Rhine v. Buttigieg

• Court: District Court, W.D. Washington
• Decided: September 9, 2022
• Docket: 2:20-cv-01761
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT SEATTLE 6 DANIEL RHINE, 7 Plaintiff, CASE NO. 2:20-cv-01761-RAJ-BAT 8 v. ORDER GRANTING PLAINTIFF’S MOTION FOR PROTECTIVE 9 PETE BUTTIGIEG, ORDER AND DENYING DEFENDANT’S CROSS MOTION 10 Defendant. FOR PROTECTIVE ORDER 11 Before the Court are Defendant Pete Buttigieg’s Motion for Protective Order (Dkt. 15) 12 and Plaintiff Daniel Rhine’s Cross Motion for Protective Order (Dkt. 18). In this discrimination 13 action, Plaintiff alleges that his former employer, the Federal Aviation Administration (FAA), 14 unlawfully discriminated and retaliated against him when the agency removed him from federal 15 employment in 2019. Dkt. 1. Defendant has denied those claims, and discovery has commenced. 16 In his discovery requests, Plaintiffs seeks extensive information and documents about other FAA 17 employees: 18 INTERROGATORY NO. 1: Identify all individuals who have made complaints 19 to the Accountability Board, EEO, or management through any other formal or informal means of discrimination, harassment, a hostile work environment, or 20 retaliation made to, against, or involving Thomas Poole, Rich van Allman, Clark Desing, Scott Matson, Kirsten Kenny, Gina Perez (formerly Storlie), and Kristine 21 Dillon. Provide each individual’s gender, race, history of any protected disclosures (e.g. Accountability Board, EEO, or similar), the allegations of their 22 complaint involving each named individual in detail, all attachments and investigative material, the reporting parties’ personal contact information (phone 23 number, email address, and address), and describe any action taken by the ORDER GRANTING PLAINTIFF’S MOTION 1 Defendant or its employees in response to each complaint. Complaints include verbal complaints, written complaints, lawsuits, agency filings, and any other 2 means by which employees have complained about employment discrimination, harassment, hostile work environment, and retaliation. 3 REQUEST FOR PRODUCTION NO. 8: Please produce a complete copy of all 4 personnel files and performance reviews from Fiscal Year 2015 to the present, including any discipline issued and the dates each performance review was 5 entered with electronic certification, for the following [21] individuals.

6 Dkt. 16, Declaration of James Strong, Ex. B.

7 Defendant acknowledges that other employees’ work histories may be discoverable in 8 employment discrimination cases and that the Privacy Act does not protect such items from 9 being discoverable. However, Defendant is concerned about how these documents, once 10 produced, will be handled during this litigation and after it is over. Plaintiff argues that the 11 documents sought are “routine use documents [that] are excepted for production under the 12 Privacy Act, and are therefore, not appropriate for any Stipulated Protective Order.” 13 Because Defendant acknowledges that the documents are discoverable, the issue here is 14 whether there is good cause to fashion an appropriate protective order to shield the otherwise 15 discoverable items from public disclosure. See, e.g., Irish v. Whitman Cnty., Case No. 05-134- 16 LRS, 2005 WL 8158786, at *2 (E.D. Wash. Dec. 9, 2005). Defendant seeks an order to protect 17 personnel records, reports of protected activity of other FAA employees, or other documents 18 subject to the Privacy Act, from further use or dissemination outside this litigation. Many courts 19 recognize that “personnel files often contain sensitive personal information, … and it is not 20 unreasonable to be cautious about ordering their entire contents disclosed willy-nilly.” Regan- 21 Touhy v. Walgreen Co., 526 F.3d 641, 648 (10th Cir. 2008); Lauer v. Longevity Medical Clinic 22 PLLC, 2014 WL 5471983, at *7 (W.D. Wash. Oct. 29 2014) (recognizing the “sensitive 23 contents” of personnel files but expressing confidence that the “parties’ Protective Order will be ORDER GRANTING PLAINTIFF’S MOTION 1 sufficient to shield these employees from any public disclosure”). Similarly, reports of protected 2 activity can possibly result in “substantial harm, embarrassment, inconvenience, or unfairness” to 3 employees named therein. Delaittre v. Berryhill, 2017 WL 6310483, at *7 (W.D. Wash. Dec. 11, 4 2017). Thus, the Court finds that good cause exists to protect these records.

5 Plaintiff also argues that Defendant must identify with specificity what documents must 6 be protected. Dkt. 18, p. 8. According to 5 U.S.C. § 552a(a)(4), the “term ‘record’ means any 7 item, collection, or grouping of information about an individual that is maintained by an agency, 8 including, but not limited to, his education, financial transactions, medical history, and criminal 9 or employment history and that contains his name, or the identifying number, symbol, or other 10 identifying particular assigned to the individual, such as a finger or voice print or a photograph.” 11 5 U.S.C. § 552a(a)(4). In addition, the Court has authority to issue a protective order on a less 12 than document-by-document basis if the moving party (1) “make[s] some threshold showing of 13 good cause to believe that discovery will involve confidential or protected information,” which 14 “may be done on a generalized as opposed to document-by-document basis;” (2) “agree[s] to

15 only invoke the designation in good faith;” and (3) provides that the receiving party has “the 16 right to challenge the confidentiality designations assigned to documents.” Henry v. Ocwen Loan 17 Servicing, LLC, Case No. 17-688-JM-NLS, 2018 WL 1638255, at *2 (S.D. Cal. Apr. 5, 2018) 18 (quoting Van v. Wal-Mart Stores, Inc., Case No. 08-5296-PSG, 2011 WL 62499, at *2 (N.D. 19 Cal. Jan. 7, 2011) and Parkway Gallery Furniture, Inc. v. Kittinger/Penn. House Grp., Inc., 121 20 F.R.D. 264, 268 (M.D.N.C. 1988)). The protective order proposed by Plaintiff involves 21 confidential information, provides that the parties shall invoke the designation in good faith, and 22 provides that the receiving party has the right to challenge the confidentiality designation 23 assigned to documents.

ORDER GRANTING PLAINTIFF’S MOTION 1 Accordingly, the Court grants Defendant’s Motion for Protective Order (Dkt. 15) and 2 denies Plaintiff’s Motion for Protective Order (Dkt. 18) as moot. It is further ORDERED that 3 the Protective Order proposed by Defendant (Dkt. 15-1) will be signed and entered by the Court 4 separately.

5 DATED this 9th day of September, 2022. 6 A 7 BRIAN A. TSUCHIDA United States Magistrate Judge 8

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ORDER GRANTING PLAINTIFF’S MOTION