i
?f

IN THE CIIZCUI'1' COU1Z'1' l~Og2'V6~~LLIAMSON COUNTY,TENNESS~~:''~i i ~;~~~-~a~ ~

209~ir~~~ -7 A~lI~ ~0
llAVTll CI-IAS~,
1'17i~~tiff,

) No. 2015-CV-200

v.

)

CHRIS STEWAR'T,et al.

)

llefend.~~its.

)

SCRIPPS MEDIA,INC.'S MOTION TO INTERV~N~ FOR THE LIMITED PURPOSE
OF SEEKING TO UNSEAL DOCUMENTS FIL ~D IN THIS ACTION
AND TO LIFT PROTECTIVE ORDER LIMITING ACCESS
Scripps Media, Inc.("Scripps") hereby seeks leave to intervene in this matter for the sole
ptu•pose of asking this Court to unseal the pleadings and other documents that have been filed
herein under seal and to lift any protective order that purports to block access to documents filed
herein or court proceedings. Scripps owns and operates the television station that broadcasts as
NewsChannel 5, WTVF in Nashville, Tennessee.
In support of such Motion, Scripps would show that allowing documents filed herein to
remain under seal and any restriction on public access to these documents and couirt proceedings
Herein violates the Tennessee Constitution, the First Amendment to the United States
Constitution and the public's statutory and common law rights to open courts and open records.
F'or the reasons set forth in this Motion and accompanying Memorandum, this Court should lift
the restrictions of any protective order entered herein that would allow pleadings or documents
filed in this case to remain under seal or to restrict the ability of the public or press to attend at
any hearings in this case.

 Respectfully submitted,
NEAL & HARWI;LL,PLC

v
By:
Ronald G. Harris, #9054
2000 One Nashville Place
150 Fourth Avenue, North
Nashville, TN 37219-2498
(615)244-1713 — Telephone
(615)726-0573 — Facsimile
Counselfor Intervenor Scripps Media, Inc.
~~ sr
,2016
THI MATTER IS I+;XI'EC'TED 'I'O 13E HEARll ON THliJ~ DAY OF
AT ~:cX1 A.M. FAILURE 1'O FILE AND SERVE A TIMELY WRITTEN RESPONSE
1'O THIS MOTION MAY 12ESULT IN THE MOTION BEING GRANTED WITHOUT
FURTHER I-IEARING.

-2-

 CLR'1,I1+ICArI'L OF SERVICE
I hereby certify that a copy of the foregoing has been served, via the methods) indicated
~'l
below, on the following counsel of record, this the ~ day of March, 2016.
( ) I-Iand
(Mail
( ) rax
( )Fed. Ex.
(~E~"Mail

Phillip L. Robertson, Esq.
Robertson Law Group
1896 General George Patton
Suite 600
Franklin, TN 37067

( )Hand
( ~4-ail
( )Fax
( ) T'ed. Ex.
( l~=lvlail

Robert ~. McGuire, ~sq.
McGuire, Menke, Reddiek & Shabayek,PLLC
114 30`x' Avenue South
Nashville, TN 37212

( )Hand
(~—Mail
( )rax
( )Fed. Ex.
(
'Mail

Michael J. Dumitru, Esq.
Riley, Warnock &Jacobson,PLC
1906 West End Avenue
Nashville, TN 37203

( )Hand
(I~IGIaiI
( ) rax
( ) led. Tx.
((~~Glail

Brian P. Manookian, ~sq.
102 Woodmont Boulevard
Suite 241
Nashville, TN 37205

( )Hand
((~Adi~ail
( ) rax
( )Fed. fix.
(
Mail

David T. Hooper, Esq.
Hooper, Zinn &McNamee
109 Westpark Drive, Ste. 300
Brentwood, TN 37027

-3-

 ( ) I-Iand
((~Ir~1ai1
( )Fax
( )Fed. Ex.
(~E-Mail

James D. Kay, Lsq.
Kay, Griffin, Enkema &Colbert, PLLC
222 Second Avenue North
Suite 340M
Nashville, TN 37201

( )Hand
( ~A~Iail
( )Fax
( )Fed. Ex.
(~-Mail

John Ray Clemmons, Esq.
Clemmons & Clemmons
211 Union Street, Suite 102
Nashville, TN 37201

( )Hand
( Mail
( )Fax
( )red. fix.
(~-Mail

Marcus M. Crider, Esq.
Waller Lansden Dortch &Davis
511 Union Street, Ste. 2700
P. O. Box 198966
Nashville, TN 37219-8966

-4-

 d ~[ i.:. f

,ok 1 -~ 3'~' i/

IN TTII?, CIRCUIT COURT F012 WILLTAMSON COUNTY,TENNESSEE ~ , ,~~st'j ~ d~~l~~~

10~6~~,~ -7 A~tI~ 50
n~vir~ ci-IASL,
Plaintiff,

) No. 2015-CV-200

v.

)

CHRIS ST~WART,et ~1.

)

Ucfendants.

)

MEM012ANDUM IN SUPPORT OF SCRIPPS MEDIA,INC.'S MOTION TO
INTERVENE FOR THE LIMITED PURPOSE OF SEEKING TO UNSEAL
DOCUMENTS FILED IN THIS ACTION AND TO LIFT PROTECTIVE ORDER
LIMITING ACCESS
Scripps Media, Inc.("Scripps"), anon-panty, has asked this Court for leave to intervene
for the limited purpose of asking this Court to unseal pleadings and other documents that have
been tiled herein under seal and to lift any protective order that purports to block access to such
documents or any court proceedings in this case. As set forth in this memorandum, allowing
documents filed herein to remain under seal and permitting any such restriction an access to the
documents or court proceedings herein would violate the Tennessee Constitution, the First
amendment to the United States Constitution and the public's common law and statutory rights
to open courts and open records. Scripps also seeks to lift any protective order or court order
herein that would restrict access to any documents filed herein or further court proceedings.

PROCEDURAL BACKG1tOUNll
This lawsuit Irises out of the domestic assault case in Nashville, Davidson County,
Tennessee against David Chase, Plaintiff herein. That case received a substantial amount of
media attention which included reports that a Davidson County General Sessions judge acted
improperly in releasing the Plaintiff who had been accused of domestic assault. Plaintiff David
Chase has chimed that he was wrongfully accused of such charges.
The domestic assault charges in Davidson County against Mr. Chase were dismissed.
That dismissal was also reported in the local media. The circumstances surrounding the
dismissal of those charges have become an issue in this litigation. Defendants have subpoenaed
the Davidson County District Attorney General Glenn R. Funk for a deposition in this case. Mr.
rank has objected to the subpoena. A Motion to Compel Mr. Funk's deposition and the exhibits
to that motion were filed under seal and access to such filings has been blocked.
Intervenor Scripps Media, Inc. owns and operates the television station in Nashville that
broadcasts as NewsChannel 5. Undersigned counsel for Intervenor has reviewed portions of the
file in the Circuit Court Clerk's office that are available to the public. (Undersigned counsel has
requested copies of certain pleadings but such copies have not yet been provided.)
Several pleadings in this case have reFerenced and sought protective orders; some were
Oiled by non-parties to the lawsuit. There have been prior proposed agreed protective orders that
appear to have been submitted and withdrawn. The only protective order that counsel has been
able to determine was entered was an order dated November 9, 2015. (Counsel has requested a
copy of that order but has not yet received a copy.) It also appears from a review of the file and
docket sheet in this case thlt there may still be pending motions that are relating to the issues of
protective orders.

-2-

This case has been t e su sect o oca me is news stories. none news s ory repo e

y

WSMV-Channel 4, it was shown that a reporter and camera person from television station
WSMV were asked to leave the courtroom in an earlier hearing. The news report cited a
"protective order" ~s the stated basis for exclusion. Undersigned counsel is not aware of any
specific written order that sets Forth the basis for any exclusion of the media from these
proceedings. It appears that the next hearings on motions in this case are set for March 10, 2016.

AUTT-IORITY AND ARGUMENT
Article I, Section 17 of the "fennessee Constitution expressly provides that "the courts
shall be open." The United States Supreme Court has recognized that the public and press have a
presumptive rirst Amendment right of access to judicial proceedings in criminal cases.
Richmond Neivspape~?s, Inc, v. Virginia, 448 U.S. 555 (1980). That presumptive right to access
has also been extended to civil cases. E.g. NBC Szrbsidiary(KNBC-TV), Inc. v. Superior Court,
980 P.2d 337 (Cal. 1999). The California Supreme Court stated that "every lower court opinion
of which we Ire aware that has addressed the issue of the First Amendment access to civil trials
end proceedings has reached the conclusion that the constitutional right of access applies to civil
as well as criminal trials." Icy. at 358.
"The openness ofjudicial proceedings extends to judicial records." In Re NHC-Nashville
Fire Liligcrlion, 293 S.W.3d 547, S60 (Tenn. Ct. App. 2008), citing Knoxville News-Sentinel v.
Iluslcy, 982 S.W.2d 359, 362-363 (Tenn. Cioim. App. 1998). "The public and press have 1 First
Amendment right of access to pretrial documents in general." Aso.socia~eu' Press v. District
Court, 705 F.2d 1143, 1145 (9th Cir. 1983).

-3-

Before the United States Supreme Court specifically articu ate t e constituttona rig

o

access, courts had long recognized a common law right to access to judicial records. In Nixon v.
Warne~~ Communications, Inc., the United States Supreme Court stated that "the courts of this
country recognize a ~cneral eight to inspect and copy public records and documents, including
judicial records and documents." 435 U.S. 589, 598 (1978).
The Tennessee Supreme Court has described the origins and reasons for the public's
rights to access judicial records as follows:
The public's right to access provides public scrutiny over the court system which
serves to (1) promote community respect for the rule of law,(2) provide a check
on the activities ofjudges and litigants, and (3) foster more accurate fact finding.
U~?ove Fi?esh Dist~~ibuJo~os, Inc., 24 r.3d at 898. The right of access to judicial
proceedings and records was originally justified by common law traditions
predating the enactment of the federal Constitution. The common law right of
access establishes that court files and documents should be open, unless the court
Iinds that the records are being used for improper purposes. Id. Moreover, the
First Amendment to the Constitution presumes that there is a right of access to
proceedings and documents which have "historically been open to the public" and
which disclosure would serve a significant role in the functioning of the process.
Id.
(emphasis added.) I~~ Re NI-IC-Nashville I{ire LiCigation, supra at 560-561 quoting Ballard v.
Hey?tike, 924 S.W.2d 652, 961 (Tenn. 1996).
While the rights to access are not absolute, it is clear that any restriction on public access
"must be narrowly tailored to accommodate the competing interests without unduly impeding the
free flow of inlormation." Knoxville Nees-Sentinel v. Husky,supra at 363.
The presumption of openness may be overcome oiily by an overriding interest
based on findings that closure is essential to preserve higher values and is
narrowly tailored to serve that interest. The interest is to be articulated along with
findings specific enough that a reviewing court can determine whether the closure
order was properly entered.
(emphasis added). In Re NHC-Nashville fire Litigation, supra at 560, citing State v. Drake, 701
S.W.2d 604,607-OS (Tenn. 1985).

In addition to the constitutional and common law rights to access to ju icia recor s,
Tennessee has codified the public rights to access in the Tennessee Public Records Act. Tenn.
Code Ann. ?? 10-7-101, et seq. That Act defines "public records" to which the public has access
as "the pleadings, documents and other papers filed with the Clerk of all courts." ? 10-7-~03.
These constitutional, common law and statutory rights of access should not be restricted
or limited absent strong and compelling proven reasons. In Re NHC-Nashville Fire Litigation,
supra. Rule 26.03 of the Tennessee Rules of Civil Procedure provides that a protective order
may be entered "to protect a party or person from annoyance, embarrassment, oppression or
undue burden or expense" but that it must be upon motion oP a party and "for good cause
shown." To establish "good cause" under this rule, the moving party must show that the
disclosure will result in a clearly defined injury to the party seeking to deny access. Ballard v.
Herzke, at 658. "Mere conclusory allegations are insufficient." Id. "The burden of justifying
the confidentiality of each and every document sought to be covered by a protective order is on
the party seeking the order." Id.

PROTECTIVE ORDER -- ACCESS TO DOCUMENTS
It is well-settled that the public and the media have the right to intervene for the purpose
of petitioning the Court to unseal documents and allow public inspection of them. E.g. Knoxvzlle
News-Sentinel v. Huskey, szrp~?a at 362. At this time, from a review of the public portion of the
tile, it is not clear to Intervenor the extent of the protective orders) entered in this action or the
reasons argued by the parties (or non-parties) for such order or orders. Undersigned counsel has
been working with the Circuit Court Clerk in an attempt to get copies of the pleadings that are
not under seal and appear to be related to these issues. That process continues. The copies were
marked and designated for copying on February 22, 2016, but to date the copies have not yet
-5-

been provided. In response to the latest inquiry a out t e status o t e reques e copies,

e

Clerk's office has expressed concern about the protective order in this case and the need to check
with the Jude before any of the requested copies can be provided.
In resolving requests for a protective order, there should be a balancing of interests.
"Protective orders are intended to offer litigants a measure of privacy, while balancing against
this privacy interest the public's right to obtain information concerning judicial proceedings."
Bc~llarcl at 658. The Tennessee Supreme Court in Ballard listed some of the factors for the
balancing of interests in determining if good cause exists to enter a protective order. Id. at 658659. Specifically, the Court said that "Factors in the balance weighing against a finding of good
cause include:(1) the party benefiting from the protective order is a public entity or official,(2)
the information sought to be sealed relates to a matter of public concern; and (3)the information
sought to be sealed is relevant to other litigation and showing it would promote fairness and
efficiency." Id 1t 658. (Emphasis added.)
X111 of these factors are present in this case and militate against a broad protective order
restricting access to documents fled herein. As previously noted, this case arises from a high
profile alleged domestic assault case in Davidson County. The allegations in this current case
here in Williamson County very much involve how that prior case was resolved. One set of
documents that has been filed under seal is the Motion to Compel the deposition of Davidson
County District Attorney Glenn Funk and exhibits filed in support of such motion. (There may
be others.)
Mr. Funk is an elected public official, the District Attorney General for the 20th Judicial
District. The allegations in this current lawsuit involve the actions of him and his office in
relation to the bringing and ultimate dismissal of the domestic assault charges against Mr. Chase

~~

(Plaintiff herein), as well as the dismissal of Plaintiff's civil lawsuit against t e

etropo rtan

Government oi' Nashville, Davidson County. It is clearly a matter of public concern and public
interest. NewsChannel 5-WTVF, Channel4-WSMV,the Nashville Scene and other local media
have already reported on the allegations in this lawsuit.
On February 3, 2016, NewsChannel 5 broadcast a news story reporting on allegations
made in this current lawsuit. The next day, District Attorney Glenn Funk filed a libel lawsuit
against NewsChannel 5 based upon that news story. Mr. Funk has been subpoenaed for a
deposition in this case but has sought to avoid being deposed. Information regarding enforcing
the subpoena for his deposition testimony has been allowed to be filed under seal.
The factors listed by the Tennessee Supreme Court in Ballard as "weighing in favor of a
Ending of good cause include (1) the litigation involves private litigants (2) the litigation
concerns matter of private concei'11

OI' of liitle

public interest; and (3) disclosure would result in

serious embarrassment or other specific harm." Id, at 659. As previously noted, Intervenor is
not frilly aware of the extent oi' the current protective orders) and what interests were put
forward to obtain any such order. This Intervenor is not seeking to obtain clearly private
information or any proprietary business information of the parties or non-parties, but rather does
believe that there is ~ substantial public interest in the information regarding the bringing and
dismissal of the criminal charges brought against Plaintiff Mr. Chase in Davidson County.
Restricting access to pleadings and other documents filed in this action would violate the
Tennessee Constitution, the First Amendment to the United States Constitution and the public's
common law and statutory rights to access to these judicial documents. Any such relief granted
to restrict such access is constitutionally suspect and must be very narrowly drawn.

-7-

COURT CLOSURI~;
Intervenor Scripps has not seen an order closing any proceedings in this matter. Upon
information and belief, and as supported by the video in a news story broadcast by WSMVChannel 4, it appears that a news reporter and camera person were excluded from a prior hearing
in this matter. The basis of such an exclusion is not clear and the issues that caused any such
exclusion may no loner be at issue.
~1s previously discussed herein, there is a constitutional presumption of access to judicial
proceedings, When closure of those proceedings is sought, the First Amendment requires that
trial counts consider the following factors: whether there is any overriding interest that makes
closure essential to protect higher issues; whether a closure order can be narrowly tailored;
whether there are reasonable alternatives.

Press-Enterprise Co. v. Superior Court (Press

Et~lerprise), 478 U.S. 1, 13-14 (1986); Slate v. Drake, 701 S.W. 2d 604, 608-609 (Tenn. 1985).
A closure order must be supported by specific findings of fact, not mere speculation that closure
is required. Id.
If NewsChannel 5 seeks to bring a camera in any future proceeding in this action, it will
make requests pursuant to Supreme Court Rule 30, so that the Court can hold the appropriate
hearings iI' a request for clostue or limitation of coverage is requested.
"I,his current motion is directed toward lifting any portion of any prior protective order or
othero order that has been used to exclude members of the press or the public from such
proceedings.

Por the reasons set forth herein, any such order that infringes upon the

constitutional rights of access and does not follow the mandates of Rule 30 must be lifted.

-8-

Respectfully su mrtte ,
N1~AL & IIARWLLL,PLC

By:
Ronald G. Harris, #9054
2000 One Nashville Place
150 Fourth Avenue, North
Nashville, TN 37219-2498
(615)244-1713 -- Telephone
(615)726-0573 -- Facsimile
Counselfor Scripps Media, Inc.

-9-

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been served, via the methods) indicated
~~k
day of March, 2016.
below, on the following counsel of record, this the
( ) IIand
( V}~Vlail
( )Fax
( )Fed. Ex.
((~=Mail

Phillip L. Robertson, Lsq.
Robertson Law Group
1896 General George Patton
Suite 600
rranklin, TN 37067

( )IIand
(Mail
( )rax
( )red. Ex.
((,YP"-Mail

Robert E. McGuire, Esq.
McGuire, Menke, Reddick & Shabayek,PLLC
114 30`x' Avenue South
Nashville, TN 37212

( )I-land
(t~iC~lai1
( )Fax
( )Fed. fix.
(~-Mail

Michael J. Dumitru, Esq.
Riley, Warnock &Jacobson,PLC
1906 West end Avenue
Nashville, TN 37203

( )Hand
( ~Pdlail
( ) rax
( ) led. rx.
((,,~-Mail

Brian P. Manookian, ~sq.
102 Woodmont Boulevard
Suite 241
Nashville, TN 37205

( )Hand
( e~Pv11i1
( ) r~x
( ) F'ed. Ex.
(~.~-Mail

David T. I-Iooper, Esq.
Hooper, Ginn &McNamee
109 Westpark Drive, Ste. 300
Brentwood, TN 37027

( )I-Iand
( ~~I~il
( )I'ax
( )Fed. Ex.
(~-Mail

James D. Kay, ~sq.
ICay, Griffin, ~nkema &Colbert,PLLC
222 Second Avenue North
Suite 340M
Nashville, TN 37201

-10-

( )IIand
(~~Iail
( )Fix
( )led. fix.
(~~-Mail

John Ray Clemmons, Esq.
Clemmons &Clemons
211 Union Street, Suite 102
Nashville, TN 37201

( )Hand
( ~}--Mail
( )Fax
( )red. Ex.
(~E-Mail

Marcus M. Crider, Esq.
Waller Lansden Dortch &Davis
511 Union Street, Ste. 2700
P. O. Box 198966
Nashville, TN 37219-8966