IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

ISABEL ZELAYA, et al., )

)
Plaintiffs, )
)
v. ) Civil Action No. 3:19-cv-00062 TRM-CHS
)
ROBERT HAMMER, et al., )
)
Defendants. )

DEFENDANTS’ BRIEF IN SUPPORT OF

PLAINTIFFS’ MOTION FOR LEAVE TO FILE UNDER SEAL

Pursuant to Federal Rules of Civil Procedure 5.2, 26, Local Rule 26.2, and this Court’s

Standing Order governing Sealing Confidential Information (Doc. 15), the DHS Non-Planner

Defendants 1, and Defendant John Witsell (collectively referred to as “These Defendants”), through

undersigned counsel, respectfully submit the following Brief in Support of Plaintiffs’ Motion to

File Documents Under Seal [Doc. 676]. In their Motion [Doc. 676], “Plaintiffs respectfully request

that the Court permit the filing under seal of the Reply Brief and its exhibits under Local Rule

26.2, with redacted versions (if any) to follow once any confidentiality disputes are resolved.”

[Doc. 676, PageID #: 9807.] For the reasons explained below, Plaintiffs’ Motion to File Under

Seal is well-taken and should be granted. The Court should allow sensitive and confidential

statements and exhibits to remain under seal.

1
The “DHS Non-Planner Defendants” are Francisco J. Ayala, Jeff Bednar, Glen E. Blache, Deni Bukvic,
Christopher R. Cannon, Clint A. Cantrell, Kashif Chowhan, Paul Criswell, Blake Diamond, Wayne C.
Dickey, Brenda Dickson, Michelle Evans, Theodore Francisco, Matthew Tyler Grooms, Keith A. Hale,
John L. Heishman, Jonathan Hendrix, Waylon R. Hinkle, Shannon N. Hope, Ryan Hubbard, Jeffrey P.
Klinko, Steven C. Ledgerwood, James K. Liles, David G. Lodge, Troy R. McCarter, Joshua D. McCready,
Anthony J. Martin, Jason E. Miller, Matthew Moon, George David Nalley, Aunrae A. Navarre, Tommy C.
Pannell, Jerrol Scott Partin, David Vicente Pena, Michael Perez, Billy G. Riggins, Jeffrey A. Schroder,
Bobby R. Smith, Ricky D. Smith, Connie Stephens, Ricky Thornburgh, Robert Whited, Austin J. Williams,
(hereafter “The DHS Non-Planner Defendants”).

Case 3:19-cv-00062-TRM-CHS Document 693 Filed 07/12/22 Page 1 of 7 PageID #: 10652

 These Defendants support filing one paragraph of Plaintiffs’ Reply Brief and one certain

exhibit under seal. Specifically, these Defendants request that the Court order that:

(1) The second paragraph beginning on page 1 and continuing on page 2 of Plaintiffs’

Reply Brief in Support of Motion for Class Certification be redacted; and

(2) Exhibit 1 be filed under seal.

ARGUMENT
Plaintiffs have filed their Reply Brief in support of their motion for class certification

together with 16 exhibits. [Doc. 676.] As Exhibit 1 to their Reply Brief, Plaintiffs attached a

compilation of videos which Plaintiffs pieced together. Plaintiffs describe the video on page 1 of

Plaintiffs’ Reply Brief. 2 The video attached as Exhibit 1 and the Plaintiffs’ description of it is

intentionally inflammatory and provocative. And importantly, it is not relevant to Plaintiffs’ §

1985 conspiracy claims. Moreover, Plaintiffs’ description of the agent’s actions are not supported,

and in fact disputed, by other agents who were asked about the video.

It is not a coincidence that Plaintiffs’ reference this unrepresentative video appears as

Exhibit 1 on page 1 of their Reply Brief. The video and Plaintiffs’ description of it are intended

to inflame an emotional response that is totally unrelated to the issues to be decided for class

certification. Given the inflammatory nature of Exhibit 1 and the fact it is not relevant to the class

certification analysis, Exhibit 1 should be sealed and the Plaintiffs’ disputed description of what it

shows should be redacted. Filing the video and Plaintiffs’ inflammatory remarks in the public

2
Ironically, Plaintiffs accuse Defendants of “cherry-pick[ing] a few very short clips” “out of over
15 hours of surveillance and bodycam footage” “to support their arguments.” [Doc. 676, p 1.]
Plaintiff is correct that Defendants did not submit “over 15 hours of surveillance and bodycam
footage” as an exhibit to their brief. Instead, Defendants submitted portions of the video they
deemed relevant. Similarly, Plaintiffs did not submit over 15 hours of surveillance and bodycam
footage. Like Defendants, Plaintiffs filed with the court only the few snippets that support their
arguments. And the snippets that Plaintiffs did attach to their brief are not at all representative of
what is shown in the remaining “over 15 hours” of video.
2

Case 3:19-cv-00062-TRM-CHS Document 693 Filed 07/12/22 Page 2 of 7 PageID #: 10653

 record has the potential to prejudice potential jurors, provoke retaliation, and place the agents --

who Plaintiffs identify by name -- at personal risk. Publicizing the video and Plaintiffs’ disputed

and inflammatory description of it has the potential to subject the individually-named officers to

violence or threats of violence in an already tense environment.

These Defendants acknowledge the presumption of openness in judicial proceedings.

Shane Group, Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016) (quoting

Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1179 (6th Cir. 1983)). Under Rule

26(c), however, for good cause shown, a court may issue an Order “to protect a party or person

from annoyance, embarrassment, oppression, or undue burden or expense.” Local Rule 26.2(b);

Easterly v. Thomas, No. 3:20-cv-00065, 2021 WL 4447633, at *1 (E.D. Tenn. Sept. 28, 2021)

(observing court’s preference for redaction over “wholesale sealing” and citing Phibbs v. Rev.

Recovery Corp., No. 3:16-cv-156-TWP- HBG, 2017 WL 10439789, at *1 (E.D. Tenn. May 8,

2017)). Under factors set forth in Shane Group, a party may establish good cause by

demonstrating: (1) why the interests in nondisclosure are compelling; (2) why the interests

supporting open access to the information are less so; and (3) that the seal itself is no broader than

necessary. Shane Group, 825 F.3d at 306; see also Rudd Equip. Co. v. John Deere Constr. &

Forestry Co., 834 F.3d 589, 593-94 (6th Cir. 2016). The decision to grant a Protective Order is

entrusted to the Court’s discretion. Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004).

In this situation, the interests of nondisclosure are compelling and necessary to protect the

personal safety of the individual federal agents who are identified by name and accused of

engaging in conduct that Plaintiffs describe in a provocative manner that appears intended to

analogize it to other national events that sparked destructive protests and physical violence against

law enforcement. The duties performed by DHS agents are dangerous enough without being

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 subjected to provocative statements, that intentionally or unintentionally, invite condemnation and

potential retaliation. Furthermore, the Constitution guarantees civil litigants a right to an impartial

jury. Warger v. Shauers, 135 S. Ct. 521, 528 (2014). Should the video at issue be made part of

the Court’s public record, it has the potential to not only be made public, but also be publicized.

Media coverage increases the potential for information to be taken out of context and improperly

impact a jury’s decision and taint the jury pool. Until it is determined that this video is admissible

at trial, it should not be part of the public record. Notably, the worker depicted in the video did

not file a grievance, nor an FTCA administrative claim, nor an excessive force claim in this lawsuit,

nor an FTCA claim in this lawsuit. Indeed, the worker is not a named plaintiff. This event is not

described or relied on in any of four complaints and amended complaints filed by Plaintiffs in this

action.

The interests supporting open access are less compelling. First, the public right to access

is less compelling because the parties are not asking the Court to rule on the merits of the case. See

In re Ohio Execution Protocol Litig., No. 2:11-CV-1016, 2017 WL 2262560, at *2 (S.D. Ohio

May 24, 2017) (citing Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 164 (3rd Cir.

1993)). Moreover, the Exhibit and description at issue are not pertinent to the issues in dispute

with Plaintiffs’ Motion for Class Certification. The events depicted in the video and described by

Plaintiff are not at all related to Plaintiffs’ § 1985 claims for conspiracy to violate Plaintiffs civil

rights based on race. The Exhibit is not referred to in any manner on the issue of class certification

by either the Plaintiffs or the Defendants, and is merely thrown into Plaintiffs’ Reply Brief in an

effort to show that complete videos were not referred to in Defendants’ Response in Opposition to

Plaintiffs’ Motion for Class Certification. The Exhibit was not included in the Defendants’

Response Brief because it is not relevant, it was not included in Plaintiffs’ opening Brief because

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 it is not relevant, and it has been included in this Reply Brief only for gratuitous reasons wholly

unrelated to the issue surrounding the Brief itself. Accordingly, sealing Exhibit 1 and redacting

paragraph 2 will not impair the public’s ability to understand the parties’ positions with respect to

class certification.

Here, Plaintiffs have brought civil rights claims against Defendants, and the Court is well

aware of concerns that Defendants have raised with regard to retaliation and intimidation by groups

who disagree with the enforcement of immigration laws and worksite enforcement operations in

particular. While stipulated protective orders do not guarantee that all information in discovery

designated “confidential” must be redacted or filed under seal given the high standard for sealing,

(Doc. 15, quoting Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir.

2016)), courts in the Sixth Circuit recognize that there is a distinct difference, with regard to the

public right of access, between interlocutory disputes on the one hand, and merits disputes, on the

other, when reviewing confidential discovery information so designated.

These Defendants are not seeking to seal the Plaintiffs’ Brief and all exhibits in their

entirety. Instead, the information Defendants seek to redact and seal is narrowly tailored. These

Defendants seek only to redact one exhibit and one paragraph from a 20-page brief with 16

exhibits, including two other video exhibits.

CONCLUSION
For the reasons explained above, Defendants respectfully request that this Court grant the

Plaintiffs’ Motion for Leave to File Under Seal [Doc. 676] and that Exhibit 1 to Plaintiffs’ Reply

brief be sealed and Paragraph 2 beginning on page 1 of Plaintiffs’ Reply Brief be redacted.

Case 3:19-cv-00062-TRM-CHS Document 693 Filed 07/12/22 Page 5 of 7 PageID #: 10656

 Respectfully submitted,

Date: July 12, 2022 /s / Joseph B. Harvey

HUNTER SMITH & DAVIS, LLP
Jimmie C. Miller, BPR No. 009756
Joseph B. Harvey, BPR No. 028891
P.O. Box 3740
Kingsport, TN 37664
Telephone: (423) 378-8800
Facsimile: (423) 378-8801
Email: jmiller@hsdlaw.com
jharvey@hsdlaw.com

Stephen M. Darden, BPR No. 011461

100 Med Tech Parkway, Suite 110
Johnson City, TN 37604
Telephone: (423) 283-6303
Facsimile: (423) 283-6301
Email: sdarden@hsdlaw.com

Attorneys for Defendants Francisco J. Ayala, Jeff

Bednar, Glen E. Blache, Deni Bukvic, Christopher R.
Cannon, Clint A. Cantrell, Kashif Chowhan, Paul
Criswell, Blake Diamond, Wayne C. Dickey, Brenda
Dickson, Michelle Evans, Theodore Francisco,
Mathew Tyler Grooms, Keith A. Hale, John L.
Heishman, Jonathan Hendrix, Waylon R. Hinkle,
Shannon N. Hope, Ryan Hubbard, Jeffrey P. Klinko,
Steven C. Ledgerwood, James K. Liles, David G.
Lodge, Troy R McCarter, Joshua D. McCready,
Anthony J. Martin, Jason E. Miller, Matthew Moon,
George David Nalley, Aunrae A. Navarre, Tommy C.
Pannell, Jerrol Scott Partin, David V. Pena, Michael
Perez, Billy G. Riggins, Jeffrey A. Schroder, Bobby
R. Smith, Ricky D. Smith, Connie Stephens, Ricky
Thornburgh, Robert Whited, Austin J. Williams

Case 3:19-cv-00062-TRM-CHS Document 693 Filed 07/12/22 Page 6 of 7 PageID #: 10657

 /s/ Mary Ann Stackhouse
Mary Ann Stackhouse, Esq. (BPR #017210)
LEWIS THOMASON, P.C.
One Centre Square, Fifth Floor
620 Market Street
P.O. Box 2425
Knoxville, TN 37901
mstackhouse@lewisthomason.com
(865) 546-4646

Attorneys for Defendant John Witsell, in his

individual capacity

CERTIFICATION

Movant’s counsel certifies that movant’s counsel has in good faith conferred with

Plaintiffs’ counsel in an effort to resolve this dispute without court action. However, the parties

were unable to reach agreement on this matter.

s/ Joseph B. Harvey
Joseph B. Harvey, BPR No. 028891

CERTIFICATE OF SERVICE

I hereby certify that on the 12th day of July, 2022, a copy of the foregoing was filed

electronically using the Court’s ECF system. Notice of this filing will be sent by operation of the

Court’s electronic filing system to all parties indicated on the electronic filing receipt. All other

parties will be served by regular U. S. Mail. Parties may access this filing through the Court’s

electronic filing system.

HUNTER, SMITH & DAVIS, LLP

s/Joseph B. Harvey

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