Castillon et al v. Correction Corporation of America Inc

Filing 69

MEMORANDUM DECISION AND ORDER. The Media Coalition's Motion to Intervene for the Limited Purpose of Opposing Defendant's Motion for a Protective Order 60 is GRANTED. Defendant's Motion for a Protective Order 46 is GRANTED. The Court shall issue a separate Protective Order. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

OMAR CASTILLON, DUSTY
KNIGHT, JUSTIN KEITH PETERSON,
LEON RUSSELL, CHRISTOPHER S.
JORDAN, JACOB JUDD, MICHAEL
FORD-BRIDGES, and RAYMOND
BRYANT,

Case No. 1:12-cv-00559-EJL
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
vs.
CORRECTIONS CORPORATION OF
AMERICA, INC.,
Defendant.

Defendant Corrections Corporation of America (CCA) has filed a Motion for a
Protective Order (Dkt. 46) in this civil rights case. Numerous media entities (The
Associated Press; Idaho Statesman Publishing, LLC; Cowles Publishing Company; The
Post Company; TPC Holdings, Inc.; Lee Publications, Inc.; Pioneer Newspapers, Inc.;
Idaho Press-Tribute LLC; Idaho Press Club, Inc.; The Hagadone Corporation; The
Newspaper Association of Idaho, Inc.; and KBOI-TV), referred to as the “Media
Coalition,” have filed a Motion to Intervene (Dkt. 60) for the Limited Purpose of
Opposing Defendant’s Motion for a Protective Order.
The Court will grant the Motion to Intervene, and the Court has considered the
MEMORANDUM DECISION AND ORDER 1

arguments in the Media Coalition’s briefs.
The Court finds that the parties have adequately stated the facts and legal
arguments in their briefs and that the decisional process would not be significantly aided
by oral argument. In the interest of avoiding delay, the Court will decide this matter on
the written motions, briefs, and record without oral argument. D. Idaho L. Civ. R. 7.1.
Accordingly, having reviewed the record, and otherwise being fully informed, the Court
enters the following Order.
DEFENDANT’S MOTION FOR A PROTECTIVE ORDER
Defendant requests that the Court enter a protective order to govern discovery in
this case. Federal Rule of Civil Procedure 26(c) contemplates such orders:
A party or any person from whom discovery is sought may move for a
protective order in the court where the action is pending—or as an alternative on
matters relating to a deposition, in the court for the district where the deposition
will be taken. The motion must include a certification that the movant has in good
faith conferred or attempted to confer with other affected parties in an effort to
resolve the dispute without court action. The court may, for good cause, issue an
order to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense, including one or more of the following:
(A)
(B)
(C)
(D)
(E)
(F)
(G)

forbidding the disclosure or discovery;
specifying terms, including time and place, for the disclosure or
discovery;
prescribing a discovery method other than the one selected by the
party seeking discovery;
forbidding inquiry into certain matters, or limiting the scope of
disclosure or discovery to certain matters;
designating the persons who may be present while the discovery is
conducted;
requiring that a deposition be sealed and opened only on court order;
requiring that a trade secret or other confidential research,
development, or commercial information not be revealed or be

MEMORANDUM DECISION AND ORDER 2

(H)

revealed only in a specified way; and
requiring that the parties simultaneously file specified documents or
information in sealed envelopes, to be opened as the court directs.

Fed. R. Civ. P. 26(c)(1) (emphasis added).
Defendant asks the Court to issue a protective order governing four types of
information: (1) personal identifying information of correctional employees; (2)
information regarding policies, practices, and procedures pertaining to security issues,
such as tactical and investigative policies, and proprietary information such as trade
secrets; (3) personal information contained in inmates’ criminal, institutional, and medical
files; and (4) investigative information relating to the May 5, 2012 incident that is the
subject of this lawsuit. Defendant does not request that any of this information be
protected from review by Plaintiffs’ counsel, as opposed to Plaintiffs themselves or other
individuals or entities not involved in this lawsuit.
The Court finds that good cause exists to enter a protective order, but it will
modify the proposed protective order submitted by Defendant. As required by the Ninth
Circuit, the Court will now “identify and discuss the factors it [has] considered” in
finding good cause. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1130
(internal quotation marks omitted).
1.

Safety of CCA’s Employees or Former Employees
First, the Court agrees with Defendant that “the release of personal information

regarding law enforcement and corrections employees, particularly to inmates who are
verified members of Security Threat Groups (“STG”) and organized criminal enterprises,
MEMORANDUM DECISION AND ORDER 3

places not only the life and physical well-being of the employee at risk, but also the lives
and physical well-being of the employees’ families, neighbors, and the public.” (Def.
Memo. in Support, Dkt. 46-1, at 4.) There is no compelling reason Plaintiffs themselves,
other inmates, or the general public need to have access to the sensitive personal
information of these employees or former employees, while there is a very important
reason—ensuring individual and public safety—to keep such information confidential.
Plaintiffs take issue with the proposed protective order’s limitations on disclosure
of employees’ and former employees’ personal information. (Id. at 7-8.) But Plaintiffs
will not be prejudiced by not learning this personal information because all such
information will, of course, be provided to their counsel. The fact that “there is no
evidence specific to any of the Plaintiffs that indicate that they have ever engaged in any
harassment or intimidation of CCA staff” (Pl. Memo. in Opp. at 7) does not alter the
Court’s conclusion that concerns of employees’ or former employees’ safety and security
justify limiting the disclosure of personal information to counsel. Plaintiffs themselves
might not pose any risk, but any information disclosed to Plaintiffs could end up in the
hands of other inmates, and that information could easily be passed to individuals outside
of prison who would be able to threaten, injure, or kill correctional employees or their
families. There need not be a specific threat by a specific Plaintiff to justify protecting
these employees’ sensitive, personal information.

MEMORANDUM DECISION AND ORDER 4

2.

Privacy Interests Regarding Inmates’ Medical, Institutional, and Criminal
Records
Closely related to the Court’s concern about the safety of correctional employees is

its concern that sensitive information about Plaintiffs and other inmates relating to
medical history, criminal history, and prison disciplinary proceedings might find its way
to other inmates or to the public in general. Some inmates within the correctional system
in Idaho are members of rival gangs, and such information could be used to the detriment
of inmates or the security of the institutional facility. Defendant offers the following
example of institutional records that would wreak havoc if disclosed to the wrong person:
[I]f one inmate is found to have violated prison disciplinary policies by obtaining
contraband, such as drugs or weapons, his disciplinary file will contain
investigative reports detailing the process by which the inmate was successful in
circumventing facility security to obtain the contraband. If other inmates were to
obtain this information, it would increase the possibility of inmates attempting to
bring contraband into the facility.
(Def. Memo. in Supp. at 7) (citation omitted). In addition, privacy interests require that
medical records, which are routinely sealed when used as evidence in litigation, be kept
confidential.
Defendant also points out that “an inmate’s criminal file may include information
on his co-defendants and/or victims, as well as whether the inmate cooperated with law
enforcement,” and “[p]roviding this information to other inmates creates a significant risk
that the inmate will be targeted for retaliation and/or retribution.” (Id.) Information about
an inmate’s crimes could place that inmate at risk of serious harm. Sex offenders, for
example, are particularly vulnerable to assault by other inmates.
MEMORANDUM DECISION AND ORDER 5

The above concerns are compelling and therefore justify the entry of a protective
order.
3.

CCA’s Interest in its Proprietary Information
Although CCA is performing a government function by managing the Idaho

Correctional Center, it is, at bottom, a business. Businesses have legitimate interests in
keeping their competitors from obtaining proprietary information such as trade secrets, as
well as policies and procedures as to how they function. Revealing such information can
rise to the level of economic espionage, and those who wrongfully disclose the
information may in some circumstances be subject to civil or criminal liability. The Court
does not see a legitimate reason why general public knowledge should include CCA’s
trade secrets or the inner workings of CCA’s business enterprise.
4.

Investigative Information and the Security of the Institution
Finally, the Court has determined that institutional records regarding the

investigation of the attack on Plaintiffs should be kept confidential. As Defendant points
out, investigatory materials may include
witness statements of staff and inmates (including those who are not parties to this
litigation); notes of interviews of inmates (again including both Plaintiffs and
non-party inmates); statements to staff from non-party inmates; investigative
findings and determinations; monitored mail and telephone calls; verification of
STG membership; records of prior assaultive activities by inmates (by both
Plaintiffs and nonparty inmates); investigative reports; video surveillance; and
photographs. Providing this information to any current or former inmate poses a
significant security and safety risk to ICC staff and inmates.
(Def. Memo. in Supp. at 8.) Any such information, particularly the identification of any

MEMORANDUM DECISION AND ORDER 6

inmate who has aided correctional staff in the investigation of the attack, could be used to
harm Plaintiffs or other inmates. The Court recognizes that prison litigation poses unique
risks for both the inmates and the prison, justifying limitations on the disclosure of such
information.
5.

The Scope of the Protective Order
Plaintiffs claim that the scope of the proposed protective order is unjustified and

that the order “inappropriately shifts the burden of establishing a need for protection of
sensitive information away from CCA.” (Pl. Memo. in Opp., Dkt. 51, at 1.) But the
proposed order does no such thing. Rather, as set forth in Paragraph 11, any party may
object to the designation of a particular piece of information as confidential, and “the
burden of proof with respect to the propriety or correctness of the designation of
information as CONFIDENTIAL INFORMATION will rest on the designating party.”
(Def. Mot. for Prot. Order, Ex. 5, at 7 (emphasis added).) The Court will then decide
whether the information is properly considered confidential and therefore subject to the
protective order. It does not violate Plaintiffs’ First Amendment rights to require that they
object to a certain document in order to trigger Defendant’s obligation to meet its burden
of proof.
However, the Court concludes that some of Plaintiffs’ points are well taken.
Although the Court agrees with Defendant that a protective order should be entered in this
case, it will not enter Defendant’s proposed protective order as written. The Court has
determined that, in order to inform the Plaintiffs’ decision whether to object to the
MEMORANDUM DECISION AND ORDER 7

classification of particular information as confidential, Defendant will be required to
submit, along with its discovery responses and the purportedly confidential information, a
statement of reasons why each piece of information has been so designated. If Plaintiff
decides to designate information as confidential, the same procedure will apply.
The statement need not be lengthy, but it must be sufficiently specific to allow the
non-designating party to determine whether to challenge the “confidential” designation
and submit the issue to the Court for resolution. If any party fails to provide a statement
of reasons that the Court finds sufficient, the Court may determine, in its discretion, that
the information should not be subject to the protective order.
6.

The Position of the Intervenor
The Court appreciates the Media Coalition’s arguments against the entry of a

protective order, but the reasons behind the Media Coalition’s objections do not
overcome the safety, security, privacy, and proprietary interests that justify a protective
order.
The Media Coalition argues that the requested protective order “essentially states
that anything produced in discovery is to be deemed confidential in nature, and thus, by
definition, said material would then need to be filed under seal with this Court in regard
to ANY pleadings or motions of any type.” (Media Coalition Opp., Dkt. 60-1, at 6.)
Although the Court is mindful of the Media Coalition’s fear that their member entities
will be effectively barred from reporting on this case, that fear is misplaced because the
protective order is not so broad.
MEMORANDUM DECISION AND ORDER 8

A protective order limiting the disclosure of discovery materials does not, “by
definition,” mean that all publicly-filed motions or pleadings will remain “behind the
cloak” of secrecy. (Id. at 4, 6.) The proposed protective order requires that a redacted set
of documents attached to pleadings or motions be publicly filed. (Def. Mot. for Prot.
Order, Ex. 5, at 4-5.) The redacted information will be only that information
designated—and, if objected to by any party, adjudicated by the Court—as confidential
under the terms of the protective order.
Moreover, the Media Coalition’s statement that the proposed protective order
“sabotages the spirit and intent of . . . the First Amendment” because it “places the entire
discretion as to what is to be defined as CONFIDENTIAL INFORMATION in the hands
of either party” (Media Coalition Opp. at 10) is simply inaccurate as a factual matter.
“CONFIDENTIAL INFORMATION” is defined in the proposed protective order as
information designated by any party as confidential “because it contains proprietary
information (trade secret, proprietary matter, or other confidential research, development,
or commercial information as those terms are used in Federal Rule of Civil Procedure 26)
or confidential personal information,” or “information relating to the security of a CCA
facility or IDOC facility.” (Def. Mot. for Prot. Order, Ex. 5, Dkt. 46-6, at 1-2 (emphasis
added).) The Court will have access to unredacted copies of everything filed in this case.
The Court has plenary and supervisory authority over this litigation, and it will not allow
its protective order to be abused. The Media Coalition’s argument overlooks the Court’s
inherent power to ensure that only information properly designated as confidential
MEMORANDUM DECISION AND ORDER 9

remains subject to the protective order.
Finally, the Media Coalition’s worries as to what might happen during the future
course of this litigation are speculative. Once a pleading or motion including redacted
specific information subject to the protective order has been filed with the Court, the
Media Coalition may again move to intervene for purposes of objecting to the filing under
seal of that specific information. The Court will not prohibit reasonable protection of
sensitive information on the theory that some of it might at some point become evidence
in the judicial record.
The Court does recognize, however, the profound public interest in access to court
records. Therefore, when any evidence purportedly subject to the protective order is filed
with the Court in support of or in opposition to any pleading or motion, the evidence shall
be filed under seal, and the party submitting the evidence must file a motion to seal that
particular evidence. After briefing on the motion to seal is complete, the Court will
determine whether the evidence should or should not remain sealed. At all times, the
party seeking to seal the purportedly confidential evidence will “bear[] the burden, for
each particular document it seeks to protect, of showing that specific prejudice or harm
will result if no protective order is granted.” Foltz, 331 F.3d at 1130.
ORDER
IT IS ORDERED:
1.

The Media Coalition’s Motion to Intervene for the Limited Purpose of
Opposing Defendant’s Motion for a Protective Order (Dkt. 60) is

MEMORANDUM DECISION AND ORDER 10

GRANTED.
2.

Defendant’s Motion for a Protective Order (Dkt. 46) is GRANTED. The
Court shall issue a separate Protective Order.

DATED: August 6, 2013

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER 11