United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
E. BOASBERG UNITED STATES DISTRICT JUDGE
several years, Plaintiff Eugene Hudson, Jr. has been locked
in a set of disputes with his former employer, the American
Federation of Government Employees. This case concerns
alleged racial discrimination in the union's treatment of
Hudson while he served as its National Secretary Treasurer
and its decision to terminate him in 2017. See ECF
No. 1 (Complaint), ¶¶ 13, 20. A related, labor-law
suit revolves around Plaintiff's - eventually
unsuccessful - bid for the AFGE presidency. See No.
this litigation, the parties have had, to say the least, a
contentious relationship. The discovery process often brings
out the worst in counsel, and this case has proved no
exception. It took over eight months after AFGE had
originally proposed a protective order, see ECF No.
16 (Meet and Confer Statement) at 4, for Hudson to consent.
This Court then entered the protective order on February 12,
2019. See ECF No. 22. Both parties are bound by its
terms. It prescribes a particular process for designating
discovery material confidential and settling disputes related
to those designations. Specifically, “[t]he party
producing any Discovery Material may designate as
‘Confidential' any Discovery Material or portion
[thereof] that contains non-public and/or sensitive personal
or organizational information, the public disclosure of which
could, in the good faith opinion of the producing party,
adversely affect the privacy, policy, or personal interest of
any party of person.” Id., ¶ 3. Any party
challenging a designation is required to provide written
notice to the designating party, who - within ten days - must
withdraw the designation or re-designate the materials.
Id., ¶ 9. If disagreement persists, they must
come to the Court for resolution. Id.
now moves to modify the protective order and for sanctions.
See ECF No. 25 (Plaintiff's Motion). The Motion
seems to have been prompted by his taking issue with
AFGE's designation of the entirety of two depositions as
confidential - Plaintiff's own and the deposition of the
current AFGE president, David Cox. Hudson urges that both
represent gross over-designations, undertaken in bad faith
and warranting sanctions. Id. at 2-4. He maintains
that this “perverted, unjust outcome” will
prevent him from using the deposition testimony in any
filings unless he goes through the several-week process of
challenging the designations. Id. at 2-3. He further
contends that this “abuse of [AFGE's]
confidential designation authority” demonstrates why,
“[t]o prevent a recurrence[, ] . . . this Court should
grant [the] motion to modify.” Id. at 3.
Specifically, Plaintiff requests that the protective order
should be altered so that both depositions can be used
“for any purpose, ” to require the designating
party to justify its selections with specific facts from the
outset, and to shorten the process by which disputes over
designations are resolved. See Motion to Modify,
Attach. 2 (Proposed Order) at 1-2. Defendant opposes any
modification and insists its designations were appropriate.
See ECF No. 27 (Defendant's Opposition) at 1, 5,
Court notes at the outset that much of Plaintiff's Motion
appears to be premised on the inaccurate contention that he
is prejudiced because he is “prohibited from”
using the deposition testimony “in pleadings filed with
the Court unless he first notifies AFGE in writing” and
waits for the protective-order process to be completed.
See Pl. Mot. at 3. In other words, he is concerned
that he will not be able to use the testimony in opposing
AFGE's forthcoming motion for summary judgment. This
misunderstands the protective order, which does not, in fact,
prevent any filing. If he uses the deposition testimony, he
must simply place under seal those portions that cite
confidential material. If the designations are subsequently
withdrawn or modified, the Court can unseal them as
appropriate. In those circumstances, where the mandatory
process does not prejudice Hudson, a modification of the
protective order is unnecessary. This is particularly so
since discovery is now complete.
the Federal Rules of Civil Procedure create a presumption in
favor of openness - rather than confidentiality - in
discovery. See Tavoulareas v. Washington Post Co.,
724 F.2d 1010, 1015 & n.10, vacated on other
grounds, 737 F.2d 1170 (D.C. Cir. 1984). Likewise,
materials on the docket should generally be open to the
public, rather than sealed. See EEOC v. Nat'l
Children's Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir.
1996). AFGE, here, should consider itself on notice that both
of these depositions seem to be substantially
over-designated. There appears little reason, for example, to
designate Hudson's entire deposition as confidential.
Although Defendant suggests it is so designated because
“at [his] deposition, AFGE's counsel questioned
[him]” about confidential documents, see Def.
Opp. at 11 n.2, that is no reason to cloak the whole thing.
The union also explains that its seemingly overbroad
designation of the Cox deposition is necessary to prevent its
use “in an effort to advance . . . [P]laintiff's
non-litigation political agenda.” Id. at 7.
Yet the election is over, and Defendant identifies no
lingering or new political purpose to which the deposition
could be put. If AFGE persists in such designation, and
Hudson is successful in convincing the Court - after
undergoing the process set out in the protective order - that
sections of the deposition should be unsealed, sanctions may
well issue. At this point, however, Hudson's request for
sanctions is denied because Defendant has not refused to
follow the protective-order process, in which Plaintiff has
not yet engaged.
foregoing reasons, the Court ORDERS that Plaintiff's
Motion to Modify the Protective Order and Motion for