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Bair v. Roberson

May 10, 2007


The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge


This case was referred to me for resolution of all discovery disputes. Currently before me are Defendant's Motion and Memorandum for Entry of Protective Order [#11], Defendant's Motion to Compel Plaintiff's Expert Report and for Extension of Time to Serve Defendant's Expert Report or In the Alternative to Strike [#12], Defendant's Motion for Plaintiff to Submit to Mental Examination or in the Alternative to Strike Claim for Compensatory Damages [#17], and Defendant's Motion for Order Allowing Additional Time for Deposition of Plaintiff [#18]. For the reasons stated below, Defendant's motion for a protective order will be granted, and Defendant's motions to compel Plaintiff's expert report, for Plaintiff to submit to mental examinations, and for additional time to depose Plaintiff will be granted in part and denied in part.


Plaintiff Janet Roberson brings this suit against her employer, Federal Deposit Insurance Corporation ("FDIC"). Ms. Roberson, an Executive Level 2 with over twenty years of experience in the government, is the former Deputy Director for Information Technology Management in FDIC's Division of Information Resources Management ("DIRM"). Amended Complaint ("Compl.") ¶ 6. In early 2003, Ms. Roberson was informed that a study on DIRM by the FDIC Office of the Chief Operating Officer had concluded that she was "incompetent" and that there were allegations that she had created a "hostile work environment" for several of her subordinates. Compl. ¶ 8. Plaintiff was immediately detailed to the Division of Finance ("DOF"). Compl. ¶ 9. According to Plaintiff, the investigation revealed that she had committed no ethics or equal employment opportunity violations and that there should be no disciplinary action taken against her. Compl. ¶ 13.

Plaintiff subsequently filed an administrative complaint with the FDIC alleging that she was discriminated against on the bases of sex and age when it involuntary detailed her to DOF, rejected her bonus and salary increase recommendations, and subjected her to a managerial inquiry in which she had no right to know the individuals or incidents which were the basis of the investigation. Compl. ¶¶ 10-14.

Plaintiff also claims FDIC retaliated against her for initiating the discrimination claims by leaving her at the DOF for over a year and by purposely isolating and marginalizing her while at DOF. She states that while at DOF she was placed in a non-supervisory position (although still at Executive Level rate of pay), had an office space usually assigned to lower level staff positions, was not included in the DOF Director's meetings with his executive and management staff, did not receive any assignments at the executive level, and was frequently without assignments. Compl. ¶ 9. Ms. Roberson also states she was denied a bonus while she was on the detail. Compl. ¶ 16. Ms. Roberson was permanently transferred to a position of Deputy Director at the Division of Finance in 2004. Compl. ¶ 18.


A. Defendant's Motion and Memorandum for Entry of Protective Order

Defendant has moved the Court for a protective order to limit the public disclosure of sensitive and privileged FDIC information and to order the return of all FDIC documents to FDIC at the conclusion of all proceedings in this matter. Defendant's Motion and Memorandum for Entry of Protective Order ("Def. Mot. P.O.") at 6.

According to Defendant, during the administrative proceedings prior to filing this action, the parties operated under an unsigned confidentiality agreement under which both parties agreed not to publicly disclose any sensitive and personal information concerning non-party FDIC employees. Def. Mot. P.O. at 2. Upon the filing of the Complaint in this Court, the parties indicated their plans to submit a protective order for the Court's approval. Joint Report Pursuant to Rule 16.3 at 5-6. Defendant states that the parties were unable to reach an agreement as to the provision regarding the disposition of the confidential discovery materials at the conclusion of this litigation. Def. Mot. P.O. at 6. Plaintiff subsequently indicated she no longer believed a protective order was necessary because she did not anticipate the need to designate any material she produces as confidential. Plaintiff's Opposition to Defendant's Motion and Memorandum for Entry of Protective Order ("Pls. Opp. P.O.") at 1. Both parties have adhered to the previous confidentiality agreement pending the resolution of Defendant's motion.

Defendant requests that the Court prohibit Plaintiff from publicly disclosing any confidential and privileged FDIC information. Def. Mot. P.O. at 4. Defendant also seeks an order prohibiting Plaintiff from using any confidential or privileged FDIC documents and information acquired in connection with this litigation in any other litigation. Id. at 13.

In her opposition, Plaintiff argues that Defendant has not met her "substantial burden" to warrant limitations on the preferred transparency of litigation. Pls. Opp. P.O. at 3; see also Nixon v. Warner Commc'n, Inc., 435 U.S. 589, 597 (1978). Any supposed presumption in favor of public access to discovery material, however, did not survive the Supreme Court's conclusion in Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984). Pretrial depositions and interrogatories, for example, which are not public components of a civil trial, were not open to the public at common law and are generally conducted in private as a matter of modern practice. Id. at 33. Indeed, the D.C. Circuit has extended this view in specifically stating that "not all documents filed with courts fall within [the common law right of access's] purview-at least, not in this circuit." United States v. ElSayegh, 131 F.3d 158, 161 (D.C. Cir. 1997). "[W]hat makes a document a judicial record and subjects it to the common law right of access is the role it plays in the adjudicatory process." Id. at 163.

Thus, restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information. Seattle Times, 467 U.S. at 33. Much of the information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action. Id. Some of this information is not only irrelevant, but, if publicly released, could be damaging to the reputation and privacy of opposing and third parties. Peskoff v. Faber, 230 F.R.D. 25, 33 (D.D.C. 2005) (citing Seattle Times, 467 U.S. at 34-35). Access to discovery material therefore must be balanced against the privacy interests of civil litigants and third parties. See id.

The D.C. Circuit has established a six-part balancing test for determining whether documents should be sealed from public access. United States v. Hubbard, 650 F.2d 293, 317-22 (D.C. Cir. 1980); see also Willingham v. Ashcroft, 355 F. Supp. 2d 390, 391 (D.D.C. 2005); McConnell v. Fed. Election Comm'n, 251 F. Supp. 2d 919, 925 (D.D.C. 2003). These factors are: (1) the need for public access to the documents at issue; (2) the extent to which the public had access to the documents prior to the sealing order; (3) the fact that a party has objected to disclosure and the identity of that party; (4) the strength of the property and privacy interests involved; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced. Johnson v. Greater Southeast Community Hospital, 951 F.2d 1268, 1277 (D.C. Cir. 1991) (citing Hubbard, 650 F.2d at 317-22).

The application of the Hubbard factors to this case mandates the issuance of a protective order. As to the first two factors, there is nothing in the record to imply a need for public access to the documents or that the public has had previous access to the documents. Defendant's objection is justified because the privacy interests at stake are high. These documents reveal allegations that could cause embarrassment to the parties and non-parties if they are disseminated to the public. The non-parties, of course, have never done or said anything that would indicate that they consent to the disclosure of such information.

Finally, it is impossible to ascertain whether all of the information produced in discovery will ever be used to support or attack the merits of Plaintiff's claims. Any public interest in the disclosure is, therefore, at its weakest at this stage of the case.

I will therefore order entry of the protective order Defendant has proposed, which includes the language in Paragraph 14 that any retained documents, following the return or destruction of all documents produced in this litigation, shall be "for the limited purpose of resolving disputes over counsel's representation or the use or dissemination of Confidential Discovery Material." Defendant shall submit to the Court in a separate filing the proposed protective order within ten days of the date of this Memorandum Opinion so that the Court may enter it.

B. Defendant's Motion to Compel Plaintiff's Expert Report and for Extension of Time to Serve Defendant's Expert Report ...

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