HAMPSHIRE et al v. PHILADELPHIA HOUSING ADMINISTRATION et al

Filing 46

ORDER THE MOTION OF PLAINTIFFS TO COMPEL THE DEFENDANTS TO PRODUCE DOCUMENTS (Doc. # 40) AND THE CROSS-MOTIONOF DEFENDANTS FOR A PROTECTIVE ORDER (Doc. # 41) WERE GRANTED INPART AND DENIED IN PART BY THE ORDER OF THIS COURT DATED OCTOBER22, 2018. SIGNED BY HONORABLE HARVEY BARTLE, III ON 10/24/2018. 10/24/2018 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JACQUELINE HAMPSHIRE, et al.
v.
PHILADELPHIA HOUSING
ADMINISTRATION, et al.

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CIVIL ACTION

NO. 17-4423

MEMORANDUM
Bartle, J.

October 24, 2018
The court is filing this Memorandum to explain its

reasons for its order dated October 22, 2018 (Doc. # 44).
This is an action by two former employees of the
Philadelphia Housing Authority (“PHA”) alleging discrimination
on the basis of race and/or gender in violation of 42 U.S.C.
§§ 1981 and 1983, Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq., and the Pennsylvania Human Relations
Act, 43 Pa. Stat. §§ 951 et seq.

Plaintiffs moved to compel the

defendants to produce documents and, in response, defendants
filed a cross-motion for a protective order pursuant to Rule
26(c) of the Federal Rules of Civil Procedure.
Defendant’s motion for a protective order sought to
limit the disclosure and use of PHA Office of Audit and
Compliance (“OCA”) Report No. 18-232, which memorializes an
internal PHA investigation into potential misconduct by two
individuals who are current or former employees of PHA and who
are not parties to this action.

Defendants agreed to produce

the Report in this action but urged the court to preclude
plaintiffs from obtaining it without first entering into a
confidentiality order.

The proposed confidentiality order

sought by defendants applied only to the specific Report at
issue and not to any other information exchanged in this action.
Plaintiffs refused to agree to such an order or to any
provisions for confidentiality.

After a telephone conference

with counsel and an in camera review of the Report, we ordered
defendants to produce the Report to plaintiffs but placed
certain limits on the use and disclosure of the Report by
plaintiffs in order to maintain the confidentiality of the
Report.
Rule 26(c) of the Federal Rules of Civil Procedure
provides in relevant part:
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:
. . .
(B) specifying terms, including time and
place or the allocation of expenses, for the
disclosure or discovery.
Fed. R. Civ. P. 26(c)(1).1

1. As required by Rule 26(c), counsel for defendants attempted
in good faith to confer with plaintiffs’ counsel in an effort to
resolve the dispute without court intervention, but those
efforts were unsuccessful. As noted above, plaintiffs refused
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The Court of Appeals set forth the law with respect to
confidentiality orders in Pansy v. Borough of Stroudsburg, 23
F.3d 772 (3d Cir. 1994).

There, the Court of Appeals overruled

a district court order providing confidentiality for a
settlement agreement in a civil rights action instituted under
42 U.S.C. § 1983 by a former Police Chief against the Borough of
Stroudsburg.

Pansy, 23 F.3d at 775.

In Pansy, the Court of Appeals reaffirmed the
long-standing principle that district courts have inherent
equitable power by means of protective orders, “to prevent
abuses, oppression, and injustices” in discovery and “to grant
confidentiality orders, whether or not such orders are
specifically authorized by procedural rules.”2

Id. at 785

(internal quotation marks and citations omitted).

In making a

determination whether good cause exists for a protective order,
a court must engage in a balancing process.

Id. at 786.

In

doing so, we have flexibility to “minimize the negative
consequences of disclosure.”

Id. at 787.

The burden to show

to agree to a protective order or to any other constraints on
the use of the Report.
2. While Pansy dealt with the confidentiality of a settlement
agreement, the Court of Appeals noted that protective orders for
discovery material raise “similar public policy concerns.” 23
F.3d at 786. In each, the court must resolve the tension
between privacy interests and another party’s or the public’s
right to know. See id. at 786-87.
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good cause rests on the party seeking a protective order.

Id.

at 786-87.
The Pansy court identified a number of factors which
the court must consider in resolving this tension between
privacy and the right to know:
(1) whether disclosure will violate any
privacy interests;
(2) whether the information is being sought
for a legitimate purpose or an improper
purpose;
(3) whether disclosure of the information
will cause a party embarrassment;
(4) whether confidentiality is being sought
over information important to public health
and safety;
(5) whether the sharing of information among
litigants will promote fairness and
efficiency;
(6) whether a party benefitting from the
order of confidentiality is a public entity
or official; and
(7) whether the case involves issues
important to the public.
Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995)
(citing Pansy, 23 F.3d at 787–91).
Here, plaintiffs seek disclosure of a confidential
internal investigation conducted by PHA.

Disclosure will

violate the privacy interests of private individuals who are not
parties to this action.

The information sought relates to

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potential discipline of these individuals by their employer and
thus may cause embarrassment.

We understand that the discipline

is currently being grieved by the employees’ union and thus is
not final.
The information being sought is for a legitimate
purpose, that is, to show potentially that other PHA employees
who engaged in conduct similar to that of plaintiffs here did
not receive the same type of discipline.

Such comparator

evidence is routinely sought in actions involving claims of
employment discrimination.

After weighing the factors set forth

in Pansy, we find at this time that the privacy interests of
these nonparties in their sensitive personnel records outweigh
any public interest in the unrestricted public disclosure of
this Report.

Accordingly, the October 22nd order issued by this

court, which is limited in scope and may be modified by further
order of court, was appropriate under Pansy.
In opposition to defendants’ cross-motion for a
protective order, plaintiffs assert that certain documents
related to the alleged misconduct by these nonparty individuals
must be provided by PHA to the Pennsylvania State Police, at
which point those documents become public records.

The OAC

Report is not tantamount to those documents; rather, it is an
internal PHA record including memoranda authored by a PHA
investigator, notes of interviews conducted by PHA of nonparty
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PHA employees, and other documents reviewed in connection with
the investigation.3

Thus, plaintiffs’ argument misses the mark.

Plaintiffs also assert that “the EEOC will request and
obtain the OAC report from PHA” with respect to a charge of
discrimination filed by one of the nonparties that is the
subject of the OAC Report, and thus the Report “is subject to
disclosure from the EEOC through a Freedom of Information
Request, or by a direct request from the parties in the agency
matter.”

This is speculation.

We are not aware what the EEOC

may obtain in the course of its investigation of an unrelated
charge of discrimination.

In any event, this court’s order

states that it will remain in effect pending further order by
the court, and thus it may be modified if the OAC Report does in
fact become subject to public disclosure.
Accordingly, the motion of plaintiffs to compel the
defendants to produce documents (Doc. # 40) and the cross-motion
of defendants for a protective order (Doc. # 41) were granted in
part and denied in part by the order of this court dated October
22, 2018.
BY THE COURT:

/s/ Harvey Bartle III
J.
3. In fact, part of the basis for the discipline of these
nonparty individuals is that they failed to file properly all
required paperwork.
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