United States District Court, N.D. California
DISCOVERY ORDER Re: Dkt. No. 147
MARIA-ELENA JAMES UNITED STATES MAGISTRATE JUDGE
before the Court is the parties' Joint Discovery Letter
concerning the scope of their proposed protective order. Jt.
Ltr., Dkt. No. 147. Having considered the parties'
positions, the relevant legal authority, and the record in
this case, the Court issues the following order.
parties have engaged in discovery over the last few months,
and in the process have attempted to enter into a joint
protective order. As no agreement was reached prior to the
response deadline for Plaintiff Bernardo Mendia's
(“Plaintiff”) discovery requests, the parties
agreed to rely on the Model Protective Order used in this
District with the additional provision that any material
designated as “confidential” and produced by
Defendants will not be used by Plaintiff in any other
litigations. That additional provision will expire upon the
Court entering a protective order.
the parties are in agreement over the language of the
proposed protective order with the exception of one addition
proposed by Defendants in section 7.2:
7.2 Disclosure of “CONFIDENTIAL” Information or
Items. Unless otherwise ordered by the court or permitted in
writing by the Designating Party, a Receiving Party may
disclose any information or item designated
“CONFIDENTIAL” only to: [specified individuals];
Provided that nothing in this Protective Order shall restrict
Defendant the United States including directors, officers,
agents, and other employees from performing statutorily
authorized functions and they may not be liable for fully
executing such authority in ordinary course, notwithstanding
this Protective Order.
See Jt. Ltr., Ex. 1 (Proposed Protective Order) at
7-8. Plaintiff opposes the addition of this provision. The
parties are now at an impasse.
Rule of Civil Procedure 26(c) “confers broad discretion
on the trial court to decide when a protective order is
appropriate and what degree of protection is required.”
Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36
(1984). “The court may, for good cause, issue an order
to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense” by (1)
prohibiting disclosure or discovery; (2) conditioning
disclosure or discovery on specified terms; (3) preventing
inquiry into certain matters; or (4) limiting the scope of
disclosure or discovery to certain matters. Fed.R.Civ.P.
opposes the addition of Defendants' proposed provision on
the ground that it “would give the United States and
its various agencies and employees carte blanche to
use protected information for any purpose, as long
as such purpose is within the guise of 'statutorily
authorized functions.'” Jt. Ltr. at 4 (emphasis in
original). He contends the provision makes the parties'
obligations and rights lopsided, in that “it
eviscerates Plaintiff's rights to protect certain
confidential information while protecting Defendant's own
purportedly confidential information (for example, if
Plaintiff wished to use a document subject to the protective
order in another case, he would be forced to move the court
to modify the protective order).” Id. In
general, Plaintiff notes the Northern District's Model
Protective Order expressly prohibits the use of protected
information for purposes other than for “prosecuting,
defending, or attempting to settle” the underlying
litigation. Id. (citing Model Order § 7.1).
Plaintiff further contends Defendants have not justified this
departure from the Model Protective Order, “other than
to make clear that they are engaging in a fishing expedition
for information against Plaintiff to use against him (or
others) in other unspecified, future, potential
proceedings.” Id. (emphasis in original). He
argues there is no reason to depart from the Model Protective
Order, which “set[s] forth presumptively reasonable
conditions regarding the treatment of highly confidential
information.” Id. at 5 (quoting Barnes
& Noble, Inc. v. LSI Corp., 2012 WL 1029939, at *3
(N.D. Cal. Mar. 26, 2012)). Rather, Plaintiff suggests that
the better way to handle Defendants' theoretical needs is
to request that the protective order be modified if and when
the need to use information obtained in discovery arises.
Id. at 4. Finally, Plaintiff asserts Defendants have
the burden “to explain why Defendant's provision,
which deviates from this District's Model Protective
Order, is warranted.” Id.
argue it is Plaintiff's burden to demonstrate what
“particularized harm” could arise from the
proposed provision. Id. at 2. Defendants contend
Plaintiff “is seeking a 'use restriction'
limitation that would preclude the U.S. Government from using
any evidence derived during discovery in this case in other
civil or criminal proceedings against him.”
Id. They note Plaintiff has articulated only a
“speculative fear that discovery in his current lawsuit
could lead to future legal action against him[, ]”
which they contend is insufficient as “broad
allegations of harm, unsubstantiated by specific examples or
articulated reasoning, do not satisfy the Rule 26(c)
test.” Id. (quoting Beckman Indus., Inc.
v. Int’l Ins. Co., 966 F.2d. 470, 476 (9th Cir.
1992)). Defendants further point out that “[c]ontrary
to [Plaintiff's] beliefs, the U.S. is not the same as a
private litigant[, ]” and “[i]t is
well-established that the U.S. Government may use evidence
obtained in a civil action in later criminal proceedings
unless the defendant can show that to ...