Mendia v. Garcia

Filing 155

Discovery Order re: 147 Joint Letter (Protective Order Dispute). Signed by Judge Maria-Elena James on 7/20/2016. (mejlc2S, COURT STAFF) (Filed on 7/20/2016)

1
2
3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5
BERNARDO MENDIA,

6

Case No. 10-cv-03910-MEJ

Plaintiff,
7

DISCOVERY ORDER

v.

Re: Dkt. No. 147

8
JOHN M. GARCIA, et al.,

9

Defendants.
10

United States District Court
Northern District of California

11
INTRODUCTION

12

Pending before the Court is the parties‟ Joint Discovery Letter concerning the scope of

13
14

their proposed protective order. Jt. Ltr., Dkt. No. 147. Having considered the parties‟ positions,

15

the relevant legal authority, and the record in this case, the Court issues the following order.
BACKGROUND

16

The parties have engaged in discovery over the last few months, and in the process have

17
18

attempted to enter into a joint protective order. As no agreement was reached prior to the response

19

deadline for Plaintiff Bernardo Mendia‟s (“Plaintiff”) discovery requests, the parties agreed to rely

20

on the Model Protective Order used in this District with the additional provision that any material

21

designated as “confidential” and produced by Defendants1 will not be used by Plaintiff in any

22

other litigations. That additional provision will expire upon the Court entering a protective order.

23

Currently, the parties are in agreement over the language of the proposed protective order

24

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

25
26
27
1

28

“Defendants” are the United States, Ching Chang, and John M. Garcia.

1
2
3
4

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.

5

See Jt. Ltr., Ex. 1 (Proposed Protective Order) at 7-8. Plaintiff opposes the addition of this

6

provision. The parties are now at an impasse.

7
8
9

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

11
United States District Court
Northern District of California

10

protect a party or person from annoyance, embarrassment, oppression, or undue burden or

12

expense” by (1) prohibiting disclosure or discovery; (2) conditioning disclosure or discovery on

13

specified terms; (3) preventing inquiry into certain matters; or (4) limiting the scope of disclosure

14

or discovery to certain matters. Fed. R. Civ. P. 26(c)(1).

15

DISCUSSION

16

Plaintiff opposes the addition of Defendants‟ proposed provision on the ground that it

17

“would give the United States and its various agencies and employees carte blanche to use

18

protected information for any purpose, as long as such purpose is within the guise of „statutorily

19

authorized functions.‟” Jt. Ltr. at 4 (emphasis in original). He contends the provision makes the

20

parties‟ obligations and rights lopsided, in that “it eviscerates Plaintiff‟s rights to protect certain

21

confidential information while protecting Defendant‟s own purportedly confidential information

22

(for example, if Plaintiff wished to use a document subject to the protective order in another case,

23

he would be forced to move the court to modify the protective order).” Id. In general, Plaintiff

24

notes the Northern District‟s Model Protective Order expressly prohibits the use of protected

25

information for purposes other than for “prosecuting, defending, or attempting to settle” the

26

underlying litigation. Id. (citing Model Order § 7.1). Plaintiff further contends Defendants have

27

not justified this departure from the Model Protective Order, “other than to make clear that they

28

are engaging in a fishing expedition for information against Plaintiff to use against him (or others)
2

1

in other unspecified, future, potential proceedings.” Id. (emphasis in original). He argues there is

2

no reason to depart from the Model Protective Order, which “set[s] forth presumptively reasonable

3

conditions regarding the treatment of highly confidential information.” Id. at 5 (quoting Barnes &

4

Noble, Inc. v. LSI Corp., 2012 WL 1029939, at *3 (N.D. Cal. Mar. 26, 2012)). Rather, Plaintiff

5

suggests that the better way to handle Defendants‟ theoretical needs is to request that the

6

protective order be modified if and when the need to use information obtained in discovery arises.

7

Id. at 4. Finally, Plaintiff asserts Defendants have the burden “to explain why Defendant‟s

8

provision, which deviates from this District‟s Model Protective Order, is warranted.” Id.

9

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

11
United States District Court
Northern District of California

10

restriction‟ limitation that would preclude the U.S. Government from using any evidence derived

12

during discovery in this case in other civil or criminal proceedings against him.” Id. They note

13

Plaintiff has articulated only a “speculative fear that discovery in his current lawsuit could lead to

14

future legal action against him[,]” which they contend is insufficient as “broad allegations of harm,

15

unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.”

16

Id. (quoting Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d. 470, 476 (9th Cir. 1992)).

17

Defendants further point out that “[c]ontrary to [Plaintiff‟s] beliefs, the U.S. is not the same as a

18

private litigant[,]” and “[i]t is well-established that the U.S. Government may use evidence

19

obtained in a civil action in later criminal proceedings unless the defendant can show that to do so

20

would violate his constitutional rights or that such use would depart from the proper

21

administration of justice.” Id. (citing U.S. v. Kordel, 397 U.S. 1, 12-13 (1970); see also U.S. v.

22

Unruh, 855 F.2d 1363, 1374 (9th Cir. 1987); U.S. v. Carriles, 541 F.3d 344, 354 (5th Cir. 2008)).

23

The Court agrees with Defendants that, under Rule 26(c), Plaintiff bears the burden in this

24

instance, as he seeks the Court‟s protection for information that otherwise appears discoverable.

25

See Fed. R. Civ. P. 26(c)(1). While Defendants generally seek the protective order in this matter,

26

Plaintiff likewise wants the confidentiality provisions of the protective order to apply to him.

27

Plaintiff does not dispute that a protective order is otherwise appropriate in this case.

28

Consequently, as Plaintiff is the party requesting certain protections apply to him, it is his burden
3

1

to make a “particular showing” of good cause. See Foltz v. State Farm Mut. Auto. Ins. Co., 331

2

F.3d 1122, 1131 (9th Cir. 2003).2 Generally, to do so, Plaintiff would have to show that (1) the

3

material in question is a trade secret or other confidential information within the scope of Rule

4

26(c), and (2) disclosure would cause an identifiable, significant harm. Id. (quotation omitted);

5

see also Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063-64 (9th Cir. 2004) (“If a court finds

6

particularized harm will result from disclosure of information to the public, then it balances the

7

public and private interests to decide whether a protective order is necessary.” (quotation

8

omitted)). Plaintiff has done neither at this point. While he indicates some concern that

9

Defendants may use his information to retaliate or as leverage against him, he has not articulated
this concern with any specificity so the Court can assess whether it is based on anything more than

11
United States District Court
Northern District of California

10

speculation. See Beckman Indus., 966 F.2d at 476. Without more, he has not demonstrated good

12

cause for the protections he seeks.
CONCLUSION

13

At this point, on the basis of the current record, the Court will not require Defendants to

14
15

withhold the proposed addition to the protective order. Nor will the Court require Defendants to

16

adopt the Model Protective Order language as Plaintiff seeks. That said, Defendants‟ inclusion of

17

their proposed provision in the protective order does not preclude Plaintiff from withholding

18

privileged information or seeking protection from the Court in the future under Rule 26(c).
IT IS SO ORDERED.

19
20
21

Dated: July 20, 2016
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

22
23
24
25
26
27
28

2

But see Verinata Health, Inc. v. Ariosa Diagnostics, Inc., 2013 WL 5663434, at *1 (N.D. Cal.
Oct. 17, 2013) (in patent disputes, Patent Local Rule 2-2 requires that the Patent Model Protective
Order governs discovery unless the Court enters a different protective order, and “[t]herefore,
absent a protective order already in place governing the parties‟ dispute, the party requesting to
deviate from the Interim Model Protective Order bears burden of showing the specific harm and
prejudice that will result if its request is not granted.”); Dynetix Design Sols., Inc. v. Synopsys,
Inc., 2012 WL 1232105, at *2 (N.D. Cal. Apr. 12, 2012) (same).
4