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Autin v. Goetz

Court of Appeals of Tennessee, Jackson

February 22, 2017

DONEL AUTIN, ET AL.
v.
WILLIAM GOETZ

          Session January 17, 2017

         Appeal from the Circuit Court for Shelby County No. CT-002531-10 Gina C. Higgins, Judge

         The trial court entered a protective order under Rule 26.03 of the Tennessee Rules of Civil Procedure while the case was ongoing. After the plaintiffs filed a notice of voluntary dismissal, the trial court entered an order confirming the dismissal and extending the protective order "in perpetuity." The defendant did not appeal the final order, but years later filed a motion to modify the protective order. The trial court denied the motion as barred by the doctrine of res judicata. On appeal, the defendant argues that the trial court lacked subject matter jurisdiction to extend the protective order after plaintiffs nonsuited their case. As an issue of first impression, we conclude that the trial court retained jurisdiction to extend and modify its previously entered protective order notwithstanding the voluntary dismissal of the underlying action. We further hold that modification of existing protective orders is authorized by the holding in Ballard v. Herzke, 924 S.W.2d 652, 658 (Tenn. 1996); accordingly, we vacate the trial court's denial of defendant's motion to modify and remand for reconsideration in light of our supreme court's established precedent.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part; and Vacated in Part; and Remanded

          Van R. Irion, Knoxville, Tennessee, for the appellant, William Goetz.

          J. Lewis Wardlaw, Memphis, Tennessee, for the appellees, Donel Autin, and Dana Autin.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which John W. McClarty, and Arnold B. Goldin, JJ., joined.

          OPINION

          J. STEVEN STAFFORD, JUDGE

         Background

         On March 12, 2010, Plaintiffs/Appellees Donel Autin and Dana Autin (together with Mr. Autin, "Appellees"), a married couple, filed a verified complaint against Defendant/Appellant William Goetz. The complaint alleged that Mr. Goetz was guilty of defaming, slandering, and intentionally inflicting emotional distress on Appellees by falsely communicating to third parties that Mr. Autin had an adulterous sexual relationship with Mr. Goetz's former live-in girlfriend ("Girlfriend"). In addition to damages, Appellees sought an immediate temporary restraining order, a temporary injunction, and a permanent injunction against any further defamation.

         The parties thereafter engaged in a period of discovery, which was marked by repeated disputes over the information sought. For example, on or about September 21, 2010, Mr. Goetz filed notices to take the depositions of Mr. Autin's employer, International Paper Company ("International Paper") and Appellees' church, Cordova Presbyterian Church. Appellees responded by filing a motion to quash the subpoenas, arguing that the goal of the subpoenas was not to gain relevant information but to further harm Mr. Autin's reputation at his workplace and church. On September 22, 2010, Appellees also filed a motion for default judgment, citing Mr. Goetz's failure to respond to their complaint. On October 7, 2010, the parties entered into a consent order in which, inter alia, Mr. Goetz agreed to withdraw the offending subpoenas and reissue them to be more narrowly tailored and to file an answer or other responsive pleading by October 15, 2010.

         The parties thereafter filed notices to take video depositions of each other. On October 13, 2010, Appellees filed a motion for a protective order sealing the transcripts, audio and video recordings, and exhibits of Appellees' depositions. In their motion, Appellees insisted that good cause supported the request because of Mr. Goetz's alleged history of defaming Appellees.

         On October 15, 2010, Mr. Goetz filed a motion to dismiss Appellees' complaint, which motion was accompanied by a memorandum of law. Therein, Mr. Goetz argued that Appellees' complaint failed to state a claim upon which relief could be granted because the complaint lacked sufficient specificity to support a permanent injunction and Appellees "have admitted the truth of the purportedly defamatory statements, thereby negating an essential element of their purported slander claim." Mr. Goetz further argued that the conduct complained of in the complaint did not rise to the level necessary to sustain an intentional infliction of emotional distress claim.

         Mr. Goetz filed a response to Appellees' request for a protective order on October 27, 2010. Mr. Goetz noted that no court presiding over the case had ever granted such a restriction despite repeated requests for a temporary restraining order by Appellees. Therefore, Mr. Goetz contended that the requested protective order was merely another "attempt to conceal the frivolous nature of their public[ly] sworn complaint[.]" On the same day, Mr. Goetz filed the video deposition of Appellees with the trial court.

         On November 5, 2010, the trial court entered an order temporarily sealing "the entire case." Specifically, the trial court ordered that is was:

temporarily sealing this entire case, pending a further order which may be entered at the conclusion of this case, either sua sponte or upon motion by one of the parties. Until the conclusion of this case, and until such time as an order removing the seal on or related to this case is entered, all documents filed in this matter shall be filed with the Clerk of the Circuit Court as "FILED UNDER SEAL."

         Thus, the trial court indicated that the protective order could continue until both the conclusion of the case and the entry of an order removing the seal.

         Appellees filed a detailed response in opposition to Mr. Goetz's motion to dismiss on November 15, 2010, denying that their complaint failed to state a claim upon which relief could be granted. Eventually, on December 17, 2010, the trial court entered an order denying both Mr. Goetz's motion to dismiss and Appellees' request for the issuance of a temporary injunction. Therein the trial court noted that it had previously admonished the parties to "stop it, cut it out, " and that it was the trial court's belief that any allegedly offending behavior had terminated as of that admonishment. The trial court further indicated that it would "hammer . . . the person creating this mess" with sanctions if poor behavior continued. The trial court also set the matter for trial on February 28, 2011.

         The parties' discovery disputes continued largely unabated. Each party filed motions to compel directed toward the other. Appellees also filed motions to quash subpoenas duces tecum served on AT&T Global Communications Services ("AT&T") and Verizon Cellico Partnership ("Verizon"), arguing that the requests were overly broad and involved irrelevant information with the "transparent goal of harming" Appellees. In the alternative, Appellees requested that any information obtained as a result of the subpoenas be placed under a protective order. On February 18, 2011, the trial court entered two orders regarding the parties' discovery disputes. First, the trial court partially granted a motion to compel filed by Appellees, requiring Mr. Goetz to timely respond to certain outstanding discovery. Second, the trial court partially granted Appellees' motion regarding the requested discovery from AT&T and Verizon by entering the following protective order:

(a) Unless expressly provided below in Section (2)(c), all documents or other information (hereinafter "Documents") received by Counsel for Defendant William Goetz ("Goetz") from AT&T and/or Verizon as a result of the subject subpoenas and/or all summaries of the Documents bearing any identifiable information are hereby ordered to be conspicuously marked by such counsel and held as ATTORNEYS EYES ONLY; and shall not be shared by Goetz's counsel for any reason or in any manner with Goetz, or anyone else, at any time during the pendency of or after the conclusion of this matter, except in redacted form as set forth in Section 2(c);
(b)This order shall remain in effect in the event Goetz changes his current counsel. In the event, Goetz should ever represent himself in a pro se capacity, the Documents shall not be shared in any manner with Goetz, or anyone else, but shall be returned to counsel for Plaintiffs Donel Autin and Dana Autin prior to the entry of an order allowing Goetz's former counsel to withdraw;
(c) Notwithstanding Section (2)(a) above, Goetz may be provided with redacted or summarized versions of the Documents containing only records or information generated between 2008 and 2010 related to communications - calls, emails, text messages, communications logs - between (as indicated by their respective telephone numbers):
i) Donel Autin and William Goetz and/or [Girlfriend];
ii) Dana Autin and William Goetz and/or [Girlfriend]; and
iii) Dana Autin and Donel Autin. (This allowance, although consented to in this limited capacity, is not meant to be a waiver of the spousal privilege in any other regard);
(d) Except as otherwise provided in this Order, neither Goetz nor counsel for Goetz shall attempt to make any contact in any manner with the persons whose identity or contact information is learned or discovered through or by the Documents, with the exception of contacting those persons specifically named by Plaintiffs Donel Autin and Dana Autin in the Verified Complaint, or other persons who have been specifically identified by the parties in formal discovery as potentially having knowledge of the facts surrounding this case, or whose identity and contact information is known separately from the Documents.
(e)Should counsel for Goetz be unclear about the identity of any of the communications or communicants contained in the Documents, should they desire further information about additional communications between Donel Autin, Dana Autin and persons not expressly identified in Section (2)(c), or should they desire to contact any persons restricted by this order, counsel for Goetz shall first submit a written request to counsel for Plaintiffs Donel Autin and Dana Autin for review and discussion. If no agreement can be made as to the provision of such additional information or allowance, counsel for Goetz and counsel for Plaintiffs Donel Autin and Dana Autin shall approach the Court and submit same for the Court's review and determination as to whether such information should be provided by Plaintiffs in expansion of this order.
(f) Following the conclusion of this action and within five days of the entry of a final order, all of the Documents shall be returned to counsel for Plaintiffs Donel Autin and Dana Autin.

         On February 25, 2011, the trial court likewise entered an order granting in part a pending motion to compel on behalf of Mr. Goetz. The trial court also entered an order granting a motion to continue the trial date. The parties, however, continued to engage in discovery disputes and the trial court entered additional orders regarding the production and disclosure of information.

         On or about March 11, 2011, Appellees filed a motion for relief from the trial court's order requiring them to produce text messages, alleging that they had produced all information that was readily available. Mr. Goetz responded in opposition on May 31, 2011. The parties entered into a consent order on July 21, 2011, allowing certain attorneys access to the court's jacket but reiterating that the trial court's earlier protective order remained in place. On July 26, 2011, the trial court entered an order finding that Appellees had "made good faith efforts to retrieve information ordered by the [c]ourt, but have not been able to do so." Because no evidence had been presented demonstrating that Appellees "deliberately set about to destroy" the cellphones at issue, the trial court ruled that Appellees would be relieved from producing the information previously ordered. The trial court noted, however, that its decision did not prevent Mr. Goetz from "fully investigating and developing a spoliation theory[.]"

         Very little activity occurred in this matter for the next six months. Eventually, on February 29, 2012, Mr. Goetz filed a motion to dismiss Appellees' lawsuit on the basis of spoliation of evidence. In his accompanying memorandum, Mr. Goetz alleged that Appellees' inability to retrieve all text messages ordered to be produced by the court, as Appellees alleged in their March 11, 2011 motion for relief from discovery, was the result of Appellees' voluntary decision to "discard" Mr. Autin's cellphone after using it to secretly record conversations with Mr. Goetz prior to the filing of the underlying lawsuit. Mr. Goetz alleged that because Appellees were aware that a lawsuit was forthcoming, and in fact were the party to initiate the lawsuit, they were under a heightened duty to preserve all relevant information. According to Mr. Goetz, Appellees' failure to produce all text messages as ordered was the result of spoliation and was of a nature and character necessitating dismissal of the lawsuit. Mr. Goetz's motion and memorandum were accompanied by several documents that Mr. Goetz asserted supported his spoliation theory.

         Appellees filed no response in opposition to Mr. Goetz's motion. Instead, on March 9, 2012, Appellees filed a notice of voluntary nonsuit, asking that their case be voluntarily dismissed without prejudice. On the same day, the trial court entered an order of voluntary dismissal without prejudice of Appellees' case. The trial court noted, however, that the dismissal would be subject to the following orders:

(1) It appearing to the Court that good cause has been shown, the entire case shall remain sealed in perpetuity, and all documents filed in this matter shall remain under the control of the Clerk of the Circuit Court and shall remain FILED UNDER SEAL; and
(2) All documents produced subject to the Court's February 18, 2010 protective order (attached hereto at Exhibit A and incorporated herein by reference) shall remain subject to and under control of said protective order as follows:
All documents or other information (hereinafter "Documents") received by Counsel for Defendant William Goetz ("Goetz") from AT&T and/or Verizon as a result of the subject subpoenas and/or all summaries of the Documents bearing any identifiable information, which Documents were previously ordered to be conspicuously marked and held by counsel for Goetz as ATTORNEYS EYES ONLY and which were ordered not to be shared for any reason or in any manner with Goetz, or anyone else, at any time during the pendency of or after the conclusion of this matter; shall be returned to counsel for [Appellees] within five (5) days of the entry of this Order, with all notes or summaries of the Documents bearing any identifiable information to be destroyed or returned to counsel for [Appellees] at the discretion of counsel for Goetz.

         Mr. Goetz filed a motion to alter or amend the trial court's order of dismissal on April 5, 2012. In his accompanying memorandum, Mr. Goetz asserted, as is relevant to this appeal, that the trial court should lift the seal on the matter to allow Mr. Goetz to defend himself in the court of public opinion regarding what he called Appellees' "frivolous and oppressive litigation." In the alternative, Mr. Goetz requested that the trial court "limit and define the scope" of the protective order. Appellees responded in opposition to Mr. Goetz's motion to alter or amend on April 12, 2012, arguing that the seal was proper because good cause existed to support the trial court's protective order.

         The trial court entered an amended order of voluntary dismissal without prejudice on August 27, 2012. Therein, the trial court modified the seal on the proceedings to provide as follows:

(1) It appearing to the Court that good cause has been shown, the entire case shall remain sealed in perpetuity, and all documents filed in this matter shall remain under the control of the Clerk of the Circuit Court and shall remain FILED UNDER SEAL in this Court, except that the orders of this Court (listed at Appendix A hereto) shall not be placed under the seal and shall remain of public record; and
(2) All documents produced subject to the Court's February 18, 2010 protective order, which is incorporated herein by reference, shall remain subject to and under control of said protective order, with the following amendment: All documents or other information received by Counsel for Defendant William Goetz from AT&T and/or Verizon as a result of subpoenas and/or all summaries of the documents bearing any identifiable information, which documents were previously ordered to be conspicuously marked and held by counsel for Goetz as ATTORNEYS EYES ONLY and which were ordered not to be shared for any reason or in any manner with Goetz, or anyone else, at any time during the pendency of or after the conclusion of this matter, shall not be destroyed or returned to Plaintiffs' counsel as previously ordered, but shall remain conspicuously marked and held by counsel for Goetz as ATTORNEYS EYES ONLY, and shall not to be shared for any reason or in any manner with Goetz, or anyone else, at any time during the pendency of or after the conclusion of this matter.

         Although the initial case was concluded, the parties' dispute was far from over. Approximately one month prior to the initial order voluntarily dismissing the case, on May 18, 2012. Mr. Goetz filed a separate lawsuit against Appellees and International Paper for malicious prosecution, abuse of process, intentional infliction of emotional distress, and civil rights violations ("malicious prosecution lawsuit"). Therein, Mr. Goetz alleged that Appellees' initial lawsuit lacked a reasonable basis and was solely meant to obscure Mr. Autin's extra-marital affair with Girlfriend. According to the complaint, International Paper was liable through the acts of Mr. Autin, as well as due to International Paper's alleged wrongful and intentional concealment of cell phone records that were relevant to the initial lawsuit. The malicious prosecution lawsuit proceeded separately from the initial case and is not part of this appeal.

         Additionally, a little over a week after the trial court entered the amended order of dismissal, on September 4, 2012, Appellees filed a petition for contempt against Mr. Goetz for failure to comply with the trial court's protective order by sending a letter to the Shelby County District Attorney General and International Paper containing information gleaned from discovery, which information was arguably sealed by the ongoing protective order over ...


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