Opinion
No. C 04-03808 SI.
May 22, 2006
ORDER GRANTING PLAINTIFF'S MOTION TO VACATE PROTECTIVE ORDER
Now before the Court is plaintiff's second motion to vacate the protective order in this case. Plaintiff filed her first motion to vacate on March 10, 2006, arguing that defendants had overdesignated vast quantities of documents as confidential. Because the parties had not met and conferred on the issue, the Court denied the motion without prejudice. The parties have since met and conferred, to no avail. Plaintiff has now renewed her motion and again asks the Court to vacate the protective order. For the following reasons, the Court GRANTS plaintiff's motion.
DISCUSSION
The parties in this case stipulated to a protective order on September 15, 2005. The order provides that a party may designate "confidential, personal, financial, medical, personnel, and/or private information" as "confidential" when that information is produced in discovery. Materials designated confidential may only be disclosed to a limited number of people, and must be filed with the Court under seal. If a party disagrees with a document's designation, it may challenge the designation by serving a written objection to the producing party. The producing party must then justify its confidentiality designation through a meet and confer process. If the parties are unable to agree, they may request that the Court decide the matter.
This dispute arises over defendant's decision to mark a vast quantity of documents as confidential under the protective order. For example, rather than individually reviewing the 18,162 pages of emails they produced for confidential information, defendants marked every one as confidential, effectively shifting the costs of assessing the confidentiality of those documents to plaintiff. Defendants have also marked public filings such as a state court complaint, and publically available documents such as newspaper articles, as confidential. Plaintiff argues that defendants have so abused the protective order that it should be vacated and that none of defendants' documents merit a "confidential" designation. Defendants argue that plaintiff has not met and conferred in good faith because she has never wavered from her argument that none of the documents defendants produced are deserving of a "confidential" designation.
Defendants' opposition brief, as well as their conduct following this Court's prior order, are premised on the faulty presumption that the Court rejected the arguments in plaintiff's previous motion to vacate the protective order. To the contrary, the Court explicitly stated that the motion was denied without prejudice, because the parties had not yet met and conferred. Thus, defendants' attempt to shift the blame onto plaintiff by arguing that she did not meet and confer in good faith, and that she has maintained the "untenable" position that none of the documents were confidential, is not well taken. It remains defendants' burden to justify their confidentiality designations.
The starting point for this dispute is the presumption that court proceedings are public events. Ordinarily in litigation, "the public can gain access to litigation documents and information produced during discovery." Phillips ex rel. Estate of Byrd v. General Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002). Where a party shows "good cause," however, a court may issue a protective order to prevent public disclosure of the information. Id. "A party asserting good cause bears the burden, for each particular document it seeks to protect, of showing that specific prejudice or harm will result if no protective order is granted." Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1022, 1130 (9th Cir. 2003).
Defendants have not met this burden. For the vast majority of the documents they have designated as confidential, defendants have provided no justification whatsoever to defend their designations. In fact, the parties' letter briefs specifically discuss only two sets of documents: employment contracts and severance agreements for a number of former employees of the athletic department; and investigative reports created by the University. The Court agrees with plaintiff that defendants have not demonstrated "good cause" for protecting these documents from disclosure.
Defendants have not met their burden of establishing that the employment contracts and severance agreements at issue contain confidential information. They have not provided the Court with copies of the agreements, nor have they explained precisely what information the agreements contain that needs protection. Other than broadly classifying the documents as "personnel records," defendants have not established that the documents contain private information. While personnel records may contain information that is truly personal, courts' concern over personnel records stems from the sensitive nature of the information such files can include. See, e.g., Dep't of Air Force v. Rose, 425 U.S. 352, 377 (1976) (noting the "kind of profile of an individual ordinarily to be found in his personnel file: showing, for example, where he was born, the names of his parents, where he has lived from time to time, his high school or other school records, results of examinations, evaluations of his work performance"). Employment contracts and severance agreements are far removed from this type of sensitive information. Indeed, California has evinced a preference for public disclosure of employment contracts between public officials and state agencies. See Cal. Gov't Code § 6254.8 ("Every employment contract between a state or local agency and any public official or public employee is a public record which is not subject to the provisions of Sections 6254 and 6255."). Accordingly, the Court agrees with plaintiff that the employment contracts and severance agreements should not fall under the protective order.
The same applies to defendants' contention that the University's internal investigative reports are confidential. While ordinarily such documents could be expected to contain confidential material, defendants have submitted no evidence to the Court that they do. Again, defendants have not submitted the reports to the Court, and the only evidence that the reports contain confidential information is defendants' statement that the reports "contain information and/or attachments which are confidential, privileged, and/or proprietary information." Such a conclusory statement is insufficient to fulfill defendants' burden.
Thus, the Court agrees with plaintiff that defendants have failed to justify their confidentiality designations. Nonetheless, the Court recognizes that there may be some documents in defendants' production that truly warrant confidential treatment. It is the Court's hope that the parties can agree on such documents with relative ease. If not, within 30 days of the entry of this order defendants may file a motion to maintain the confidentiality designations of those specific documents that they believe should be kept confidential, including justifications as well as copies of the documents involved. Any such motion shall be made to Magistrate Judge Elizabeth Laporte.
CONCLUSION
Plaintiff's motion to vacate the protective order is GRANTED. All documents produced in this litigation will lose their confidential status 30 days after the entry of this order. If defendants wish to maintain a document's confidential designation, they must make a specific request to the Court prior to that time. [Docket No. 298]
IT IS SO ORDERED.