1 2 3 4 5
6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 TRISTAN ROSE PERKINS, Independent CASE NO. 3:22-cv-05701-RJB 11 Administratrix of Succession of the Decedent GERALDINE RABB PERKINS, ORDER ON UNITED STATES’ 12 MOTION TO AMEND THE Plaintiff, PROTECTIVE ORDER 13 v. 14 UNITED STATES OF AMERICA, 15 Defendant. 16
17 This matter comes before the Court on the United States’ Motion to Amend the 18 Protective Order. Dkt. 41. The Court has considered the pleadings filed regarding the motion 19 and the remaining file. 20 This case arises from the June 6, 2020 death of Geraldine Rabb Perkins from pleural 21 mesothelioma allegedly resulting from para-occupational and environmental exposure to 22 asbestos fibers originating from Puget Sound Naval Shipyard (“PSNS”). Dkt. 1. Her husband, 23 Harang Joseph Perkins, an enlisted Navy Machinist Mate, was stationed at PSNS between 1968 24 and 1974 and worked aboard the U.S.S. Sacramento. Id. Mrs. Perkins did his laundry and the 1 family lived in a home less than a mile from PSNS. Id. The Plaintiff, Mrs. Perkins’ daughter 2 and administratrix, sues the United States under the Federal Tort Claims Act, (“FTCA”) 28 3 U.S.C. § 2671 et. seq., for damages. Id. 4 On March 13, 2023, the parties’ stipulated protective order was entered. Dkt. 14. This 5 order protects confidential material, to include personal financial and medical information,
6 current and past government employees’ protected activity, and “other records” that would 7 potentially violate the Privacy Act, 5 U.S.C. § 552a. Id. The producing party designates whether 8 material is confidential. Id. 9 The United States now moves to amend the stipulated protective order (Dkt. 14) to 10 include the release of Department of Defense technical information outside this litigation. Dkt. 11 41. It attached a proposed amended protective order to its motion. Dkt. 41-1. For the reasons 12 provided below, the motion (Dkt. 41) should be granted. 13 I. FACTS 14 At issue here are the United States’ responses to the Plaintiff’s Sixth Set of Requests for
15 Production and Eighth Set of Requests for Production, both of which seek shipbuilding drawings 16 (design plans, blueprints, schematics) and specifications for the U.S.S. Sacramento and other 17 similar ships, dated prior to 1975. Dkts. 42-1, 42-2, 42-5, 42-6, 42-7 and 42-10. 18 In its responses, the United States objects, arguing that some of the requests are vague, 19 ambiguous, overbroad, burdensome and not proportional to the needs of this case. Dkts. 42-2, 20 42-6, 42-7 and 42-10. It contends that the requests involve around 5,000 pages of potentially 21 responsive documents. Id. 22 Further, the United States maintains that some of the technical manuals and materials 23 Plaintiff requested contain “controlled” (rather than “classified”) information governed by 24 1 Department of Defense Instruction (“DODI”) 5230.24. Id. DODI 5230.24, in accordance with 2 10 U.S.C. § 133a, provides the process of how Department of Defense technical information is 3 designated (e.g. “classified” or “controlled”) and distributed ( e.g. “Department of Defense” or 4 “publicly”). The government contends that a majority of the discovery at issue here, though, is 5 “legacy material” (old) and so does not have a designation under DODI 5230.24. Dkt. 41.
6 (Under 5230.24 § 4.2, technical information that is undesignated is permitted to be distributed to 7 military and Department of Defense civilian employees only until a different designation is 8 made.) In any event, the government asserts that after review, the Department of Defense 9 approved the release of some technical information requested “for purposes of this litigation 10 only,” subject to the confidentiality protections in the stipulated protective order (Dkt. 14). Dkt. 11 42-10. The United States produced several responsive materials to the requests for production, 12 (whether designated by the Department of Defense as “controlled” or undesignated) and marked 13 each as “confidential.” See generally Dkt. 42-6 and 42-7. 14 The Plaintiff objected, contending that the materials produced did not meet the stipulated
15 protective order’s definition of “confidential” materials. Dkts. 42-8 and 42-9. She further 16 argued that the materials did not otherwise appear to merit a “confidential” designation, in part 17 because the vessel was decommissioned in 2004 and scrapped in 2008. Dkts. 42-8 and 42-9. 18 The parties met and conferred and were unable to resolve this issue. Dkt. 42-11. The instant 19 motion followed (Dkt. 41), the Plaintiff filed a response opposing the motion (Dkt. 43), the 20 government filed a reply (Dkt. 45) and the motion is ripe for consideration. 21 II. DISCUSSION 22 A. PROTECTIVE ORDER STANDARD 23 24 1 Fed. R. Civ. P. 26(c)(1)(G) provides that, for good cause, an order may issue to “protect a 2 party or person from annoyance, embarrassment, oppression, or undue burden or expense, 3 including . . . requiring that . . . confidential . . . information not be revealed or be revealed only 4 in a specified way. . .” To show that good cause exists, the United States, as the moving party, 5 must demonstrate that a specific prejudice or harm will result if no protective order is granted.
6 Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210–11 (9th Cir. 2002). 7 “If a court finds particularized harm will result from disclosure of information to the public, then 8 it balances the public and private interests to decide whether a protective order is necessary.” Id. 9 B. PROTECTIVE ORDER ON DEPARTMENT OF DEFENSE TECHNICAL INFORMATION 10 The United States’ motion (Dkt. 41) should be granted and the materials at issue should be 11 treated as “confidential.” The proposed amended protective order (Dkt. 41-1) should be entered. 12 (The additional proposed language provides that “‘confidential’ material” includes “[a]ny 13 Department of Defense technical information that has not previously been approved for public 14 release pursuant to Department of Defense Instruction 5230.24, or its related instructions or 15 regulations.” Dkt. 41-1 at 2.) 16 The United States has sufficiently shown that harm will result from public release of the 17 technical information sought by the Plaintiff which has not been approved by the Department of 18 Defense for public release. It properly points out that the Plaintiff’s disputed requests for 19 production seek Department of Defense technical information.1 The release of technical 20
21 1 Under DODI 5230.24, “technical information” is defined as: “technical data . . . of any kind that can be used or adapted for use in the design, production, manufacture, assembly, repair, . . . engineering, development, operation, 22 maintenance, adapting, testing, or reconstruction of goods or materiel . . . in an area of significant military applicability in the United States.” Dkt. 42-4 at 34. Further, “the data may be in tangible form, such as a blueprint, 23 photograph, plan, instruction, or an operating manual.” Id. at 34-35. According to DODI 5230.24, examples of technical data include “engineering drawings, and associated lists; specifications; standards; process sheets; 24 manuals; technical reports; technical orders; catalog-item identifications . . . and related information.” Id. at 35.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5
6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 TRISTAN ROSE PERKINS, Independent CASE NO. 3:22-cv-05701-RJB 11 Administratrix of Succession of the Decedent GERALDINE RABB PERKINS, ORDER ON UNITED STATES’ 12 MOTION TO AMEND THE Plaintiff, PROTECTIVE ORDER 13 v. 14 UNITED STATES OF AMERICA, 15 Defendant. 16
17 This matter comes before the Court on the United States’ Motion to Amend the 18 Protective Order. Dkt. 41. The Court has considered the pleadings filed regarding the motion 19 and the remaining file. 20 This case arises from the June 6, 2020 death of Geraldine Rabb Perkins from pleural 21 mesothelioma allegedly resulting from para-occupational and environmental exposure to 22 asbestos fibers originating from Puget Sound Naval Shipyard (“PSNS”). Dkt. 1. Her husband, 23 Harang Joseph Perkins, an enlisted Navy Machinist Mate, was stationed at PSNS between 1968 24 and 1974 and worked aboard the U.S.S. Sacramento. Id. Mrs. Perkins did his laundry and the 1 family lived in a home less than a mile from PSNS. Id. The Plaintiff, Mrs. Perkins’ daughter 2 and administratrix, sues the United States under the Federal Tort Claims Act, (“FTCA”) 28 3 U.S.C. § 2671 et. seq., for damages. Id. 4 On March 13, 2023, the parties’ stipulated protective order was entered. Dkt. 14. This 5 order protects confidential material, to include personal financial and medical information,
6 current and past government employees’ protected activity, and “other records” that would 7 potentially violate the Privacy Act, 5 U.S.C. § 552a. Id. The producing party designates whether 8 material is confidential. Id. 9 The United States now moves to amend the stipulated protective order (Dkt. 14) to 10 include the release of Department of Defense technical information outside this litigation. Dkt. 11 41. It attached a proposed amended protective order to its motion. Dkt. 41-1. For the reasons 12 provided below, the motion (Dkt. 41) should be granted. 13 I. FACTS 14 At issue here are the United States’ responses to the Plaintiff’s Sixth Set of Requests for
15 Production and Eighth Set of Requests for Production, both of which seek shipbuilding drawings 16 (design plans, blueprints, schematics) and specifications for the U.S.S. Sacramento and other 17 similar ships, dated prior to 1975. Dkts. 42-1, 42-2, 42-5, 42-6, 42-7 and 42-10. 18 In its responses, the United States objects, arguing that some of the requests are vague, 19 ambiguous, overbroad, burdensome and not proportional to the needs of this case. Dkts. 42-2, 20 42-6, 42-7 and 42-10. It contends that the requests involve around 5,000 pages of potentially 21 responsive documents. Id. 22 Further, the United States maintains that some of the technical manuals and materials 23 Plaintiff requested contain “controlled” (rather than “classified”) information governed by 24 1 Department of Defense Instruction (“DODI”) 5230.24. Id. DODI 5230.24, in accordance with 2 10 U.S.C. § 133a, provides the process of how Department of Defense technical information is 3 designated (e.g. “classified” or “controlled”) and distributed ( e.g. “Department of Defense” or 4 “publicly”). The government contends that a majority of the discovery at issue here, though, is 5 “legacy material” (old) and so does not have a designation under DODI 5230.24. Dkt. 41.
6 (Under 5230.24 § 4.2, technical information that is undesignated is permitted to be distributed to 7 military and Department of Defense civilian employees only until a different designation is 8 made.) In any event, the government asserts that after review, the Department of Defense 9 approved the release of some technical information requested “for purposes of this litigation 10 only,” subject to the confidentiality protections in the stipulated protective order (Dkt. 14). Dkt. 11 42-10. The United States produced several responsive materials to the requests for production, 12 (whether designated by the Department of Defense as “controlled” or undesignated) and marked 13 each as “confidential.” See generally Dkt. 42-6 and 42-7. 14 The Plaintiff objected, contending that the materials produced did not meet the stipulated
15 protective order’s definition of “confidential” materials. Dkts. 42-8 and 42-9. She further 16 argued that the materials did not otherwise appear to merit a “confidential” designation, in part 17 because the vessel was decommissioned in 2004 and scrapped in 2008. Dkts. 42-8 and 42-9. 18 The parties met and conferred and were unable to resolve this issue. Dkt. 42-11. The instant 19 motion followed (Dkt. 41), the Plaintiff filed a response opposing the motion (Dkt. 43), the 20 government filed a reply (Dkt. 45) and the motion is ripe for consideration. 21 II. DISCUSSION 22 A. PROTECTIVE ORDER STANDARD 23 24 1 Fed. R. Civ. P. 26(c)(1)(G) provides that, for good cause, an order may issue to “protect a 2 party or person from annoyance, embarrassment, oppression, or undue burden or expense, 3 including . . . requiring that . . . confidential . . . information not be revealed or be revealed only 4 in a specified way. . .” To show that good cause exists, the United States, as the moving party, 5 must demonstrate that a specific prejudice or harm will result if no protective order is granted.
6 Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210–11 (9th Cir. 2002). 7 “If a court finds particularized harm will result from disclosure of information to the public, then 8 it balances the public and private interests to decide whether a protective order is necessary.” Id. 9 B. PROTECTIVE ORDER ON DEPARTMENT OF DEFENSE TECHNICAL INFORMATION 10 The United States’ motion (Dkt. 41) should be granted and the materials at issue should be 11 treated as “confidential.” The proposed amended protective order (Dkt. 41-1) should be entered. 12 (The additional proposed language provides that “‘confidential’ material” includes “[a]ny 13 Department of Defense technical information that has not previously been approved for public 14 release pursuant to Department of Defense Instruction 5230.24, or its related instructions or 15 regulations.” Dkt. 41-1 at 2.) 16 The United States has sufficiently shown that harm will result from public release of the 17 technical information sought by the Plaintiff which has not been approved by the Department of 18 Defense for public release. It properly points out that the Plaintiff’s disputed requests for 19 production seek Department of Defense technical information.1 The release of technical 20
21 1 Under DODI 5230.24, “technical information” is defined as: “technical data . . . of any kind that can be used or adapted for use in the design, production, manufacture, assembly, repair, . . . engineering, development, operation, 22 maintenance, adapting, testing, or reconstruction of goods or materiel . . . in an area of significant military applicability in the United States.” Dkt. 42-4 at 34. Further, “the data may be in tangible form, such as a blueprint, 23 photograph, plan, instruction, or an operating manual.” Id. at 34-35. According to DODI 5230.24, examples of technical data include “engineering drawings, and associated lists; specifications; standards; process sheets; 24 manuals; technical reports; technical orders; catalog-item identifications . . . and related information.” Id. at 35. 1 information is subject to the process provided in Department of Defense Instruction 5230.4 as 2 authorized by 10 U.S.C. § 133a. This process is intended to protect, in part, “national and 3 operational security,” privacy, and intellectual property. Dkt. 42-4 at 2. The United States 4 properly points out that although the U.S.S. Sacramento was decommissioned, public access to 5 the details of the ship’s technology raises clear national security concerns. The United States’
6 group designation of the materials does not change the analysis. 7 Ordinarily the public has a significant interest in an open court record. The public interest 8 here is not as substantial as that of the government’s interest in national security. 9 The motion (Dkt. 41) should be granted. The government’s proposed amended protective 10 order (Dkt. 41-1) will be entered. The parties should be aware that this ruling may be revisited at 11 trial. 12 III. ORDER 13 It is ORDERED that: 14 The United States’ Motion to Amend the Protective Order (Dkt. 41) IS
15 GRANTED. 16 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 17 to any party appearing pro se at said party’s last known address. 18 Dated this 21st day of February, 2024. 19 A
20 ROBERT J. BRYAN 21 United States District Judge
22 23 24