The opinion of the court was delivered by: D. LOWELL JENSEN
This is a civil rights action brought by plaintiff alleging sexual harassment, sex discrimination, defamation, and retaliation in employment. In early 1993, after an investigation authorized by the San Francisco Police Commission ("Police Commission") and a subsequent closed hearing of these charges, the Police Commission determined that there was insufficient evidence to sustain the charges. On October 14, 1993, plaintiff filed a federal complaint in this Court. Defendants moved for a protective order to prevent disclosure to the public of the tapes and transcripts of witnesses interviewed during the Police Commission's investigation. On July 18, 1994, following a hearing, Magistrate Judge F. Steele Langford found that defendants had failed to carry their burden of showing good cause for a protective order that would restrict public access to the tapes and transcripts. On July 29, 1994, defendants filed a motion for reconsideration of Magistrate Judge Langford's Order. Plaintiff timely filed an opposition. Brief of amicus curiae of San Francisco Examiner and brief of amici curiae National Organization for Women, The San Francisco Bay Guardian and SF Weekly in opposition to defendants' motion were also filed. Defendants filed a timely reply. Upon consideration of the submissions, the Court grants in part defendants' motion for reconsideration and hereby issues a protective order to prevent public disclosure of only the tapes.
Plaintiff Joanne Welsh is a San Francisco police officer. On February 11, 1993, plaintiff's charges of sexual harassment against the Chief of Police, Anthony Ribera, were made public by the San Francisco Examiner. The San Francisco Police Commission then conducted an investigation of these charges against Chief Ribera. In the course of the investigation, the Police Commission conducted taped interviews of numerous civilians and police officers concerning plaintiff's allegations. The Police Commission reviewed all the information gathered and determined that there was insufficient evidence to support the claim that Chief Ribera engaged in any misconduct.
On October 14, 1993, plaintiff filed a federal complaint alleging sexual harassment and sex discrimination under Title VII of the Civil Rights Act, as well as retaliation in employment. Plaintiff alleges pendent jurisdiction under the California Fair Employment & Housing Act with respect to three causes of action relating to sexual harassment, retaliation, and defamation. Plaintiff also alleges a violation of 42 U.S.C. § 1985 against Ribera and other unnamed co-conspirators relating to inappropriate treatment and sex discrimination. Defendant Ribera then filed a counterclaim alleging defamation by plaintiff Welsh.
Plaintiff alleges in her complaint that she was the subject of sexual harassment by Chief Ribera. Plaintiff alleges that from September 1989 to January 1990, and then in 1992 and 1993, plaintiff had a working relationship with Chief Ribera and that Ribera made numerous sexual advances toward plaintiff. The complaint alleges that as a result of plaintiff's refusal to respond to Ribera's advances, and after the Police Commission's dismissal of her charges, plaintiff was removed from her position as the Public Affairs Officer under Chief Ribera and relocated to the Taraval Station.
Plaintiff has requested that defendants produce in discovery the tapes and transcripts which constituted the Police Commission's investigation into plaintiff's complaint. Defendants have refused to produce the tapes and transcripts, unless plaintiff agrees to a protective order against public disclosure. This Court, pursuant to stipulation of the parties, ordered a stay of deposition discovery until the resolution of the issue of whether a protective order should issue. The Court referred the matter to Magistrate Judge F. Steele Langford for resolution of the issue.
On July 18, 1994, following a hearing, Magistrate Judge Langford issued a written Memorandum and Order directing that the tapes and/or transcripts be produced as requested and denying defendants' motion for a protective order. On July 29, 1994, defendants filed the current motion for reconsideration of that Order.
1. Standard for Reconsideration
Local Rule 410-2(a) provides that district court judges may reconsider any nondispositive pretrial order made by a magistrate only if the Court finds that the order of the magistrate is "clearly erroneous or contrary to law." Rule 410-2(a), Local Rules of Practice for the United States District Court for the Northern District of California; see also 28 U.S.C. § 636(b)(1)(A) (1994).
Protective orders as to information disclosed pursuant to Federal Rule of Civil Procedure 26(c) should be granted only upon a showing of good cause. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). "A showing of Rule 26(c) good cause requires a balancing of the interests of the parties competing to open or close the civil discovery process to the public." Hawley v. Hall, 131 F.R.D. 578, 584 (D. Nev. 1990). "Access is particularly appropriate when the subject matter of the litigation is of especial public interest . . . ." In re "Agent Orange" Prod. Liab. Litig., 821 F.2d 139, 146 (2d Cir.), cert. denied sub nom., Dow Chem. v. Ryan, 484 U.S. 953, 98 L. Ed. 2d 370, 108 S. Ct. 344 (1987).
The moving party must present a factual showing of a particular and specific need for the protective order. Gray v. First Winthrop Corp., 133 F.R.D. 39, 40 (N.D. Cal. 1990) (citations omitted); see General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973), cert. denied, 414 U.S. 1162, 39 L. Ed. 2d 116, 94 S. Ct. 926 (1974). "A demonstration of good cause embodies a showing (1) that the documents in question truly are confidential and (2) that disclosure of the documents would cause a 'clearly defined and very serious injury.'" Traveler's Ins. Co. v. Allied-Signal Inc. Master Pension Trust, 145 F.R.D. 17, 18 (D. Conn. 1992). "The harm must be significant, not a mere trifle." Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986) (citation omitted). "Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test." Id. (citations omitted). Mere embarrassment by the release of information is insufficient to constitute serious harm. "An applicant for a protective order whose chief concern is embarrassment must demonstrate that the embarrassment will be particularly serious." Id.; Culinary Foods, Inc. v. Raychem Corp., 151 F.R.D. 297, 301 (N.D. Ill. 1993) ("A claim that public disclosure of information will be harmful to a defendant's reputation is not 'good cause' for a protective order.")
B. Analysis of Defendants' Motion for Reconsideration
Defendants challenged the validity of the Order on five separate grounds: (1) the Order misreads General Order No. 34; (2) the Order misapplies Kelly v. City of San Jose, 114 F.R.D. 653 (N.D. Cal. 1987); (3) the Order contravenes Jackson v. City and County of San Francisco, United States District Court No. C93-0086 DLJ (Dec. 20, 1993); (4) the Order establishes a new and different standard for issuing protective orders; and (5) the Order misapplies the good cause requirement.
Defendants contend that the Order of the Magistrate Judge misreads General Order No. 34 of the Northern District of California as being discretionary because General Order No. 34 specifically mandates protective orders where, as here, materials sought to be produced are confidential personnel records under state law. General Order No. 34 provides
If one or more parties desires protection of documents or other information disclosed under paragraph B of this section, the parties shall enter a reasonable protective order to govern the disclosed documents or information until further order of the court.
General Order No. 34, Section VII.D (emphasis added). Defendants argue that the word "shall" conveys a mandatory obligation, and that plaintiff bears a heavy burden to show that a protective order is improper.
Defendants' argument is unavailing. Rather, the relevant portion of General Order No. 34 envisions a situation where disputed discoverable material is provided to the opposing party prior to the court's having had an opportunity to address the issue. In a situation such as the present one, where the Court referred the is sue to a Magistrate Judge before any disputed discoverable materials were disclosed, there is no need for a protective order prior to order of the court. Even in a situation where an interim protective order is agreed upon by the parties, ...