MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 293

RESPONSE in Opposition re #289 MOTION to Modify Order, #284 Protective Order filed by DUKE UNIVERSITY. Replies due by 9/13/2012. (SUN, PAUL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RYAN McFADYEN, et al.,

)
)
Plaintiffs,
)
)
v.
)
)
DUKE UNIVERSITY, et al.,
)
)
Defendants.
)
______________________________ )

Civil Action Number
1:07-cv-00953

DEFENDANT’S BRIEF IN RESPONSE TO PLAINTIFFS’ REQUEST
TO MODIFY THE PROTECTIVE ORDER
Defendant Duke University, through counsel, submits this Brief in
Response to Plaintiffs’ Request to Modify the Protective Order in place in this
action. Plaintiffs have not presented any reasoned basis to modify the Protective
Order and, therefore, Duke respectfully requests that the Court deny Plaintiffs’
Request.
I.

PROCEDURAL POSTURE.
Duke established the good cause required for entry of the Protective Order.

(See Brief in Support of Motion for Entry of Protective Order on Confidentiality
and Prospective Sealing Order by Duke University [DE 272]; Reply in Support of
Motion for Entry of Protective Order on Confidentiality and Prospective Sealing
Order by Duke University [DE 279]). The Court’s independent review confirmed

that Duke’s proposed Protective Order meets the requirements this Court has set
for protective orders. Indeed, the Court has entered essentially the same Protective
Order in two other pending cases, including a case in which Plaintiffs’ counsel are
involved and agreed to entry of the protective order. See Order, at 2, Rouse v.
Duke University, No. 1:11-cv-548 (M.D.N.C. July 23, 2012) [DE 63]; Consent
Protective Order on Confidentiality and Prospective Sealing Order, Carrington v.
Duke Univ., No. 1:08-cv-119 (M.D.N.C. January 19, 2012) [DE 236]).
Plaintiffs have now requested the Court to modify three paragraphs of the
Protective Order. As discussed below, Plaintiffs have not presented any reasoned
basis to justify any modification of the Protective Order.
II.

PLAINTIFFS HAVE NOT PRESENTED ANY BASIS TO MODIFY
THE PROTECTIVE ORDER.
A.

The Protective Order Properly Allows Redaction Of Irrelevant
Confidential Information from Discovery Materials.

Paragraph 8 of the Protective Order provides that a party may redact
irrelevant confidential information from documents it produces in discovery, so
long as it serves a log describing the nature of redacted information upon request
of counsel. (See Protective Order [DE 284], ¶ 8). Where portions of responsive
documents contain irrelevant confidential information, courts allow the producing
party to redact the irrelevant information even where a protective order is in place.
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See, e.g., Delanda v. Cnty. of Fresno, No. 1:10-cv-1857, 2012 WL 201727, at *3-4
(E.D. Cal. Jan. 23, 2012) (finding that “the privacy interests of . . . third parties
would require production subject to a protective order as well as redaction of the
records that would serve to protect the identity of any third party”); In re Heraeus
Kulzer GmbH, No. 09-MC-17, 2011 WL 3330307, at *3 (E.D. Pa. Aug. 2, 2011)
(allowing redaction of irrelevant information in commercial dispute); Spano v.
Boeing Co., No. 3:06-cv-743, 2008 WL 1774460, at *2-3 (S.D. Ill. Apr. 16, 2008)
(allowing redaction of information related to employee benefit plans not at issue).
Duke believes a provision that allows redaction of non-relevant confidential
information is specifically warranted in this case. For example, if responsive
documents contain confidential information that is protected by the Family
Educational Rights and Privacy Act (FERPA) concerning students who are not
involved this case, federal law requires Duke to redact that information. (See
Defendant’s Brief Regarding FERPA’s Impact on Production of Duke’s
Educational Records, Rouse v. Duke University, No. 1:11-cv-548 [DE 65]).
Plaintiffs request the Court to strike paragraph 8 in the Protective Order,
because the Protective Order “provides strict protections and procedural
safeguards to preserve the confidentiality of information,” and because “relevancy
is for trial.” (Request to Modify, at 1). Neither basis has merit. First, the
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Protective Order does provide appropriate procedural and substantive safeguards
for confidential information, but there are additional reasons, as discussed above,
that support a specific provision allowing redaction of irrelevant confidential
information. Second, Plaintiffs fundamentally misunderstand Rule 26 to the
extent they contend that relevancy is solely a matter for trial. “Parties may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim
or defense.” Fed. R. Civ. P. 26(b)(1) (emphasis added); see Spano, 2008 WL
174460, at *2 (rejecting argument that redaction is improper method of
challenging relevance and following courts that “found redaction appropriate
where the information redacted was not relevant to the issues in the case”). Duke
respectfully requests that the Court reject Plaintiffs’ request to strike paragraph 8
of the Protective Order.
B.

The Protective Order’s Provision For Challenging A
Confidentiality Designation Is Warranted.

Paragraph 17 of the Protective Order provides that the parties may object to
the confidential designation of Discovery Material. (Protective Order [DE 284], ¶
17). If a party objects to a designation, the Protective Order further provides for a
procedure by which the parties are to “meet and confer” to discuss such
designations and, if agreement cannot be reached, the complaining party may file a

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motion with the Court challenging the designation. (Id.). Protective orders
routinely employ similar procedures for objecting to confidentiality designations.
See, e.g., Longman v. Food Lion, Inc., 186 F.R.D. 331, 332 (M.D.N.C. 1999);
Commercial Defeasance, LLC v. Stranger, 3:06-CV-422, 2008 WL 822491, at *3
(W.D.N.C. Mar. 26, 2008).
Plaintiffs ask the Court to strike paragraph 17 on the ground it “will cause
the parties to unnecessarily litigate the confidentiality of documents that may
never be filed.” (Request to Modify, at 1). Forecasting that the parties will
engage in “unnecessar[y]” litigation is no basis to strike paragraph 17.
Presumably Plaintiffs are not suggesting that they would engage in
“unnecessar[y]” litigation over Duke’s confidentiality designations, and they have
no basis to contend that Duke would engage in unnecessary litigation. Thus, the
forecasted concern has no basis.
As Plaintiffs note, the propriety of a confidentiality designation will be
considered by the Court if a party seeks to file designated “Confidential
Information.” (Protective Order [DE 284], ¶ 21). The Court, however, applies a
more comprehensive test at that time, considering, among other things, whether
there are less drastic alternatives to sealing. See, e.g., Va. Dep’t of State Police v.
Washington Post, 386 F.3d 567, 576 (4th Cir. 2004). Furthermore, requiring the
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parties to wait until filing a document to contest a confidentiality designation will
result in delay and undue burden on the Court. The Court may face a large
number of challenges to designations in connection with briefing on merits
motions that complicates the disposition of such merits motions. Plaintiffs have
presented no reason to justify modification of a provision commonly included in
protective orders.
C.

The Sealing Provisions In The Protective Order Comply With
This Court’s Requirements.

Paragraph 21 of the Protective Order sets forth the procedure for filing
“Confidential Information” with the Court. Consistent with this Court’s
requirements, a party may file “Confidential Information” under seal in connection
with dispositive and substantive motions only with the Court’s approval (or
provisionally if the Court has not yet ruled on a motion seeking that approval).
See Haas v. Golding Transport Inc., No. 1:09CV1016, 2010 WL 1257990, *8-9
(M.D.N.C. Mar. 26, 2010). For discovery motions, a party may file “Confidential
Information” under seal without first obtaining court approval. See id. at *9 n.8.
Plaintiffs ask the Court to “[m]odify paragraph number 21 to conform to the
Court’s procedures for sealing.” (Request to Modify, at 2). To the contrary, the
Protective Order’s procedures conform to this Court’s procedures for sealing, and

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Plaintiffs’ argument for a different approach is unwarranted. Plaintiffs imply that
the Protective Order always places the burden to justify filing under seal on the
party that seeks to file the document. (See Request to Modify, at 2 (arguing that
“the Order bars the parties from filing under seal any document or information that
the opposing party designated ‘confidential’ unless the filing party first obtains an
Order from the Court expressly permitting the material to be filed under seal”)).
The Protective Order, however, places the burden to justify filing under seal on the
party that designated the “Confidential Information”:
In the event that the person seeking to file, reference or quote Confidential
Information is not the person who designated the material as Confidential
Information, the person seeking to file, reference or quote such material
shall give the designating person ten (10) days advance notice that it
intends to do so. The designating person then may file a motion with the
Court seeking an order that such material must be filed under seal as
provided in this sub-paragraph.
(Protective Order, ¶ 21(a)). This provision meets this Court’s requirements. See,
e.g., Va. Dep’t of State Police, 386 F.3d at 576 (noting that on motion to seal,
court “must determine the source of the right of access with respect to each
document”); United States v. Moussaoui, 65 F. App’x 881, 889 (4th Cir. 2003);
Colony Ins. Co. v. Peterson, No. 1:10-cv-581, 2012 WL 1047089, at *2 (M.D.N.C.
Mar. 28, 2012). Plaintiffs’ request to modify Paragraph 21 is properly rejected.

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CONCLUSION
For the foregoing reasons, Duke respectfully requests that the Court deny
Plaintiffs’ Request to Modify the Protective Order.
This the 27th day of August, 2012.
/s/ Paul K. Sun, Jr.
Paul K. Sun Jr.
N.C. State Bar No. 16847
Email: [e-mail]
Jeremy M. Falcone
N.C. State Bar No. 36182
Email: [e-mail]
Thomas H. Segars
N.C. State Bar No. 29433
Email: [e-mail]
James M. Weiss
N.C. State Bar No. 42386
Email: [e-mail]
Ellis & Winters LLP
1100 Crescent Green, Suite 200
Cary, North Carolina 27518
Telephone: [phone]
Facsimile: [phone]
Dixie T. Wells
N.C. State Bar No. 26816
Email: [e-mail]
Ellis & Winters LLP
333 N. Greene St., Suite 200
Greensboro, NC 27401
Telephone: [phone]
Facsimile: [phone]
Counsel for Duke University
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CERTIFICATE OF SERVICE
I hereby certify that on 27 August 2012, I electronically filed the foregoing
Brief in Response to Plaintiffs’ Request to Modify the Protective Order with
the Clerk of the Court using the CM/ECF system, which will send notification of
such filing to all counsel of record and to Mr. Linwood Wilson, who is also
registered to use the CM/ECF system.

This the 27th day of August, 2012.

/s/ Paul K. Sun, Jr.
Paul K. Sun, Jr.
N.C. State Bar No. 16847
Email: [e-mail]
Ellis & Winters LLP
1100 Crescent Green, Suite 200
Cary, North Carolina 27518
Telephone: [phone]
Facsimile: [phone]
Counsel for Duke University

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