Opinion
Civil Action 21-cv-580-DDD-NYW
09-01-2021
JOHN DOE, Plaintiff, v. REGIS UNIVERSITY, a Colorado non-profit corporation; REGIS UNIVERSITY BOARD OF TRUSTEES; and FATHER PRESIDENT JOHN P. FITZGIBBONS, S.J, . in his official capacity as President of Regis University, Defendants.
MINUTE ORDER
Nina Y. Wang, Magistrate Judge
This matter is before the court on Defendants' Partially Opposed Motion for Entry of Protective Order Concerning Confidential Information [#37, filed July 13, 2021] that was referred to this Magistrate Judge pursuant to 28 U.S.C. § 636(b); the Order Referring Case dated April 30, 2021 [#20]; and the Order Referring Motion dated July 15, 2021 [#38]. The Parties have submitted a proposed Protective Order for the court's consideration, with one dispute - whether documents that have been redacted under the Family Educational Rights and Privacy Act of 1974 (“FERPA”) can still be designated “Confidential” under the Protective Order.
Rule 26(c) of the Federal Rules of Civil Procedure provides that a court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Fed.R.Civ.P. 26(c). The party seeking a protective order bears the burden of establishing its necessity, Centurion Indus., Inc. v. Warren Steurer & Assoc., 665 F.2d 323, 325 (10th Cir. 1981), but the entry of a protective order is left to the sound discretion of the court. See Rohrbough v. Harris, 549 F.3d 1313, 1321 (10th Cir. 2008). As part of the exercise of its discretion, the court may also specify the terms for disclosure. Fed.R.Civ.P. 26(c)(1)(B). The good cause standard is highly flexible, having been designed to accommodate all relevant interests as they arise. See Rohrbough, 549 F.3d at 1321.
The Parties do not dispute that certain personally identifiable information must be redacted under FERPA. [#40 at 2 ¶ 3]. But Plaintiff John Doe (“Plaintiff” or “Mr. Doe”) contends that once such personally identifiable information is redacted, a document should lose its status as “Confidential.” Defendants disagree, arguing that redacting personally identifiable names does not render the other information contained in the document as not confidential or permitted for use in circumstances other than this litigation. [#37 at 3]. This court respectfully agrees with Defendant.
First, this court notes that FERPA is not the only appropriate basis for the designation of “Confidential” material. Indeed, as discussed above, Rule 26(c) expressly permits a court to issue a protective order to protect a party or person from annoyance, embarrassment, or oppression. In a case that implicates the personal interactions of the Parties as well as third parties, this court finds that an ex ante protective order may serve to protect the interests identified by Rule 26(c) - which is likely to be easier than to remediate any unintended harm by public disclosure from which identities and/or conclusions may be drawn.
Second, a party has no right to make unrestricted disclosure of information obtained through discovery. See Gillard v. Boulder Valley School District, 196 F.R.D. 382, 387 (D. Colo. 2000). This court trusts that counsel, as officers of the court, will only designate documents as “Confidential” that are truly so, i.e., not available to the public. To the extent that documents that are disclosed would otherwise be publicly available, the Protective Order contains a provision that permits a party to object to such designation, and to have any disputes with respect to appropriate designation resolved by this court.
Third, limiting the use of discovery to a particular action forwards the principle that that discoverability of any particular document, if challenged, should be assessed by the court presiding over the particular case, not by this court in a prescient manner.
To be clear, this court is not ruling that information designated under a protective order in this case is entitled to restriction from the court's docket going forward. The entry of a Protective Order under Rule 26(c) of the Federal Rules of Civil Procedure is not equivalent to an Order to Restrict any designated documents or information from public access. As recognized by Local Rule 7.2 and the Tenth Circuit's case law, designation under a Protective Order is, in and of itself, insufficient to justify restriction. See D.C.COLO.LCivR 7.2(c); See also Lucero v. Sandia Corp., 495 Fed.Appx. 903, 913 (10th Cir. 2012); SolidFX, LLC v. Jeppesen Sanderson, Inc., Civil Action No. 11-cv-01468-WJM-BNB, 2012 WL 2917116, at *6 (D. Colo. July 16, 2012) (holding that “the mere fact that a party has designated a document as confidential is insufficient to justify restricted access”). In addition, the United States Court of Appeals for the Tenth Circuit has been clear that parties - and courts - should not reflexively restrict documents upon which the parties (and as a result the courts) rely upon to seek or afford relief. See Lucero, 495 Fed.Appx. at 913. Indeed, in only the rarest of circumstances is restricting the public's access to court documents appropriate. See Rocky Mountain Mortg. Specialists, Inc. v. First Am. Real Estate Information Servs., Inc., Civil Action No. 07-cv-00815-MSK-MEH, 2008 WL 4293316 (D. Colo. Sept. 16, 2008).
Nor is this court's ruling that, if filed in the public court docket, such publicly available documents are subject to any further restriction that is not provided for by the Federal Rules of Civil Procedure or the case law of the Tenth Circuit or this District. Nor is the court ruling that if these documents are available from some other legitimate source other than discovery in this matter, Plaintiffs' counsel are somehow still limited in their use. Rather, this court is simply concluding that documents designated, after a good faith review and certification by counsel of record pursuant to their obligations under Rule 26(g) of the Federal Rules of Civil Procedure, as confidential, proprietary, or trade secret in this case under the Protective Order, should be limited in their use to this action. Any party seeking restriction of information or a document from the court docket must comply with and satisfy the Federal Rules of Civil Procedure, D.C.COLO.LCivR 7.2, and the applicable case law regarding restricting court documents from public accessibility.
Thus, some documents designated “Confidential” - or parts of such documents - may become public through various filings and/or court orders. But this court does not pass on the restriction of any document designated as “Confidential” from the public record at this juncture, finding that it is more appropriate to do so with specificity.
For these reasons, IT IS ORDERED that:
(1) Defendants' Partially Opposed Motion for Entry of Protective Order Concerning Confidential Information [#37] is GRANTED; and
(2) A Protective Order is concurrently ENTERED with this Minute Order.