Fritts v. Indiana Michigan Power Co., 2001-ERA-33 (ALJ Oct. 26, 2001)

U.S. Department of Labor

Office of Administrative Law Judges 525 Vine Street, Suite 900 Cincinnati, OH 45202 (513) 684-3252 (513) 684-6108 (FAX)

Date Issued: October 26, 2001

Case No. 2001-ERA-33

In the Matter of

CRAIG H. FRITTS
    Complainant

    v.

INDIANA MICHIGAN POWER COMPANY
    Respondent

BEFORE: RUDOLF L. JANSEN
    Administrative Law Judge

   Counsel for the Complainant and the Respondent have sent to me a copy of a Stipulated Protective Order. I have studied the Order and am in essential agreement with its contents other than with respect to paragraph fifteen (15). That paragraph reads as follows:

15. All parties to whom Confidential Discovery Material is disclosed, whether or not they execute a copy of Exhibit A, shall be subject to the jurisdiction of this Court for purposes of enforcing this protective Order. This Protective Order shall continue to be binding after the conclusion of this litigation, and this Court reserves jurisdiction over all parties to whom such information was disclosed for purposes of enforcing it.

   This provision makes the Protective Order applicable to every unrelated third party in the universe to whom confidential discovery material is disclosed without distinguishing the source of the disclosure. It also expressly authorizes my jurisdiction universally for purposes of enforcing the Order. Two separate legal concepts are involved here and I will address them separately.

   The Stipulated Protective Order was signed by counsel in anticipation of confidential and proprietary information and material being exchanged during discovery. Our procedural rules authorize the issuance of a Protective Order where justice requires protection of a party or any person under certain circumstances. 29 C.F.R. § 18.15 and 18.46 (b). The proposed Stipulated Protective Order, I believe, falls within the parameters of this provision. The regulation makes reference to the issuance of an Order to "protect a party or person." Section 18.15(a). That phraseology would appear to authorize the issuance of a protective order which impacts both a party to the litigation or any other person who might become involved in the litigation. But what about an individual acquiring knowledge of protected materials outside of the litigation? See Procter & Gamble Co. v. Bankers Trust Co., (CA 6th, 1996) 78 F.3d 219.

   Paragraph 15 is written to apply to "all parties" regardless of whether they have executed the agreement. As was noted above, Section 18.15(a) refers to an Order protecting "a party or person" implying that the protection is afforded to non-parties. That assumption, however, is subject to doubt since I can locate no case authority supporting the proposition. Thus, the representation in the first sentence of paragraph 15 that the entire universe will subject itself to the jurisdiction of this Court for purposes of enforcing the Order is questionable at best. I believe that this provision needs to be reconsidered. Perhaps further thought should be given to limiting the uses of discovered information and prohibiting disclosure of information beyond the confines of this case. See Vollert v. Summa Corp., (D.C. Hawaii 1975) 389 F. Supp 1348. Conditions may be imposed limited only by the needs of the situation and the ingenuity of counsel. See Federal Practice and Procedure Wright, Miller, Marcus, Section 2043 footnote 24.

   One other problem exists with respect to the first sentence of paragraph 15. The sentence is restrictive and does not distinguish between sources of information. The First Amendment prohibits Protective Orders from restricting the dissemination of information obtained from sources outside of the discovery process. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 3136 (1984); Anderson v. Cryovac, Inc., 805 F.2d 1, 14 (1st Cir. 1986). Thus, it appears that any information obtained through means other than this proceeding is protected information under the First Amendment. Therefore, non-parties and those not voluntarily subjecting themselves to the Protective Order would appear not to be bound by its provisions. As I read the Protective Order, it purports to subject all persons to whom confidential discovery materials are disseminated to the jurisdiction of this Court whether or not they executed the proposed stipulation. The provision does not distinguish between sources of information. In my judgement, the provision could be construed to be overly broad and thus failing to comport with the First Amendment.

   The second sentence of paragraph 15 provides that the Order is to remain binding following the conclusion or settlement of this litigation. The law is clear that a Federal District Court Judge does retain jurisdiction to modify a Protective Order for as long as the Order remains in effect and even after the merits of the underlying case have been determined either by compromise of the parties or by the ruling of an Appellate Court. Ex Parte Uppercu, 239 U.S. 435, 440 (1915); Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 781-782 (1st Cir. 1988), cert. denied, 488 U.S. 1030 (1989); FDIC v. Ernst & Ernst, 677 F.2d 230 (2d Cir. 1982). The courts adopt the reasoning that a Judge revisiting the terms of a Protective Order would not undermine the jurisdiction asserted by an Appellate Court or the merits of the case. Similarly, an Administrative Law Judge retains jurisdiction to modify a Protective Order even after transmitting a Recommended Decision to the Secretary and even after the Secretary has issued a final decision and for so long as the Protective Order remains in effect. Holden v. Gulf Estates Utility, 92-ERA-44 (Secretary, April 14, 1995).

   Because of these considerations, I will withhold execution of the Order in order to allow counsel the opportunity to review the Stipulated Protected Order in its entirety and specifically paragraph 15 to determine whether changes ought to be made consistent with the principles of law outlined. I ask that counsel fully consider the content of our procedural rules found at 29 C.F.R. Part 18 and also the cases referred to in this Order and any other cases that might be applicable to this process. I would appreciate a statement of legal support accompanying the next submission. I further ask that this matter be given your immediate attention.

       RUDOLF L. JANSEN
       Administrative Law Judge