Alexander v. Federal Bureau of Investigation

186 F.R.D. 99, 1998 U.S. Dist. LEXIS 22401, 1998 WL 1048990
District Court, District of Columbia·Decided July 27, 1998·No. Nos. Civ. 96-2123 RCL, Civ. 97-1288 RCL·Published·Cited by 6 cases

Opinion

MEMORANDUM AND ORDER

LAMBERTH, District Judge.

This matter comes before the court on plaintiffs’ Motion to Further Modify February 13, 1998 Protective Order. Upon consideration of the submissions of the parties and the relevant law, plaintiffs’ motion is denied.

I. Background

As stated in several opinions by this court, the underlying allegations in this case arise from what has become popularly known as “Filegate.” According to their complaint, plaintiffs allege that their privacy interests were violated when the Federal Bureau of Investigation (“FBI”) improperly handed over to the White House hundreds of FBI files of former political appointees and government employees under the Reagan and Bush Administrations.

On February 13, 1998, this court issued a protective order pertaining to the disclosure of certain discovery materials in this case. The protective order prohibits, in part, defendants and their representatives, including counsel, from disclosing any materials covered by the protective order to other parties or from using this information for purposes unrelated to this case. Plaintiffs sought to modify this protective order to prohibit defendants from having access to certain medical information and requested that the protective order limit dissemination strictly to counsel for defendants. On June 15, 1998, this court issued a memorandum and order granting plaintiffs’ motion to modify the protective order by prohibiting disclosure of information marked as “attorneys’ eyes only” or in some similar fashion to defendants in this case. Alexander v. FBI, C.A. No. 96-2123, Mem. and Order at 8 (D.D.C. June 15, 1998). Presently before the court is plaintiffs’ second motion to modify the February 13,1998 protective order.

II. Analysis

Rule 26(c) of the Federal Rules of Civil Procedure permits the court to issue protective orders to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Fed. R.Civ.P. 26(c). Whether to lift or modify a protective order is a decision committed to the sound discretion of the trial court. See United States v. Rezaq, 899 F.Supp. 697, 707 n. 11 (D.D.C.1995) (“It is well established that a district court may modify the terms of a protective order it has entered subject to the court’s informed discretion.”). Once the court has entered a protective order, it may be modified upon a showing of good cause. Independent Petrochemical Corp. v. Aetna Casualty and Surety Co., 1988 WL 23257, *4 (D.D.C. March 2, 1988) (“The granting and maintenance of a protective order under rule 26(c) of the federal rules of civil procedure ... must be supported by ‘good cause.’ ”) (citing Tavoulareas v. Washington Post Co., 737 F.2d 1170, 1173 (D.C.Cir.1984)).

In their motion to modify the February 13, 1998 protective order, plaintiffs state that defendants through discovery seek the names of non-party witnesses identified by plaintiffs as having relevant information concerning plaintiffs’ claims. Plaintiffs also seek to limit defendants’ access to the FBI’s background investigation summary files relating to plaintiffs. Plaintiffs contend that good cause for the modification of the protective order exists due to their concern that defendants will use this information in a manner designed to “harm” plaintiffs and their non-party witnesses. For this reason, plaintiffs request that the court further modify the protective order to prohibit the dissemination of this information to defendants. In sum, plaintiffs argue that the rationale supporting the inclusion of the “attorneys’ eyes only” provision as to their medical records and other related materials should apply equally [101] to the FBI’s background investigative summary files relating to plaintiffs and to the names of non-party witnesses identified by plaintiffs. For this reason, plaintiffs assert that the “attorneys’ eyes only” provision should extend to this information as well.

A. Plaintiffs’ Request to Prohibit Access to the FBPs Background Investigative Summary Files Relating to Plaintiffs

Plaintiffs’ request to prohibit disclosure to defendants of the FBI’s background investigative summary files relating to plaintiffs fails to comply with the prerequisites to making such a request. The government defendants claim that plaintiffs failed to comply with the meet-and-confer requirement of Local Rule 108(m) and with this court’s April 13, 1998 order prior to filing their motion. Plaintiffs do not dispute this claim. Because it is apparent that plaintiffs failed to comply with Local Rule 108(m), this portion of their motion must be denied without prejudice to renewal after compliance with Local Rule 108(m).

The court must also note in passing that although the concerns evoked by plaintiffs with respect to these reports are somewhat more akin to those raised with respect to their medical and psychological reports, the government defendants’ position that there are no legal grounds to bar the FBI from access to its own documents is persuasive. Notwithstanding plaintiffs’ somewhat confusing description of the facts necessitating this motion and the ultimate relief sought, it appears that plaintiffs are requesting, in essence, that this court issue an order divesting the government of custody of its own files. A motion to modify an existing protective order is simply not the vehicle to be used to achieve this result. The government defendants correctly point out that protective orders ordinarily restrict the use of information by the discovering, not the producing party in the litigation. Plaintiffs are in effect suggesting that this court should enjoin the government defendants from having access to their own files. Any restriction on the FBI’s use of its own materials would appear unwarranted given the fact that the FBI is the entity that legitimately created and produced the reports. Plaintiffs have made no showing that the FBI should be precluded from using its own documents in any otherwise proper manner.1

B. Plaintiffs Request to Limit Access to the Identity of Third-Party Witnesses

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Alexander v. Federal Bureau of Investigation, 186 F.R.D. 99, 1998 U.S. Dist. LEXIS 22401, 1998 WL 1048990 (D.D.C. 1998).

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