Verrill v. Battelle Energy Alliance, LLC

Filing 26

MEMORANDUM DECISION AND ORDER. Plaintiff's Amended Motion to Compel Discovery 24 is GRANTED. Signed by Judge B. Lynn Winmill. (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

DONALD A. VERRILL,
Case No. 4:12-cv-00628-BLW
Plaintiff,
v.

MEMORANDUM DECISION AND
ORDER

BATTELLE ENERGY ALLIANCE, LLC,
a Delaware Limited Liability Company,
Defendant.

INTRODUCTION
The Court has before it Plaintiff’s Amended Motion to Compel Discovery. For the
reasons explained below, the Court will grant the motion.
BACKGROUND
Verrill originally filed a Motion to Compel under Federal Rule of Civil Procedure
37, which the Court summarily denied because the parties had not engaged in the
informal mediation conference required by the Court’s CMO. The conference then took
place on Friday, October 18, 2013. During the conference, Counsel for Verrill narrowed
his request. Counsel for Battelle noted that the narrowed requests were likely relevant,
but Battelle could not produce them without a Court order because they were protected
by the Federal Privacy Act. The parties agreed that they would brief the issue on an
expedited schedule. Those briefs are now before the Court.
MEMORANDUM DECISION AND ORDER -1

ANALYSIS
Verrill seeks the production of the following: (1) Annual performance reviews
pertaining to Kevin Young and Brian Clark starting in 2007 through the present year, or
year of their termination, inclusive; and (2) All documents pertaining to any investigation
of Brian Clark and Kevin Young for (a) (1) improper use of a government computer for,
inter alia, such things as personal use thereof or for viewing pornography, nudity,
sexually explicit materials, or other inappropriate materials, or (b) insubordination or any
allegations on their part of improper billing practices by Battelle.
Battelle concedes that these records may contain information relevant to the
allegations in Verrill’s Complaint under the broad discovery guidelines of the Federal
Rules of Civil Procedure. However, Battelle contends that, pursuant to the Federal
Privacy Act of 1974, Battelle may not legally produce the requested documents to Verrill
until the Court issues an order authorizing production of the requested records based
upon a finding that the records are relevant, and that their relevance outweighs any
potential injury to the privacy interests of other non-party employees. See 5 U.S.C. §
552a, et seq.
The Federal Privacy Act, 5 U.S.C. § 552a, prevents government agencies from
disclosing “records maintained on individuals.” 5 U.S.C. § 552a(a)(4). There is no
dispute that Battelle is subject to the provisions of the Act with regard to those records
systems identified in its M&O contract with the Department of Energy as Privacy Act
Records Systems, which in this case includes DOE-5 Personnel Records of Former
Contractor Employees. See 5 U.S.C. sec. 552a(m)(1) and INL M&O Contract, Part I,
MEMORANDUM DECISION AND ORDER -2

Section H (available at http://www.id.doe.gov/doeid/INLContract/INL-Contract.htm.).
The information Verrill seeks with regard to the former INL employees is contained in a
DOE-5 records system and is therefore subject to the protections of the Act.
The Federal Privacy Act prevents the disclosure of the requested employee files
unless the court specifically orders them produced pursuant to section 552a(b)(11). At
least one district court in the Ninth Circuit has held that the propriety of issuing a §
552a(b)(11) order depends upon standard discovery principles of relevance. See Hassan
v. United States, 2006 WL 681038, at *2 (W.D. Wash. Mar. 15, 2006). Other courts
apply a more demanding standard under which § 552a(b)(11) motions should be
evaluated by balancing the need for the disclosure against the potential harm to the
subject of the disclosure.” See Perry v. State Farm Fire & Casualty Co., 734 F.2d 1441,
1447 (11th Cir. 1984). The Court was unable to find a Ninth Circuit case specifically
indicating which standard it has adopted under the Federal Privacy Act.
However, either standard is met here. There is no real dispute that the requested
information is relevant – the Clark and Young files are relevant to whether Battelle
terminated them for the same reasons it terminated Verrill. Battelle does not dispute
relevancy. Moreover, the potential harm to Clark and Young is slight at most. The
request is narrowly circumscribed to involve only their performance reviews and
documents pertaining to any investigation surrounding their termination. Moreover, the
protective order in this case will ensure that the information is kept confidential between
the parties of this case. Accordingly, the Court will order Battelle to produce the
requested portions of the former employees’ personnel files.
MEMORANDUM DECISION AND ORDER -3

ORDER
IT IS ORDERED:
1. Plaintiff’s Amended Motion to Compel Discovery (Dkt. 24) is GRANTED.

DATED: October 28, 2013

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER -4