United States District Court, S.D. Georgia, Savannah Division
case involves civil claims arising from Mathew Ajibade's
death while in the custody of the Chatham County, Georgia
Sheriff. See doc. 21 (Amended Complaint). Plaintiffs
move to compel further deposition testimony from non-party
Betty Riner. Doc. 125. Riner is a nurse formerly
employed by defendant Corizon Health, Inc., which was
contracted to provide medical services at Chatham County
Detention Center. See doc. 131 at 3. Corizon opposes
plaintiffs' motion, asserting that Riner's testimony
is precluded or limited by a settlement agreement between
them. See Id. at 10-17. Riner responds that she is
“willing and eager to fully comply with her obligation
to give truthful testimony, ” but “[a]bsent a
court order, her Settlement Agreement with Corizon prohibits
her from offering [the requested] testimony.” Doc. 130
at 7-8. None of the parties has produced the settlement
agreement at issue -- plaintiffs don't have it, and Riner
and Corizon protest that the agreement itself is
confidential, offering to produce it only for in
camera review. See doc. 130 at 6; doc. 131 at
18; doc. 137 at 3. The lack of any indication by either
protesting party about how and why it bars Riner's
testimony obstructs judicial interpretation of it.
See doc. 130 at 7-8. The parties' arguments
about the relevance of Riner's testimony are also obscured
by her refusal to answer many of the questions posed at her
deposition, including apparently innocuous
ones. Left in the dark on the facts, the Court
must rely on the law for light.
of the contract's specific terms, “[t]he public
policy of Georgia does not ‘permit parties to contract
privately for the confidentiality of documents [or
testimony], and [thereby] foreclose others from obtaining, in
the course of litigation, materials that are relevant to
their efforts to vindicate a legal position. To hold
otherwise would clearly not serve the truth-seeking function
of discovery in [civil] litigation.'” Barger v.
Garden Way, Inc., 231 Ga.App. 723, 725 (1998)
(alterations in original) (quoting Grumman Aerospace
Corp. v. Titanium Metals Corp. of America, 91 F.R.D. 84,
87-88 (E.D.N.Y.1981)). To effectuate that policy, a
provision allowing the contracting party to “testify or
otherwise comply with a subpoena, court order, or applicable
law, ” is implied in every confidential settlement
agreement. Id. at 725-26.
law takes a similarly skeptical view of such agreements'
power to limit discovery. See In re Enron Corp. Sec.,
Derivative & ERISA Litig., 623 F.Supp.2d 798, 838
(S.D. Tex. 2009) (citing, inter alia,
“Griffin v. Mashariki, . . ., 1997 WL 756914,
*2 (S.D.N.Y. Dec. 8, 1997) (‘[T]he mere fact that
settling parties agreed to maintain the confidentiality of
part of the settlement ... cannot serve to shield that
statement from discovery'); Tribune Co. v.
Purcigliotti, . . ., 1996 WL 337277, *3 (S.D.N.Y. June
19, 1996) (same proposition); Magnaleasing, Inc. v.
Staten Island Mall, 76 F.R.D. 559, 562 (S.D.N.Y.1977)
(confidentiality clause does not bar discovery of relevant
portions of a settlement agreement)”). The legal
authority is, thus, unequivocal that the agreement between
Corizon and Riner cannot bar plaintiffs'
against the plaintiffs' discovery interest is the
dispute-resolution efficiency promoted by settlements, which
are only as attractive as they are enforceable. See
Harrison v. Bankers Standard Ins. Co., 2015 WL 3617108
at * (S.D. Cal. June 9, 2015) (quoting MedImuune, L.L.C.
v. PDL BioPharma, Inc., 2010 WL 3636211 at * 2 (N.D.
Cal. 2010)) (“Courts ‘must balance [one
party's] interest in the discovery of potentially
relevant information against [another party's] interest
in protecting a settlement negotiated with the expectation of
confidentiality.”); cf. Bennett v. Behring
Corp., 737 F.2d 982, 986 (11th Cir. 1984) (referring to
“the strong judicial policy favoring
settlement”). Thus, “[w]here private parties,
represented by counsel, contract for confidentiality of the
settlement agreement terms, courts should be loathe to
interfere.” In re Enron, 623 F.Supp.2d at 837
(citing Centillion Data Sys., Inc. v. Ameritech
Corp., 193 F.R.D. 550, 551-52 (S.D. Ind. 1999); EEOC
v. Rush Prudential Health Plans, 1998 WL 156718 at * 5
(N.D. Ill. Mar. 31, 1998)). That reticence is compounded in
this case by Corizon's insistence that Riner's
evidence would be merely cumulative. See doc. 131 at
the importance of the interests on both sides of this
dispute, and the relative lack of factual specificity, the
parties should attempt a compromise solution, before the
Court takes more drastic action.Within 21 days from the date
this Order is served, the parties should confer and attempt
to agree to a protective order that will allow
plaintiffs' counsel to conduct discovery, including
taking Riner's testimony, while preventing Riner or
Corizon from forfeiting the benefit of their bargained-for
protection from public disclosure. If, after a
good-faith conference, they cannot reach a mutually
satisfactory agreement, the parties should explain
specifically the impediments, including their
respective proposals for resolution. The Court authorizes the
filing, under seal and for in camera review, the
confidential settlement agreement in question. And if any
party contends that they cannot provide or support such an
explanation on the Court's public docket, they are free
to move the Court to seal relevant filings under Local Rule
 Defendant Corizon argues that
plaintiffs' motion to compel her appearance at a second
deposition is not ripe because they have not sought leave to
conduct a second deposition. Doc. 131 at 17-18. Corizon is
correct that a second deposition of the same deponent
requires leave. See Fed. R. Civ. P. 30(a)(2)(A)(ii).
But the situation is not as simple as Corizon's argument
suggests. Rule 29 permits parties to stipulate to changes in
the ordinary deposition procedure. See Fed. R. Civ.
P. 29(a) (allowing stipulation that “a deposition may
be taken before any person, at any time or on any notice, and
in the manner specified -- in which event it may be used in
the same way as any other deposition . . . .”). Riner,
as discussed below, is willing to testify. Thus, once the
confidentiality issue is resolved, there seems to be no need
to compel her testimony.
 Corizon argues that plaintiffs have
not shown that Riner's testimony would be relevant.
See doc. 131 at 10-16. Plaintiff's counter that
Corizon lacks standing to object to the relevance of
discovery from a third party. See doc. 137 at 4-6.
Even if it did have standing, and despite the likelihood that
Riner does not have knowledge of Ajibade's detention,
they contend that she could illuminate what the Sheriff and
Corizon knew about the general quality of medical care
provided to inmates. See Id. at 6-7. They also
contend that her testimony is relevant to corroborate or
refute the testimony of defendant Brown. Id. at 7.
Those relevancy claims are not obviously specious, and, after
all, relevance is not a demanding standard. United States
v. Tinco, 304 F.3d 1088, 1120 (11th Cir. 2002)
(“The standard for what constitutes relevant evidence
is a low one.”); Republic of Equador v.
Hinchee, 741 F.3d 1185, 1189 (11th Cir. 2013)
(explaining Federal Rules of Civil Procedure “favor
full discovery whenever possible”) (quotes and cite
omitted)). Since Riner hasn't answered even basic
questions, see note 3 infra, it's not
clear what the content of her testimony is likely to be.
Riner does not assert that her testimony is irrelevant, but
only seeks assurance that testifying will not subject her to
liability. See generally doc. 130.
For example, Riner's counsel advised her not to answer
questions about the identity of Corizon's “medical
director” and whether that person, whoever it was, was
her immediate supervisor. Doc. 125-1 at 39-40. It is
difficult to fathom what possible interest Corizon could have
in keeping that information confidential. However, the Court
will not second-guess Riner's counsel's caution in
protecting his client against possible liability for breach
of the settlement.
Assuming that Georgia law governs the settlement agreement --
the Court assumes that it does because Corizon cites to
Georgia case-law, including Barger, in its brief,
see doc. 131 at 10-11 -- Barger's
implied caveat allows that someone subject to a
confidentiality agreement “may nevertheless
testify or otherwise comply with a
subpoena.” 231 Ga.App. at 725 (emphasis added).
Thus, whatever the “significant confidentiality
requirements” the parties' agreement
“purports” to impose, doc. 130 at 2, they would
be subject to Barger's caveat. Since
Fed.R.Civ.P. 45 does not require a subpoena to enumerate the
subjects upon which testimony is sought, and Riner does not
contend that the subpoena imposes and undue burden, nor move
the Court to quash or modify it, it is not clear what she
means by requesting the Court “clarify the scope of the
subpoena.” Doc. 131 at 2. However, the Court expects
that Riner, the parties, and their respective counsels will
all appreciate Barger's significance.
The extent of the parties' conference prior to the
deposition and instant motion is, like the other facts
involved, murky. Plaintiffs' motion attaches email
correspondence with Riner's counsel, and includes a
boilerplate certification of conference. See doc.
125 at 22; doc. 125-6 (emails from Riner's counsel); doc.
125-7 (emails from plaintiffs' counsel). Corizon does not
address the conference requirement at all. See
generally doc. 131. Riner explains that the conference
among the parties was limited, but should suffice to satisfy
the Federal Rules and this Court's Local Rules.
See doc. 130 at 5.
What is not clear is whether the parties discussed the
possibility of an agreement, possibly memorialized in an
Order, protecting any fact Riner reveals from public
disclosure, while allowing plaintiffs, or at least their
counsel, to hear that testimony and evaluate its relevance.
Assuming that any of her testimony is later sought to be
introduced in a subsequent motion or at trial, the parties