posted November 26, 2003
Attorneys for Brent Marsh are asking Federal Judge Harold Murphy of Rome, Ga., to lift a protective order in the case.
Attorneys said the order is no longer needed in the civil or criminal cases involving the discovery of 339 uncremated bodies at the Tri-State Crematory at Noble, Ga.
Here is the motion:
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
Rome Division
IN RE: Tri-State Crematory Litigation MDL Docket No. 1467
Carol A. Bechtel, et. al., )
)
Plaintiffs, )
) CIVIL ACTION
v. )
) FILE NO. 4:02-CV-041-HLM
Tri-State Crematory, Inc., et. al., )
)
Defendants. )
DEFENDANT T. RAY BRENT MARSH’S
MOTION TO LIFT PROTECTIVE ORDER
COMES NOW T. Ray Brent Marsh, Clara Marsh and the Estate of Tommy Ray Marsh, Defendants in the above-styled civil action, and moves this Court to lift the Protective Order attached as exhibit “one” herto. This motion is made in accordance with F.R.C.P. 26(c). The Marsh defendants assert that the need for the protective order no longer exists, and that the protective order is now impeading litigation pending in the State of Tennessee, such litigation no being a part of this action. Moreover, the Protective Order is impeading the use of materials being produced in the criminal court action pending in Walker County, Georgia. The reasons for lifting the protective order include:
1. Paragraph 12 of the Protective Order provide “Nothing in this order shall prevent any party or the Georgia bureau of Investigation from seeking modification of this order or from objecting to discovery that it believes is otherwise improper.” The order can be lifted by this court.
2. The Georgia Bureau of Investigation and the District Attorney of Walker County, Georgia have made their entire investigative files, in their entirety, available to McCracken Poston for use in the criminal proceedings in Walker County, Georgia. At the time this court entered its protective order, the investigation of the Georgia Bureau of Investigation was not completed; moreover, the materials covered by the protective order were materials used by Dr. Sperry in a “seminar” he gave regarding the litigation. When the Georiga Bureau of Investigation sought this order, they participated in oral argument stating that the completion of the criminal investigation would take away the need for the order. Finally, the production of the materials now make this a situation where the Georgia Bureau of Investigation can no longer claim that the materials are protected by the argument they are a State secret; particularly since the criminal investigation is now complete.
3. There are numerous cases that are opting out of this case pending in the State of Tennessee. The materials produced in this litigation, and the deposition taken in this case are highly relevant to the Tennessee claims. Moreover, the documentation produced by the Georgia Bureau of Investigation and the District Attorney General’s Office of Walker County are highly relevant in the Tennessee litigation. The removal of the protective order will allow the use of this evidence in both the Georgia Criminal cases and in the Tennessee Civil cases.
4. The purpose of the protective order no longer exists. The use of this evidence, including the evidence produced by the Georgia Bureau of Investigation and the District Attorney or Walker County, no longer needs the protection requested by the Georgia Bureau of Investigation. The material is now being produced in the criminal action, and must be used in that action and other action in Tennessee without the impediments of this protective order.
5. The funeral home defendants sought a partial lifting of the protective order as it applies to Dr. Kris Sperry, and entered the agreed order attached as exhibit “two” to this Motion. This partial lifting of the protective order clearly demonstrates that there is no need to keep the protective order in place, allowing the use of the documentation in the Georgia Criminal cases and in the Tennessee claims. Moreover, the parties can seek protective orders in each either the criminal or civil cases as the need arises.
WHEREFORE, the Marsh defendants seek a court order lifting the Protective Order attached as exhibit “one.” The Marsh defendants seek a complete lifting of the order as it applies to all evidence, including discovery documents, protected by the terms and conditions of said order.
Respectfully submitted,
JENKINS & OLSON, P.C.
FRANK E. JENKINS, III
Georgia Bar No. 390550
______________________________
JENNIFER JOY WALKER
Georgia Bar No. ________
______________________________
McCRACKEN K. POSTON
Georgia Bar No._________
GOINS, CARPENTER & JAMES
__________________________
STUART F. JAMES
Georgia Bar No. 389355
Lead Counsel for T. Ray Marsh,
Clara Marsh, and T. Ray Brent Marsh
CERTIFICATE OF SERVICE
I hereby certify that I have this day served a copy of the within and foregoing Defendants’ Motion and Brief in Support of Protective Order upon all parties to this matter by depositing a true copy of same in the United States Mail, proper postage prepaid, addressed to counsel of record as follows:
J. Anderson Davis
Mark Maynard Jackson Webb
Brinson Askew Berry Siegler
Richardson & Davis
Post Office Box 5513
Rome, GA 30162-5513
Robert Harris Smalley, III
McCamy Phillips Tuggle & Fordham
Post Office Box 1105
Dalton, Georgia 30720-1105
McCracken Poston
Post Office Box 1130
Ringgold, Georgia 30736
This 18th day of November, 2002.
Jenkins & Olson, P.C.
________________________
Frank E. Jenkins, III
Georgia Bar Number: 390550
15 South Public Square
Cartersville, Georgia 30120
(770) 387-1373
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