In re: Secretary, Florida Department of Corrections

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IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-10650-J
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In re: SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Petitioner.
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On Petition for a Writ of Mandamus from the United States
District Court for the Northern District of Florida
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BEFORE:JORDAN, BRANCH, and LUCK, Circuit Judges.
BY THE COURT:
Before the Court is a petition for a writ of mandamus seeking, among other things, to
compel the district court to enter an order granting the petitioners’ motion for entry of a protective
order. The case below concerned a class action lawsuit brought by inmates formerly and currently
incarcerated in Florida Department of Corrections (“FDC”) correction facilities alleging that the
conditions of their imprisonment constituted cruel and unusual punishment. After initial
discovery requests, the parties attempted to negotiate a confidentiality agreement. The parties
came to an impasse, however, because petitioners wished to designate certain requested
information involving sensitive prison security and safety issues as “Attorneys’ Eyes Only,” a
provision which would prohibit the information from being viewed by persons other than counsel
without the permission of FDC. The district court entered a confidentiality order that rejected
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petitioners’ request for an “Attorneys’ Eyes Only” provision for this small subset of information
and thus would have enabled the named plaintiffs—currently incarcerated inmates—along with
several other groups of individuals to access all discovery without FDC permission.
Petitioners subsequently moved for a protective order, this time asking the district court to
designate as “Attorneys’ Eyes Only” a few specific categories of evidence: “(1) post orders; (2)
technical manuals; (3) video surveillance of correctional facilities; and (4) information related to
the correctional institution’s physical security, including, but not limited to, cell locations, prison
layout, and positioning of officers and cameras.” Attached to this motion was a declaration by
the Deputy Director of FDC, in which he swore that the plaintiffs’ discovery requests contained
“highly sensitive safety and security information” for the prisons. The deputy director detailed
which types of prison information are highly sensitive, what steps the FDC takes to safeguard it,
and how such information might be misused.
The district court denied the motion for a protective order. The district court stated that it
had already considered the petitioners’ security concerns and asserted that “Defendant’s motion
for a protective order is based on a fear of mischief because there is an opportunity for mischief.
This Court expects the parties to conduct discovery of highly sensitive information in a reasonable
manner . . . . Defendant’s [sic] merely recite the concerns they had in opposing Plaintiffs’ proposed
confidentiality order without demonstrating any specific facts that would show that additional
protection is needed.” Following this order, petitioners filed a motion for a temporary stay along
with a petition for a writ of mandamus in this court.
On March 6, 2020, this Court directed the respondents to file an answer to the petition and
invited the District Judge to address the petition. The order also temporarily stayed the petitioners’
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duty to produce in discovery the information at issue in the district court’s order denying their
motion for entry of a protective order. On March 9, 2020, the District Judge informed the Court
that he elects not to address the petition. On March 13, 2020, the respondents filed an answer to
the petition.
We are empowered to issue writs of mandamus pursuant to 28 U.S.C. § 1651(a), the All
Writs Act. Mandamus is available “only in drastic situations, when no other adequate means are
available to remedy a clear usurpation of power or abuse of discretion.” Jackson v. Motel 6
Multipurpose, Inc., 130 F.3d 999, 1004 (11th Cir. 1997). For a writ of mandamus to issue, three
conditions must be met: first, the party seeking the writ must have no other adequate means of
relief; second, the petitioner must demonstrate his or her right to the writ is clear and indisputable;
and third, the issuing court must determine whether a writ is appropriate under the circumstances.
Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380–81). A district court’s discovery orders
are reviewed for an abuse of discretion. See In re Ford Motor Co., 345 F.3d 1315, 1316 (11th Cir.
2003).
Although mandamus is an extraordinary remedy, it can be an appropriate remedy for
discovery orders which threaten to disclose highly sensitive information. See In re Fink, 876 F.2d
84, 84 (11th Cir. 1989) (“Therefore, if there has been a clear abuse of discretion in allowing
discovery, mandamus is an appropriate remedy.”).Granting a writ of mandamus may be
appropriate where discovery orders threaten the sovereignty of the executive branch. See Cheney,
542 U.S. at 382 (“Accepted mandamus standards are broad enough to allow a court of appeals to
prevent a lower court from interfering with a coequal branch’s ability to discharge its constitutional
responsibilities.”). After careful review, we have determined that the petitioners have shown the
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district court clearly abused its discretion in denying their motion for entry of a protective order,
the petitioners’ right to relief is clear and indisputable, and the petitioners have no other avenue of
relief.
First, we find that, other that the writ of mandamus at issue, the petitioner has no other
adequate means of relief. If we do not grant the petition, the information at issue will be disclosed
and the harm to prison staff, prisoners, and the general public will have been done.
Second, we find that the petitioner has demonstrated that its right to the writ is clear and
indisputable because the district court clearly abused its discretion in denying the motion for a
protective order. The district court’s reasoning for denying the protective order—that plaintiffs’
counsel would not be presumed to act in bad faith and to cause “mischief”—misunderstands the
legitimate concern of the petitioners.
1
No one doubts or argues that plaintiffs’counsel would
handle discovery in a reasonable manner. Rather it is that the named plaintiffs themselves were
granted access to highly sensitive information that is the issue. The named plaintiffs are currently
incarcerated prisoners whose possession of such sensitive information is a clear and obvious
security risk. These inmates have serious criminal records which include, among other felonies,
murder in the first degree, armed robbery, identity fraud, forgery, and fleeing or attempting to
elude law enforcement. Appellees to this mandamus petition assert such an exception was
necessary because the named plaintiffs are the experts of their own case and need the information
to know when the prison breached its protocol. We think not. An attorney can elicit helpful
1
We note that the petitioners attached to their motion for protective order a declaration of
the deputy director of the FDC which highlighted the need for a protective order. When the
district court denied the motion for a protective order, it did not even discuss the concerns and
information presented in this declaration.
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information from his client without divulging confidential information. Additionally, the district
court authorized release of this highly sensitive information to “consultants,” “declarants,”
“experts,” and “witnesses” whom plaintiff counseldeem “reasonably necessary.” This list of
people who have access represents a broad swath of people who might be designated as witnesses,
declarants, or consultants with no input whatsoever by the government. This group represents a
serious risk of further compromising prison security. Finally, the relief requested by the petitioners
of the district court was quite modest—the petition asked for an “Attorney’s Eyes Only”
designation only for a small subset of the prison information sought which would impair the
security and safety functions of the prison if disclosed other than to plaintiffs’ counsel.
2
Third, we find that granting the writ is appropriate in this case involving highly sensitive
prison security and safety information. In Cheney, the Court issued a mandamus because it was
concerned that the discovery order would interfere with important executive functions. Cheney,
542 U.S. at 385. We find that the discovery issue in this case, which also involves an executive
branch function, is likewise, “not a routine discovery dispute.” Id. The ability of the prisons to
perform their functions is threatened. We have found cases with less potential for serious harm
appropriate to issue a mandamus. For example, inFink, we found it an abuse of discretion to
release medical records of nonparties to the action, including names and addresses of patients.
See id. at 84–85. The confidential information here has much more potential to cause great harm
to any number of people.
2
Our colleague makes much of the fact that the plaintiffs will not have access to the physical
documents marked confidential. SeeJ. Jordan, dissenting, infra at 7. While it is true that the
confidentiality order prohibits the named plaintiffs—all currently incarcerated felons—from accessing the
physical documents at issue, it nonetheless grants them access to all of the information contained therein
without exception. Accordingly, the order’s exception for physical documents in no way alleviates the
security and safety concerns that would arise if the named plaintiffs are granted access to this information.
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Given the extraordinary broadness of the discovery order, the seriousness of the potential
security and safety breaches, the lack of harm to plaintiffs’ case by having the attorneys handle the
highly sensitive information, and the fact that waiting until after the case is final to appeal the
discovery order could be dangerous to prison staff, inmates, and the general public, we find
mandamus appropriate in this case. The petition for a writ of mandamus is GRANTED as follows:
the district court is directed to (a) vacate its order denying the petitioners’ motion for entry of a
protective order (Doc. 94), (b) grant the petitioners’ motion for entry of a protective order (Doc.
84), and (c) enter any other orders necessary to implement the relief granted by this order. The
petitioners are not obligated to produce in discovery information at issue in the petitioners’ motion
for entry of a protective order (Doc. 84) absent the protective order. The petitioners’ “Emergency
Motion to Stay Discovery Regarding Confidential Prison Security Information Pending Resolution
of Petition for Writ of Mandamus” is DENIED AS MOOT.
The Clerk’s Office is directed to close this matter.
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JORDAN, Circuit Judge, dissenting.
My colleagues obviously disagree with the district court’s confidentiality order, and
believe it is inadequate because it does not contain an “attorney’s eyes only” restriction. But the
petitioners’ request is for mandamus, and such a writ “is a ‘drastic and extraordinary’ remedy
‘reserved for really extraordinary causes.’” Cheney v. U.S. District Court, 542 U.S. 367, 380
(2004) (citation omitted). I submit this is not one of those rare cases involving a “judicial
usurpation of power or a clear abuse of discretion,” id., and therefore respectfully register my
dissent.
The district court thoughtfully and carefully applied the correct legal standard and
concluded that the petitioners had not shown good cause for their requested protective order under
Rule 26(c). The district court explained that under the confidentiality order (a) documents
marked confidential will not be disclosed to persons currently or formerly incarcerated in the
Department of Corrections without written permission from the producing party; (b) the plaintiffs’
counsel cannot give copies of those confidential documents to the named plaintiffs but can discuss
the contents of such documents with them if reasonably necessary to prosecute the case; and (c)
the petitioners’ “fear of mischief” due to the “opportunity for mischief” was insufficient. See
D.E. 94 at 4-5 (order denying motion for protective order). Under the confidentiality order,
therefore, there is no danger of confidential documents being distributed or shared by prisoners in
the Department of Corrections.
In addition, the district court expressly balanced the petitioners’ “interest in safety and
security with the [p]laintiffs’ interest in conducting full and fair discovery,” and considered the
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authorities that the petitioners relied on, noting that even some of the “attorney’s eyes only” cases
cited by the petitioners permitted disclosure of confidential documents to certain “qualified”
individuals beyond counsel. See D.E. 111 at 4-6 (order denying motion for stay of discovery).
It further found that the petitioners’ proposed protective order was “too narrow” to protect the
plaintiffs’ interests, and noted that the confidentiality order was consistent with one the
Department of Corrections had stipulated to in a “nearly identical class action.” See id. at 6 n.1.
My colleagues conclude otherwise, but I think they are merely substituting their judgment for that
of the district court. That, I submit, is not appropriate in traditional abuse of discretion review,
much less in mandamus.
In some civil rights cases involving prison conditions, federal courts have approved
“attorney’s eyes only” designations as a means of balancing prison security concerns against an
inmate’s right of access to relevant discovery. See, e.g., Reese v. Liberty, 2019 WL 5549219, at
*3 (D. Me. Oct. 25, 2019) (citing cases). But in some other such cases, courts have concluded
that such designations are not always warranted. See, e.g., Burks v. Stickney, 2017 WL 1401312,
at *5 (N.D.N.Y. April 19, 2017). There is, in others words, no bright-line rule, and “[w]here a
matter is committed to the discretion of a district court, it cannot be said that a litigant’s right to a
particular result is ‘clear and indisputable.’” Will v. Calvert Fire Ins. Co., 437 U.S. 655, 665-66
(1978) (plurality opinion) (citation omitted).
I tend to think the district court got the balancing right. But even if I am mistaken, “the
most that can be claimed on this record is that [the district court] may have erred in ruling on
matters within [its] jurisdiction,” and “‘extraordinary writs [like mandamus] do not reach to such
cases[.]’” Will v. United States, 389 U.S. 90, 103-04 (1967) (citation omitted) (reversing circuit
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court’s grant of mandamus petition which would have required the district court to vacate its order
requiring the government to provide a bill of particulars and provide the names of parties to whom
the defendant had made statements and the times and places of those statements). Because
mandamus “is not to ‘control the decision of the trial court,’ but rather merely to confine the lower
court to the sphere of its discretionary power,” id. at 104, I would deny the petitioners’ request for
a writ of mandamus. Cf. Kerr v. U.S. District Court, 426 U.S. 394, 398, 404-05 (1976) (denying
writ of mandamus in prison suit where the district court had, over claims of privilege, ordered the
defendants to produce the personnel files of persons employed by the California Adult Authority
and some sample prisoner files, and had limited the disclosure to counsel of record and two
investigators to the extent necessary to the conduct of the action).
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