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Kocher v. Bearden

Court of Appeals of Tennessee, Jackson

May 15, 2017


          Session April 4, 2017[1]

         Direct Appeal from the Circuit Court for Shelby County No. CT-003028-15 Rhynette N. Hurd, Judge.

         This appeal involves a third-party's attempt to intervene in this case in order to gain access to documents in the record, as the entire record was previously sealed by the trial court pursuant to an agreed order between the original parties. The trial court denied the third-party's motion to intervene and also denied its motion to modify the order sealing the record. For the following reasons, we reverse the trial court's denial of the motion to intervene, vacate its denial of the motion to modify the protective order sealing the record, and remand for further proceedings.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in part, Vacated in part, and Remanded.

          Andre Bernard Mathis and John Irving Houseal, Jr., Memphis, Tennessee, for the appellant, Durham School Services, LP.

          Hardin Chase Pittman, William Anderson Hampton, and R. Layne Holley, Germantown, Tennessee, for the appellees, Laua Bearden and Sheryl Bearden.

          John R. Holton, Memphis, Tennessee, for the appellees, Timothy Kocher and Teresa Kocher.

          Darryl D. Gresham, Memphis, Tennessee, Guardian ad Litem.

          Brandon O. Gibson, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and W. Michael Maloan, Sp. J., joined.



         I. Facts & Procedural History

         The original parties involved in this proceeding were Mr. and Mrs. Laua Bearden ("the Beardens") and Mr. and Mrs. Timothy Kocher ("the Kochers") and their minor son. On October 23, 2014, the Kochers' thirteen-year-old son was riding his bicycle to school when he was struck by a truck driven by Mr. Bearden. On July 20, 2015, the Kochers and Beardens filed a "Joint Petition for Approval of Minor's Settlement" in the circuit court of Shelby County. That same day, the circuit court entered an "Agreed Order Sealing File and Barring Public Access to Hearings."[2] The agreed order stated,

This case is before the Court upon the joint requests of the parties to seal the judicial record of this case from public inspection and to bar public access to the courtroom while the Court hears any matters in this case[.] Having duly considered the contemporaneous Joint Petition for Approval of Minor's Settlement and the statements of counsel for the parties, the Court finds the requests well-taken due to the sensitive nature of the evidence and factual issues before the Court and the privacy interests of the instant minor [] and his family[.]

         The agreed order required the court clerk to seal the judicial record and withhold it from public access, "barring all but the parties and the Guardian ad Litem from accessing the record."[3]

         Two months later, on September 23, 2015, the Kochers filed a separate lawsuit in circuit court against Durham School Services, LP ("Durham"), asserting claims individually and as parents, guardians, and next friends of their son. Durham provided school bus services to students at the child's middle school. The Kochers alleged that the bus to which their son was assigned was negligently operated on the morning of the accident and left their son's bus stop before the designated time. According to the Kochers, the child returned home and told his father that he was going to ride his bicycle to school, and he was struck by a truck before he reached the school. The Kochers' complaint alleged that Durham's actions proximately caused their child's injuries and damages. The complaint further alleged that "there are no other persons or entities, other than [Durham], who are responsible, either directly or indirectly, for the injuries and damages to Plaintiffs herein."

         Durham removed the lawsuit to the United States District Court for the Western District of Tennessee. There, Durham filed an answer asserting that the conduct of other persons, including the driver of the vehicle that struck the child, proximately caused the child's injuries. Durham asserted the comparative fault of the driver, Mr. Bearden. Discovery ensued. Durham propounded interrogatories asking the Kochers to identify all documents they sent to or received from the driver of the vehicle (or his insurer). They also asked whether the Kochers had entered into any compromise or settlement with the driver. The Kochers refused to answer these interrogatories, claiming that such information was subject to a court order prohibiting disclosure. Durham also served the Kochers with requests for production of documents, seeking any documents exchanged with the driver, complaints they filed against him, or settlement agreements with him, but the Kochers again claimed that such information was subject to a court order prohibiting disclosure. Durham also asked for any documents filed in the circuit court case between the Kochers and the Beardens, but the Kochers again refused, stating that the record was "filed under seal."

         Durham subsequently filed a motion to compel discovery. The motion was heard by Chief United States Magistrate Judge Diane Vescovo. Magistrate Judge Vescovo concluded that the documents and information sought by Durham's interrogatories and requests for production of documents were relevant under Rule 26(b)(1) of the Federal Rules of Civil Procedure. However, at the time of the hearing, the agreed order sealing the record in the Kocher-Bearden case remained sealed along with the rest of the record, so the extent of its protection was not clear to Magistrate Judge Vescovo or to Durham. As a result, Magistrate Judge Vescovo directed Durham

to first file a motion with the Shelby County Circuit Court in Docket No. CT-003028-15 to unseal the case to obtain the information and documents sought in [the discovery requests] and to determine if the order sealing Docket No. CT-003028-15 precludes the plaintiffs from responding to discovery requests propounded in this case, particularly as to documents that are not on file with the Shelby County Circuit Court, such as correspondence predating the filing of the Circuit Court case, sworn statements taken in conjunction with the matter giving rise to the ...

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