The opinion of the court was delivered by: David Alan Ezra United States District Judge
ORDER DENYING DEFENDANT SCOTT O'NEAL'S MOTION FOR PROTECTIVE ORDER
On October 14, 2011, the Court heard Defendant Scott O'Neal's Motion for Protective Order ("Motion"). Glenn H. Uesugi Esq., appeared on behalf of Plaintiffs; Randall K. Schmitt, Esq., appeared on behalf of Defendant Scott O'Neal; Deputy Attorney General Dennis K. Ferm appeared on behalf of Defendant State of Hawaii; and C. Bryan Fitzgerald, Esq., appeared on behalf of Defendant Sydney Dickerson. After reviewing the Motion as well as the supporting and opposing memoranda, the Court DENIES Defendant Scott O'Neal's ("O'Neal") Motion for Protective Order. (Doc. # 16.)
The instant case action arises from allegations relating to sexual assault which allegedly took place between and among students at the Hawaii Center for the Deaf and the Blind (the "School"). ("Compl., Doc. # 1-1.)
Plaintiffs claim that a group of students, identified as "Ringleaders" in the Complaint, had "[f]or many years . . . bullied, terrorized, assaulted, robbed sodomized, raped, anally raped, gang raped, and/or sexual attacked students," including Plaintiffs. (Id. ¶ 26.) Plaintiffs claim that Defendants "knew or should have known that the Ringleaders" engaged in this conduct. (Id. ¶ 28.) Plaintiffs specifically allege that Defendant Sydney Dickerson ("Dickerson"), the School's administrator and O'Neal, the School's counselor, "had actual knowledge and certainly had reason to know of the wrongful activities of the Ringleaders." (Id. ¶ 30.) According to Plaintiffs, the Ringleaders admitted to school counselors and O'Neal in particular "that they had in fact harmed and assaulted other students." (Id. ¶ 32.) The Complaint goes on to detail specific instances of sexual assault against Plaintiffs, and in particular against Plaintiff John Doe. (Id. ¶ 38--46.)
Plaintiffs also allege that O'Neal "engaged in inappropriate and questionable activities with students at the school, including having them stay with him overnight." (Id. ¶ 47.) Plaintiffs complain that "[o]ut of malice and an improper purpose, Defendants at times concealed and conspired to conceal what was going on, and negligently, recklessly, and intentionally failed to take effective action to stop the wrongful activities." (Id. ¶ 48.) Specifically, Plaintiffs aver that Defendants failed to monitor bathrooms, notify appropriate authorities, and advise parents of victimized students. (Id. ¶¶ 49--51.)
Based on these facts, Plaintiffs assert against Defendants' causes of action for: (1) negligence and punitive damages (id. ¶ 70); (2) intentional infliction of emotional distress (id. ¶¶ 71--72); (3) violations of the Rehabilitation Act of 1973 (id. ¶¶ 73--74); (4) violations of the Americans with Disability Act (id. ¶¶ 75--76); (5) violations of Title IX of the Educational Amendments of 1972 (id. ¶¶ 77--80); (6) violations of the Individuals with Disabilities Act (id. ¶¶ 81--82); (7) state and federal constitutional violations (id. ¶¶ 83--88).
On August 26, 2011, Plaintiffs filed their Complaint in the First Circuit Court for the State of Hawaii. (See Doc. # 1-1.) On September 9, 2011, Defendants removed to federal court. (See Doc. # 1.) On September 21, 2011, O'Neal filed the instant Motion. ("Mot.," Doc. # 16.) On October 11, 2011, Plaintiffs filed an Opposition. ("Opp'n," Doc. # 35.) The same day, Defendant State of Hawaii filed a Response. ("Resp.," Doc. # 36.)
Because "[t]he potential for injury to the integrity of the judicial process is significant in cases involving trial publicity," a court may restrict publicity in certain circumstances. Levine v. U. S. Dist. Ct. for the Dist. of Cal., 764 F.2d 590, 595, 597 (9th Cir. 1985). However, "[o]nly the occasional case presents a danger of prejudice from pretrial publicity." Gentile v. State Bar of Nev., 501 U.S. 1030, 1064 (1991). To determine whether a case presents a danger of prejudice from pretrial publicity, a court must balance the interests of ensuring the integrity of the judicial process, including the right to a fair and impartial jury, with the competing First Amendment rights of the attorneys publicizing the case. See Levine, 764 F.2d at 595, 597; Gentile, 501 U.S. at 1075. To strike that balance, courts may issue a protective order (otherwise known as a "gag order") when a "substantial likelihood of material prejudice" may result from the extra-judicial statements. Gentile, 501 U.S. at 1075; see also Berndt v. Cal. Dep't of Corrections, 2004 WL 1774227, at *3 (N.D. Cal. August 9, 2004). Additionally, the order must be "narrowly drawn" and no "less restrictive alternatives" may be available, such as voir dire, change of venue or some other device. Levine, 764 F.2d at 595; Gentile, 501 U.S. at 1075; Berndt, 2004 WL 1774227, at *3.
I. Motion for Protective Order
In his Motion, O'Neal seeks an order prohibiting "the parties and attorneys in this matter from communicating with the media" with ...