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Baker v. Maricle Industries, Inc.

United States District Court, D. Oregon, Eugene Division

February 14, 2017

JUSTIN J. BAKER, Plaintiff,
v.
MARICLES INDUSTRIES, INC., dba SERVICEMASTER CLEANING SPECIALISTS, and SCOTT N. MARICLE Defendants.

          ORDER

          Ann Aiken United States District Judge

         In this action, plaintiff Justin Baker and defendants ServiceMaster Cleaning Specialists and its corporate president, Scott Maricle, sent the Court letters requesting a ruling on whether their negotiated Stipulated Protective Order ("SPO") should include an attorney's eyes only provision given the sensitive and confidential information in plaintiffs medical and military files.

         BACKGROUND

         Plaintiff was a reservist with the United States Air Force and served in Afghanistan before he started working for ServiceMaster Cleaning Specialists as a water technician on August 12, 2013. Ross Ex. 1 at 19, Jan. 13, 2017; Pl.'s Resp. Br. to Def.'s Mot. Summ. J. 2 (doc. 18). Plaintiff received a diagnosis of post-traumatic stress disorder (PTSD) after his discharge from the Air Force. Ross Ex. 1 at 151, Jan. 13, 2017.

         On October 24, 2014, plaintiff claims he overheard a conversation between Mr. Maricle and plaintiffs project manager, Andrew McCabe, wherein Mr. Maricle made offensive remarks regarding plaintiffs PTSD. Id. In that conversation, Mr. Maricle allegedly said plaintiff "needs to get over his bullshit" in reference to plaintiffs PTSD. Id. at 15. Shortly thereafter, Mr. Maricle and Mr. McCabe called plaintiff into a meeting. Id. at 14. Although parties dispute whether ServiceMaster Cleaning Specialists terminated plaintiff or plaintiff voluntarily left his employment, October 24, 2014, was plaintiffs last day with ServiceMaster Cleaning Specialists. Id. at 77-78 & 151.

         Plaintiff alleges Mr. Maricle continued making disparaging remarks even after the termination of plaintiff s employment. Id. at 152. Ultimately, plaintiff credits discrimination on the basis of his perceived and actual disability and retaliation for initiating a complaint of a hostile work environment as the reasons for his termination, Id.

         STANDARD

         Under Federal Rules of Civil Procedure 26(c), the Court, upon a motion and a showing that the parties have conferred in good faith, may for good cause issue an order "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]" The Court must conduct a good cause review of a party's motion for a protective order even if the parties have already stipulated to preserving confidentiality. LR 26-4(a). The District of Oregon's Local Rules also provide that the movant must show good cause by explaining how "each particular material or category of materials" would produce a "specific prejudice or harm" before the court can issue an order limiting access to discovery materials." Id.; see also Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1130 (9th Cir. 2003) ("A party asserting good cause bears the burden, for each particular document it seeks to protect, of showing that specific prejudice or harm will result if no protective order is granted."). "Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, " do not establish good cause. LR 26-4(a).

         Once the party moving to prevent disclosure shows good cause, courts "balance the public and private interests to decide whether maintaining a protective order is necessary." In re Roman Catholic Archbishop of Portland in Or., 661 F.3d 417, 424 (9th Cir. 2011) (quoting Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1211 (9th Cir. 2002)) (quotations and alteration omitted). In balancing the public and private interests, the Ninth Circuit has directed courts to consider:

(1) whether disclosure will violate any privacy interests; (2) whether the information is being sought for a legitimate purpose or for an improper purpose; (3) whether disclosure of the information will cause a party embarrassment; (4) whether confidentiality is being sought over information important to public health and safety; (5) whether the sharing of information among litigants will promote fairness and efficiency; (6) whether a party benefitting from the order of confidentiality is a public entity or official; and (7) whether the case involves issues important to the public.

Id. at 424 & n.5 (quoting Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995)).

         DISCUSSION

         Defendants do not accurately state the law when they suggest "attorneys' eyes only" designations are only appropriate in trade secret litigation. Phillips, 307 F.3d at 1211 ("The law... gives district courts broad latitude to grant protective orders to prevent disclosure of materials for many types of information, including, but not limited to, trade secrets or other confidential research, development or commercial information.") (emphasis omitted); see Martinez v. City of Ogden, 2009 WL 424785, *1 (N.D. Utah Feb. 18, 2009) (explaining that Federal Rule of Civil Procedure 26(c) justifies the use of protective measures if the discovery material "could be damaging to reputation and privacy" if publicly released) (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35 (1984)); cf. In re City of New York, 607 F.3d 923, 935 (2d Cir. 2010) (noting that "attorneys' eyes only" disclosure is a "routine feature of civil litigation involving trade secrets"). In fact, it would not be unprecedented for the parties to agree to a two-tier SPO in order to protect medical records. See, e.g., Kasbarian v. Equinox Holdings, Inc., 2016 WL 4974945, *l-*2 (CD. Cal. Sept. 16, 2016); Spahr v. Amco lns. Co., 2010 WL 11459933, *4 (CD. Cal. Aug. 16, 2010); Boyd v. City & Cnty. of San Francisco, 2006 WL 1390423, *6 (N.D. Cal. May 18, 2006).

         Primarily, plaintiff appears to rest his argument for additional confidential protections on his general anxiety about producing records to Mr. Maricle and his former supervisor, Mr. McCabe. Plaintiff also underscores the nature of the dispute and suggests that because plaintiff alleged a violation of ...


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