THE UNITED STATES DISTRICT COURT FOR 

THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

BRIAN GARRETT, et al., 

Plaintiffs, 

v. 

THE OHIO STATE UNIVERSITY, 

Defendant. 

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Case No. 2:18-cv-00692 

Judge Michael H. Watson 

Chief Magistrate Judge Elizabeth P. 

Deavers 

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DR. MARK CHRYSTAL, et al., 

Plaintiffs, 

v. 

THE OHIO STATE UNIVERSITY, 

Defendant. 

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Case No. 2:19-cv-05272 

Judge Michael H. Watson 

Chief Magistrate Judge Elizabeth P. 

Deavers 

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STEVE SNYDER-HILL, et al., 

Plaintiffs, 

v. 

THE OHIO STATE UNIVERSITY, 

Defendant. 

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Case No. 2:18-cv-00736 

Judge Michael H. Watson 

Chief Magistrate Judge Elizabeth P. 

Deavers 

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JAMES KHALIL, et al., 

Plaintiffs, 

v. 

THE OHIO STATE UNIVERSITY, 

Defendant. 

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Case No. 2:19-cv-04902 

Judge Michael H. Watson 

Chief Magistrate Judge Elizabeth P. 

Deavers 

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John Does 85-88, individually and 

on behalf of all others similarly situated, 

Plaintiffs, 

v. 

THE OHIO STATE UNIVERSITY, 

Defendant. 

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Case No. 2:20-cv-01648 

Judge Michael H. Watson 

Chief Magistrate Judge Elizabeth P. 

Deavers 

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MOTION FOR STATUS CONFERENCE TO CONFIRM THAT DEPOSITIONS OF 

OHIO STATE WITNESSES ARE PUBLIC 

Plaintiffs in the above-referenced cases of Snyder-Hill, et al. v. The Ohio State 

University, number 2:18-cv-00736, Khalil, et al. v. The Ohio State University, number 2:19-cv04902, Garrett, et al. v. The Ohio State University, number 2:18-cv-00692, and Chrystal, et al. v. 

The Ohio State University, number 2:19-cv-05272, and John Does 85-88 v. The Ohio State 

University, number 2:20-cv-01648 (“Plaintiffs”) hereby request that the Court schedule a 

telephonic status conference at the earliest practical time. The purpose of the requested 

conference is to confirm that Plaintiffs may disclose non-confidential portions of certain 

witnesses’ deposition transcripts in Plaintiffs’ future filings in this case, including the Amended 

Complaint due on May 8. In support of this request, Plaintiffs state the following: 

1. On July 26, 2019, Plaintiffs filed a Motion for Clarification (Dkt. 81) of the Court’s 

May 24, 2019 Order permitting discovery (Dkt. 70) in which Plaintiffs requested 

leave to take the depositions of Dr. Ted Grace, Dr. John Lombardo, Dr. Trent Sickles, 

Dr. Forrest Smith, Dr. William Malarkey, and Dr. Roger Miller (“Non-Cooperative 

Witnesses”) during the pendency of mediation. All are former employees of The 

Ohio State University (“OSU”). As grounds, Plaintiffs explained: (i) testimony from 

the Non-Cooperative Witnesses was material and necessary to the case; (ii) the NonCooperative Witnesses, all former OSU employees, refused to give substantive 

interviews to the Perkins Coie investigators; (iii) due to the age of the NonCase: 2:18-cv-00692-MHW-EPD Doc #: 152 Filed: 05/01/20 Page: 2 of 9 PAGEID #: 907
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Cooperative Witnesses, Plaintiffs were at risk of losing the ability to procure any 

testimony from them for use at trial; and (iv) their testimony would assist all parties 

in engaging in the mediation process.

2. On August 23, 2019, the Court granted Plaintiffs’ Motion for Clarification. (Dkt. 90) 

and authorized Plaintiffs to take the depositions of the Non-Cooperative Witnesses. 

The Court properly characterized these depositions as “limited discovery.” Id. at 2.

3. The Court did not designate any of the depositions confidential, nor did Defendants 

request that any deposition be confidential. Id.

4. On October 9, 2019, Judge Barrett, in his role as mediator in this case, recommended 

that the deposition transcripts for the Non-Cooperative Witnesses remain confidential 

for the purposes of mediation.1

 Judge Barrett did not make any recommendation 

regarding the confidentiality of the transcripts in the context of litigation. As set forth 

below, after this Court reinstated the litigation on April 17, 2020 (Dkt. 151), Judge 

Barrett informed the parties in an April 29 teleconference that he is lifting his 

confidentiality recommendation for purposes of mediation.

5. Plaintiffs’ counsel in each of the above-captioned actions collectively took the 

depositions of these six Non-Cooperative Witnesses between November 12, 2019 and 

February 12, 2020. Each witness was represented by his own counsel at his 

deposition. Defendant’s counsel was present at each deposition, and all parties had 

the opportunity to question each witness as much or little as desired in order to 

preserve the witness’s testimony. No deposition included any preface or stipulation 

that the testimony would be confidential or taken under seal by any counsel—

including personal counsel for each witness. 

1

 Specifically, Judge Barrett advised that “the depositions will be sealed in their entirety and 

marked ‘HIGHLY CONFIDENTIAL/ATTORNEY’S EYES ONLY’ (or other similar designation 

that comports with any Stipulated Protective Order entered by Judge Watson) while mediation is in 

process.” 

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6. In each deposition, former OSU employees gave testimony relevant to the parties’ 

claims and potential defenses, including Dr. Strauss’ misconduct, OSU’s notice of the 

sexual abuse at very high levels of the administration, OSU’s deliberate indifference 

to Dr. Strauss’ sexual abuse for decades, and Defendant’s alleged statute of 

limitations defense.

7. Plaintiffs intend to cite the Non-Cooperative Witnesses’ deposition testimony in their 

Amended Complaint due on May 8, 2020. It is material and relevant to Plaintiffs’ 

case.

8. At present, the parties are only instructed to keep confidential any statement in the 

transcripts that cites portions of the Perkins Coie Report designated “Attorneys’ Eyes 

Only.” Only one of the Non-Cooperative Witnesses’ deposition transcripts contains 

testimony referring to such protected statements, and Plaintiffs will not cite that 

testimony. Plaintiffs do not intend to cite any non-public sections of the Perkins Coie 

Report in their Amended Complaint, nor to name any sexual abuse survivor who has 

not publicly named himself. Plaintiffs also do not intend to cite any portions of the 

deposition that defense counsel or the witness’s counsel designated confidential 

during the testimony. 

9. The Court and the public should not be deprived of information relevant to the claims 

and defenses in this case, nor should they be deprived of sworn testimony of key OSU 

witnesses about this case. Further, at any stage of this case—a potential motion to 

dismiss, a potential summary judgment motion, and at trial—Plaintiffs expect to use 

the Non-Cooperative Witnesses’ testimony. 

10. OSU and its counsel have announced their intention to “commit[] to transparency” in 

these proceedings. Def.’s Motion for Order at 9 (Dkt. 70). The deposition testimony 

of these witnesses would further public transparency regarding OSU’s role in 

facilitating Dr. Strauss’s abuse, a goal OSU has previously professed to share. 

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11. It is Defendant’s burden to show good cause why any of the Non-Cooperative 

Witnesses’ deposition testimony should be confidential. Fed. R. Civ. P. 26(c)(1); see 

also Oxymed, Inc. v. Lincare, Inc., No. 1:17-cv-349, 2018 WL 1322236, at *3 (S.D. 

Ohio Mar. 13, 2018) (party seeking protection bears the burden to establish that the 

contested material should be protected under Fed. R. Civ. P. 26); Kondash v. Kia 

Motors Am., Inc., No. 1:15-cv-506, 2018 WL 770418, at *2 (S.D. Ohio Feb. 7, 2018), 

aff'd, 767 F. App’x 635 (6th Cir. 2019) (“[T]he proponent of closure bears 

the burden of showing that disclosure will work a clearly defined and serious 

injury.”). OSU will not be able to meet this burden, as the public has a right to know 

of the role a public institution played in facilitating serial sexual abuse by one of its 

employees. 

12. Defendant cannot make such a showing. There is no good reason why sworn 

testimony from former employees of a public university about key issues in this case 

should be kept from the Court, or be kept secret from the public. 

13. On an April 29, 2020 telephone conference, Judge Barrett advised the parties that the 

Non-Cooperative Witnesses’ deposition transcripts do not need to be confidential 

pursuant to any mediation privilege. However, Judge Barrett advised the parties to 

consult the Court before filing any public document citing the transcripts. Plaintiffs 

also offered OSU the opportunity to inform us whether they believed any particular 

portion of a deposition should be confidential. OSU declined to do so. 

14. Given these circumstances, Plaintiffs respectfully request a telephonic court 

conference, or in the alternative a Court order, to confirm that Plaintiffs may disclose 

non-confidential portions of the Non-Cooperative Witnesses’ deposition transcripts in 

any future public filings by any and all Plaintiffs, including the Amended Complaint 

due on May 8. 

15. Plaintiffs have conferred with Defendant. Notwithstanding its alleged commitment to 

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transparency, Defendant does not agree with this motion. Defendant has not provided 

a basis for its position other than a belief that Judge Barrett’s October 9, 2019 

confidentiality recommendation governs the use of the transcripts in litigation, 

notwithstanding Judge Barrett’s statements to the contrary during the April 29, 2020 

teleconference.

DATED: May 1, 2020 Respectfully submitted, 

 

 /s/ 

SCOTT E. SMITH (0003749) 

Phil Judy 

Scott Elliot Smith, LPA 

5003 Horizons Drive, Suite 101 

Columbus, Ohio 43220 

Phone: 614.846.1700 

Fax: 614.486.4987 

E-mail: ses@sestriallaw.com 

E-mail: brn@sestriallaw.com 

 /s/ 

Ilann M. Maazel* 

Debra L. Greenberger* 

Marissa R. Benavides* 

EMERY CELLI BRINCKERHOFF 

 & ABADY LLP 

600 Fifth Ave, 10th Floor 

New York, NY 10075 

Phone: 212-763-5000 

Fax: 212-763-5001 

E-mail: imaazel@ecbalaw.com 

E-mail: dgreenberger@ecbalaw.com 

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/s/ 

Adele P. Kimmel* 

Alexandra Brodsky* 

PUBLIC JUSTICE, P.C. 

1620 L Street, NW, Suite 630 

Washington, DC 20036 

Phone: (202) 797-8600 

Fax: (202) 232-7203 

E-mail: akimmel@publicjustice.net 

* Admitted pro hac vice

COUNSEL FOR SNYDER-HILL AND KHALIL 

PLAINTIFFS

 /s/ 

Simina Vourlis 

(Trial Attorney) #0046689 

The Law Office of Simina Vourlis 

856 Pullman Way 

Columbus, OH 43212 

(614) 487-5900 

(614) 487-5901 fax 

svourlis@vourlislaw.com 

/s/ 

Rex A. Sharp 

Ryan C. Hudson 

Larkin Walsh 

Sarah T. Bradshaw 

SHARP LAW, LLP. 

5301 W. 75th Street 

Prairie Village, KS 66208 

(913) 901-0505 

(913) 901-0419 fax 

rsharp@midwest-law.com 

rhudson@midwest-law.com 

lwalsh@midwest-law.com 

sbradshaw@midwest-law.com 

Robert Allard 

CORSIGLIA, MCMAHON AND ALLARD, LLP 

96 North Third Street, Suite 620 

San Jose, CA 95112 

(408) 289-1417 

(408) 289-8127 fax 

rallard@cmalaw.net 

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Stephen Estey 

ESTEY & BOMBERGER LLP 

2869 India Street 

San Diego, CA 92103 

619-295-0035 

619-295-0172 fax 

steve@estey-bomberger.com 

Daniel R. Karon (#0069304) 

KARON LLC 

700 W. St. Clair Ave., Suite 200 

Cleveland, OH 44113 

Tel.: 216.622.1851 

dkaron@karonllc.com 

Joseph Sauder 

SAUDER SCHELKOPF LLC 

555 Lancaster Avenue 

Berwyn, PA 19312 

(610) 200-0580 

(610) 421-1326 

jgs@sstriallawyers.com 

COUNSEL FOR GARRETT AND CHRYSTAL 

PLAINTIFFS 

 

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CERTIFICATE OF SERVICE 

A copy of this document was served by the Court’s ECF System on all counsel of record 

on May 1, 2020, pursuant to Fed. R. Civ. P. 5(b)(2)(E). 

 /s/ Debra. L Greenberger 

 Debra L. Greenberger 

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