Sanning v. Board of Trustees of Whitman College

Filing 39

ORDER Denying 38 Stipulated Motion for Protective Order. Signed by Judge Stanley A Bastian. (PL, Case Administrator)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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8 LEE SANNING,

NO. 4:15-cv-05055-SAB

Plaintiff,

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v.

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11 BOARD OF TRUSTEES OF WHITMAN

ORDER DENYING
STIPULATED MOTION FOR
PROTECTIVE ORDER

12 COLLEGE,
Defendant.

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Before the Court is parties’ Stipulated Motion for Protective Order. ECF

16 No. 38. The parties seek a protective order to protect confidential information.
17 Arguing their rights to privacy outweigh the public’s interest in the material. This
18 motion was heard without oral argument.
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The product of pretrial discovery is presumptively public, though Federal

20 Rule of Civil Procedure Rule 26(c) permits a district court to override this
21 presumption upon a showing of “good cause.” San Jose Mercury News, Inc. v.
22 U.S. District Court—Northern Dist. (San Jose), 187 F.3d 1096, 1103 (9th Cir.
23 1999). Rule 26(c) provides that a “court may, for good cause, issue an order to
24 protect a party or person from annoyance, embarrassment, oppression, or undue
25 burden or expense.” Prior to the grant of a protective order, the moving party must
26 certify it has “conferred or attempted to confer with other affected parties in an
27 effort to resolve the dispute without court action.” Fed. R. Civ. P. 26(c) (emphasis
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ORDER DENYING STIPULATED MOTION
FOR PROTECTIVE ORDER # 1

Where the parties agree, as here, that certain information should remain

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2 confidential, it may be prudent to enter into an agreement setting forth in writing
3 what information shall remain private. It is unnecessary, however, for such an
4 agreement to have this Court’s imprimatur. A court issued protective order is less
5 necessary since Rule 5(d) was amended to only require filing discovery material
6 actually used in support of an action. Because not all discovery material need be
7 filed, most discovery material is not readily accessible to the public. Therefore, the
8 primary concern regarding confidential materials is how the parties themselves
9 handle such material. This Court will not hesitate to issue a protective order when
10 it is necessary, however, the moving party or parties must demonstrate good cause
11 exists and bears the “burden of showing specific prejudice or harm” that will result
12 if no protective order is granted. Phillips v. G.M. Corp., 307 F.3d 1206, 1210-11
13 (9th Cir. 2002). In other words, the moving party must demonstrate why the
14 parties cannot resolve the issue without court action—a standard that will
15 generally not be met when the parties agree to the terms of a proposed protective
16 order.
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The motion at hand fails to demonstrate specific harm or prejudice that will

18 result if no protective order is granted. Additionally, the parties appear to be in
19 agreement on what material is appropriate for discovery and how it should be
20 handled. Accordingly, the Court denies the stipulated motion for protective order.
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The proposed protective order also contained instructions for filing certain

22 materials under seal. A higher standard applies to sealing orders as they relate to
23 discovery materials in support of dispositive motions. In order for a court to seal
24 records associated with a dispositive motion, it must base its decision on a
25 compelling reason tied to an articulated factual basis without relying on
26 conjecture. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir.
27 2003). The compelling basis standard is more stringent than the Rule 26(c) good
28 cause standard. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 679 (9th Cir.
ORDER DENYING STIPULATED MOTION
FOR PROTECTIVE ORDER # 2

1 2009). Because the parties have failed to demonstrate that even good cause exists
2 to support this motion, they have also failed to provide a compelling basis for
3 sealing any records that may be filed in support of any dispositive motions.
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The Court encourages the parties to continue cooperating with respect to the

5 handling of potentially sensitive discovery material. The parties may, upon proper
6 showing tied to specific discovery material, move the Court to seal certain
7 discovery filings.
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Accordingly, IT IS HEREBY ORDERED:

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Stipulated Motion for Entry of Stipulated Protective Order Regarding

10 Confidential Information, ECF No. 38, is DENIED.
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IT IS SO ORDERED. The District Court Executive is hereby directed to

12 file this Order and provide copies to counsel.
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DATED this 24th day of June 2016.

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Stanley A. Bastian

United States District Judge

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ORDER DENYING STIPULATED MOTION
FOR PROTECTIVE ORDER # 3