Mendia v. Garcia

          DISCOVERY ORDER Re: Dkt. No. 147

          MARIA-ELENA JAMES UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Pending 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.

         BACKGROUND

         The 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^[1] will not be used by Plaintiff in any other litigations. That additional provision will expire upon the Court entering a protective order.

         Currently, 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.

         LEGAL STANDARD

         Federal 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. 26(c)(1).

         DISCUSSION

         Plaintiff 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.

         Defendants 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 ...