John Doe #1 et al v. Reed et al

Filing 152

ORDER by Judge Benjamin H Settle DENYING 125 Motion for Protective Order; and GRANTING 131 Motion to Seal. Documents will be unsealed by 12/20/2010 absent a renewed motion or stipulated protective order. (TG)

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA JOHN DOE #1, et al., Plaintiffs, v. SAM REED, et al., Defendants. ORDER DENYING PLAINTIFFS' MOTION FOR PROTECTIVE ORDER AND GRANTING INTERVENOR WASHINGTON FAMILIES STANDING TOGETHER'S MOTION TO SEAL CASE NO. C09-5456BHS

This matter comes before the Court on Plaintiffs' motion for a blanket protective order (Dkt. 125) and Intervenor Washington Families Standing Together's ("WFST") motion to seal (Dkt. 131). The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby denies Plaintiffs' motion (Dkt. 125) and grants WFST's motion (Dkt. 131) for the reasons stated herein. I. PROCEDURAL HISTORY On September 3, 2010, Plaintiffs filed the instant motion for a blanket protective order regarding the identities of certain witnesses. Dkt. 125. On September 15, 2010, WFST opposed the motion. Dkt. 129. On September 17, 2010, Plaintiffs replied. Dkt. 137.

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On September 15, 2010, WFST moved the Court to seal two exhibits filed in support of its opposition to the instant motion for protective order. Dkt. 131. This motion is unopposed. II. DISCUSSION A. Meet and Confer Requirement Absent from the record with respect to Plaintiffs' motion is "certification that [it] has in good faith conferred or attempted to confer with other affected parties in an effort ot resolve the dispute without court action." See Fed. R. Civ. P. 26(c)(1). Although the parties apparently did conduct a teleconference prior to the filing of this motion, WFST maintains and Plaintiffs do not dispute that the instant motion is beyond the scope of what was agreed to be the scope of the requested protective order. Compare Dkt. 129 at 4 (WFST's response in opposition) with Dkt. 137 (reply not addressing WFST's arguments regarding the meet and confer requirement). This alone is a basis on which to deny Plaintiffs' motion for protective order. B. Protective Orders, Generally Pursuant to Fed. R. Civ. P. 26(c), protective orders should be issued "for good cause shown." This is a public court and its business should be conducted publicly unless there is a specific reason to keep things confidential. As stated in Local Civil Rule 5(g), "[t]here is a strong presumption of public access to the court's files and records which may be overcome only on a compelling showing that the public's right of access is outweighed by the interests of the public and the parties in protecting files, records, or documents from public review." On the few occasions when protective orders are appropriate, they should be narrowly drawn with a presumption in favor of open and public litigation. The showing necessary to establish good cause has been described as follows:

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To establish good cause for a protective order under Fed. R. Civ. P. 26(c), the courts have insisted on a particular and specific factual demonstration, as distinguished from stereotyped and conclusory statements, revealing some injustice, prejudice, or consequential harm that will result if protection is denied. Broad allegations of harm, unsubstantiated by specific examples of articulated reasoning, do not satisfy the rule. The party requesting a protective order must make a specfic demonstration of facts in support of the request as opposed to conclusory or speculative statements about the need for a protective order and the harm which will be suffiered without one. Such a party must demonstrate that failure to issue the order will work a clearly defined harm. 10A Fed. Proc. Law. Ed. § 26:282 (emphasis added); see also Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992); In Beckman, the Court also stated that "broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test." 996 F.2d at 476 (quoting Cipollone v. Ligget Group, Inc., 785 F.2d 1108, 1121 (3rd Cir. 1986)). Before this Court will entertain a motion for a protective order, the following is required: 1. The party seeking a protective order, stipulated or otherwise, must make a

compelling showing that their interest in the various "confidential materials" described in the proposed order outweighs the public's right of access to Court documents. 2. The request must be narrow and the terms of the order may not give too

much discretion to the parties to designate documents subject to the protective order. Any protective order entered by the Court must be narrowly drawn and clearly identify the class or type of documents subject to the order. 3. The proposed order may not be modified by agreement of the parties

without the Court's signature of approval. 4. The order cannot grant "complete immunity" from any liability related to

the disclosure of confidential, personal, or proprietary information as long as the disclosure is made pursuant to the terms of the protective order. Whether a particular

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disclosure violates federal, state, or local law, breaches contractual obligations, and/or violates another court's order is not before the Court by virtue of entering a stipulated protective order: a grant of "immunity" without due consideration of the facts and circumstances surrounding the disclosure would be improper and unjustified. 5. Finally, the order must contain a provision that the Court may change the

terms of the protective order on its own motion after notice to the parties and an opportunity to be heard. The parties may, of course, enter into a confidentiality agreement amongst themselves without the aid of the Court, but if and when parties request that the Court be involved, they must make the requisite showing discussed above. In the present matter, Plaintiffs' motion for a protective order is deficient given these guidelines. Specifically, Plaintiffs seek a "blanket protective order to protect the identities of traditional marriage supporters learned through the discovery process. This would include a witness' name, address, occupation, employer, telephone number, email address and personal and identifying information." Dkt. 137 at 6. Such a protective order is not narrowly drawn. "[A] blanket order . . . is by nature overinclusive." Beckman, 966 F.2d at 476 (citing Public Citizen v. Ligget Group, Inc., 858 F.2d at 775, 790 (1st Cir. 1988)) . Plaintiffs' motion does not provide adequate specificity as to what they seek to protect. Plaintiffs do not provide sufficient specific facts directly related to the people involved in this matter that would require such a blanket protective order in this case. It may be that some of the information is able to be protected, but not under the guise of an overly broad protective order. C. Conclusion Plaintiffs have not made an adequate showing of good cause or that they met and conferred with WFST in regard to what was actually moved for herein. Should Plaintiffs
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renew this motion, they are first required to meet and confer with opposing counsel and attempt to resolve the discovery dispute without aid of the Court. The documents currently under seal or those to be placed under seal with respect to Plaintiffs' proposed protective order may remain or be placed under seal. However, to keep these documents under seal or to place other documents under seal will require a stipulated protective order or a renewed motion to be submitted on or before October 20, 2010. If no protective order is requested by that date, the documents will be unsealed. III. ORDER Therefore, it is hereby ORDERED that (1) Plaintiffs' motion for protective order (Dkt. 125) is DENIED without prejudice as discussed herein. (2) WFST's motion to seal Exhibits A and B to the Hamilton Declaration is GRANTED as discussed herein. DATED this 6th day of October, 2010.

A

BENJAMIN H. SETTLE United States District Judge

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