Woosley v. Bel Brands USA, Inc.

Filing 33

MEMORANDUM OPINION AND ORDER Signed by Magistrate Judge H. Brent Brennenstuhl on 4/23/2018 granting 25 Motion for Protective Order. However, the tendered order at DN 25 is rejected, and Bel Brands is directed to tender another order limited to the production of non-party employment-related information. cc: Counsel (JM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:17-CV-00023-JHM
SHANNON WOOSLEY

PLAINTIFF

VS.
BEL BRANDS USA, INC.

DEFENDANT
Memorandum Opinion
and Order

Before the Court is the motion of Defendant Bel Brands USA, Inc. for a protective order
governing discovery disclosures (DN 25).

Plaintiff Shannon Woosley has responded in

opposition at DN 29, and Bel Brands has replied at DN 31.
Nature of the Case
Plaintiff was previously employed by Bel Brands and claims she was subjected to racial
discrimination prohibited by the Kentucky Civil Rights Act, KRS 344 et seq. and Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 200e et seq. She contends that she was subjected to
offensive racial comments and complained to management at Bel Brands, but her complaints
went largely unaddressed. Her complaint states that, prior to her termination, she was suspended
for allegedly making inappropriate remarks to Bel Brands’ human resources director and was
later terminated “for waiting until she was at work to change into her work uniform” (DN 1-2, p.
3). She asserts that these adverse employment actions represent disparate treatment.

Bel Brands’ Motion
Woosley has submitted discovery requests to Bel Brands for information and documents
related to disciplinary actions against other current and former Bel Brands employees. Bel
Brands represents that it has identified over two hundred pages of records which appear to be
responsive to Woosley’s request (DN 25, p. 2).

These documents include “confidential

employee complaints, internal investigations and disciplinary action forms” and involve over
two-dozen current and former employees (Id.).
Bel Brands requests that dissemination of these documents be restricted because some of
it was “provided to human resources in confidence and other of which is potentially
embarrassing or harmful for the employee who was disciplined as well as for the employee who
complained” (Id. at p. 4). Bel Brands notes that the community where the facility is located is a
small community and “Defendant has legitimate concerns that Plaintiff may disclose this
sensitive information or otherwise use it for personal purposes unrelated to the prosecution of
this litigation” (Id.).
Woosley’s Response
Woosley contends that Bel Brands’ motion fails to articulate specific facts demonstrating
that there would be a clearly defined and serious injury should the information be disclosed
without the requested restrictions and, as such, Bel Brands has failed to satisfy the criteria for
imposition of a protective order. She contends Bel Brands has only made statements of a broad,
speculative nature.
Bel Brands’ Reply
Bel Brands argues that non-party employee records are customarily accorded a highdegree of confidentiality, citing cases from a variety of federal district courts as examples. Bel

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Brands further contends that, having demonstrated the necessity of confidentiality, the burden
has shifted to Woosley to demonstrate that a protective order will impair her ability to conduct
discovery, and she has failed to make any such demonstration.
Discussion
Fed. R. Civ. P. 26(c)(1) provides that “a party or any person from whom discovery is
sought may move for a protective order in the court where the action is pending . . . . The court
may, for good cause, issue an order to protect a party or person from annoyance, embarrassment,
oppression or undue burden or expense . . . .” “To be sure, 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).
The terms protective order and confidentiality order are often used interchangeably.
Scott-Warren v. Liberty Life Assur. Co., NO. 3:14-CV-738-CRS-CHL, 2016 U.S. Dist. LEXIS
90745, *54 (W.D. Ky. July 13, 2016). In essence, a confidentiality order is one of the protective
reliefs available under Rule 26(c)(1)(B) whereby the court may specify the terms for disclosure
or discovery. See Alvarez v. Aldi (Tex.) LLC, No. 3:13-cv-4122-L, 2014 U.S. Dist. LEXIS
99996, *8 (N.D. Tex. July 22, 2014). A confidentiality order will only be issued if the movant
demonstrates good cause by articulating specific facts showing that a clearly defined and serious
injury will result from disclosure of the information. See Queen v. City of Bowling Green, No.
1:16-CV-00131-JHM, 2017 U.S. Dist. LEXIS 160425, *15 (W.D. Ky. Sept. 29, 2017).
Protective orders limiting the dissemination of non-party employment files “are
commonly granted . . . as a means of protecting the privacy interests of nonparties while yet
serving the needs of litigation.” Knoll v. AT&T, 176 F.3d 359, 365 (6th Cir. 1999). “Courts
have also specifically granted such orders to protect nonparties from the harm and

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embarrassment potentially caused by nonconfidential disclosure of their personnel files.” Id.
Bel Brands has noted other jurisdictions endorsing similar policies.1 Where a movant makes a
sufficient showing the burden shifts to the opponent to demonstrate that the protective order
substantially harms the opponent’s ability to collect the evidence necessary for prosecution of the
case. Id.
Here, Bel Brands contends that some of the discovery Woosley seeks involves
information provided by non-party employees to Bel Brands’ human resources department in
confidence. This includes complaints against other employees and witness statements. Bel
Brands notes that some of the accusations may not have been substantiated upon investigation.
Bel Brands further notes that Woosley will likely know several of these people, given the small
nature of the community. Caselaw suggests that the threshold for demonstrating that disclosure
of embarrassing employment information about non-parties will cause a clearly defined and
serious injury is a relatively low bar. Under the circumstances of this case, the undersigned
concludes that Bel Brands has made a sufficient showing to be entitled to a confidentiality order.
While Woosley has challenged the sufficiency of Bel Brands’ showing of need, she has
not put forth any argument that the proposed confidentiality order unduly restricts her ability to
gather discovery in support of her case. The order which Bel Brands has proposed does not
prevent Woosley from obtaining any discovery or using the information in the case. The order
only contemplates that Bel Brands can designate certain information as confidential and Woosley
shall be restricted from disseminating that information outside the litigation. The order also sets
forth a procedure whereby Woosley can challenge any confidentiality designation.
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See Duling v. Gristaede’s Operating Group, 266 F.R.D. 66, 72-74 (S.D.N.Y. 2010; Chavez DaimlerChrysler Corp.,
206 F.R.D. 615, 622-23 (S.D. Ind. 2002); Dahdal v. Thorn Americas, Inc., 1997 WL 599614, *1 (D. Kan. Sept. 15,
1997); EEOC v. Pioneer Hotel, Inc., 2014 WL 5045109, *3 (D. Nev. Oct. 9, 2014); Estate of Collins v. United
States, 2010 WL 11431844, *2 (E.D. Pa. March 26, 2014); Joiner v. MVP Service Corp., 2012 WL 4052505, *2
(W.D.N.Y. Sept. 13, 2012).

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However, the undersigned finds Bel Brands’ proposed order too broad, in that it allows
Bel Brands to designate as confidential “any information that reveals trade secrets” and
“research, technical, commercial or financial information that the party has maintained as
confidential” (DN 25-1, p. 2). While this is the sort of information for which Rule 26(c)(1)(G)
allows protection, Bel Brands has not presented any argument that the discovery which Woosley
seeks includes those types of information.
ORDER
IT IS HEREBY ORDERED that Defendant Bel Brands USA, Inc.’s motion for a
protective order (DN 25) is GRANTED. However, the tendered order at DN 25-1 is rejected,
and Bel Brands is directed to tender another order limited to the production of non-party
employment-related information.

April 23, 2018

Copies:

Counsel

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