United States District Court, D. South Carolina, Charleston Division
C. NORTON UNITED STATES DISTRICT JUDGE
matter is before the court on plaintiff Michael
Slager’s (“Slager”) motion to seal and
motion for a protective order pursuant to Federal Rule of
Civil Procedure 26(c). For the reasons set forth below, the
court grants Slager’s motions.
is a resident of South Carolina, Compl. ¶ 1, and
defendant Southern States Police Benevolent Association, Inc.
(“the PBA”) is a tax-exempt labor organization,
incorporated and existing under the laws of Georgia, Answer
¶ 4, that was formed to further the interests of its
police officer members, Def.’s Resp. 1. The PBA offers
a legal defense benefit policy to its members in South
Carolina. Pl.’s Mot. 1; Def.’s Resp. 1. Slager,
who was an officer with the City of North Charleston Police
Department at the time, initially purchased a legal defense
benefit policy from the PBA on October 13, 2011, but elected
to discontinue the policy in June 2012. Compl. ¶¶
8-9, 27. Nevertheless, Slager reinstated the policy on
January 31, 2013, and continued to pay his $23.50 monthly
premium through April 2015. Id. ¶ 10. The
policy, in pertinent part, stated that the PBA would provide
legal representation to its “members only in those
cases where a lawsuit or criminal accusation results from
professional acts or omissions which arise out of and in the
scope of their duties as a law enforcement officer.”
Pl.’s Mot., Ex. A ¶ A. Under the policy, the legal
defense benefit “consist[ed] of payment by [the PBA] of
attorney’s fees and directly related [c]ourt
costs.” Id. ¶ B.
April 4, 2015, Slager was involved in an officer-related
shooting that resulted in the death of Walter Scott
(“the Walter Scott incident”). Pl.’s Mot.
2. At the time of the incident, Slager had a wallet card
issued by the PBA that provided an emergency telephone number
for him to call to obtain an attorney. Id. at Ex. B.
Per the instructions on the wallet card, Slager called the
PBA emergency line to report the shooting and spoke with John
Midgette (“Midgette”), a nonlawyer employee of
the PBA who was on call at the time. Id. at 2;
Def.’s Resp. 2. According to Slager, the call was for
the express purpose of securing legal representation pursuant
to the legal defense benefit policy. Pl.’s Mot. 2.
the telephone conversation with Slager, Midgette assigned
attorney David Aylor (“Aylor”) to represent
Slager. Id. Thereafter, Slager gave a statement
regarding the incident to the South Carolina State Law
Enforcement Division (“SLED”) in Aylor’s
presence. Def.’s Resp. 2. Upon completion of the oral
statement, Slager and Aylor made plans to meet with SLED
again to submit a written statement. Id. at 3. When
the two met with SLED on April 7, 2015, officers showed them
a video of the incident, after which Slager refused to
complete a written statement and was placed under arrest.
Id. Aylor withdrew from representation on the same
day. Id.; Pl.’s Mot. 2. Slager then contacted
the PBA and asked for a replacement lawyer, but in a letter
dated April 8, 2015, the PBA informed Slager it would no
longer “provide [him] representation in this matter due
to the intentional violation of [the] policy/law
exclusion.” Exhibit 1 attached hereto.
the PBA declined to hire a replacement lawyer for Slager, he
filed the instant lawsuit on November 10, 2015, alleging
claims for breach of contract, bad faith, and unfair
insurance practices. Def.’s Resp. 3; Compl.
¶¶ 50-85. The PBA filed an answer on December 14,
2015, denying liability. ECF No. 7. As part of discovery,
Slager first deposed Dale Preiser (“Preiser”), an
employee of the PBA. Def.’s Resp. 3. Slager asked
Preiser to justify the PBA’s refusal to appoint a
replacement lawyer for him, and Preiser referenced the SLED
video and the statements Slager made to Midgette on the date
of the incident. Def.’s Resp., Ex. G, Dep. Dale Preiser
72-89. Following Preiser’s deposition, on June 8, 2016,
Slager filed a motion to seal and motion for a protective
order “restricting the [PBA] from referencing,
disclosing[, ] or otherwise using communications between
parties which are protected by the attorney client
privilege.” ECF No. 23. Subsequently, during
Slager’s deposition on June 13, 2016, the PBA asked
questions regarding information Slager communicated to
Midgette while trying to secure legal representation.
Pl.’s Mot. 2. The PBA also inquired as to
Slager’s current home address. Id.
Slager’s counsel objected to the line of questioning
and instructed Slager not to answer. Id.
counsel consulted with opposing counsel pursuant to Local
Rule 7.02, but the parties were unable to resolve the matter.
Id. Therefore, Slager filed the present motion for a
protective order on June 20, 2016. ECF No. 24. Slager seeks a
protective order to prevent the PBA from using or otherwise
disclosing any communication between him and Midgette
regarding the Walter Scott incident. Id. at 5. In
addition, Slager seeks to protect his home address from
disclosure for the safety of his family. Id. at 6.
The PBA filed a memorandum in opposition to Slager’s
motion on June 27, 2016, ECF No. 25, and the court held a
hearing on July 18, 2016. The motion has been fully briefed
and is ripe for the court’s review.
Rule of Civil Procedure 26(b)(1) limits the scope of
discovery to “any nonprivileged matter that is relevant
to any party’s claim or defense.” “The
court may, for good cause, issue an order to protect a party
or person from annoyance, embarrassment, oppression, or undue
burden and expense” by forbidding or limiting the scope
of discovery. Fed.R.Civ.P. 26(c)(1). “The scope and
conduct of discovery are within the sound discretion of the
district court.” Columbus-Am. Discovery Grp. v.
Atl. Mut. Ins. Co., 56 F.3d 556, 568 n.16 (4th Cir.
1995); see also U.S. ex rel. Becker v. Westinghouse
Savannah River Co., 305 F.3d 284, 290 (4th Cir. 2002)
(stating district courts are afforded “substantial
discretion . . . in managing discovery”).
party moving for a protective order bears the burden of
establishing good cause.” Webb v. Green Tree
Servicing, LLC, 283 F.R.D. 276, 278 (D. Md. 2012).
“Normally, in determining good cause, a court will
balance the interest of a party in obtaining the information
versus the interest of his opponent in keeping the
information confidential or in not requiring its
production.” UAI Tech., Inc. v. Valutech,
Inc., 122 F.R.D. 188, 191 (M.D. N.C. 1988). In other
words, the district court “must weigh the need for the
information versus the harm in producing it.” A
Helping Hand, LLC v. Baltimore Cty., Md., 295 F.Supp.2d
585, 592 (D. Md. 2003) (quoting Valutech, 122 F.R.D.
at 191). The district court, however, is afforded broad
discretion “to decide when a protective order is
appropriate and what degree of protection is required.”
Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36
Rule 30.04(C) provides that “[c]ounsel shall not direct
or request that a witness not answer a question, unless that
counsel has objected to the question on the ground that the
answer is protected by a privilege. . . .” The rule
further states that “[c]ounsel directing that a witness
not answer a question on those grounds or allowing their
clients to refuse to answer a question on those grounds shall
move the court for a protective order under Fed.R.Civ.P.
26(c) or 30(d)(3) within seven (7) days of the suspension or
termination of the deposition.” Id.
“When a party withholds information otherwise
discoverable by claiming that the information is privileged .
. ., the party must: (i) expressly make the claim; and (ii)
describe the nature of the documents, communications, or
tangible things not produced or disclosed-and do so in a
manner that, without revealing information itself privileged
or protected, will enable other parties to assess the
claim.” Fed.R.Civ.P. 26(b)(5)(A).
filed a motion to seal and motion for a protective order to
prevent the PBA from using or otherwise disclosing any
communication between Slager and the PBA regarding the Walter
Scott incident. According to Slager, these communications are
protected by the attorney-client privilege and implicate his
Fifth Amendment privilege against self-incrimination. Slager
further contends his statements to Midgette are irrelevant
because the PBA, in defending its decision to deny him the
legal defense benefit under the policy, is precluded from
pursuing a different defense from that which it asserted ...