United States District Court, D. Oregon, Eugene Division
JUSTIN J. BAKER, Plaintiff,
MARICLES INDUSTRIES, INC., dba SERVICEMASTER CLEANING SPECIALISTS, and SCOTT N. MARICLE Defendants.
Aiken United States District Judge
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.
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,
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.
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.
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).
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)).
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,
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 ...