United States District Court, M.D. Tennessee, Nashville Division
ALETA A. TRAUGER, District Judge.
Pending before the court are several motions. The plaintiff has filed a Motion to Adopt Plaintiff Class' Proposed Revised Order (Docket No. 165), to which the defendant, the Metropolitan Government of Nashville & Davidson County ("Metro Nashville"), has filed a Response in opposition (Docket No. 175), and the plaintiff filed a Reply (Docket No. 186). Metro Nashville has filed a Motion for Proposed Modification to 1973 Consent Decree (Docket No. 168), to which the plaintiff has filed a Response in opposition (Docket No. 180), and Metro Nashville filed a Reply (Docket No. 184). The plaintiff has filed a Motion to Add Named Plaintiff Jane Roe (Docket No. 189) ("Motion to Add Jane Roe"), to which Metro Nashville has filed a Response in opposition (Docket No. 194), and the plaintiff filed a Reply (Docket No. 199). Finally, Metro Nashville has filed a Motion for Reconsideration (Docket No. 192), which asks the court to reconsider its April 1, 2014 decision (Docket No. 191) to grant the plaintiff's motion to hold discovery in abeyance pending resolution of the Motion to Add Jane Roe (Docket No. 190).
The procedural history of this case is both remarkable and tortured. John Doe, whose identity remains under seal, initiated this class action lawsuit in 1973, seeking to change local policies concerning the consideration and dissemination of arrest records that did not involve a conviction. On behalf of the class, John Doe entered into two consent decrees with the defendants at the time: (1) a 1973 Consent Decree, which, in substance, obligated the defendants not to consider arrest records in hiring new employees; and (2) a 1974 Consent Decree, which related to the dissemination and publication of arrest records. Vanderbilt University Law School Professor James Franklin Blumstein served (among other attorneys) as counsel for John Doe and the plaintiff class in the original iteration of this lawsuit.
In 2006, Professor Blumstein, purporting to act on behalf of John Doe as a representative of the plaintiff class, reopened this lawsuit by filing a "Motion for Further Relief to Assure Compliance" with the 1974 Consent Decree. As this court has noted in previous opinions, the case initially focused primarily, if not exclusively, on the 1974 Consent Decree. The court granted Metro Nashville's Motion to Vacate the 1974 Consent Decree, finding, in substance, that the constitutional premise on which that decree rested had been abrogated by the Supreme Court. (Docket No. 61.) The Sixth Circuit affirmed. (Docket No. 82.)
Following the Sixth Circuit decision, the parties began to litigate issues related to the 1973 Consent Decree, which to that point had only been addressed tangentially. The plaintiff filed a Motion for Contempt on the grounds that Metro Nashville had not complied with the 1973 Consent Decree. (Docket No. 88.) Metro Nashville responded by filing a Motion to Vacate the 1973 Consent Decree. (Docket No. 90.) On May 14, 2011, the court: (1) found that the scope of the 1973 Consent Decree should be modified in light of changed societal circumstances (granting in part and denying in part the Motion to Vacate); (2) ordered the parties to negotiate in an attempt to agree to reasonable modifications of the 1973 Consent Decree; (3) granted the Motion for Contempt; and (4) held discovery concerning contempt in abeyance pending the results of the parties' negotiations. (Docket Nos. 125-26.) For over two years, the court oversaw negotiations between the parties, including numerous status conferences with, and written reports to, the court. ( See Docket Nos. 133-165.)
After the negotiations reached an impasse, the court ordered the parties to submit competing motions to modify the 1973 Consent Decree (Docket No. 165), which the parties filed (Docket Nos. 166 and 168.) Although the original 1973 Consent Decree was one paragraph, the plaintiff filed a 43-page proposed modification (Docket No. 167), which would impose numerous requirements specific to particular Metro Nashville departments, create multiple special bureaucratic mechanisms to enforce these requirements department-by-department, and impose numerous procedural requirements on the departments. In support of these proposed changes, counsel for the plaintiff makes numerous unsupported factual statements concerning (1) the need for these changes to protect the class's interests, and (2) their feasibility. (Docket No. 166.) Plaintiff's counsel also references the content of settlement discussions with Metro Nashville as reflecting the parties' purported "agreements" on various terms contained within plaintiff's sprawling proposed modifications. (Docket No. 166.) For its part, Metro Nashville's proposed modification would be four paragraphs long and would be considerably simpler and narrower than the version proposed by the plaintiff.
On December 16, 2013, the same date that the parties filed their proposed modifications, Metro Nashville filed a Motion for Discovery of Class Representative, which sought discovery into (1) whether there is an active class member with standing to pursue a contempt action against Metro Nashville, and (2) what modifications to the existing decree would address the concerns of individual class members. (Docket No. 169.) Metro Nashville argued that the court should not modify the 1973 Consent Decree without permitting this discovery. The plaintiff responded by filing a "Motion to Quash" (Docket No. 178) and a Response in Opposition (Docket No. 179), which collectively argued that John Doe's identity could not validly be disclosed to Metro Nashville and that standing had already been adjudicated in 1973 as part of the original iteration of this lawsuit.
With respect to the pending proposed modifications to the 1973 Consent Decree, both of the parties have filed submissions referencing the lack of a developed factual record. Metro Nashville asserts that the plaintiff has not substantiated why "the protections of the 1973 Decree will be eroded or evaded unless an exhaustively detailed, 43-page revised decree is adopted." Metro Nashville notes that "there has been no discovery and no record-building in this case" to substantiate the plaintiff's proposed modifications, and Metro Nashville urged the court to "be mindful that Plaintiffs' legal position and arguments are not based on any evidence in the record, as no factual record has been developed as of yet." (Docket No. 175 at p. 1 n.1.) For its part, the plaintiff contends that Metro Nashville has not substantiated its proposed modifications, and the plaintiff contends that it would be reversible error for the court to make any modifications to the 1973 Consent Decree without holding a complete hearing and making factual findings. The plaintiff also argues that Metro Nashville has the burden to substantiate modifications but has not met that burden. (Docket No. 186 at p. 7-8.)
On February 26, 2014, the court granted Metro Nashville's Motion for Discovery of Class Representative and denied the plaintiff's Motion to Quash. (Docket No. 187.) The court observed that, in the context of extended discussions with the parties, both the court and counsel for the defendants had begun to suspect that plaintiff's counsel was "negotiating on the basis of his own views and was not consulting with the class representative, John Doe." The court found that "the defendants and the court are entitled to know whether there is a still a class representative and whether that person is adequately representing the class before this court in ongoing proceedings." (Docket No. 187.) The court ordered the parties to complete this discovery within 60 days. ( Id. )
Approximately thirty days later, the plaintiff (1) moved to "add" a "Jane Roe" as a plaintiff (Docket No. 189), with a supporting affidavit from Jane Roe ( id., Ex. A), and (2) moved to hold discovery in abeyance pending the court's ruling on the Motion to Add Jane Roe as a class representative (Docket No. 190). Before receiving a response from Metro Nashville, the court granted the motion to defer the previously ordered discovery. (Docket No. 191.)
Metro Nashville has filed a Motion for Reconsideration (Docket No. 192), which urges the court to reconsider its decision to defer discovery. In support of the motion, Metro Nashville argues that the discovery is important to determine whether John Doe exists, whether he has been participating in the litigation up to this point, and whether he has been an adequate class representative during the relevant time frame. (Docket No. 193.) Metro Nashville argues that the matter is relevant to (1) whether "John Doe" can recover attorney's fees as a "prevailing party, " (2) whether he had standing to pursue the Motion for Contempt, and (3) whether there is a serious issue with the "integrity of these proceedings as a whole." ( Id. at p. 2.)
I. Issues Relating to Class ...