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Duling v. Gristede's Operating Corp.

March 30, 2010

SUSAN DULING, MARGARET ANDERSON AND LAKEYA SEWER, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
GRISTEDE'S OPERATING CORP., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Pitman, United States Magistrate Judge

OPINION AND ORDER

I. Introduction

By notice of motion dated May 8, 2009 (Docket Item 110), defendants move for the entry of a protective order limiting plaintiffs' use of employee personnel files produced by defendants.

For the reasons set forth below, defendants' motion is granted. The specific provisions of the Protective Order are outlined below.

II. Facts

This is an employment discrimination action brought as a class action. Plaintiffs allege that defendants (collectively referred to as "Gristede's"), entities which operate several retail grocery store chains in the New York metropolitan area, systematically discriminate against women. Specifically, plaintiffs allege that defendants channel women into cashier and bookkeeper positions. According to plaintiffs, cashiers and bookkeepers work fewer hours and are paid less than those in other positions, and, therefore, the positions available to women are less desirable than those available to men. Plaintiffs allege that defendants also discriminate against women in the promotion of employees to managerial positions, using a "tap on the shoulder" method of selecting employees for promotion rather than posting job openings, as well as promoting male employees in substantially larger numbers than female employees. Plaintiffs seek to represent "all current and former female Gristede's employees who worked for Gristede's at any time between November 2, 2004 and the date of final judgment in this matter" (Plaintiffs' Memorandum of Law in Support of Motion for Class Certification, dated January 30, 2009, at 1).

Defendants' motion for a protective order arises out of plaintiffs' document request for personnel files of Gristede's employees (see Order, issued by the undersigned on May 29, 2007, attached to Declaration of Lewis M. Steel in Opposition of Defendants' Motion for Protective Order, dated May 21, 2009 ("Steel Decl.") as Ex. 2 ("5/29/07 Order") at 2, 5). By orders issued on May 29 and December 17, 2007, I directed defendants to produce the personnel files for all employees who worked at any of their three largest stores anytime between 1999 and the present (5/29/07 Order at 5; Order, issued by the undersigned on December 17, 2007, attached to Steel Decl. as Ex. 3 ("12/17/07 Order") at 1-2). Because the ordered production covers employees of both genders and extends back to 1999, it includes personnel files of both putative class members and individuals not connected to the case in any way. According to defendants, the files contain documents related to the employees' compensation, discipline, medical conditions, financial accounts, background checks, child support obligations, legal matters, police investigations, immigration status and arbitrations, in addition to other information defendants deem personal (Declaration of Michael J. Puma in Support of Defendants' Motion for Protective Order, executed May 8, 2009 ("Puma Decl. in Support") ¶ 6; Memorandum of Law in Support of Defendants' Motion for Protective Order ("Defs.' Mem. in Support") at 1, 5; Reply Memorandum of Law in Further Support of Defendants' Motion for Protective Order ("Defs.' Reply Mem.") at 3).

Defendants have produced 131 personnel files that pertain to the employees who worked at defendants' three largest stores as of the date of the production, and have prepared for production the personnel files of the employees, numbering around eight or nine hundred, who formerly worked for any of the three stores at some point between 1999 and the present (Puma Decl. in Support ¶ 5; Steel Decl. ¶¶ 4(c), 6-7; Defs.' Mem. in Support at 2, 2 n.1; Letter from Michael Puma to Cara Greene, dated April 28, 2009, attached to Puma Decl. in Support as Ex. E ("4/28/09 Puma Letter"); Email from Michael Puma to Lewis Steel, dated May 1, 2009, attached to Puma Decl. in Support as Ex. F ("5/1/09 Puma Email"); Dep. of Michael McCormick, 66:21-69:7, Mar. 26, 2009, attached to Steel Decl. as Ex. 4). Defendants are apparently refusing to produce this last group of files in the absence of a confidentiality order governing their use (Steel Decl. ¶ 9; 4/28/09 Puma Letter; 5/1/09 Puma Email; Defs.' Mem. in Support at 2-3).*fn1 Defendants argue that a protective order governing the use of the files is appropriate because of the potential for disclosure of sensitive information to the employees' co-workers or others (Defs.' Mem. in Support at 5; Defs.' Reply Mem. at 2).

Defendants contacted plaintiffs on April 21, 2009 requesting their consent to a confidentiality agreement governing use of the files (Email from Michael Puma to Cara Greene, dated April 21, 2009, attached to Puma Decl. in Support as Ex. B ("4/21/09 Puma Email"); Defs.' Mem. in Support at 2). After an initial failure on plaintiffs' part to respond, the parties discussed the content of a potential confidentiality agreement and order. Although both sides agreed to some sort of confidentiality order, they were unable to reach agreement on specific provisions (Puma Decl. in Support ¶¶ 7, 12; 4/21/09 Puma Email (attaching proposed confidentiality agreement); Email from Michael Puma to Cara Greene, dated April 24, 2009, attached to Puma Decl. in Support as Ex. C; Email from Cara Greene to Michael Puma, dated April 24, 2009, attached to Puma Decl. in Support as Ex. D; 4/28/09 Puma Letter; 5/1/09 Puma Email; 5/1/09 Steel Email; Email from Michael Puma to Lewis Steel, dated May 4, 2009, attached to Puma Decl. in Support as Ex. H ("5/4/09 Puma Email"); 5/4/09 Steel Email; Defs.' Mem. in Support at 2-3).

On May 8, 2009, defendants moved this Court for a protective order. Defendants clearly had made a good faith effort to resolve the dispute before filing this motion, as required by Fed.R.Civ.P. 26(c)(1). The parties made subsequent proposals regarding the content of a confidentiality order in their submissions on the motion (Defendants' Proposed Stipulation of Confidentiality and Protective Order, attached to Puma Decl. as Ex. A ("Defs.' Proposed Order"); Plaintiffs' Proposed Stipulation of Confidentiality and Protective Order, attached to Steel Decl. as Ex. 1 ("Pls.' Proposed Order"); Defendants' Revised Proposed Stipulation of Confidentiality and Protective Order, attached to Declaration of Michael J. Puma in Further Support of Defendants' Motion for Protective Order ("Puma Reply Decl.") as Ex. A ("Defs.' Revised Proposed Order")). According to defendants, the parties again conferred in an attempt to resolve this issue after plaintiffs attached a proposed protective order in their opposition to defendants' motion, but the parties were still unable to reach agreement (Defs.' Reply Mem. at 1-2).

As of their final submissions, plaintiffs and defendants had reached several points of agreement with regard to the content of a protective order. They agreed that medical records (Steel Decl. ¶ 10; Pls.' Proposed Order ¶ 2; Pls.' Mem. in Opp. at 5; 5/4/09 Steel Email), child support documents (Pls.' Proposed Order ¶ 2; Pls.' Mem. in Opp. at 5), attachment orders (Pls.' Proposed Order ¶ 2; Pls.' Mem. in Opp. at 5) and criminal conviction records*fn2 (Pls.' Mem. in Opp. at 5) contained in the personnel files should be kept confidential. They also agreed to confidentiality for the categories of information enumerated in Fed.R.Civ.P. 5.2 -- social security numbers, taxpayer identification numbers, birth dates, names of minors, and financial account numbers -- and agreed that this information should be given confidential treatment for all purposes, not only for court filings as the actual rule provides (Steel Decl. ¶ 10; Pls.' Proposed Order ¶ 2; Pls.' Mem. in Opp. at 10; 5/1/09 Steel Email; 5/4/09 Steel Email). In addition, plaintiffs agreed that the names of individual employees whose information is contained in the personnel files, except for the named plaintiffs in this action, may not be shared with the media without the employee's permission (Pls.' Proposed Order ¶ 3; Pls.' Mem. in Opp. at 10-11; see Steel Decl. ¶ 10), though it is not entirely clear whether defendants accept this entirely or maintain further that no information in the personnel files should be revealed to the media under any circumstances (see Defs.' Mem. in Opp. at 5), as defendants' proposed orders do not list the media as a permitted recipient of information contained in the files (Defs.' Proposed Order ¶ 3; Defs.' Revised Proposed Order ¶ 3). Finally, as of defendants' reply submissions, plaintiffs and defendants appeared to have agreed that plaintiffs' counsel should be required merely to inform individuals viewing any confidential materials of their confidential status, rather than having such individuals read the confidentiality agreement and sign an acknowledgment form (Pls.' Proposed Order ¶ 2; Pls.' Mem. in Opp. at 5, 8-9; Defs.' Revised Proposed Order ¶ 4; Defs.' Reply Mem. at 5-6; see Defs.' Proposed Order ¶ 4).

However, plaintiffs and defendants still disagree on several features of any potential protective order. In addition to medical records, child support documents, attachment orders and criminal conviction records, defendants seek to keep confidential termination and disciplinary records, immigration records, banking information, compensation information and employment applications (Defs.' Reply Mem. at 3-5). Plaintiffs maintain that except for medical records, child support documents, attachment orders, material covered under Rule 5.2 and, presumably, criminal convictions, they should be permitted to discuss the information in the personnel files freely with "all plaintiffs, putative class members or class members, or persons they believe may have information relevant to any cases involving Gristede's employment and/or pay practices" (Pls.' Proposed Order ¶ 3). This provision evidences plaintiffs' opposition to affording confidential treatment to all aspects of the personnel files, and the last category of potential recipients plaintiffs list also evokes what appears to be the principal issue in dispute here -- whether plaintiffs' counsel may use the information contained in the personnel files in other litigation, particularly, other employment actions against Gristede's in which they are also involved.

Plaintiffs argue that any protective order entered should allow their counsel to use the personnel files at issue here in other litigations against Gristede's (Pls.' Mem. in Opp. at 1, 6-8; 5/1/09 Steel Email; 5/4/09 Steel Email; see Pls.' Proposed Order ¶¶ 3, 6). Defendants contend in response that plaintiffs' counsel's use of the personnel files should be restricted to the purposes of this action (Defs.' Reply Mem. at 1-2; 5/4/09 Puma Email; see Defs.' Proposed Order ¶¶ 2, 7; Defs.' Revised Proposed Order ¶¶ 2, 7).

III. Analysis

A. Applicable Law

Fed.R.Civ.P. 26(c) authorizes a federal court, for good cause, to issue "an order to protect a party or person [from whom discovery is sought] from annoyance, embarrassment, oppression, or undue burden or expense." The rule serves in part to protect parties' privacy interests. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35 n.21 (1984); Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1114 n.10 (3d Cir. 1986). Rule 26(c) "allows for the crafting of appropriate relief, including 'that the disclosure or discovery may be had only on specified terms and conditions.'" Flaherty v. Seroussi, 209 F.R.D. 300, 304 (N.D.N.Y. 2002), quoting Fed.R.Civ.P. 26(c). "Protective orders can take a variety of forms in order to fit the circumstances of the case."

Standard Inv. Chartered, Inc. v. Nat'l Ass'n of Sec. Dealers, Inc., 07 Civ. 2014 (SWK), 2008 WL 199537 at *2 (S.D.N.Y. Jan. 22, 2008) (Kram, D.J.).

The party seeking a protective order bears the burden of establishing that good cause for the order exists. Gambale v. Deutsche Bank AG, 377 F.3d 133, 142 (2d Cir. 2004); Dove v. Atl. Capital Corp., 963 F.2d 15, 19 (2d Cir. 1992); Penn Group, LLC v. Slater, 07 Civ. 729 (MHD), 2007 WL 2020099 at *13 (S.D.N.Y. June 13, 2007) (Dolinger, M.J.); Condit v. Dunne, 225 F.R.D. 113, 115 (S.D.N.Y. 2004) (Leisure, D.J.). Good cause is established by "demonstrating a particular need for protection."

Cipollone v. Liggett Group, Inc., supra, 785 F.2d at 1121; see In re Terrorist Attacks on Sept. 11, 2001, 454 F. Supp. 2d 220, 222 (S.D.N.Y. 2006) (Casey, D.J.) ("Ordinarily, good cause [for a protective order] exists when a party shows that disclosure will result in a clearly defined, specific and serious injury.") (internal quotations and citations omitted); Koster v. Chase Manhattan Bank, 93 F.R.D. 471, 479 (S.D.N.Y. 1982) (Goettel, D.J.). "Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test. Moreover, the harm must be significant, not a mere trifle." Schiller v. City of New York, 04 Civ. 7922 (KMK)(JCF), 04 Civ. 7921 (KMK)(JCF), 2007 WL 136149 at *5 (S.D.N.Y. Jan. 17, 2007) (Francis, M.J.), quoting Cipollone v. Liggett Group, Inc., supra, 785 F.2d at 1121; accord Loussier v. Universal Music Group, Inc., 214 F.R.D. 174, 177 (S.D.N.Y. 2003) (Ellis, M.J.).

The showing necessary to establish such potential harm depends upon the type of harm being threatened and the type of order being sought. At the least, the moving party must provide the court with information from which it can reasonably conclude that the nature and magnitude of the moving party's interest are such that protective intervention by the court is justified.

Koster v. Chase Manhattan Bank, supra, 93 F.R.D. at 479 (internal quotations and citations omitted).

Although the burden is on the movant to establish good cause for the entry of a protective order, the court ultimately weighs the interests of both sides in fashioning an order. Mitchell v. Fishbein, 227 F.R.D. 239, 245 (S.D.N.Y. 2005) (Gorenstein, M.J.) ("'[U]nder Rule 26(c), the appropriateness of protective relief from discovery depends upon a balancing of the litigation needs of the discovering party and any countervailing protectible interests of the party from whom discovery is sought.'"), quoting Apex Oil Co. v. DiMauro, 110 F.R.D. 490, 496 (S.D.N.Y. 1985) (Dolinger, M.J.); Savitt v. Vacco, 95-CV-1842 (RSP/DRH), 95-CV-1853 (RSP/DRH), 1996 WL 663888 at *4 (N.D.N.Y. Nov. 8, 1996) ("A court must strike a balance between plaintiffs' 'desire for full disclosure of relevant information against the defendant[s'] desire to preserve the privacy of [their] employees.'"), quoting Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590, 601 (2d Cir. 1986) (order in sex discrimination employment class action giving plaintiffs' counsel access to defendants' employees' personnel files but precluding access by plaintiffs themselves was "a proper attempt to balance the plaintiffs' desire for full disclosure of relevant information against the defendant's desire to preserve the privacy of its employees"); Koster v. Chase Manhattan Bank, supra, 93 F.R.D. at 479 (Once the movant has established ...


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