The opinion of the court was delivered by: John M. Facciola, United States Magistrate Judge.
This matter has been referred to me for the management of discovery under LCvR 73.1. The parties have narrowed their differences as to a proposed protective order, but still disagree as to the following: (1) the definition of the scope of the order; (2) access to the protected information by witnesses for one party or another; and (3) prior disclosure of an intention to place protected materials in the court's public record.
As to the first, I have attempted to find a middle ground between the federal defendants' objection to plaintiff's supplementation regarding the scope of the order and plaintiffs' desire for it. Defendants insist that defining the scope of the order any more broadly than the material being subject to the Privacy Act is unnecessary. But, I can imagine a situation, albeit unlikely, where information that should not be publicly disclosed could be revealed by discovery but still not be subject to the Privacy Act. I have, therefore, defined the scope of the order to allow for such a possibility.
Second, while witnesses should not be absolutely precluded from seeing material subject to the order, there is simultaneously no reason for an absolute right of access, independent of any need to prepare for trial or a deposition. I, therefore, insist upon a reasonable basis for counsel's refusing to permit access by anyone designated by opposing counsel, including witnesses. An unreasonable refusal would be a violation of the Order to be remedied by the Court upon application by either party.
Third, I do not quite understand why plaintiffs seek ten days within which to review any document defendants intend to designate as subject to the order. The Order requires either party to designate information disclosed by the discovery process as subject to the order and expressly permits either to object to the other's designation. I see no need to subject this process to any specific deadline.
I, therefore, issue the following Protective Order:
1. This order pertains only to information:
a. That may be within the scope of the provisions of the Privacy Act;
b. That falls within narrowly defined types of information, yet to be identified, for which good cause exists to protect it from disclosure;
c. That would cause a reasonable person to believe that its disclosure would subject him or her to an invasion of privacy;
d. That tends to accuse any person of a criminal or morally reprehensible act.
Therefore, it is, hereby,
ORDERED, that whenever counsel for a party believes that formal or informal discovery in this case, in whatever form, may reveal or has revealed information that may be within these ...