Because the harmless error analysis is, from an appellant's perspective, a far more stringent test than that of mere legal error, it is impossible to know for sure whether the Eleventh Circuit intended to announce a "necessity" test for all discovery orders under the Privacy Act. More relevant to this case than Perry are Weahkee v. Norton, 621 F.2d 1080 (10th Cir. 1980), and Clavir v. United States, 84 F.R.D. 612 (S.D.N.Y. 1979), both of which expressly reject the notion that the Privacy Act creates a qualified discovery privilege. Like Perry,Weahkee arose in the context of post-trial review of a pretrial ruling denying a motion to compel discovery of documents protected by the Act.
In practice, “exception (11) to s 552a(b) makes it completely clear that the Act cannot be used to block the normal course of court proceedings, including court-ordered discovery.” Clavir v. United States, 84 F.R.D. 612, 614 (S.D.N.Y. 1979).
t the Requested Materials contain factual information concerning Ms. Bennett's claims or Defendants' defenses thereto-i.e., information responsive to requests 1(a) and (e) and 2(a) and (e) in the OAG Subpoena-that information “is unquestionably relevant since such information evidences a direct nexus to the factual issues striking at the very core of this litigation.” In re Symbol Techs., Inc. Sec. Litig., No. Civ. 53923 (DRH) (AKT), 2017 WL 1233842, at *11 (E.D.N.Y. Mar. 31, 2017) (finding that investigator's interview memoranda that elicited information concerning plaintiffs' allegations of defendant's “wrongdoing” were relevant); see Giles v. Coughlin, No. 94 Civ. 6385 (CSH) (THK), 1998 WL 23223, at *5 (S.D.N.Y. Jan. 13, 1998) (requiring production of “material from completed investigations of the defendants' conduct in the incident in issue[,]” which was “clearly relevant”); Clavir v. United States, 84 F.R.D. 612, 614 (S.D.N.Y. 1979) (finding that DOJ interview memoranda regarding alleged illegal surveillance activities that were the basis of plaintiffs' claims were “relevant and discoverable unless some recognized privilege applies”); see also Mahulawde v. Fashion Inst. of Tech., 21 Civ. 3878 (PAE), 2022 WL 17363589, at *2 (S.D.N.Y. Dec. 1, 2022) (finding that “witness statements, in the form of memoranda reflecting the factual accounts, by employees, of events relevant to plaintiff['s] [] allegations of discrimination, a hostile work environment, and retaliation” were “probative-potentially, centrally probative-of the allegations at issue”).
Second, the Museum's promise not to disclose information covered by the Privacy Act does not deprive this Court of the authority to order disclosure under an exception to the Privacy Act, 5 U.S.C. § 552a(b)(11). Clavir v. United States, 84 F.R.D. 612, 614 (S.D.N.Y. 1979) (“[E]xception (11) to § 552a(b) makes it completely clear that the [Privacy] Act cannot be used to block the normal course of court proceedings, including court-ordered discovery.”). As courts in this district have long recognized, “no government official has the power to promise that information will be kept confidential in the face of a lawful demand for discovery backed up by an order of the court.”
We therefore find no basis for inferring that the statute replaces the usual discovery standards of the FRCP[.]"); Clavir v. United States, 84 F.R.D. 612, 614 (S.D.N.Y. 1979) (holding the Privacy Act "cannot be used to block the normal course of court proceedings, including court-ordered discovery"); Garraway v. Ciufo, No. 17-cv-00533-DAD-GSA-PC, 2020 WL 1263562, at *8 (E.D. Cal. Mar. 16, 2020) ("[R]ecords that might otherwise be protected by the [Privacy] Act may still be discovered through litigation if ordered by a court."). In turn, "a party can invoke discovery of materials protected by the Privacy Act through the normal discovery process and according to the usual discovery standards[.]"
A private insurance company, unlike the police officer defendants in this case, does not act under color of state law and is not way a government actor. In Clavir v. United States, 84 F.R.D. 612 (S.D.N.Y. 1979), several FBI agents gave interviews to the Department of Justice investigation regarding unauthorized investigative techniques by other FBI agents; when those interviewees attempted to block the production of memoranda describing their interviews, the court rejected their argument. However, that decision only stands for the idea that the informant does not have standing to invoke the informer's privilege, which is not the case here.
We therefore find no basis for inferring that the statute replaces the usual discovery standards of the FRCP—in particular, Rules 26 and 45(b)—with a different and higher standard.Laxalt v McClatchy, 809 F.2d 885, 888 (D.C. Cir. 1987); see also Wallman v. Tower Air, Inc., 189 F.R.D. 566, 569 (N.D. Cal. 1999) (following Laxalt); Clavir v. United States, 84 F.R.D. 612, 614 (S.D.N.Y. 1979) (the exception for court orders "makes it completely clear that the act cannot be used to block the normal course of court proceedings, including court-ordered discovery"). Thus, "the Privacy Act does not establish a qualified discovery privilege that requires a party seeking disclosure under 5 U.S.C. § 552a(b)(11) to prove that its need for the information outweighs the privacy interest of the individual to whom the information relates."
The essential point of such a court order exception is that the Privacy Act "cannot be used to block the normal course of court proceedings, including court-ordered discovery." Clavir v. United States, 84 F.R.D. 612, 614 (S.D. N.Y. 1979); see also Martin v. United States, 1 CI. Ct. 775, 780-82 (CI. Ct. 1983). The Court may order the disclosure of such documents where the Court merely finds the documents meet the relevance standard under Fed. R. Civ. P. 26. Wallman v. Tower Air, Inc., 189 F.R.D. 566, 569 (N.D. Cal. 1999) (finding "no basis" for requiring a showing of need beyond that already required by the Federal Rules of Civil Procedure (FRCP) in issuing an 552(a)(b)(11) order); Laxalt v. McClatchy, 890 F.2d 885, 889-90 (D.C. Cir. 1987) (the "plain language" of 552a(b)(l 1) gives no "basis for inferring that [a higher standard of discovery] replaces the usual discovery standards of the [Federal Rules of Civil Procedure].").
"The Privacy Act . . . does not create a qualified discovery privilege. . . . Nor does the Act create any other kind of privilege or bar that requires a party to show actual need as a prerequisite to invoking discovery." Laxalt v. McClatchy, 809 F.2d 885, 888 (D.C. Cir. 1987); Weakhee v. Norton, 621 F.2d 1080, 1082 (10th Cir. 1980) (same); Clavir v. U.S., 84 F.R.D. 612, 614 (S.D.N.Y. 1979) (same); Forrest v. U.S., 1996 WL 171539, at *2 (E.D. Pa. Apr. 11, 1996) (same). However, the Privacy Act's protection of certain information is still relevant to a court's exercise of discretion in resolving discovery disputes.
In this case, however, the allegation of discriminatory treatment involves no such threat, and it is thus fair to conclude that the Patrol Guide does not authorize a promise of confidentiality and that such promises were not made here. In any event, promises of confidentiality cannot be binding in the absence of legal authority, see, e.g.,Clavir v. United States, 84 F.R.D. 612, 614 (S.D.N.Y.1979), and where, as here, there is adequate justification for production, such promises would have to be disregarded. The Goldman Affidavit does not state specifically whether such promises were made in this case, and indeed does not suggest that Deputy Commissioner Goldman has any personal knowledge as to what transpired between the OEEO investigator and the officers whom he interviewed.