CHAIB v. THE GEO GROUP, INC.

Filing 90

ORDER granting 73 Motion for Protective Order. This order will suffice as an amendment to the parties' Agreed Protective Order 39 and the term "Confidential Materials" therein shall be understood to include "documents containing confidential information regarding The GEO Group, Inc's staffing plans for the Plainfield, Indiana Short Term offender program. Signed by Magistrate Judge Mark J. Dinsmore on 9/24/2014. (CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

NORA CHAIB,

)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
THE GEO GROUP, INC.,
Defendant.

No. 1:13-cv-00318-TWP-MJD

ORDER ON DEFENDANT’S MOTION FOR PROTECTIVE ORDER
This matter comes before the Court on The GEO Group, Inc.’s (“Defendant”) Motion for
Entry of Protective Order, filed June 13, 2014. [Dkt. 73.] For the following reasons, the Court
hereby GRANTS Defendant’s motion.
I. Background
Nora Chaib (“Plaintiff”) filed her Complaint in February of 2013 pursuant to the Civil
Rights Act, alleging unlawful termination due to sex, race, and national origin discrimination.
[Dkt. 1.] In August of 2011, Plaintiff was hired to serve as a correctional officer at Defendant’s
Short Term Offender Program (STOP) facility in Plainfield, IN (“STOP GEO”). The next
month, Plaintiff was promoted to Assistant Safety/Risk Manager, which title she held until her
termination in June of 2012. [See id.]
During discovery, Plaintiff requested that Defendant produce “[a]ll staffing plans for the
Plainfield facility from the beginning of the GEO Plainfield facility to the present.” [Dkt. 73 at
1.] Without waiving its objections regarding the breadth and relevance of the request as worded,
the Defendant agreed to produce “the portion of the staffing plan in effect in 2011 and 2012
related to the Assistant Fire Safety Manager position, pursuant to a protective order.” [Dkt. 73-1
1

at 4.] However, when defense counsel reached out to Plaintiff’s counsel for approval of its
“Second Agreed Protective Order,” Plaintiff’s counsel refused to extend such approval on the
basis that “[s]taffing plans for a public correctional facility are not confidential” and asserting
that any document filed on the docket referring to a produced staffing plan should not need to be
filed under seal, even temporarily. [Dkt. 73-3 at 3.] Based on Plaintiff’s refusal to agree to the
terms of Defendant’s proposed protective order, Defendant filed this motion for entry of its
proposed protective order [Dkt. 73], which is now before the Court.
II. Discussion
Rule 26 of the Federal Rules of Civil Procedure states that a court may issue a protective
order “for good cause . . . to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). This allowance includes
prescribing alternate methods of conducting discovery and requiring that certain confidential
information “be revealed only in a specified way,” among other methods of protecting a party’s
interests during discovery. Id. Although the court should be mindful of the public’s general
right to access court records, this right does not extend to discovery materials that have not yet
been filed with the court or materials filed under a temporary seal. See Bond v. Utreras, 585
F.3d 1061, 1073-74 (7th Cir. 2009). The Supreme Court has long established that “Rule 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).
As a threshold issue, Plaintiff first contends that Defendant’s staffing plans do not
warrant the protection of a court order because they are public information. [Dkt. 77 at 1-2.] In
reply, Defendant insists that the information contained in their staffing plans is “closely
guarded,” including “specific positions at the facility, how many people fill each position,
2

whether the position is full or part time, and, in some cases, which shift the individuals in the
position work.” [Dkt. 79 at 1-2.] Indeed, the website upon which Plaintiff relies to support her
assertion that the information is already public clearly notes that STOP GEO is a “privately
contracted institution[],” and therefore its “hire/rehire and termination/retire data is not provided”
to the Department of Correction. [Dkt. 77-1 at 5.] Further, although Plaintiff attaches a staffing
breakdown that appears to detail information similar to the kind of information allegedly
contained in Defendant’s staffing plans, the breakdown is not for STOP GEO but for the
Madison Correctional Facility, which facility is not privately contracted. [See id.; Dkt.77 at 2.]
Thus, Plaintiff has not adequately shown that Defendant’s staffing plans are readily available to
the public, which is entirely logical—if the information was publically available, Plaintiff would
not need to request its production in the first place. Accordingly, The Court cannot deny
Defendant’s motion based on the false assertion that Defendant’s staffing plans are publically
available.
Plaintiff then asserts that Defendant’s motion should be denied because “the public has
an interest in discovery materials.” [Dkt. 77 at 2.] To support her assertion, Plaintiff quotes
Seventh Circuit law, stating that “[a]s a general proposition, pretrial discovery must take place in
. . . public unless compelling reasons exist for denying public access to the proceedings.” [Id. at
3 (quoting Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 858 (7th Cir. 1994) (emphasis
added)).] Unfortunately for Plaintiff, this argument misconstrues the Rule 26 standard for
issuing a protective order, and grossly misrepresents Seventh Circuit law. The first sentence of
the Discussion section in Jepsen, indeed the first sentence of the very paragraph quoted by
Plaintiff, reads: “Absent a protective order, parties to a law suit may disseminate materials
obtained during discovery as they see fit.” Jepsen, 30 F.3d at 858 (emphasis added). Reading

3

further, the very next paragraph quotes the “good cause” standard of Rule 26(c), and the one
after that acknowledges that the parties to the litigation in question had stipulated to a protective
order, which the district court had granted. Id. In the end, the Circuit Court held that, even when
the parties stipulate to the terms of a protective order, the district court still must make a “good
cause” determination, modifying proposed protective orders as needed. Id. at 858-59. Although
Plaintiff’s selective quotation of binding law implies that only for limited “compelling reasons”
can a protective order be granted, the true standard is whether “good cause” exists.
Plaintiff continues in her misunderstanding of protective orders by claiming that, should
the Court issue Defendant’s proposed protective order, the parties would be prohibited “from
exchanging information with law enforcement and regulatory agencies,” which would cause
Defendant to be in violation of its contract with the State of Indiana. [Dkt. 77 at 3.] This is an
absurd argument. The party protected by the terms of such an order is certainly permitted to
disseminate their own confidential information as they would in their regular course of
business—it is the party or person who receives the confidential materials through discovery
who is to be held strictly to the terms of the protective order. Additionally, Plaintiff opposes the
proposed order because it is “burdensome on the parties and the courts, because it requires that
any documents, pleadings, briefs, and other documents that refer to the staffing plan must be
filed under seal and then sealed or unsealed after briefing relating to every such pleading, brief,
and document.” [Dkt. 77 at 6.] The terms cannot truly be that burdensome however, as they are
identical to the terms to which Plaintiff agreed, and the Court entered, in the parties’ Agreed
Protective Order. [See Dkts. 37, 39.] Thus, Plaintiff’s arguments regarding the terms of
Defendant’s proposed protective order fail.

4

Finally, 1 Plaintiff argues that ordinary production of Defendant’s staffing plans would
not breach any safety interests because the inmates already see the numbers of security guards,
knowing them by number and sometimes by name, and the STOP program is the facility that
houses the least serious offenders. [Dkt. 77 at 3-4.] In reply, Defendant asserts that there is good
cause for issuance of a protective order both for safety and for proprietary reasons. [Dkt 79 at 1.]
Specifically, Defendant emphasizes that the staffing plans include not only the number of
persons staffed in each position, as asserted by Plaintiff, but also “whether the position is full or
part time, and, in some cases, which shift the individuals in the position work.” [Id. at 2.] Just
because the inmates are in a Short Term Offender Program and allegedly are sometimes familiar
with the name or schedule of some of the security personnel does not mean that it would not pose
a safety risk to grant unfettered public access to Defendant’s staffing plans as a whole.
Additionally, Defendant asserts good cause for a protective order not solely on the basis of safety
but also on the basis of confidentiality, and Defendant’s staffing plans are not publically
available, as discussed above. Thus, in order to protect potential confidentiality and safety
concerns, the Court finds that there is good cause to protect Defendant’s staffing plans as
“Confidential Materials,” and Defendant’s motion for protective order is GRANTED.
III. Conclusion
For the aforementioned reasons, the Court hereby GRANTS Defendant’s Motion for
Entry of Protective Order. [Dkt. 73.] Because a protective order was previously entered in this
case [Dkt. 39], Defendant’s proposed protective order, with nearly identical terms save the

1

While the Court acknowledges Plaintiff’s concern for the risk of misappropriation of government funds in the
private prison system [see Dkt. 77 at 4; Dkt. 77-4, 77-5], this is an employment discrimination matter—not one of
breach of contract or misappropriation of funds (which issues Plaintiff may not even have standing to bring before a
court). Plaintiff’s related argument is therefore not appropriate and will not be evaluated by the Court. Should the
documents at issue reveal evidence of such conduct when Defendant produces them, Plaintiff is free to bring such
evidence to the Court’s attention in an effort to obtain relief from this order.

5

inclusion of Defendant’s staffing plans in the definition of “Confidential Materials,” need not be
issued. Instead, this order will suffice as an amendment to the parties’ Agreed Protective Order
[Dkt. 39], and the term “Confidential Materials” therein shall be understood to include
“documents containing confidential information regarding The GEO Group, Inc’s staffing plans
for the Plainfield, Indiana Short Term offender program” [Dkt. 73-2 at 1].

Date: 09/24/2014

Distribution:
Richard L. Darst
COHEN GARELICK & GLAZIER
[e-mail]
Emily L. Connor
LITTLER MENDELSON
[e-mail]
Alan L. McLaughlin
LITTLER MENDELSON PC
[e-mail]

6