Jan 03, 2025 SEAN F. MCAVOY, CLERK 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF WASHINGTON 8 9 DEBORAH L. BOYD, individually 10 and as personal representative of the Estate of Robert T. Boyd, No. 2:24-cv-00216-RLP 11 12 Plaintiff, STIPULATED PROTECTIVE 13 ORDER RE: NON-PARTIES’ vs. 14 PRIVATE & SENSITIVE 15 UNITED STATES OF AMERICA, PERSONAL, MEDICAL and/or EMPLOYMENT 16 INFORMATION 17 Defendant. 18 19 BEFORE the Court is parties’ Motion for Entry of Stipulated Protective 20 Order Re: Protection of Non-Parties’ Private Personal Identification(PPI) and Other 21 22 Confidential-Sensitive Background Information. (ECF No. 18). The Court being 23 fully informed, the motion is GRANTED. 24 Under Rule 26(c) of the Federal Rules of Civil Procedure, a court, upon 25 26 motion of a party and upon good cause shown, “may make any order which justice 27 requires to protect a party or person from annoyance, embarrassment, oppression, or 28 29 undue burden or expense.” The Rule permits a court to order that “that the 30 disclosure or discovery may be had only on specified terms and conditions.” Fed. R. 31 Civ. P. 26(c)(2). The Defendant United States requests this Protective Order 32 33 pursuant to 5 U.S.C. § 552a(b)(11), to provide for the disclosure of personally 34 identifying information which is contained in certain U.S. Veterans Administration and/or other federal, state, local and/or Native American governmental documents, 1 and which records and materials may be subject to disclosure under Fed. R. Civ. P. 2 26 or other applicable discovery mechanisms provided for under the Fed. R. Civ. 3 4 Pro. 5 The United States also seeks this protective order under Rule 26(c)(1)(B) for 6 the purpose of adequately protecting the disclosures of records – electronic material 7 8 (from government databases) of third parties’ personal identifiable information (PII) 9 and privacy interests by other non-party employees and/or contractors of the U.S. 10 11 Veterans Administration, which records may also contain confidential and/or sensitive 12 personal and personnel information of non-parties, including education, medical, 13 and/or law enforcement contact background; administrative investigations and/or 14 15 personnel or medical information, which are entitled to be protected and kept 16 confidential, and therefore this order is needed to ensure that protection is afforded 17 only to third parties’ identified Privacy Act identity and/or personal background 18 19 materials. 20 This court has significant discretion in granting a protective order to prevent “a 21 party or [third party] person from annoyance, embarrassment, oppression, or undue 22 23 burden or expense.” Fed. R. Civ. P. 26(c); See Gautheir v. Hoye, 52 Fed. Appx. 28, 24 29 (9th Cir. 2002). Here, nonparty officials - employees – contractors would be 25 subject to annoyance and embarrassment if their protected identies, personnel 26 27 information, credentialing files, and/or other personal (i.e., education, medical, or 28 additional personnel) information and/or other Privacy Act protected information 29 were openly or publicly revealed and widely disseminated. See Travis v. Fluor 30 31 Hanford, Inc., 2007 WL 1074890, *1 (E.D. WA April 5, 2007) (granting a protective 32 order, preventing or limiting the production of confidential personnel information 33 regarding employees who are not a party to plaintiffs’ action); Gautheir, id. 34 The United States asserts that absent a protective order, a violation of a non- 1 party’s privacy and/or sensitive personal interests and/or the Privacy Act, which 2 protects the privacy interests of non-parties / federal employees, could subject the 3 4 involved government agency, sub-agency, entity and/or sub-entity to potential civil 5 liability under 5 U.S.C. § 552a(g). Because the Privacy Act interests of third parties 6 may be implicated here (i.e., non-party federal employees and/or officials), and 7 8 because the subject requested discovery documents are likely to contain personally 9 identifiable information (PII) of non-parties, which information may be prohibited 10 11 from disclosure to Plaintiffs under the Privacy Act and/or other privacy statutes, 12 regulations, laws or other governmental privileges, absent a waiver from each 13 individual employee or official, then, without conceding that point, the Plaintiffs agree 14 15 to the resolution of these issues – concerns through the entry of this Protective Order. 16 Absent other applicable privileges, protected information includes and is not 17 limited to the nonparties’ names, ages, addresses, phone numbers, emails, etc. 18 19 Additionally, the documents may contain information such as federal or state 20 officials’ and/or agents’ names. The United States may, however, redact personal 21 identifying information (inter alia, non-party identities, including family – extended 22 23 family information) and may assert additional privileges, but is not refusing to provide 24 identity of personnel and/or personnel action information related to the incident(s) 25 which form the basis for Plaintiff’s lawsuit. Therefore, the United States requests that 26 27 these particularized subjects of information be marked confidential and be restricted 28 and used only for the purposes of this litigation, and thereafter be totally destroyed by 29 the recipient party. See e.g., May v. Fedex Freight Southeast, Inc., 2009 WL 1605211, 30 31 *3 (M.D. La June 8, 2009) (rejecting proposed protective order deeming all nonparty 32 personnel documents with PII “confidential”). 33 34 This Stipulated Protective Order (“Protective Order”) shall govern the 1 treatment and handling of all non-party personal identification information (PII), 2 personal or personnel records and/or other sensitive records, which records and/or 3 4 information are designated by the parties and/or by the Court as containing 5 confidential information, including, but not limited to, personnel and administrative 6 records of non-party employees and/or agents of the the U.S. Veterans 7 8 Administration. 9 Therefore, in the interest of expediting the flow of discovery material on issues 10 11 in this case involving the parties, and to help facilitate the prompt resolution of 12 disputes over protected and/or confidential information – records – ESI, it is pursuant 13 to the court's authority under Fed. R. Civ. P. 26(c) and the Privacy Act, and with the 14 15 stipulation and consent of the parties, that the following Protective Order will apply to 16 appropriate records and information within records and ESI information produced by 17 the United States in its discovery disclosures and responses: 18 19 1. Pursuant to 5 U.S.C. § 552a(b)(11), and subject to the conditions 20 described below, Defendant is authorized to release to Plaintiff’s counsel certain 21 government records and information containing what the Defendant asserts is or 22 23 may be subject to the protections of the Privacy Act and/or are otherwise protected 24 or sensitive personal – personnel information of non-party individuals, government 25 employees, officials and/or contractors.
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Jan 03, 2025 SEAN F. MCAVOY, CLERK 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF WASHINGTON 8 9 DEBORAH L. BOYD, individually 10 and as personal representative of the Estate of Robert T. Boyd, No. 2:24-cv-00216-RLP 11 12 Plaintiff, STIPULATED PROTECTIVE 13 ORDER RE: NON-PARTIES’ vs. 14 PRIVATE & SENSITIVE 15 UNITED STATES OF AMERICA, PERSONAL, MEDICAL and/or EMPLOYMENT 16 INFORMATION 17 Defendant. 18 19 BEFORE the Court is parties’ Motion for Entry of Stipulated Protective 20 Order Re: Protection of Non-Parties’ Private Personal Identification(PPI) and Other 21 22 Confidential-Sensitive Background Information. (ECF No. 18). The Court being 23 fully informed, the motion is GRANTED. 24 Under Rule 26(c) of the Federal Rules of Civil Procedure, a court, upon 25 26 motion of a party and upon good cause shown, “may make any order which justice 27 requires to protect a party or person from annoyance, embarrassment, oppression, or 28 29 undue burden or expense.” The Rule permits a court to order that “that the 30 disclosure or discovery may be had only on specified terms and conditions.” Fed. R. 31 Civ. P. 26(c)(2). The Defendant United States requests this Protective Order 32 33 pursuant to 5 U.S.C. § 552a(b)(11), to provide for the disclosure of personally 34 identifying information which is contained in certain U.S. Veterans Administration and/or other federal, state, local and/or Native American governmental documents, 1 and which records and materials may be subject to disclosure under Fed. R. Civ. P. 2 26 or other applicable discovery mechanisms provided for under the Fed. R. Civ. 3 4 Pro. 5 The United States also seeks this protective order under Rule 26(c)(1)(B) for 6 the purpose of adequately protecting the disclosures of records – electronic material 7 8 (from government databases) of third parties’ personal identifiable information (PII) 9 and privacy interests by other non-party employees and/or contractors of the U.S. 10 11 Veterans Administration, which records may also contain confidential and/or sensitive 12 personal and personnel information of non-parties, including education, medical, 13 and/or law enforcement contact background; administrative investigations and/or 14 15 personnel or medical information, which are entitled to be protected and kept 16 confidential, and therefore this order is needed to ensure that protection is afforded 17 only to third parties’ identified Privacy Act identity and/or personal background 18 19 materials. 20 This court has significant discretion in granting a protective order to prevent “a 21 party or [third party] person from annoyance, embarrassment, oppression, or undue 22 23 burden or expense.” Fed. R. Civ. P. 26(c); See Gautheir v. Hoye, 52 Fed. Appx. 28, 24 29 (9th Cir. 2002). Here, nonparty officials - employees – contractors would be 25 subject to annoyance and embarrassment if their protected identies, personnel 26 27 information, credentialing files, and/or other personal (i.e., education, medical, or 28 additional personnel) information and/or other Privacy Act protected information 29 were openly or publicly revealed and widely disseminated. See Travis v. Fluor 30 31 Hanford, Inc., 2007 WL 1074890, *1 (E.D. WA April 5, 2007) (granting a protective 32 order, preventing or limiting the production of confidential personnel information 33 regarding employees who are not a party to plaintiffs’ action); Gautheir, id. 34 The United States asserts that absent a protective order, a violation of a non- 1 party’s privacy and/or sensitive personal interests and/or the Privacy Act, which 2 protects the privacy interests of non-parties / federal employees, could subject the 3 4 involved government agency, sub-agency, entity and/or sub-entity to potential civil 5 liability under 5 U.S.C. § 552a(g). Because the Privacy Act interests of third parties 6 may be implicated here (i.e., non-party federal employees and/or officials), and 7 8 because the subject requested discovery documents are likely to contain personally 9 identifiable information (PII) of non-parties, which information may be prohibited 10 11 from disclosure to Plaintiffs under the Privacy Act and/or other privacy statutes, 12 regulations, laws or other governmental privileges, absent a waiver from each 13 individual employee or official, then, without conceding that point, the Plaintiffs agree 14 15 to the resolution of these issues – concerns through the entry of this Protective Order. 16 Absent other applicable privileges, protected information includes and is not 17 limited to the nonparties’ names, ages, addresses, phone numbers, emails, etc. 18 19 Additionally, the documents may contain information such as federal or state 20 officials’ and/or agents’ names. The United States may, however, redact personal 21 identifying information (inter alia, non-party identities, including family – extended 22 23 family information) and may assert additional privileges, but is not refusing to provide 24 identity of personnel and/or personnel action information related to the incident(s) 25 which form the basis for Plaintiff’s lawsuit. Therefore, the United States requests that 26 27 these particularized subjects of information be marked confidential and be restricted 28 and used only for the purposes of this litigation, and thereafter be totally destroyed by 29 the recipient party. See e.g., May v. Fedex Freight Southeast, Inc., 2009 WL 1605211, 30 31 *3 (M.D. La June 8, 2009) (rejecting proposed protective order deeming all nonparty 32 personnel documents with PII “confidential”). 33 34 This Stipulated Protective Order (“Protective Order”) shall govern the 1 treatment and handling of all non-party personal identification information (PII), 2 personal or personnel records and/or other sensitive records, which records and/or 3 4 information are designated by the parties and/or by the Court as containing 5 confidential information, including, but not limited to, personnel and administrative 6 records of non-party employees and/or agents of the the U.S. Veterans 7 8 Administration. 9 Therefore, in the interest of expediting the flow of discovery material on issues 10 11 in this case involving the parties, and to help facilitate the prompt resolution of 12 disputes over protected and/or confidential information – records – ESI, it is pursuant 13 to the court's authority under Fed. R. Civ. P. 26(c) and the Privacy Act, and with the 14 15 stipulation and consent of the parties, that the following Protective Order will apply to 16 appropriate records and information within records and ESI information produced by 17 the United States in its discovery disclosures and responses: 18 19 1. Pursuant to 5 U.S.C. § 552a(b)(11), and subject to the conditions 20 described below, Defendant is authorized to release to Plaintiff’s counsel certain 21 government records and information containing what the Defendant asserts is or 22 23 may be subject to the protections of the Privacy Act and/or are otherwise protected 24 or sensitive personal – personnel information of non-party individuals, government 25 employees, officials and/or contractors. Without determining the issue, Defendant 26 27 may disclose the information contained within the government’s or its deemed 28 public health – medical center files and records to Plaintiff without obtaining prior 29 written consent of each of the non-party individuals to whom the records identify 30 31 and/or pertain, and such authorized disclosure(s) is deemd by this Court to not 32 violate the Privacy Act; 33 34 2. Pursuant to Federal Rule of Civil Procedure 26(c)(1)(B), Defendant 1 may disclose documents and information to Plaintiff that may be protected from 2 disclosure by an investigative official and/or a law enforcement agent or officer, 3 4 without waiving privileges outside of this litigation and/or to third parties; 5 3. The parties shall take reasonable and diligent steps to protect the 6 privacy interests of the subject third-party individuals referenced within the 7 8 disclosed discovery materials. Plaintiff shall not copy or disseminate any records 9 and/or information marked “Confidential and/or Privileged,” as provided by the 10 11 Defendant United States, except as otherwise provided in this Order or as 12 otherwise permitted by the Court (i.e., for discovery - expert purposes only). 13 4. These documents shall be used by the parties only for purposes of 14 15 litigating this case, including any subsequent appeals. Persons receiving copies of 16 protected documents or the contents of protected documents subject to this 17 Protective Order shall not use such documents or other information for any other 18 19 purpose. 20 5. At the conclusion of this litigation, including any subsequent appeals, 21 the parties’ counsel will retrieve all copies of the documents that they have 22 23 provided to staff and/or experts, and will destroy all records – information – ESI or 24 return them to the U.S. Attorney’s Office for the Eastern District of Washington, in 25 care of the assigned Assistant U.S. Attorney or her/his designee. If the documents 26 27 that are retrieved by counsel are destroyed, counsel shall so notify the U.S. 28 Attorney’s designee and certify complete destruction in writing; 29 6. If the parties intend to file documents containing personally 30 31 identifiable information (PII), privileged or sensitive information or designated 32 Confidential information in the Court file, or plan to use them as exhibits to 33 depositions, they shall take steps to protect the privacy of the identified individual 34 in these records through redaction or other means of suppressing PII and/or other 1 confidential material. Defendant asserts this is required by the U.S. District Court 2 Eastern District of Washington, ECF Administrative Procedures, § VI(C), Privacy 3 4 Concerns (May 6, 2015) and Rule 5.2 of the Federal Rules of Civil Procedure. 5 Unless redacted, both parties shall protect the “Privileged and/or Confidential” 6 marked information by filing such documents under seal; 7 8 7. All information that is asserted by either party as privileged under a 9 law enforcement or other administrative investigative privilege, the attorney work- 10 11 product doctrine and/or the attorney-client privilege, or other designated 12 privilege(s), that is produced or presented in this action may only be used by the 13 parties, members of their legal teams (i.e., lawyers, paralegals, investigators, 14 15 support staff), and all persons retained by the parties (i.e., outside investigators, 16 consultants, expert witnesses), and only for the purpose of litigating this litigation. 17 Neither party shall disclose these materials or the content of these materials to any 18 19 other persons, entities and/or agencies without prior Court order. This Order shall 20 continue in effect after the conclusion of the proceedings. Any modification or 21 vacating of this Order shall only be made upon notice to and an opportunity to be 22 23 heard from both parties. 24 8. Defendant and its officers, employees, or attorneys, shall not bear any 25 responsibility or liability for any unauthorized disclosure of any documents 26 27 obtained by Plaintiffs and/or their counsel, any co-defendants and/or their counsel, 28 under this Protective Order, or of any information contained in such documents. 29 Plaintiff shall not bear any responsibility or liability for any unauthorized 30 31 disclosure of any documents obtained by Defendant’s counsel under this Protective 32 Order, or of any information contained in such documents. 33 34 9. To the extent the United States’ discovery disclosures may involve a 1 limited waiver of the agency investigative – law enforcement privilege, the attorney 2 work product doctrine and/or the attorney -client privilege, a limited – restricted 3 4 waiver applies to material that may be relevant to the U.S. Attorney’s Office – U.S. 5 Department of Justice or other criminal investigation (if any) and/or any referred 6 cases involving the issues alleged in this litigation. 7 8 10. All persons having access to confidential information made available 9 pursuant to this agreement shall agree not to make any use of said confidential 10 11 information except in connection with the above-captioned litigation and shall 12 further agree not to deliver or transfer said confidential information to any person 13 not previously authorized by the terms herein. 14 15 11. Counsel disclosing confidential information to any person or entity 16 shall be responsible for limiting distribution of the confidential information to those 17 persons who both: (1) have a need to know the information and (2) are authorized 18 19 to receive the information under this Protective Order. Counsel shall be prepared to 20 account for the disposition and use of the information under this Protective Order. 21 12. All copies of confidential information disclosed under this agreement 22 23 shall be subject to the same restrictions as imposed on the original information. 24 13. All documents, materials, and electronically stored information (ESI) 25 designated as confidential and disclosed to any person pursuant to this Protective 26 27 Order shall remain in the possession only of the attorneys, experts, or consultants to 28 whom they are disclosed pursuant to this Protective Order. The parties or their 29 attorneys may not retain any documents, materials, or information designated as 30 31 confidential pursuant to this Protective Order after the conclusion of this litigation. 32 14. Documents, materials, and information designated as confidential 33 pursuant to this Order may be disclosed in regular proceedings of this Court by 34 further Court Order and/or by agreement of the attorneys until trial. At trial the 1 Court shall determine whether this Order remains in force. Exhibits containing 2 protected information shall, unless redacted, be marked “CONFIDENTIAL” and 3 4 shall be: a) Filed in ECF under seal; b) Designated as an Exhibit containing 5 confidential material subject to the Court’s Protective Order; and c) A copy of the 6 exhibit filed under seal shall be promptly served upon opposing counsel in 7 8 accordance with Rule 5 (i.e., emailing to ECF registered account complies with 9 requirement). 10 11 15. The confidential documents, materials, or information set forth to 12 facilitate discovery in this case may nonetheless be used at trial in accordance with 13 the Court Rules, the Rules of Evidence, the Local Rules, and applicable federal 14 15 statutes and regulations (i.e., Privacy Act, et al.). However, any party or interested 16 third party may apply to this Court for additional protection regarding the protected 17 use at trial of any discovery produced in this case. Such motions should be filed 18 19 contemporaneous with the parties’ respective motions in limine, but will 20 nonetheless be handled on an individual basis. 21 16. No further modification or amendment of this Protective Order is 22 23 permitted except by a writing signed by counsel for the parties and approved by the 24 Court. The parties hereto agree that it is unreasonable to rely on any oral 25 modification or amendment of this agreement. 26 27 17. The failure to insist upon full compliance with any of the terms of this 28 Protective Order in any instance shall not be deemed a waiver of the right to insist 29 upon full compliance with the Order’s terms thereafter. 30 31 18. This Order does not constitute any ruling on the question of whether 32 any particular document or category of information is properly discoverable and 33 does not constitute any ruling on any potential objection to the discoverability, 34 relevance, or admissibility of any record produced (or withheld), other than objections based on the Privacy Act and/or the investigative - law enforcement
privilege, attorney-client privilege, and/or attorney work-product doctrine. 19. By stipulated entry of this Protective Order, the parties and their respective counsel certify that prior to the disclosure of any confidential
information to anyone associated with the preparation of their case (1.e., experts, consultants, etc.) that the proposed recipient of the designated Confidential . . . . 0 Information shall be provided with a conformed copy of this Protective Order. 1 ENTERED this 3rd day of January, 2025. 2 3 4 The Honorable Rebecca L. Pennell 5 United States District Court Judge 6 Eastern District of Washington 7 8 9 0 ] 2 3 4 5 6 7 8 9 0 ] 2 3 4
Protective Order re: Non-Parties’ Privacy Act, Personnel and Personal Information - page 9