Gutierrez v. Benavides

292 F.R.D. 401, 2013 WL 3213352, 2013 U.S. Dist. LEXIS 91490
CourtDistrict Court, S.D. Texas
DecidedJune 11, 2013
DocketCivil Action No. 5:12-CV-18
StatusPublished
Cited by5 cases

This text of 292 F.R.D. 401 (Gutierrez v. Benavides) is published on Counsel Stack Legal Research, covering District Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gutierrez v. Benavides, 292 F.R.D. 401, 2013 WL 3213352, 2013 U.S. Dist. LEXIS 91490 (S.D. Tex. 2013).

Opinion

MEMORANDUM AND ORDER

J. SCOTT HACKER, United States Magistrate Judge.

Currently pending before the Court is “Plaintiffs’ Motion to Compel,” (Dkt. No. 86), filed April 12, 2013. Plaintiffs have specifically addressed their motion to compel to “Defendant United States and the individual [United States] Defendants,” and have seemingly excluded the remaining Defendants. {Id. at 1). The parties have agreed that the disputed materials which form the basis for the present motion to compel “will be produced,” and thus the discoverability of the documents is not at issue. {Id. at 2; see also Dkt. No. 87, at 8-9). The sole issues Plaintiffs and United States Defendants are unable to resolve are the terms of “an agreed protective order” and “whether or not certain records indicating official misconduct, abuse of power, or constitutional violations by the Defendants should be automatically held confidential and withheld from any public access.” 1 {See Dkt. No. 86, at 2). Plaintiffs have attached a proposed protective order, one with “built-in flexibility,” which affords Defendants the opportunity to “mark as confidential any additional records or portions thereof that do not automatically fall within the confidential matters” agreed upon.2 [403]*403(Dkt. No. 86, Attach. 1, at 2). In their motion, Plaintiffs have made explicit that “confidential records are deemed to specifically exclude the official misconduct or constitutional violations.” (Id.). The United States Defendants have responded to the motion to compel, (see Dkt. No. 87), arguing that “the disclosure of information contained in [the requested] documents could potentially cause great harm to the individual defendants, and ... they are entitled to much greater protection in that regard than provided in the draft protective order, which would allow for the public dissemination of the bulk of the material to be produced.” (Id. at 4). Defendants seek to restrict the use of the “Privacy Act protected material,” suggesting a protective order which would “deem all of the information disclosed to Plaintiffs as confidential, but would provide a means for the parties to use the information for all litigative purposes.” (Id. at 9). The parties thereafter filed a reply and a surre-ply, providing the Court with ample briefing on their respective positions. (See Dkt. Nos. 89, 90). Although Defendants have not filed a motion for protective order, and thus the only motion before the Court is Plaintiffs’ motion to compel, the Court will fashion the following order as if a motion for a protective order had indeed been filed. (See, e.g., Dkt. No. 87, at 9).

The relevant portion of the Privacy Act dictates that “[n]o agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior consent of, the individual to whom the record pertains, unless disclosure of the record would be ... pursuant to the order of a court of competent jurisdiction.” 5 U.S.C. § 552a(b)(ll). As both parties seem to concede, the Privacy Act therefore “expressly authorizes disclosure of information ‘pursuant to the order of a court of competent jurisdiction.’ ” Gilbreath v. Guadalupe Hosp. Found. Inc., 5 F.3d 785, 791 (5th Cir.1993). Both parties also recognize that merely because documents are subject to the Privacy Act, it does not necessarily follow that those documents are exempt in their entirety from discovery. Laxalt v. McClatchy, 809 F.2d 885, 888 (D.C.Cir.1987) (“The Privacy Act ... does not create a qualified discovery privilege as that concept is generally understood, and we find no basis in the statute or its legislative history for inferring one.”); Perry v. State Farm Fire & Cas. Co., 734 F.2d 1441, 1447 (11th Cir.1984); Weahkee v. Norton, 621 F.2d 1080, 1082 (10th Cir.1980). However, as the Laxalt court noted, “[although discovery standards under the [Federal Rules of Civil Procedure] permit access to relevant documents protected by the Act, those same FRCP standards give the District Court ample discretion to fashion appropriate protective orders upon a showing of ‘good cause.’ ” 809 F.2d at 889. Thus, the fact that documents are subject to the Privacy Act is not irrelevant to the determination of whether disclosure should be ordered and whether the documents should be subject to a protective order. “Where the records sought are subject to the Privacy Act, the District Court’s supervisory responsibilities may in many eases be weightier than in the usual discovery context.” Id. A court must therefore “give due regard to general privacy concerns as manifested through the Act’s coverage” when considering the “long-recognized principles governing discovery under the Federal Rules of Civil Procedure.” Marozsan v. Veterans Admin., No. S84-500, 1991 WL 441905, at *3 (N.D.Ind. June 24,1991).

A protective order may be fashioned only after balancing the potential harm to the affected party and the need of the requesting party for the particular information. Laxalt, 809 F.2d at 890; Perry, 734 F.2d at 1447. Of course, Federal Rule of Civil Procedure 26 requires that “good cause” be shown before the court “issue[s] an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or ex-pense____” Fed.R.Civ.P. 26(e)(1). The Fifth Circuit has found that “Rule 26(c)’s requirement of a showing of good cause to support the issuance of a protective order indicates that ‘the burden is upon the movant to show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.’ ” In re Terra Int’l, [404]*404Inc., 134 F.3d 302, 306 (5th Cir.1998) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n. 3 (5th Cir.1978)). As indicated above, United States Defendants assert that “the disclosure of information contained in [the requested] documents could potentially cause great harm to the individual defendants, and ... they are entitled to much greater protection in that regard than [what is] provided in the draft protective order....” (Dkt. No. 87, at 4). Outside of relying on the general protections of the Privacy Act, the conclusory allegation that “great harm” will result from dissemination of the requested documents is the extent of Defendants’ support for the protective order.

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Bluebook (online)
292 F.R.D. 401, 2013 WL 3213352, 2013 U.S. Dist. LEXIS 91490, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gutierrez-v-benavides-txsd-2013.