Judge agrees to shield Fouts' deposition from public

Warren Mayor James Fouts' deposition in a lawsuit filed by the city's former diversity coordinator will be destroyed once the case is over, a federal judge said.

U.S. District Judge Gershwin Drain ruled Thursday the depositions of the mayor, former diversity coordinator Gregory Murray and witnesses in the case will be conducted through virtual video conferencing and that none of the parties may record them.

"All recordings and transcripts of the depositions in this matter, other than that which is filed into the public record, shall be destroyed at the time this matter reaches a full and final resolution," he ruled.

The ruling stems from a request from attorneys for the city and mayor for a protective order. A hearing on the request was held Tuesday.

Murray filed the federal lawsuit against the city, the mayor and the city's police department in October 2019, alleging he was wrongfully terminated after working to address civil rights violations. He also claims he worked in a "racially hostile and toxic work environment.”

More: Former Warren diversity official sues city, mayor, police

At the time the suit was filed, Fouts said Murray had resigned in 2017.

Murray's suit seeks compensatory damages, front and back pay, as well as an injunction requiring Warren to cease and desist all unlawful racial practices.

Drain said he granted the city's request for a protective order, which calls for destroying the depositions of Fouts and other city officials involved in the case because it was "appropriate in light of the status of the individual defendants and the media interest and coverage already generated by this case."

He also wrote in his order: "... there is a real risk that release of the

recordings or transcripts could taint the jury pool or expose the defendants to

'annoyance, embarrassment, [and] oppression' should the media mischaracterize

or take the deponents’ deposition testimony out of context."

Jon Marko, Murray's attorney, said he was disappointed by the judge's decision.

"I don't think Mayor Fouts deserves any more privileges than the average Joe or the average Jane," he said. "I don't think it's fair. I think there should be more public access to this case, not less, given his position as a person who holds the public's trust and holds a public position of authority."

Raechel Badalamenti, who is representing the city of Warren and Fouts in the lawsuit, said the orders stem from a routine dispute between attorneys over discovery in complaints such as this one. However, she said she was pleased with the judge's orders. Badalamenti said she requested the orders because it’s her practice to ask for them in all cases where clients are deposed in a virtual conference.

She said the move is intended to make sure witness' statements aren't taken out of context. 

"I'm pleased the judge is clearly seeing the antics here, shutting them down and making sure the lawsuit isn't costing a lot of money that it shouldn't," she said. "This has very little to do with the political officials who are set to be deposed and even less with the lawsuit."

Also Thursday, the judge denied a motion to compel and a motion for a show cause order from Murray's attorneys. His lawyers sought copies of emails that included the words "Greg," "Murray," "Harras!," "chimpanzee!," "black," and "n-word" from the accounts of Fouts and other city officials.

According to the court, city attorneys conducted the search and produced tens of thousands of documents. They said the volume was too cumbersome to turn over, but would make them available for the plaintiff or a judge to inspect. 

But the court denied the request, saying the plaintiff "... fails to explain the importance of the emails containing the search terms that are used in a context irrelevant to this matter and the burden of producing the thousands of irrelevant emails outweighs the indiscernible benefit. Plaintiff likewise refused defendants’ offer to inspect these emails or send them for an in camera review."

Marko said the defendants' offer wasn't genuine and was merely a charade. He said the city offered to allow him to see the emails in an online virtual conference, giving it control over what he could see and at what pace.

He said he plans to ask the judge to appoint a special master to review the emails. His firm would be required to pay half of the bill for the special master, Marko said.

Badalamenti rejected Marko’s claims and said the city has complied with his requests. “But we’re going to make sure we have the correct parameters in place.”

She said it isn’t clear when Fouts and other the witnesses will sit for their depositions, but said she hopes to have the process completed within the next 30 days.

Warren's mayor has been linked to allegations of racist, sexist and controversial remarks in recent years. Last year, political consultant Joe DiSano said he heard Fouts call then-Detroit Mayor Kwame Kilpatrick the N-word on election night 2007. Fouts has denied calling Kilpatrick an "N-word."