Bausch v. United States

• Court: District Court, E.D. Washington
• Decided: April 20, 2020
• Docket: 2:18-cv-00265
• Status: Unknown

Opinion

1 FILED IN THE EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON 2 Apr 20, 2020

3 SEAN F. MCAVOY, CLERK

5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6

7 MICHEAL HANLEY BAUSCH, NO: 2:18-CV-265-RMP 8 Plaintiff, PROTECTIVE ORDER 9 v.

10 UNITED STATES OF AMERICA,

11 Defendant. 12 13 BEFORE THE COURT is the parties’ Stipulated Motion for Protective Order, 14 ECF No. 48. Upon review of the stipulation and the record, the Court finds good 15 cause, pursuant to Federal Rule of Civil Procedure 26(c), to GRANT the Motion at 16 ECF No. 48. The Protective Order is set forth below. 17 PROTECTIVE ORDER 18 Under Rule 26(c) of the Federal Rules of Civil Procedure, a court, upon motion 19 of a party and upon good cause shown, “may make any order which justice requires 20 to protect a party or person from annoyance, embarrassment, oppression, or undue 21 burden or expense.” The Rule permits a court to order that “that the disclosure or 1 discovery may be had only on specified terms and conditions.” Fed. R. Civ. P. 2 26(c)(2). The Defendant United States requests this Protective Order pursuant to 5

3 U.S.C. § 552a(b)(11), to provide for the disclosure of personally identifying 4 information that is contained in certain federally assisted healthcare centers and/or 5 government documents, and which records and materials may be subject to disclosure

6 under Fed. R. Civ. P. 26. 7 The United States also seeks this protective order under Rule 26(c)(1)(B) for 8 the purpose of adequately protecting third party personal identifiable information (PII) 9 and the privacy interests in other non-party employees of federally assisted health care

10 centers and/or other government sensitive records, which contain confidential and/or 11 sensitive personal and personnel information of third party employees, including 12 education and medical background, and which are entitled to be protected and kept

13 confidential, and this order is needed to ensure that protection is afforded only to 14 material so entitled. 15 This Court has significant discretion in granting a protective order to prevent “a 16 party or [third party] person from annoyance, embarrassment, oppression, or undue

17 burden or expense.” Fed. R. Civ. P. 26(c); See Gautheir v. Hoye, 52 Fed. Appx. 28, 29 18 (9th Cir. 2002). Here, nonparty employees would be subject to annoyance and 19 embarrassment if personnel files, credentialing files, Privacy Act protected information

20 and/or other personal and personnel information were openly or publicly revealed and 21 widely disseminated. See also Travis v. Fluor Hanford, Inc., No. CV-06-5-17-LRS, 1 2007 WL 1074890, *1 (E.D. WA April 5, 2007) (granting a protective order, 2 preventing or limiting the production of confidential personnel information regarding

3 employees not a party to the plaintiffs action, except with regard to allegations of bias 4 and misconduct). 5 The United States asserts that absent a protective order, a violation of a non-

6 party’s interests and/or the Privacy Act, which protects the privacy interests of non- 7 parties/ employees, could subject the involved government agency, sub-agency, entity 8 or sub-entity to potential civil liability under 5 U.S.C. § 552a(g). Because the Privacy 9 Act of third parties may be implicated here (i.e., deemed employees of federally

10 assistant health centers), and because the subject requested discovery documents 11 contain personally identifiable information of non-parties that may be prohibited from 12 disclosure to third parties under the Privacy Act and/or other privacy statutes,

13 regulations, laws or other governmental privileges, absent a waiver from each 14 individual, then, without conceding that point, Plaintiffs agree to the resolution of this 15 issue with the entry of this Protective Order. 16 Absent other applicable privileges, protected information may include, but is not

17 limited to the nonparties’ names, ages, addresses, phone numbers, etc. Additionally, the 18 documents may contain information such as federal and state officers and agents’ 19 names. The United States may redact personal identifying information (inter alia, non-

20 party family and extended family information) and may assert additional privileges, but 21 is not refusing to provide personnel and/or professional credential information. Rather, 1 the United States requests that these particularized subjects of information be marked as 2 confidential and used only for the purposes of this litigation, and thereafter be

3 destroyed. See e.g., May v. Fedex Freight Southeast, Inc., Civil Action No. 07-660-B- 4 M2, 2009 WL 1605211, *3 (M.D. La June 8, 2009) (rejecting proposed protective order 5 deeming all nonparty personnel documents with PII “confidential”).

6 This Stipulated Protective Order (“Protective Order”) shall govern the treatment 7 and handling of all non-party personal identification information (PII), personal and 8 personnel records, which records and/or information are designated by the parties 9 and/or by the Court as containing confidential information, including, but not limited to,

10 records of non-party employees and/or agents of the federally assisted healthcare clinic, 11 HHS, HRSA, and/or the United States. 12 Therefore, in the interest of expediting the flow of discovery material between the

13 parties, and to help facilitate the prompt resolution of disputes over confidentiality, it is 14 pursuant to the court's authority under Fed. R. Civ. P. 26(c) and the Privacy Act, and 15 with the stipulation and consent of the parties, that the following Protective Order will 16 apply to appropriate records and information within personnel and/or credential files or

17 records produced by the United States in its discovery disclosures and responses: 18 1. Pursuant to 5 U.S.C. § 552a(b)(11), and subject to the conditions 19 described below, Defendant is authorized to release to Plaintiff’s counsel and counsel

20 for other parties certain government or public health clinic records, and information 21 containing what Defendant asserts is or may be Privacy Act and/or otherwise 1 protected personal personnel information of non-party individuals – government 2 employees. Without determining the issue, Defendant may disclose the information

3 contained within the government’s or its deemed public health clinic’s files and 4 records to Plaintiff’s counsel without obtaining prior written consent of each of the 5 individuals to whom the records pertain, and such authorized disclosure shall not

6 violate the Privacy Act. 5 U.S.C. § 552a(b)(11); see also Gilbreath v. Guadalupe 7 Hosp. Foundation Inc., 5 F.3d 785, 791 (5th Cir. 1993); 8 2. Pursuant to Federal Rule of Civil Procedure 26(c)(1)(B), Defendant may 9 disclose documents and information to Plaintiff’s counsel that may be protected from

10 disclosure by an investigative or law enforcement agent or officer, without waiving 11 privileges outside of this litigation and/or to third parties; 12 3. The parties shall take reasonable and diligent steps to protect the privacy

13 interests of the subject third-party individuals referenced within the disclosed 14 discovery materials. Plaintiff’s and/or co-defendants’ counsel shall not copy or 15 disseminate any records and/or information marked “confidential and/or privileged,” 16 as provided by the Defendant United States, except as otherwise provided in this

17 Order or as otherwise permitted by the Court. 18 4. These documents shall be used by the parties only for purposes of 19 litigating this case, including any subsequent appeals. Persons receiving copies of

20 protected documents or the contents of protected documents subject to this Protective 21 Order shall not use such documents or other information for any other purpose. 1 5. At the conclusion of this litigation, including any subsequent appeals, the 2 parties’ counsel will retrieve all copies of the documents that they have provided to

3 staff and/or experts, and will destroy the copies or return them to the U.S. Attorney’s 4 Office for the Eastern District of Washington, in care of the assigned Assistant U.S. 5 Attorney or her/his designee. If the documents that are retrieved by counsel are

6 destroyed, counsel shall so notify the U.S. Attorney’s designee in writing; 7 6. If the parties intend to file documents containing personally identifiable 8 information (PII) or privileged information or designated confidential information in 9 the Court file or plan to use them as exhibits to depositions, they shall take steps to

10 protect the privacy of the individuals identified in these records through redaction or 11 other means of suppressing PII or other confidential material. Defendant asserts this 12 is required by the U.S. District Court Eastern District of Washington, ECF

13 Administrative Procedures, § VI(C), Privacy Concerns (May 6, 2015) and Rule 5.2 of 14 the Federal Rules of Civil Procedure. Unless redacted, both parties shall protect the 15 “Privileged and/or Confidential” marked information by moving to file such 16 documents under seal. At that time, the Court will evaluate the documents under the

17 relevant Federal Rules and Ninth Circuit precedent to determine whether and to what 18 extent the documents should be sealed. See Fed. R. Civ. P. 26(c); Fed R. Civ. P. 5.2; 19 Kamakana v. City and Cty. of Honolulu, 447 F.3d 1172 (2006);

20 7. All information that is asserted by either party as privileged under the law 21 enforcement or other investigative privilege, the attorney work-product doctrine 1 and/or the attorney-client privilege, or other designated privilege, that is produced or 2 presented in this action only may be used by the parties, members of their legal teams

3 (i.e., lawyers, paralegals, investigators, support staff), and all persons retained by the 4 parties (i.e., outside investigators, consultants, expert witnesses), and only for the 5 purpose of litigating this litigation. Neither party shall disclose these materials or the

6 content of these materials to any other persons or agencies without prior Court order. 7 This Order shall continue in effect after the conclusion of the proceedings. Any 8 modification or vacating of this Order shall only be made upon notice to and an 9 opportunity to be heard from both parties.

10 8. Defendant and its officers, employees, or attorneys, shall not bear any 11 responsibility or liability for any unauthorized disclosure of any documents obtained 12 by Plaintiffs and/or their counsel, co-defendants and/or their counsel, under this

13 Protective Order, or of any information contained in such documents. Plaintiff shall 14 not bear any responsibility or liability for any unauthorized disclosure of any 15 documents obtained by Defendant’s counsel under this Protective Order, or of any 16 information contained in such documents.

17 9. To the extent the United States’ discovery disclosures may involve a 18 limited waiver of the agency investigative, law enforcement privilege, the attorney 19 work product doctrine, and/or the attorney-client privilege, a limited, restricted waiver

20 applies to material that may be relevant to the U.S. Attorney’s Office, U.S. Department 21 1 of Justice or other criminal investigation (if any) and/or any referred cases involving the 2 issues alleged in this litigation.

3 10. All persons having access to confidential information made available 4 pursuant to this agreement shall agree not to make any use of said confidential 5 information except in connection with the above-captioned litigation and shall further

6 agree not to deliver or transfer said confidential information to any person not 7 previously authorized by the terms herein. 8 11. Counsel disclosing confidential information to any person or entity shall be 9 responsible for limiting distribution of the confidential information to those persons

10 who both: (1) have a need to know the information and (2) are authorized to receive the 11 information under this Protective Order. Counsel shall be prepared to account for the 12 disposition and use of the information under this Protective Order.

13 12. All copies of confidential information disclosed under this agreement shall 14 be subject to the same restrictions as imposed on the original information. 15 13. All documents, materials, and information designated as confidential and 16 disclosed to any person pursuant to this Protective Order shall remain in the possession

17 only of the attorneys, experts, or consultants to whom they are disclosed as provided by 18 the Protective Order. The parties or their attorneys may not retain any documents, 19 materials, or information designated as confidential pursuant to this Protective Order

20 after the conclusion of this litigation. 21 1 14. Documents, materials, and information designated as confidential pursuant 2 to this Order may be disclosed in regular proceedings of this Court and/or by agreement

3 of the attorneys until trial, at trial the Court shall determine whether the Order shall 4 remain in force. Exhibits, unless redacted, shall be marked “CONFIDENTIAL” and 5 shall be: a) filed as proposed sealed documents and accompanied by a motion to seal,

6 pursuant to this Order; b) designated as an Exhibit containing confidential material 7 subject to the Court’s Protective Order; and c) a copy of the exhibit shall be promptly 8 served upon opposing counsel in accordance with Rule 5 (i.e., emailing to ECF 9 registered account complies with requirement).

10 15. The confidential documents, materials, or information set forth to facilitate 11 discovery in this case may nonetheless be used at trial in accordance with the Court 12 Rules, the Rules of Evidence, the Local Rules, and applicable federal statutes and

13 regulations (i.e., Privacy Act, et al.). However, any party or interested third party may 14 apply to this Court for additional protection regarding the protected use at trial of any 15 discovery produced in this case. Such motions should be filed contemporaneous with 16 the parties’ respective motions in limine, but will nonetheless be handled on an

17 individual basis. 18 16. No further modification or amendment of this Protective Order is permitted 19 except by a writing signed by counsel for the parties and approved by the Court. The

20 parties hereto agree that it is unreasonable to rely on any oral modification or 21 amendment of this agreement. 1 17. The failure to insist upon full compliance with any of the terms of the 2 Protective Order in any instance shall not be deemed to be a waiver of the right to insist

3 upon full compliance with those terms thereafter. 4 18. This Order does not constitute any ruling on the question of whether any 5 particular document or category of information is properly discoverable and does not

6 constitute any ruling on any potential objection to the discoverability, relevance, or 7 admissibility of any record produced (or withheld), other than objections based on the 8 Privacy Act and/or the investigative, law enforcement privilege, attorney-client 9 privilege, and/or attorney work-product doctrine.

10 19. By stipulated entry of this Protective Order, the parties and their respective 11 counsel certify that prior to the disclosure of any confidential information to anyone 12 associated with the preparation of their case (i.e., experts, consultants, etc.) that the

13 proposed recipient of the confidential information will be provided with a conformed 14 copy of this Protective Order. 15 IT IS SO ORDERED. The District Court Clerk is directed to enter this Order 16 and provide copies to counsel.

17 DATED April 20, 2020. 18 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON 19 United States District Judge 20 21