Connecticut Yankee Atomic Power Company v. United States ( 2021 )

In the United States Court of Federal Claims
Nos. 21-1116C, 21-1118C & 21-1119C
(Filed: September 9, 2021)
NOT FOR PUBLICATION
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CONNECTICUT YANKEE ATOMIC *
POWER COMPANY, *
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Plaintiff, *
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v. *
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THE UNITED STATES, *
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Defendant. *
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MAINE YANKEE ATOMIC *
POWER COMPANY, *
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Plaintiff, *
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v. *
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THE UNITED STATES, *
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Defendant. *
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YANKEE ATOMIC *
ELECTRIC COMPANY, *
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Plaintiff, *
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v. *
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THE UNITED STATES, *
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Defendant. *
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ORDER
The parties have jointly moved for entry of a protective order. See Motion (ECF
14). Because the proposed protective order is defective in several respects, the motion
is DENIED without prejudice.
Protective orders are governed by RCFC 26(c), which provides that the Court
may, “for good cause,” take measures to “protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.” See RCFC 26(c)(1). Such
measures may include, inter alia, “requiring that a trade secret or other confidential
research, development, or commercial information not be revealed or be revealed only
in a specified way.” RCFC 26(c)(1)(G). Where good cause exists for protection, this
Court can “exercise its sound discretion” to establish confidentiality. Harris v. Amoco
Prod. Co., 768 F.2d 669, 684 (5th Cir. 1985) (applying the then-applicable version of
the analogous Federal Rules of Civil Procedure). But when it comes to secrecy of this
Court’s records, the Court must do so in light of the “strong presumption in favor of
a common law right of public access to court proceedings.” In re Violation of Rule
28(D), 635 F.3d 1352, 1356 (Fed. Cir. 2011).
The parties’ proposal for sealing confidential materials filed with the Court is
inconsistent with the presumption of public access. Under the proposed protective
order, the parties could designate materials as confidential on a categorical basis,
without even reviewing all of them. See Proposed Protective Order ¶ 9 (ECF 14-1).
Although “blanket” protection of that sort is permitted, the parties’ proposal goes
further: When materials designated as confidential are filed with the Court, they
would have to be filed under seal unless another party objects to confidentiality. Id.
¶¶ 6, 10. The proposed protective order would not require the parties to file either a
motion for leave to file under seal or a redacted version of a sealed filing; judicial
records could instead be sealed based on nothing more than attorney inertia. The
parties would thereby avoid having to show “good cause for restricting the disclosure
of the information at issue.” In re Violation of Rule 28(D), 635 F.3d at 1358; see also,
e.g., 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.”). That, in turn, risks depriving the public of its common-law right to see
what the Court and the parties are up to. In re Violation of Rule 28(D), 635 F.3d at
1356; see also United States v. Cianfrani, 573 F.2d 835, 851 (3d Cir. 1978) (“Public
confidence [in the judiciary] cannot long be maintained where important judicial
decisions are made behind closed doors and then announced in conclusive terms to
the public, with the record supporting the court’s decision sealed from public view.”).
To compound that problem, the proposed protective order’s definition of
“Confidential Material” is potentially overbroad. See Proposed Protective Order ¶ 1.
The parties propose extending confidentiality protection not only to material carrying
legitimate confidentiality concerns, but to “all notes made therefrom and all
references made thereto, of any kind whatsoever[.]” Id. That definition could be read
to cover even “notes” and “references” that are already publicly available, or that do
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not themselves disclose anything confidential. That is improper: Unless documents
actually contain confidential information, they should not be treated as confidential.
See, e.g., In re Violation of Rule 28(D), 635 F.3d at 1360 (“The marking of legal
argument as confidential under Rule 26(c)(1)(G) cannot be justified unless the
argument discloses facts or figures of genuine competitive or commercial
significance.”). In conjunction with the sealing procedures just described, the parties’
proposal might lead to sealing documents that are not “confidential” in any legitimate
sense.
A separate problem arises in the proposed protective order’s treatment of the
Privacy Act, which restricts federal agencies from disclosing certain regularly
maintained information about individuals without the person’s consent. 5 U.S.C.
§ 552a(b). The Privacy Act includes an exception for disclosures pursuant to court
order. 5 U.S.C. § 552a(b)(11). The parties propose that if Plaintiffs request
information covered by the Privacy Act, Defendant will “release to opposing counsel
in these cases records which are relevant to this action … without obtaining prior
written consent of the individual to whom such records pertain.” See Proposed
Protective Order ¶ 12. But the parties do not say whose information might be
discoverable, what kind of information Plaintiffs might seek, or why they need it.
That is baffling: The parties want this Court to extinguish the statutory privacy
rights of absent, unrepresented third parties, without a shred of legal or factual
justification, based solely on the litigants’ bilateral agreement.
The proposed protective order thus requires automatic sealing of documents
that are not confidential under any permissible scope of confidentiality, while
authorizing entirely unexplained exchanges of individuals’ private information that
would ordinarily be forbidden by statute. Although the parties no doubt intended to
comply with the law governing protective orders, their proposal therefore fails.
Rather than attempting to correct the defects in the proposed protective order
sua sponte, I DENY the motion without prejudice. The parties may propose a revised
protective order that complies with the foregoing principles.
IT IS SO ORDERED.
s/ Stephen S. Schwartz
STEPHEN S. SCHWARTZ
Judge
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