respondent’s motion for leave to file second …

UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION In re:

CITY OF DETROIT, MICHIGAN,

Debtor.

_______________________________/

Chapter 9

Case No. 13-53846

Hon. Thomas J. Tucker

RESPONDENT’S MOTION FOR LEAVE TO FILE SECOND

SUPPLEMENTAL STATEMENT REGARDING PROTECTIVE ORDER IN THE FLINT CRIMINAL CASES

Respondent Department of Attorney General, by and through

Assistant Attorney General John VanDeventer, respectfully moves this

Court for leave to file a second supplemental statement, attached hereto

as Exhibit 2, updating the Court on the status of Respondent’s motion

for amended protective order in the Flint criminal cases, and

respectfully states as follows:

1. Respondent believes that the attached supplemental

statement contains information relevant to the Court’s consideration of

this matter.

2. Movant has concurred in the relief sought.

13-53846-tjt Doc 13434 Filed 09/01/21 Entered 09/01/21 13:27:00 of 2

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Docket #13434 Date Filed: 09/01/2021

1

WHEREFORE, Respondent respectfully requests that the Court

enter an order, substantially in the form of the proposed order attached

hereto as Exhibit 1, granting Respondent leave to file the attached

second supplemental statement.

Respectfully submitted, /s/ John D. VanDeventer MICHIGAN DEPARTMENT OF ATTORNEY GENERAL G. Mennen Williams Building 525 W. Ottawa Street P.O. Box 30212 Lansing, MI 48909 (517) 335-7622 [email protected] Illinois #6315809 Fadwa Hammoud MICHIGAN DEPARTMENT OF ATTORNEY GENERAL Cadillac Place, Suite 10-200 3030 W. Grand Boulevard Detroit, MI 48202 (313) 456-0240 [email protected] P74185

Dated: September 1, 2021 SG FW Snyder USBK/Respondent’s Motion to File 2nd Supplemental Statement AG2021-0309218-C

13-53846-tjt Doc 13434 Filed 09/01/21 Entered 09/01/21 13:27:00 of 2


SOUTHERN DIVISION

In re:

CITY OF DETROIT, MICHIGAN,

Debtor.

_______________________________/

Chapter 9

Case No. 13-53846

Hon. Thomas J. Tucker

[PROPOSED] ORDER GRANTING RESPONDENT’S MOTION FOR LEAVE TO FILE SECOND SUPPLEMENTAL STATEMENT

This matter having come before the Court on Respondent

Department of Attorney General’s Motion for Leave to File Second

Supplemental Statement Regarding Protective Order in the Flint

Criminal Cases (the “Motion”), all parties having been given adequate

notice and opportunity to be heard, and the Court having reviewed the

Motion and finding good and sufficient cause therefore;

IT IS ORDERED that:

1. The Motion is GRANTED.

2. Respondent may submit its statement attached to the

Motion.

Signed on: /s/______________________________ Thomas J. Tucker United States Bankruptcy Judge

SG FW Snyder USBK/Ex 1 - Respondent’s Motion to File 2nd Supplemental Statement AG2021-0309218-C

Ex. 1

13-53846-tjt Doc 13434-1 Filed 09/01/21 Entered 09/01/21 13:27:00 Page 1 of 1


SOUTHERN DIVISION

In re: CITY OF DETROIT, MICHIGAN,

Debtor. _______________________________/

Chapter 9 Case No. 13-53846 Hon. Thomas J. Tucker

RESPONDENT’S SECOND SUPPLEMENTAL STATEMENT REGARDING PROTECTIVE ORDER IN THE FLINT

CRIMINAL CASES

Respondent files this Second Supplemental Statement to update

the Court on the status of Respondent’s Motion for Amended Protective

Order. On August 10, 2021, the Genesee County Circuit Court heard

argument on the Motion for Amended Protective Order. At that

hearing, Respondent argued that there was good cause to amend the

protective order to further emphasize that all privileged and

confidential documents shared in the course of discovery remain

privileged and confidential. The proposed amended protective order

also would have specifically required the approval of this Court prior to

the use of any documents covered by this Court’s confidentiality order.

Prior to the hearing, Respondent sought consensus on the proposed

Ex. 2


1

amended protective order from each of the Flint defendants, including

Movant, but received none.

On August 25, 2021, Respondent filed a Supplemental Statement

with this Court to update the Court on the status of Respondent’s

motion. Respondent attached a copy of the proposed amended

protective order to that statement.

On August 30, 2021, the Genesee County Circuit Court issued an

opinion denying Respondent’s Motion for Amended Protective Order.

The circuit court’s opinion also lifted its previous order staying all

discovery pending the court’s decision on the motion. The court’s

opinion is attached hereto as Exhibit A.

Respectfully submitted,

/s/ John D. VanDeventer MICHIGAN DEPARTMENT OF ATTORNEY GENERAL G. Mennen Williams Building 525 W. Ottawa StreetP.O. Box 30212Lansing, MI 48909(517) [email protected] Illinois #6315809

Fadwa Hammoud


2

MICHIGAN DEPARTMENT OF ATTORNEY GENERAL Cadillac Place, Suite 10-200 3030 W. Grand Boulevard Detroit, MI 48202 (313) [email protected]

Dated: September 1, 2021 SG FW Snyder USBK/Ex 2 - Respondent’s Motion to File 2nd Supplemental Statement AG2021-0309218-C


STATE OF MICHIGAN

IN THE 7TH JUDICIAL CIRCUIT COURT FOR THE COUNTY OF GENESEE

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff,

V

JARROD AGEN GERALD AMBROSE RICHARD BAIRD DARNELL EARLEY NICOLAS LYON NANCY PEELER EDEN WELLS,

Defendants.

Case No. 21-047372-FH (Agen) 21-047373-FH (Ambrose)21-047374-FH (Ambrose)21-047375-FH (Baird)21-047376-FH (Earley)21-047377-FH (Earley)21-047378-FH (Lyon)21-047379-FH (Peeler)21-047380-FH (Wells)

HON. ELIZABETH A. KELLY

-------------------------------

ORDER DENYING PEOPLE'S "MOTION FOR AN AMENDED PROTECTIVE

ORDER" AND PEOPLE'S "AMENDED MOTION FOR AN AMENDED PROTECTIVE

ORDER"

At a session of said Court held in the Courthouse, In the City of Flint, County of Genesee, Michigan

Thursday, August 26, 2021:

PRESENT: THE HONORABLE ELIZABETH A. KELLY

INTRODUCTION

The People have filed with this Court a "Motion for an Amended Protective Order" and

"Amended Motion for an Amended Protective Order" in the above captioned cases. Oral

arguments were heard on August 10, 2021, and briefs were filed.

On April 7, 2021, this Court entered protective orders in People v Agen, People v Ambrose,

People v Baird, People v Earley, People v Lyon, People v Peeler, and People v Wells. The current

protective orders were stipulated to by Jarrod Agen, Gerald Ambrose, Richard Baird, Darnell

Earley, Nicolas Lyon, Nancy Peeler, Eden Wells (hereinafter "Defendants") and the People. Now,

Ex. A


months after stipulating to the current protective orders, the People seek amendments to those same

orders.

ANALYSIS

Pursuant to MCR 6.201, a finding of "good cause" is required for this Court to amend the

existing protective order. MCR 6.201(E) states, "On motion and a showing of good cause, the

court may enter an appropriate protective order." MCR 6.201(E) provides guidance on what a

court may consider when determining "good cause." MCR 6.201(E) states in relevant part:

In considering whether good cause exists, the court shall consider the parties' interests in a fair trial; the risk to any person of harm, undue annoyance, intimidation, embarrassment, or threats; the risk that evidence will be fabricated; and the need for secrecy regarding the identity of informants or other law enforcement matters.

Notably, if this Court finds "good cause" and enters a protective order, "it must seal and preserve

the record of the hearing for review in the event of an appeal." Id.

In Dep 't of Health & Hum Servs v Genesee Cir Judge, 318 Mich App 395, 410 (2016), the

Michigan Court of Appeals provided useful insight into MCR 6.201(E). In the case, the Genesee

County Prosecutor's Office, McLaren Flint Hospital, and Special Assistant Attorney General Todd

F. Flood sought protective orders from the Genesee County Circuit Court. Id. at 398. However,

the proponents of the protective orders never filed petitions setting forth the legal basis for the

protective orders. Id. at 398, 404 .Ultimately, the protective orders were vacated by the Michigan

Court of Appeals. Id. at 398. While deciding to vacate the protective orders, the Michigan Court

of Appeals reaffirmed that MCR 6.201(E) governs protective orders in criminal cases. Id. at 408.

Likewise, as set forth in the Michigan Court Rules, the court expressed that a showing of "good

cause" is necessary for the issuance of a protective order. Id. at 409.

Here, the People seek to amend the current protective orders "out of an abundance of

caution and to avoid further disputes going forward." Motion for Amended Protective Order at 2,


People v Wells (Mich Cir Ct Jun 10, 2021) (No 21-04738-FH). The People claim that the "good

cause" requirement is satisfied because the amendments are necessary "to clarify the protection of

privileged and confidential documents in this case both to ensure that privilege is preserved and to

avoid any further delay in the prosecution of this case." Id. Additionally, the People provide

conclusory statements regarding the need for the amendment, but provide little explanation or

analysis regarding the necessity of the proposed amendments.

In response to the motions, Defendants filed multiple briefs and articulated numerous

reasons for objecting to the People's requested relief. Although Defendants raise multiple

arguments opposing the proposed amendments, this Court is primarily persuaded by the core

requirement of the request: "good cause."

Pursuant to MCR 6.201(E), a finding of "good cause" is required for this Court to amend

the existing protective orders. In determining whether "good cause" exists to amend the existing

protective orders, this Court considers the reasoning and factual basis articulated in the People's

and Defendants' briefs. Of paramount importance, the current protective orders were negotiated

and stipulated to by all parties. If the People were not satisfied with the language of the protective

orders as written, then they should not have stipulated to their entry.

Perhaps most compelling, is the fact that the People stipulated to the entry of the current

protective orders. Persuasive legal reasoning and strong factual argument are necessary to

overcome this cogent fact and support a finding of "good cause." Nonetheless, the People provided

this Court with conclusory argument and minimal discussion regarding the requested amendments.

As such, this Court is not persuaded that the People have established the "good cause" necessary

for their requested relief. For the foregoing reasons, the People's motions must be DENIED and

the current protective orders shall stand.


On August 17, 2021, this Court entered an "Order in Response to People's Motion for an

Amended Protective Order", which prevented the People from disseminating discovery pending

the Court's decision on this matter. As a result of this opinion and order, the Court's August 17,

2021, order is now lifted.

NOW, THEREFORE, IT IS ORDERED: People's "Motion for an Amended Protective Order" and "Amended Motion for an Amended Protective Order" are DENIED for the reasons stated above.

Dated:

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ELIZABETH A. KELL y. W.J:17�

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SG FW Snyder USBK/Ex A - Respondent’s Motion to File 2nd Supplemental Statement AG2021-0309218-C


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