need to be sufficiently detailed to permit meaningful appellate

review, the district court should revisit the trade secret issue in the context of the good

cause determination, examining the sealed documents in conjunction with its review of

Firestone's response, the affidavit, and the privilege log. See United States v. Wragge,

893 F.2d 1296, 1299 (11th Cir. 1990) (noting that findings "must be sufficiently detailed

to give an appellate court a clear understanding of the analytical process by which

ultimate findings were reached and to assure us that the trial court took care in

ascertaining the facts") (alterations in original) (citation omitted); see also supra note12

and accompanying text. Because trade secret status is the only basis Firestone

provides for nondisclosure, should the district court conclude that Firestone's

documents do not fall within this category, good cause does not support the

protective order, and the documents may be unsealed.[fn14]

Should the district court determine that these documents do in fact contain trade secrets,

the district court must balance Firestone's interest in keeping the [Page 1315]

information confidential against the Press's contention that disclosure serves the

public's legitimate interest in health and safety. See Farnsworth, 758 F.2d at 1547

(citations omitted). In its order the district court stated that "[e]ven assuming that the

sealed material could be classified as trade secrets, concerns of public health and safety

trump any right to shield such material from public scrutiny." (R.31-326-21). The district

court made no factual findings, however, that support the conclusion that the public's

health and safety are sufficiently impacted by the information contained in these specific

documents to trump Firestone's interest in keeping trade secret information

confidential.[fn15] See generally Ruckelshaus v. Monsanto Co., 467 U.S. 986, 104 S.Ct.

2862 (1984) (discussing takings of proprietary trade secret information and attendant

Fifth Amendment implications). Because whether good cause exists for a protective

order is a factual matter to be decided by the nature and character of the information in

question, this determination, supported by findings of fact, must be conducted upon

remand.

(Emphases added)

Defendants cited Chicago Tribune Company, and thus should have some knowledge of

the holding. Nonetheless, Defendants’ only claim for sealing is that various individuals may seek

to post the information, that such actions will be taken “in an effort to embarrass, annoy, oppress

or otherwise harass Defendants, and such action will be taken to “ruin Defendants’ business.’”

(Emphasis added) This statement only addresses the subjective intentions of various mostly

unnamed individuals, and does not even allege in conclusory fashion that such subjective desires

would actually be realized.

Defendant Sam Gerhardt himself proclaims that not only are such efforts in vain, they are

actually helpful to increase the enrollment at Mountain Park Boarding Academy. See Exhibit 1

hereto.

Chicago Tribune Company holds that the Court has a duty to make specific factual

findings for purposes of appellate review. In this case, Mr. Gerhardt’s statements render it

practically impossible to logically find that Defendants’ sole basis for sealing has any merit

whatsoever. Without a legitimate interest to protect, there is nothing that might possibly be

weighed against the right of the public to be informed concerning the treatment of juveniles

confined in private facilities such as Mountain Park Boarding Academy.

7. Paragraph 7 is denied. In fact, Defendant Sam Gerhardt sent a letter to Devlin Graves

thanking him for his efforts, and admitting that he got two new students in the past 10 days from

people who learned of Mountain Park Boarding Academy through Mr. Graves’ websites. For

this blessing Mr. Gerhardt exclaimed “Praise the Lord,” and furthermore said “Thanks for the

help!!” A copy of this letter is attached as Exhibit 1.

Mr. Graves voluntarily ceased using certain website domains upon request from the

principals at Mountain Park Boarding Academy. This is shown by Exhibits “2" and “3" attached

hereto. This conduct is inconsistent with the suggestion that Mr. Graves will not act in a

reasonable and honorable manner.

8. Plaintiff opposes the conclusory, unsupported assertion that the testimony from the

depositions, either in summary or verbatim format, would result in irreparable harm to

Defendants. Surely if Mr. Graves’ admittedly negative commentary proved helpful in increasing

enrollment, the sworn testimony of the Defendants themselves could not be harmful to the

Defendants.

9. Plaintiff Jordan Blair would probably be prejudiced by an order which would prevent him

from obtaining information to either verify or disprove the testimony given by the Defendants. If

Defendants’ words are the truth, and their actions are just and consistent with Christian

principles, then Defendants have nothing to lose by public scrutiny. However, if they have not

told the truth, or if they have told the truth, but that truth exposes the maltreatment of juveniles in

their custody, then the public has a great interest in knowing the truth. The best antidote to poor

decision making by the parents of troubled teens is full information.

Mr. Briggs did call to ask if undersigned counsel would agree to a protective order.

Undersigned counsel said that a blanket protective order sealing all deposition testimony would

not be acceptable, but that he would be happy to discuss and negotiate a limited protective order,

which would satisfy the legitimate concerns and needs of the Defendants. This offer was flatly

rejected.

Local Rule 37-3.04 requires that a motion concerning discovery state that “after sincere

efforts to resolve their dispute, counsel are unable to reach an accord.” Plaintiff submits that a

demand for total capitulation on an issue is not sufficient to satisfy this rule, unless a negotiated,

targeted agreement simply could not satisfy the legitimate needs of the party. Local Rule 37-3.04

requires a sincere effort to resolve the dispute prior to seeking assistance from the Court.

Dispute resolution is principally the obligation of attorneys, who are officers of the Court. There

are many lawyers and few judges, which requires that attorneys make a sincere effort to resolve

disputes between themselves, so as to limit the demands on the time of judges.

10. Plaintiff counsel has already agreed to withhold the transcripts from the public pending a

decision on this motion. It is not essential that the matter be decided speedily, since trial is not

scheduled til April of 2004.

11. Plaintiff is amenable to a decision without hearing if the Court is so inclined. Otherwise,

Plaintiff would request a hearing by telephone.

WHEREFORE, premises considered, Plaintiff prays that the Court deny the motion for

protective order, and for all such other and further relief as may be appropriate.

By:__________________________

Oscar Stilley, Attorney at Law

Central Mall Plaza Suite 520

5111 Rogers Avenue

Fort Smith, AR 72903-2041

Attorney for Plaintiff

479 996-4109

479 996-3409 Faxoscar@ostilley.com email

 

CERTIFICATE OF SERVICE

I, Oscar Stilley, by my signature above certify that I have this October 25, 2003 served the

defendant with a copy of this pleading by email in pdf and by placing same in the US mail,

postage prepaid to: John Oliver, Attorney at law, Oliver, Oliver, & Waltz, PO Box 559, Cape

Girardeau, MO, 63702-0559; and John Briggs, Attorney at law, Brown & James, P.C., 1010

Market Street, 20th Floor, St. Louis MO 63101-2000.