DATE: February 18, 1999

CASE NO: 1998-ERA-37

In the Matter of

    MARK GRAF,
       Complainant,

       v.

    WACKENHUT SERVICES LLC,
       Respondent.

   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

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); see also V. 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:

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, and Respondent 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.

It is so ORDERED this 18th day of February, 1999, at Long Beach, California.

      DANIEL L. STEWART
      Administrative Law Judge

DLS: cdk