U.S. Department of Labor Office of Administrative Law Judges
Federal Building, Suite 4300
501 W. Ocean Boulevard
Long Beach, California 90802
(562) 980-3594
(562) 980-3596
FAX: (562) 980-3597
DATE: February 18, 1999
CASE NO: 1998-ERA-37
In the Matter of
MARK GRAF,
Complainant,
v.
WACKENHUT SERVICES LLC,
Respondent.
PROTECTIVE ORDER
This matter arises under the Energy Reorganization Act of 1974, as amended,
42 U.S.C. § 5851, and the regulations promulgated thereunder at 29 C.F.R. Part 24. Mark
Graf ("Complainant") has requested discovery of confidential employment records
which include disciplinary and medical employee information. Complainant also seeks to depose
employees of Wackenhut Services LLC ("Respondent"), which may lead to the
discovery of confidential disciplinary and medical information pertaining to employees that are not
parties to this action.
In order to protect the privacy of Respondent's employees whose information
may be released to Complainant, I granted Respondent's Motion for Protective Order on February
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1, 1999. Therein, counsel for Complainant was ordered to submit an appropriate protective order
for my signature by February 8, 1999. To date, counsel for both parties have been unable to agree
on the conditions and precautions to be contained in the protective order. Therefore, having
carefully considered the arguments of both parties, I will prescribe the proper conditions and
precautions in this protective order. See 29 C.F.R. § 18.15 (authorizing an
administrative law judge to issue a protective order); seealsoV. D.
Anderson Co. v. Helena Cotton Oil Co., 117 F. Supp. 932, 948-49 (D.C. Ark.
1953)(authorizing the court to prescribe the conditions and precautions in a protective order).
It is hereby ORDERED that:
1. Respondent shall make available to Complainant for review and copying all documents
responsive to Request for Production No. 21. Portions that Respondent considers to be
confidential shall be marked "Confidential."
2. For purposes of this Order, "Confidential" shall mean all documents and
information which are designated as "Confidential" by the representation of
Respondent's counsel at the time of furnishing copies in connection with this action. Such
designation is to be made by stamping or otherwise inscribing the word
"Confidential" upon the document itself. When a document contains information
which is nonconfidential, the Respondent will make a reasonable effort to segregate the
confidential portions by clearly identifying the specific pages and/or portions thereof which
are confidential. Those portions which are not confidential shall not be restricted by this
Order. No document or information may be designated as "Confidential" which
was made available to the general public, or which was obtained from sources other than
through the use of the discovery process under the Rules of Practice and Procedure, 29
C.F.R. Part 18.
3. With respect to deposition testimony of Respondent's employees, counsel for the
Respondent may, on the record of the deposition or by written notice to counsel for the
Complainant, no later than 72 hours after receipt of a deposition transcript, designate all or
any portion thereof as "Confidential" in accordance with the terms of this Order.
All copies of deposition transcripts that contain confidential matter shall be prominently
marked "Confidential" on the cover thereof and shall be handled in accordance
with the terms of this Order.
4. Documents marked "Confidential" shall be reviewed, received, and held
confidential by counsel for the Complainant and used only for the purpose of this litigation.
5. Except with the prior written consent of Respondent or the Court, no documents or
information designated as confidential may be disclosed to any person other than:
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A. Counsel for the Complainant in this action who are engaged in the conduct or
preparation of this action or any appeal from a decision in this action.
B. Secretaries, paralegal assistants, and clerical personnel who are engaged in assisting
counsel in the preparation of this action or any appeal from a decision in this action.
C. Those persons specified in paragraph 6 who meet the conditions of that paragraph.
6. Confidential documents may be shown to the Complainant when counsel for the
Complainant deems it necessary for the preparation of this action, and on the condition that
the Complainant reads this Order and agrees in writing to be bound by its provisions prior
to receiving access to such information. Confidential documents may be shown to third
party experts that are retained for the purpose of assisting in the preparation of this action on
the condition that, before receiving access to confidential documents, those persons read this
Order and agree in writing to be bound by its provisions. Confidential documents may be
shown to deponents and/or witnesses when counsel for the Complainant deems it necessary
for the preparation of this action, and on the condition that those persons read this Order and
agree in writing to be bound by its provisions before receiving access to such documents.
Counsel for Complainant shall be responsible for maintaining a list of all such persons to
whom such documents are disclosed as well as copies of agreements signed by them. For
good cause shown, such list and agreements shall be made available for inspection by
counsel for the Respondent on order of the Court.
7. In the event that Complainant for good cause disagrees with Respondent's designation of
confidentiality with respect to particular information or documentation, Complainant shall
so advise Respondent, andRespondent shall thereupon have ten (10) days in which
to withdraw the claim to confidentiality or otherwise resolve the disagreement, or move the
Court to resolve the disagreement. During the pendency of any such motion, Complainant
shall not disclose the information or documentation that is the subject of said motion.
8. The use of any documents disclosed pursuant to this Order shall be subject to stipulations by
the parties and/or rulings of the Court. This Order shall not be deemed by the parties to
constitute a ruling regarding the relevance and/or admissibility of any fact or document.
9. Upon conclusion of this case, including such appellate review as may occur, or in the
alternative, after the time for appeal has run, counsel for the Complainant shall return all
documents designated "Confidential," and all copies of same, disclosed under
this Order to the Respondent.
10. Upon motion of any party herein and for good cause shown, the Court may modify the terms
of this Protective Order.
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It is so ORDERED this 18th day of February, 1999, at Long Beach, California.