Cohen v. Brown University CV-99-485-B 05/12/00
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Amy Cohen, et a l .
v. Civil No. 99-485-B Opinion No. 2000 DNH 118 Brown University, et a l .
MEMORANDUM AND ORDER
Plaintiffs prevailed in a class action alleging that Brown
University violated Title IX of the Education Amendments of 1972,
20 U.S.C. §§ 1681-1688. Accordingly, they are entitled to
recover the costs and reasonable attorneys' fees that they
incurred in prosecuting their claims. See 42 U.S.C. § 1988 (1994
& Supp. 19 9 6).
On May 19, 1999, Magistrate Judge David Martin determined
that plaintiffs were entitled to discovery concerning the
attorneys' fees and costs that Brown incurred in defending the
class action (the "fee information") because this information may
be relevant to Brown's challenge to plaintiffs' fee request. See Mem. and Order Granting in Part Pis.' Mot. for Limited Disc, and
Mot. to Fixing Time (R.I. Doc. #294) at 5-8. On January 18,
2000, the Magistrate Judge granted Brown's request for a
protective order preventing plaintiffs from publicly
disseminating the fee information. See Protective Order (R.I.
Doc. #309). He also ruled that while plaintiffs could refer to
the fee information in pleadings and memoranda filed with the
court, they could not, without prior authorization by the court,
publicly disseminate copies of such pleadings or memoranda. See
id.; Mem. and Order Granting Mot. for Protective Order (R.I. Doc.
#308) at 6 n.3. Plaintiffs then filed this appeal challenging
the protective order.1
I review the protective order to determine whether it is
"clearly erroneous or contrary to law." 28 U.S.C. § 636(b) (1)
1 Brown argues that I should reject the appeal because plaintiffs' counsel rather than the plaintiffs themselves are challenging the protective order. See Mem. in Opp'n to Appeal from Order of United States Magistrate Judge (Doc. #7) at 2-4. I reject this argument because the record contains no evidence to support Brown's assertion that plaintiffs' attorneys are acting without the consent of their clients.
- 2 - (A) (1994)
I.
Fed. R. Civ. P. 26(c) authorizes a district court to issue a
protective order "for good cause shown." Fed. R. Civ. P. 26(c).
In construing this requirement, the First Circuit has held that
the party seeking a protective order has the burden of showing that good cause exists for the issuance of that order. It is equally apparent that the obverse is also true, i.e., if good cause is not shown, the discovery materials in question should not receive judicial protection and therefore would be open to the public for inspection.
Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 789 (1st
Cir. 1988) (quoting In re Agent Orange Prod. Liab. Lit., 821 F.2d
139, 145-46 (2d Cir. 1987)). The court also observed that " [a]s
a general proposition, pretrial discovery must take place in
public unless compelling reasons exist for denying the public
access to the proceedings." I d . (quoting American Tel. & Tel.
Co. v. Gradv, 594 F.2d 594, 596 (7th Cir. 1978)).
- 3 - II.
The Magistrate Judge clearly erred in issuing the protective
order because Brown failed to support its request with specific
evidence that it will suffer serious injury if the order is not
issued. Brown does not assert that the fee information is
privileged. It does not argue that disclosure will compromise
its litigation strategy or allow its competitors to commercially
exploit the fee information. Nor does it suggest that disclosure
will adversely affect the privacy interests of any employee or
student. Indeed, Brown has not expressly described how it will
be harmed if the fee information is publicly disclosed.2
2 Brown states that it opposes disclosure because it fears that plaintiffs will use the fee information in a public relations effort to "bully other schools (at Brown's expense)." Mem. in Opp'n to Appeal from Order of United States Magistrate Judge (Doc. #7) at 12. To the extent that Brown is suggesting that the protective order is warranted because it will be embarrassed if the fee information is released, I reject this argument. See Glenmede Trust Co. v. Thompson, 56 F.3d 476, 484 (3d Cir. 1995) (concluding that corporate embarrassment was not "good cause" for protective order); 6 James Wm. Moore et a l ., Moore's Federal Practice 5 26.105[8][a] (3d ed. 1999) ("A risk of revelation of information that might be unpopular or might raise questions unrelated to the litigation is not sufficient to justify a protective order on ground of confidentiality.").
- 4 - Because Brown failed to produce any specific evidence that
it will be seriously injured if the fee information is publicly
disseminated, the Magistrate Judge was forced to base his finding
of good cause on Brown's assertion that the fee information
should be protected because it is "financial information" that
Brown has chosen not to release to the public. See Mem. and
Order Granting Mot. for Protective Order (R.I. Doc. #308) at 2-4.
However, a generalized statement that Brown will be injured in
some unspecified way by the publication of otherwise confidential
information cannot, by itself, satisfy Rule 26(c)'s good cause
requirement. See Glenmede Trust Co. v. Thompson, 56 F.3d 476,
483 (3d Cir. 1995) (concluding that good cause requires evidence
of a "clearly defined and serious injury"). If it were
otherwise, protective orders would be the general rule rather
than the exception.
Brown also suggests that the protective order is justified
because the fee information does not concern to the merits of
plaintiffs' Title IX claims. See Mem. in Opp'n to Appeal from
- 5 - Order of United States Magistrate Judge (Doc. #7) at 4. I
disagree. Plaintiffs are seeking more than one million dollars
in attorneys' fees and costs. See Mem. and Order Granting in
Part Pis.' Mot. for Limited Disc, and Mot. to Fixing Time (R.I.
Doc. #294) at 2 & n.l. Brown has attacked plaintiffs' fee
request as excessive and the Magistrate Judge has determined that
the fee information may be helpful in evaluating Brown's
argument. When the parties call upon a judicial officer to
resolve such an important dispute, the public has a substantial
interest in having access to information that may have a bearing
on the decision-making process, regardless of whether the
information concerns the merits of plaintiffs' underlying claims.
In any event.
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Cohen v. Brown University CV-99-485-B 05/12/00
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Amy Cohen, et a l .
v. Civil No. 99-485-B Opinion No. 2000 DNH 118 Brown University, et a l .
MEMORANDUM AND ORDER
Plaintiffs prevailed in a class action alleging that Brown
University violated Title IX of the Education Amendments of 1972,
20 U.S.C. §§ 1681-1688. Accordingly, they are entitled to
recover the costs and reasonable attorneys' fees that they
incurred in prosecuting their claims. See 42 U.S.C. § 1988 (1994
& Supp. 19 9 6).
On May 19, 1999, Magistrate Judge David Martin determined
that plaintiffs were entitled to discovery concerning the
attorneys' fees and costs that Brown incurred in defending the
class action (the "fee information") because this information may
be relevant to Brown's challenge to plaintiffs' fee request. See Mem. and Order Granting in Part Pis.' Mot. for Limited Disc, and
Mot. to Fixing Time (R.I. Doc. #294) at 5-8. On January 18,
2000, the Magistrate Judge granted Brown's request for a
protective order preventing plaintiffs from publicly
disseminating the fee information. See Protective Order (R.I.
Doc. #309). He also ruled that while plaintiffs could refer to
the fee information in pleadings and memoranda filed with the
court, they could not, without prior authorization by the court,
publicly disseminate copies of such pleadings or memoranda. See
id.; Mem. and Order Granting Mot. for Protective Order (R.I. Doc.
#308) at 6 n.3. Plaintiffs then filed this appeal challenging
the protective order.1
I review the protective order to determine whether it is
"clearly erroneous or contrary to law." 28 U.S.C. § 636(b) (1)
1 Brown argues that I should reject the appeal because plaintiffs' counsel rather than the plaintiffs themselves are challenging the protective order. See Mem. in Opp'n to Appeal from Order of United States Magistrate Judge (Doc. #7) at 2-4. I reject this argument because the record contains no evidence to support Brown's assertion that plaintiffs' attorneys are acting without the consent of their clients.
- 2 - (A) (1994)
I.
Fed. R. Civ. P. 26(c) authorizes a district court to issue a
protective order "for good cause shown." Fed. R. Civ. P. 26(c).
In construing this requirement, the First Circuit has held that
the party seeking a protective order has the burden of showing that good cause exists for the issuance of that order. It is equally apparent that the obverse is also true, i.e., if good cause is not shown, the discovery materials in question should not receive judicial protection and therefore would be open to the public for inspection.
Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 789 (1st
Cir. 1988) (quoting In re Agent Orange Prod. Liab. Lit., 821 F.2d
139, 145-46 (2d Cir. 1987)). The court also observed that " [a]s
a general proposition, pretrial discovery must take place in
public unless compelling reasons exist for denying the public
access to the proceedings." I d . (quoting American Tel. & Tel.
Co. v. Gradv, 594 F.2d 594, 596 (7th Cir. 1978)).
- 3 - II.
The Magistrate Judge clearly erred in issuing the protective
order because Brown failed to support its request with specific
evidence that it will suffer serious injury if the order is not
issued. Brown does not assert that the fee information is
privileged. It does not argue that disclosure will compromise
its litigation strategy or allow its competitors to commercially
exploit the fee information. Nor does it suggest that disclosure
will adversely affect the privacy interests of any employee or
student. Indeed, Brown has not expressly described how it will
be harmed if the fee information is publicly disclosed.2
2 Brown states that it opposes disclosure because it fears that plaintiffs will use the fee information in a public relations effort to "bully other schools (at Brown's expense)." Mem. in Opp'n to Appeal from Order of United States Magistrate Judge (Doc. #7) at 12. To the extent that Brown is suggesting that the protective order is warranted because it will be embarrassed if the fee information is released, I reject this argument. See Glenmede Trust Co. v. Thompson, 56 F.3d 476, 484 (3d Cir. 1995) (concluding that corporate embarrassment was not "good cause" for protective order); 6 James Wm. Moore et a l ., Moore's Federal Practice 5 26.105[8][a] (3d ed. 1999) ("A risk of revelation of information that might be unpopular or might raise questions unrelated to the litigation is not sufficient to justify a protective order on ground of confidentiality.").
- 4 - Because Brown failed to produce any specific evidence that
it will be seriously injured if the fee information is publicly
disseminated, the Magistrate Judge was forced to base his finding
of good cause on Brown's assertion that the fee information
should be protected because it is "financial information" that
Brown has chosen not to release to the public. See Mem. and
Order Granting Mot. for Protective Order (R.I. Doc. #308) at 2-4.
However, a generalized statement that Brown will be injured in
some unspecified way by the publication of otherwise confidential
information cannot, by itself, satisfy Rule 26(c)'s good cause
requirement. See Glenmede Trust Co. v. Thompson, 56 F.3d 476,
483 (3d Cir. 1995) (concluding that good cause requires evidence
of a "clearly defined and serious injury"). If it were
otherwise, protective orders would be the general rule rather
than the exception.
Brown also suggests that the protective order is justified
because the fee information does not concern to the merits of
plaintiffs' Title IX claims. See Mem. in Opp'n to Appeal from
- 5 - Order of United States Magistrate Judge (Doc. #7) at 4. I
disagree. Plaintiffs are seeking more than one million dollars
in attorneys' fees and costs. See Mem. and Order Granting in
Part Pis.' Mot. for Limited Disc, and Mot. to Fixing Time (R.I.
Doc. #294) at 2 & n.l. Brown has attacked plaintiffs' fee
request as excessive and the Magistrate Judge has determined that
the fee information may be helpful in evaluating Brown's
argument. When the parties call upon a judicial officer to
resolve such an important dispute, the public has a substantial
interest in having access to information that may have a bearing
on the decision-making process, regardless of whether the
information concerns the merits of plaintiffs' underlying claims.
In any event. Brown's argument turns on its head the presumption
in Rule 26(c) that discovery material obtained for a legitimate
purpose should be available to the public absent a showing of
good cause for nondisclosure. See Public Citizen, 858 F.2d at
7 8 8-90; San Jose Mercury News, Inc. v. United States Dist. Court-
-N. Dist. (San Jose), 187 F.3d 1096, 1103 (9th Cir. 1999); In re
- 6 - Agent Orange Prod. Liab. Lit., 821 F.2d at 145-47. Brown cannot
avoid its burden to demonstrate that the disclosure of the fee
information is will cause it serious injury simply by claiming
that the fee information is relevant only to the issue of
plaintiffs' attorneys' fee claim.
Finally, Brown argues that I should remand this matter to
the Magistrate Judge for further hearings if I cannot sustain the
protective order on the present record. See Mem. in Opp'n to
Appeal from Order of United States Magistrate Judge (Doc. #7) at
12-13. I reject this argument. Brown had ample opportunity to
produce a full evidentiary record in support of its request when
it originally sought relief from the Magistrate Judge. It has
offered no explanation for its failure to do so. It is time to
bring the matter to a conclusion. Accordingly, I reject Brown's
request for a remand for a further hearing.
III.
For the reasons set forth in this order, I vacate the
- 7 - Magistrate Judge's January 18, 2000 protective order.
SO ORDERED.
Paul Barbadoro Chief Judge
May 12, 2000
cc: Beverly Ledbetter, Esq. Julius Michaelson, Esq. Sandra Duggan, Esq. Arthur Bryant, Esq. Lynette Labinger, Esq. Raymond Marcuccio, Esq. Amato DeLuca, Esq. Clerk, USDC-RI